A CRITICAL ANALYSIS OF THE EVIDENTIARY VALUE OF NARCOANALYSIS, POLYGRAPH, AND BRAIN MAPPING[1]

 

AUTHORED BY - M N MANSI KAVERAMMA

 

 

Abstract

The legal system is believed to evolve with society’s evolution. Law in itself is not an exhaustive field and depends on other disciplines for its sustenance. While it is true that the legal rulebooks operate in the courtroom, it is the evidence that plays a crucial role specifically in criminal cases. There are many kinds of evidence but with advancements in the field of science as well as technology, the lie detection test, polygraph, and brain mapping have been employed whose application stand differed compared to the way popular media has brought it to the limelight. This research paper tries to shed light on the global stance, the working, the psychological implications, the negatives, the application, and the implication of the DDTs in the context of the Indian Legal System.

 

Keywords- Evolution, DDTs, evidence, implication, negatives, global stance

 

Introduction

According to the Merriam-Webster Dictionary, The act of convincing someone that something is untrue and invalid is called deception.[2]

 

The human urge to unveil the truth isn't a new one. It dates back to 1000 BC when in China, to determine whether a person was lying or not, was asked to put a handful of rice in his mouth. If on spitting, the rice was still dry, it was deduced that the person had performed a fraudulent act. Around 300 BC, Erasistratus employed the method of measuring the pulse of a person as a means to know the truth which now is one of the applicable principles used in polygraph tests. It is worthy to note that in ancient Europe, (based on the divine theory of criminology), trial by ordeal was used as a means to decide whether a person was deceptive or not. During the early 18th century, phrenology and graphology were also employed as a means for the deduction of truth in criminal activities.[3]

 

Over the years, with advancements in technology and science, new methods have been incorporated to get hands on the ‘truth’ as a means to render justice.

 

DDT, an abbreviation often depicting pesticides cannot be understood as it is in the given context. Here, it stands for ‘depiction deception tests’. While the former is a chemical that stands banned in many countries owing to its mala fide effects on life, the latter involves a procedural application to deduce the truth standing recognized to a certain extent in the eyes of the law.

 

Though majorly finding their applicability in the medical field, prolific forms of DDTs used in the courtroom include brain mapping, narco analysis, and polygraph tests.

 

This research paper explores the procedures employed in lie detection, their legal evidentiary value across the globe, and the constitutionality in India in light of relevant landmark case laws.

 

Narco-analysis

Etymologically, narco-analysis is derived from a word meaning “anaesthesia” in Greek.[4] Popularly known as the ‘Truth Serum Test’, this is a form of psychotherapy that involves injecting sodium pentothal or sodium amytal into a person's body, bringing a person to a semi-conscious state, and making the administered person speak from the heart freely. 

 

Though sodium pentothal is administered today when this test was first used in 1922, an obstetrician named Robert House used Scopolamine to get the much-needed truth in a criminal law matter. [5]

 

There is a particular procedure followed when narco analysis is performed on an individual. It is worth noting that, in criminal matters, a court's order directing the performance of the same is mandatory. 

Procedure-

1. Free yet informed consent of the concerned for the administration is taken. 
2. Any of the above chemicals are prepared with 3 grams being dissolved in 1 L of distilled water.
3. The above solution is then injected by an anaesthesiologist into the person's body. The dosage administered varies from person to person based on age, gender, etc.
4. Such administration numbs the CNS (Central Nervous System) takes a person into a semi-conscious state or trance and even relaxes both mind and heart. 
5. Whatever the person reveals as answers to questions asked in such a state are written down and video graphed in the presence of the medical professional. 
6. This is in turn converted into a report that can be used as an indication in a court of law. 
7. Post such a session, which is conducted in the existence of a forensic expert, police officer, and a psychologist, the person after gaining consciousness is also made aware of whatever he or she had spoken during such a hypnotic state. [6]

 

Negative implications

Narco analysis test is not free of risks. It must be noted that non-administration of the medically prescribed quantity of the chemical into the body can even result in permanent damage to the central nervous system, slipping into the coma of an individual or even death.[7]

 

