Guidelines on Submitting Polygraph Examinations as Part of a Bundle of Evidence
It has been established that polygraph examinations can be submitted as part of a bundle of evidence, however the success of using polygraph examinations effectively is largely dependent on the how the examination is conducted in accordance with already established rules and regulations, as well the qualifications and experience of the examiner that conducted the examination. Herewith are guidelines that companies should keep in mind when attempting to submit the results of the examination as evidence. Do keep in mind that these guidelines do not serve as legal advise, and it is essential to seek guidance from legal professionals. These guidelines were formulated based on available information and passed experience to significantly increase the chances of a successful submission. It is important to remember that if the examinations are not correctly implemented from the start, it can be very costly if the award is overturned in the future.
It is vital that the polygraph examiner testify to the examination as an expert witness when the examination is submitted as part of the evidence.
In South Africa there is currently no legislation regulating the use of the polygraph. Therefore, there is nothing prohibiting or preventing the submission of polygraph results to corroborate other evidence in our Courts of Law. Many CCMA cases have referred to situation and regulations that need to be followed when the examination is conducted to ensure that it is considered a free and fair practice.
When is an Employer Permitted to Use Polygraph Examinations?
Although there is no legal precedent regarding when a person can or can not use polygraph examinations currently in South Africa, there are regulations governing when the examinations can be considered a free and fair forensic tool to assist in investigations. According to The South African Labour Guide employers are generally permitted to use the polygraph to investigate specific incidents where—
- Employees had access to the property which is the subject of the investigation;
- There is a reasonable suspicion that the employee was involved in the incident;
- There has been economic loss or injury to the employer's business like theft of company property;
- The employer is combating dishonesty in positions of trust;
- The employer is combating serious alcohol, illegal drugs or narcotics abuse and fraudulent behaviour within the company;
- The employer is combating deliberate falsification of documents and lies regarding true identity of the people involved.
What is important in these guidelines is the fact that the employers needs to have reasonable justification when requesting a person to undergo a polygraph examinations in relation to a specific incident, and will need to justify why the individuals specifically were selected to undergo the examination. It would be, as an example, difficult to justify selecting only two staff members to undergo a polygraph examination if there are more staff members who reasonably had the capacity to be involved in the matter under investigation. In such a case, it is likely that the employer will be accused of selective discrimination which will disqualify the process.
Basic Regulations to Implement
There are a few basic steps that employers can follow to ease the polygraph process and increase the chances of a successful submission.
Amending Employee Contract
Employers can supplement employee contracts to contain a clause stating that employees may be requested to undergo polygraph examinations as required by the company. This clause can refer to specific incident examinations as well as continuous screening examinations and is especially essential for high-risk or key security positions, as well as any position requiring a trust relationship. It is important to note that even with a contractual clause, the examination needs to occur on a voluntary basis, however such a clause can greatly assist in implementing polygraph examinations.
Informing Employees Prior to the Examination
Although there are cases where it is not possible to inform employees that they will be undergoing examinations as it might compromise the investigation, it is generally required that all employees be consulted prior to the examination in order to afford them the opportunity to seek council and make their own preparations. It will also be viewed as an act of good faith by the company.
The Examination is a Voluntary Process
In keeping with The Constitution of South Africa polygraph examination are considered a voluntary process and a person can not be forced to undergo the examination. It is against the Constitution of South Africa to compel a person to undergo a polygraph examination, unless she or he consents to it. The consent must be in writing.
- The individual should be informed that—
- the examinations are voluntary;
- only questions discussed prior to the examination will be used;
- he/she has a right to have an interpreter, if necessary;
- should he/she prefer, another person may be present during the examination,
- provided that person does not interfere in any way with the proceedings;
It is important to note however that the investigating team may make a negative inference if a person does not wish to submit to a polygraph examination and can reasonably be expected to investigate the matter further. Subsequently, it can also be submitted in supporting evidence that the employee was offered the opportunity to undergo a polygraph examination in order to clear their name which they refused. The chairman or commissioner can make a negative inference based on the information, especially when corroborated by other circumstantial evidence. As an example, if only five employees had access to the location where an item was stolen, and four of the employees passed their polygraph examinations while one refused, that refusal could in conjunction with the fact that the other employees passed the test could serve as evidence in terms of balance of probability.