Sodium pentothal is safe for application even on pregnant women as it is non-fatal to the foetus and also, as a barbiturate, it also finds its application in treating anxiety, and epilepsy, and improving sleep. It tends to block GABA receptors lowering the brain activity but it makes one who is administered with it become suggestive in nature so things told may also become a lie hence making it not entirely admissible in the court of law. Also, many agencies like the CIA train their agents to resist the effects of sodium pentothal.[8] Sodium thiopental, as it is also known, is not free of any negatives. Its injection is subject to side effects like sneezing, shivering, excessive feeling of sleep and lower breathing rate.[9] Cardiac arrhythmia, another side effect can cause heart damage too.[10]

 

Polygraph tests

Polygraph etymologically translates to ‘many writings’ which was initially brought in by August Vollmer in 1921.[11] It is mistaken to be a lie detection test but, it is more of a ‘diagnosis’ instead. A polygraph machine consists of anemographs, a sphygmomanometer, and also electrodes. Majorly these are strapped to the chest area, abdomen, biceps, and the tips of the fingers of the person to measure the following- 

1. Levels of perspiration
2. Respiration rate
3. The rate of heartbeats

The above three factors are assessed while questioning and deduction are made. Psychologically, an individual facing feelings of guilt, anxiety, or fear results in changes in the above causing such physiological responses also influenced by the fight or flight mechanism in the body.

 

The Polygraph test procedure is classified into the following stages[12]-

1. The pre-interview stage involves informing the person on whom it is going to be performed about one’s available rights under the law and also procuring information regarding any subsisting medical condition that may hamper the accuracy of the test. A consent of the person is also taken for the conduction of the test verbally or may be made to sign a form of consent to take the test. Control questions are also framed during this stage.
2. The sphygmomanometer post the pre-interviewing, is attached to the body of the person and inflated with a gap of 10-20 seconds after every response to the question, the next question is proceeded with. The reactions of the instrument are noted down simultaneously. The person is uncuffed after the questioning. 
3. The person is then asked about his or her answers to the questions to refine queries made along with reviewing the same. The same procedure procures more of the polygrams as above.
4. Stimulation tests are sometimes employed to increase the accuracy of the polygraph tests.
5. Post such questioning (wherein, control questions, psychological questions, case-related questions, and personal questions are employed), by comparing the responses given in relevant and irrelevant questions, it is diagnosed whether the person has been deceptive or not. If the latter is derived from it, he/she may be asked to explain the answers given and the dissimilarities obtained.

 

It is to be noted that a variety of kinds of questions are asked to the person including concealed information questions, relevant or irrelevant questions, and control questions. It must be noted that the comparative analysis of answers to relevant and irrelevant questions is what marks a successful polygraph test’s foundation.

 

Generally, there are two kinds of methods employed in polygraph tests-

1. CQT (Control Question Technique)
2.  GKT (Guilty Knowledge Test)

 

CQT is a form of “detection test”, introduced by John E. Reid initially, wherein questions of accusation are posed to the examinee to detect any form of deceit if present.

 

GKT, also known as CIT, was introduced by David Lykken. It generally involves multiple choice questions in the form of a test which consists of questions seeking answers which the examinee himself only will know regarding a crime. It is a form of recognition test.[13]

 

It is worth to note that despite CQT being widely in use, the GKT is seen as a better alternative to CQT as Daubert Standard replaced the Frye standard in the US.[14]

 

Polygraphs- Any negatives?

It must be noted that polygraph tests are not 100% accurate every time. There are scenarios where it can backfire because some physiological responses are not unique to the act of lying alone but may arise from other acts as well. Also, there are instances of false positives reported also. Even a person under chemotherapy or intoxication cannot be subjected to this supposed lie detection test as the accuracy is highly questionable.[15]

 

Brain mapping

Invented by Lawrence Farwell in 1995, also known to be ‘brain fingerprinting’, it mainly works on the principle of generation of unique brain waves in the brain using electrical impulses generated in neurons through action potential on exposure to the same stimulus repeatedly. 

 

Generally, this method is employed to detect abnormalities in the brain like epilepsy, autism, etc. 

 

In India, P300 is the prominent form of brain mapping used. 

1. This involves attaching neurosensory electrodes on a person's wrist who is seated in an air-conditioned room and the encephalography instrument is attached to the scalp by electrodes.
2. Post the control trials, the response of the person when subjected to incident-relevant images or statements is recorded using EEG ERP Neuro Scan cording system.
3. The image of the brain map is then studied by neurosurgeons in light of the P300 wave procured and if the person has been exposed to such images or occurrences related to the incident before, by employing neutral, probing, and target questions information is extracted from the person by activating the brain to access the electrochemical activity.[16]

 

Brain mapping- A Threat?

Brain mapping holds the risk of creating seizures in people with epilepsy. There are also chances when the inserted electrodes may interact with the brain’s membranes causing pain and sensations in a person.[17] If a high current is induced by mistake in the person undergoing the test, it can also cause defective motor functions, impairment of cognitive functions, and even loss of memory.[18]

 

The Global legal evidential validity of DDT

United Kingdom 

Polygraph tests and narco-analysis both are non-admissible as evidence in criminal cases.[19]

 

United States of America

The evidential admissibility of polygraph tests in the courtroom has been left to the discretion of its respective states. Arizona, Georgia, California, Nevada, and Florida selectively allow such admissions on a case-to-case basis. [20] In Frye v. United States[21], it was held that polygraph tests are not admissible as evidence in a law court. Also, in United States v. Scheffer[22], it has been held that an individual’s right to fair trial stands not violated if the results obtained in a DDT are not admitted in the court of law.

 

Philippines

In the Philippines, Polygraph tests are non-admissible in a court of law due to their lack of 100% accuracy which is subjective and not conclusive evidence in itself. [23]

 

Japan

In Japan, polygraph tests like YKK and TKK have been adopted by the police as psychological tests since 1953. The results from the same have been accepted as an acceptable piece of evidence in a law court.[24]

 

China

In China, it is quite surprising that polygraph tests are not admissible as evidence in criminal cases but are accepted in the courtroom in case of civil matters. [25]

 

Australia

Except for one particular legislation, there is no other statute at play that speaks of the express prohibition on admitting polygraph tests as evidence in the court. [26]

 

Canada

In Canada, polygraph tests are not admissible during criminal trials as held in R v. Beland.[27] 

 

Legal Provisions and DDTs in India

Examining the constitutionality as well as the evidentiary value of deception detection tests in Indian courts requires consideration of numerous statutes and provisions.

Article 20(3)[28] of the Constitution of India protects one against the self-incrimination i.e., standing as a witness against one’s self. It stands inclusive of the right to remain silent when one is confronted by such situations as held in the case of Nandini Sethpathy v. Dani[29]. 

 

Article 21[30] of the Constitution of India gives for the right to life of dignity along with personal liberty. 

 

Code of Criminal Procedure stands pretty interpretative on its stance. Under Section 53(1)[31], it doesn't explicitly provide for the employment of lie detection tests to gather evidence though on the request of a police officer, it permits the medical officer to conduct a medical examination to procure evidence. Section 161(2)[32] of CrPC lays that during police interrogation, if answering any question may result in criminal charges being framed against a person, the person need not answer them. Clause 3 of section 313[33] of CrPC provides that during the inquiry in the courtroom if the person doesn’t say a word or gives a false statement he doesn’t attract any punishment. Section 315(1)(b)[34] of the Code of Criminal Procedure lays that silence cannot be inferred as acceptance of charges against a person when a person appears as a witness himself in a court of law.

 

Under the IEA (Indian Evidence Act), section 3[35] evidence is defined and which kinds of evidence are admissible in a court of law. Here, it nowhere seems to include any form of lie detection test within its ambit. However, section 45[36] lays down that results obtained from such tests may be treated as supplementary evidence and inclusive under expert opinion. 

 

Section 24 to section 27[37] of the IEA doesn’t permit the results admissibility from the DDTs employed as conclusive evidence. Reading Section 24(8)[38] only indicates a safeguard against any form of violation of a person’s right under Article 21 by forbidding the admissibility of confession procured by inducement which includes that of the drug as well.