Treat Everyone Equally
One of the fundamental questions asked when a polygraph examination is scrutinized in a disciplinary hearing or arbitration is whether all staff members were treated equally. As mentioned earlier, the employer will be requested to justify why persons were selected to undergo a polygraph examination. This will entail the employer providing the evidence that lead them to reasonably conclude that the employees in question could have been involved in the matter under investigation and therefore required the assistance of a polygraph examination. Alternatively, if any employees were not required to undergo a polygraph examination despite the fact that they too could have been involved in the matter under investigation, it can be seen as selective discrimination which will discredit the investigation and any results obtained during the examination.
Only Use Qualified and Accredited Polygraph Examiners
It has been established that the weight that the examination will have as part of a bundle of evidence is largely based on the qualifications, accreditation and experience of the polygraph examiner. Using an unqualified or inexperienced examiner will have very dire consequences when attempting to submit the examination as evidence, not to mention to the investigation itself. Considering the impact that polygraph examinations can have on the employees, the employer and the matter under investigation, it is highly advised to carefully select the polygraph examiner. Some important guidelines when selecting a polygraph service provider:
Do they have the correct qualifications?
Due to a lack of regulation in South Africa it can be difficult to determine whether a polygraph examiner has the correct qualifications and the needed experience to conduct polygraph examinations. It is in the best interest of all parties involved to ensure that the examiner was qualified at a professional and accredited institution.
Are they members of a professional organization?
If a polygraph examiner is a member of a professional organization it implies adherence to a strict code of conduct and regulations in conducting polygraph examinations. There are multiple professional organizations applicable to polygraph examinations which should be taken into consideration. The most prevalent in South Africa being the Southern African Polygraph Federation (SAPFED); a divisional member of the American Polygraph Association, and internationally the American Polygraph Association. These organizations also provide continuous education seminars for its members to ensure that they remain up to date with the latest techniques and technology available.
Did they follow the correct protocols and procedures?
There are regulations and minimum requirements that an examiner needs to adhere to for the examination to be considered valid. If these regulations are not adhered to, it can bring the results of the examination into dispute. Some of these regulations include:
- An examiner should be independent and should conduct the examination fairly and free of bias.
- The examiner should only use question techniques that have been scientifically validated and internationally accepted as reliable and accurate.
- An examiner should not conduct more than five examinations in a 24 hour period.
- An examiner should utilize a polygraph instrument that records separate, permanent and simultaneous reactions of the respiratory, cardiovascular, and electro-dermal activity of the examinee.
- An examiner should only render a finding after they have recorded at least three charts of suitable quality.
- The examiner should explain the process of the examination and the instrumentation used in full, and obtain informed consent from the examinee before continuing with the examination.
- The questions to be asked during the examination should be discussed in full with the examinee and the examiner should confirm that the examinee understands the questions fully.
The Polygraph Examiner Should Testify as an Expert Witness
The test requires a person to read the results it produces and make an inference from the data collected. It follows that the reliability of the polygraph is largely dependent on the expertise of the person conducting the test. Consequently, the value of the test will only be as good as the examiner. These sentiments were debated and concluded in Sterns Jewellers v SACCAWU (1997) 1 CCMA 7.3.12 Case No. NP144.
As the polygraph examiner is considered a professional in their field, the results of a polygraph examination is essentially submitted as an expert opinion. This means that it is a requirement for the examiner to testify to their finding at a hearing or arbitration. The testimony of the examiner will be tested by the presiding officer to determine the validity and reliability of their testimony. The examiner will be cross-examined by both sides in the proceedings as well. Failure by the examiner to testify to their expert opinion, or if their testimony is found to be unreliable, it will greatly discredit the polygraph examination results and could compromise the case significantly. The qualifications, accreditation and experience of the examiner as well as their testimony itself will greatly determine to what extent the polygraph examination can be deemed as valid and reliable. Additionally, only evidence or information that is testified too will be taken into account by the presiding officer when processing the examination as part of the evidence.
How Can We Help You?
We are eager to assist you and your company and to provide you with polygraph examinations of the highest quality. If you have any questions or queries, would like us to give a presentation or if you would like more information on any of the professional services that we provide, please do not hesitate to ask. Our staff members can't wait to hear from you.
PISA Integrity Assessment Centre A4 Advert: Download
PISA Integrity Assessment Centre Small Advertisement: Download
PISA Integrity Assessment Centre Tri-Fold Brochure: Download