 

 

India’s legal scenarios and DDTs employed

India and Narco-analysis

In India, the narco-analysis test was 1st employed in the Godhra riots case in 2002.[39]

In the 26/11 Mumbai blast case[40], Abu Mujahid alias Ajmal Kasab was subjected to the narco-analysis test by the Mumbai Police which resulted in startling revelations about the involvement of both the Pakistan army and the terror groups in using Islamic religious institutions to spread jihad and the planning behind the blasts.[41]

 

In the Nithari Murders[42], Mohinder Pandher and Surender Kohli were subjected to narcoanalysis post-finding remains of the bodies behind Pandher’s house. The narcoanalysis test was successful on Surender Kohli as he openly revealed the crimes he had committed in the same.[43]

 

In the Arushi Talwar Murder case[44], where a 13-y/o Arushi Talwar has been found murdered in her bedroom in May 2008 and Hemraj has been found dead on terrace the very next day, Krishna Tandairaj, were subjected to narco-analysis but the statement given as to be present at the victim’s home on the night of the crime was not admitted as evidence. Also, the victim’s parents, Dr Rajesh Talwar & Dr Nupur Talwar were both subjected to the Polygraph tests as well.[45]  But, to date, the murder remains a mystery as there was no evidence to prove who had committed the murders, and charges were dropped against the parents in 2013 as there was no proof.

 

In the Malegaon Blasts case, a bomb attached to a motorcycle burst and killed almost 79 people and a certain politician of the right-wing party, and an army personnel were found to be two of the prime accused. Dayanand Pandey, another accused was subjected to the narco-analysis test.[46]

 

Brain Mapping and the Indian Context

Both the accused in the gruesome Nithari murders case, were also subjected to brain mapping in the form of BEOS. It was the brain mapping of Surendra Kohli that revealed that he was a sufferer of necrology leading to the eating of human flesh.[47]

 

In the Shraddha Walker Murder case, the police were contemplating subjecting Aftab Poonawala to brain mapping as there were inconsistencies in statements made by him during another lie detection test conducted prior.[48]

 

Polygraph tests in India

In the Shashi Murder case[49], one of the accused in a law student’s disappearance was subjected to polygraph tests in addition to narco-analysis as well. Vijaysen Yadav revealed that Anand Sen had impregnated the student and had confessed to killing her with his own hands and disposing of the body in the canal. Anand Sen’s application stands pending before the High Court as he stands arrested.

 

In the Shraddha Walker Murder case, Aftab Poonawala, the one responsible for killing his girlfriend was subjected to a polygraph test where he revealed certain vital information which led to the apt recovery of almost 5 knives from his residence.[50]

 

Constitutionality of Deception Detection Tests

The admission of the results of deception detection tests prima facie appears to violate Article 20(3) guaranteed protection against self-incrimination and Article 21 subjecting one to mental agony on administering certain processes.

 

In Ramchandra Reddy versus the State of Maharashtra[51], it was held that statements made by inducing one forcefully through a narco-analysis test specifically those that turn out to be self-incriminatory, cannot be admitted as evidence in a court of law.

 

In the State of Bombay versus Kathi Kalu[52], It was decided that taking a polygraph without the subject's consent violates Article 20(3) of the Indian Constitution.

 

Thus, it can be said that the consent and nature of statements made during such tests are factors that determine the constitutionality of the deception detection test in India.

 

Lie detection and the Indian law

In Dinesh Dalmia v/s State[53], the Honourable Court held that if the accused does not positively aid in conducting the investigation process, scientific methods can be employed to extract the truth. 

 

In Shailendra Sharma v. State[54], it optimistically helps that the procedure of narco analysis helps in executing the investigation. 

 

In Rojo George v. DSP[55], it was held that while there is a possibility of mishap that can occur during the conduction of a narco-analysis test despite taking reasonable precautions by a medical professional, the total exclusion of employing deception detection tests in conducting police investigation is utterly impossible.

 

In Selvi v. State of Karnataka[56], where a woman accused her parents by filing an FIR of killing her husband whom she married against her parents’ wishes and whose body was found smashed by a huge stone in a field. It was held that only with the consent of the party concerned, the 3 forms of deception detection tests can be employed. Also, the results from the same are not to be treated as conclusive evidence but rather as supplementary evidence admissible under section 27 of the IEA.

 

Administration of lie detection tests and relevant guidelines

Like in the US, India too has its own guidelines in place to ensure that DDTs aren’t use to infringe on one’s rights in the guise of performance of duty.

 

This came about when Shri Inder P Choudary had reported being subjected to several kinds of violence in custody on grounds of murder when he had come to Shimla regarding a civil matter. It was even alleged that he was subjected to lie detection tests without considering his consent. A Petition was presented before the NHRC which was declined and so was it declined at the High Court and the SC in the form of writ petitions when they were filed. Even the review petition was rejected. But, ultimately while rejecting the last review petition in the matter, the opinion of the Commission to formulate guidelines for the same was adopted in 1999. The guidelines included the following-

1. 1. The accused’s consent is a mandate.
   2. The Judicial Magistrate is to be present when such consent made
   3. Once consents, the person is to be provided legal professional and intimation regarding various implications of the test.
   4. In front of the Magistrate at the hearing time, the accused has the right to be represented by a legal professional
   5. The person is to be intimated that the statement made before the Magistrate shall not be considered a confessional statement.
   6. The Magistrate is to be considerate about the tenure of detention and the interrogation method as well.
   7. There must be the person’s lawyer present and an independent unbiased agency to conduct yet record the entire procedure of the Lie Detection Test
   8. A record has to be maintained regarding the medical and factual narration of information so received.[57]

 

CONCLUSION

The evidentiary value of deception detection tests stands non-uniform throughout the globe due to the major reasons being the question of human rights and the accuracy rate of these test results. Also, the query around it resulting in self-incrimination stands midway to declaring the use of such tests as conclusive evidence in a court of law.  In India, Cr PC and the Indian Evidence Act have provisions at play to prevent the violation of rights when DDTs are employed.

 

Thus, it can be concluded that such DDTs stand as supplementary evidence in the courtroom of India unlike in the UK, USA, and Canada where such admissibility as evidence is explicitly prohibited by the law of the land.

 

---

[1] M N Mansi Kaveramma, B.B.A LL.B(Hons), CMR School of Legal Studies, Bengaluru

[2] Deception, Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/deception

[3] Martina Varcinova, “Historical Techniques of Lie Detection”, Eur J Psychol. 2015 Aug; 11(3): 522–534., https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4873061/

[4] Narco-analysis, International Dictionary of Psychoanalysis, Encyclopedia.com. 30 Jul. 2024 https://www.encyclopedia.com

[5] Joe Schwarcsz PhD, “What is the Truth Serum?”, https://www.mcgill.ca/oss/article/drugs-history-you-asked/what-truth-serum

[6] “Narco Analysis Test in Criminal Investigation System”, SIFS India (Published on 9th November 2020)

[7] Supra 5

[8] Armaan Gvalani, “Are Truth Serums Real?”, https://www.scienceabc.com/eyeopeners/are-truth-serums-real.html , published on 16th March 2022

[9] Pentathol, RxList, https://www.rxlist.com/pentothal-drug.htm

[10] Supra 7

[11] Nathan J.Gordan,William L.Fleisher, “Effective Interviewing and Interrogation Techniques (4th Edition),Academic press,2019, Chapter 24,Pages 311-325

[12] Neta Dan, “The Entire Polygraph Testing Procedure (4 Phases) Explained”, Axeligence

[13] Blake McConnell and Timothy J. Weber, Ed.D, “The Concealed Information Test

An Alternative to the Traditional Polygraph”, https://leb.fbi.gov/articles/featured-articles/the-concealed-information-test-an-alternative-to-the-traditional-polygraph#:~:text=The%20traditional%20polygraph%20Comparison%20Question%20Test%20%28CQT%29%20detects,detect%20a%20person%E2%80%99s%20guilty%20knowledge%20of%20a%20crime.

[14] Synnott, J., Dietzel, D. and Ioannou, M. (2015) ‘A review of the polygraph: history, methodology and current status’, Crime Psychology Review, 1(1), pp. 59–83. doi: 10.1080/23744006.2015.1060080.

[15] Christian L. Hart Ph.D. , “Do Lie Detector Tests Really Work?”, Psychology Today

[16] Vidhya Shree Theresa, “All you must know about brain mapping in India” (Published on 10th July 2022)

[17] Epilepsy Foundation, “What are the risks of brain mapping?”

[18] Herman Katz, “How can electrical accidents lead to brain injuries?”

[19] Government of UK, “Policy Paper on Mandatory Polygraph tests Factsheet” (updated 3rd January 2024)

[20] Christina Majaski, “Are Lie Detector Tests Admissible in the Court?” (Last updated on 14th December 2023)

[21] Frye v. United States, 315 F.2d 491

[22]United States v. Scheffer 836 F.Supp.1164 (E.D.Pa.1993)

[23] Neta Dan, “Polygraphs’ admissibility in Philippines courts- A complete guide”

[24] J Fukomoto, “Psychophysiological Deception in Japan- The Past and the Present”,(1982), Polygraph Journal, Volume 11,Issue 3

[25] Charles R. Honts,Steven Turber, “A Comprehensive Meta-Analysis of the Comparison Question Polygraph Test” (first published on 18th December 2020), wiley Online Library

[26] Neta Dan, “Are Polygraphs Admissible in Australian Courts?”, Axeligence

[27] R v. Beland, [1987]2 S.C.R. 398

[28] Article 20(3), Constitution of India

[29] Nandini Satpathy v. Dani(P.L) and Another, 1978 AIR 1025

[30] Article 21, Constitution of India

[31] Section 53(1), Code of Criminal Procedure,1973

[32] Section 161(2),Code of Criminal Procedure,1973

[33] Section 313(3),Code of Criminal Procedure,1973

[34] Section 315(1)(b),Code of Criminal Procedure,1973

[35] Section 3, Indian Evidence Act,1872

[36] Section 45, Indian Evidence Act,1872

[37] Section 24-27, Indian Evidence Act,1872

[38]Section 24(8), Indian Evidence Act,1872

[39] Sonakshi Verma, “The Concept of Narcoanalysis in view of Constitutional Rights and Human Law”

[40] Mohammad Ajmal Kasab alias Abu Mujahid v. State of Maharashtra AIR 2012 Supreme Court 3565

[41] India Today, “Confessions of a terrorist”, Published by AtMigration (Published on 7th may 2010)

[42] Surendra Koli v. State of UP AIR Supreme Court 970

[43] Press Trust of India, “Nithari case- narco test of the accused”(Published on January 7th 2007), Hindustan Times

[44] Dr.(Smt.)Nupur Talwar v. State of UP and Anr  Criminal Appeal number 293 of 2014

[45] Pragya Jain,Taniya Roy, “Critical Analysis of Arushi Talwar Murder Case”, ILSJCCL, ISSN-2581-8465

[46] India Today, “Malegaon Blast Probe:Dayanand undergoes narco test”(Updated on 21st November 2008)

[47]Supra 36

[48] “Aftab’s brain mapping to be done if narco ,polygraph tests are inconclusive”, Onmanorama(Published on 30Th November 2022)

[49] K.M Seema Azad v. State of UP, Criminal Appeal No.1055 of 2011

[50] Poulami Ghosh, “Aftab Poonawal confesses killing Shraddha in polygrapgh test; multiple relations; Report”, Hindusthan Times

[51] Ramchandra Reddy v. State of Maharashtra, Criminal Appeal Nos. 269 of 2016 & 255 of 2023

[52] State of Bombay v. Kathi Kalu, AIR 1961 SUPREME COURT 1808

[53] Dinesh Dalmia v. State, 2006 CRI. L. J. 2401

[54] Shailendra Sharma v. State, WP (Crl.) 532 OF 2008

[55] Rojo George v. DSP, 2006(2)KLT197

[56] Selvi v. State of Karnataka, AIR 2010 SUPREME COURT 1974

[57] “Guidelines on Administration of Lie Detector Test”, National Human Rights Commission, https://nhrc.nic.in/press-release/guidelines-administration-lie-detector-test