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LEGALITY AND THE PROOF FORCE OF THE EXAMINATIONS

 Although the polygraph technique is over 115 years old and in Romania it has been functioning for over 38 years, few Romanians are aware of details as far as the functioning principle of the polygraph technique is concerned. 

Some people who discuss about this technique make either erroneous appreciations with respect to the probationary force of the polygraph examinations or utter ungrounded opinions in connection with the validity of the results.

These persons, who believe that the polygraph technique has no juridical value, bring as sole argument the fact that the polygraph examinations are not expressly specified  in the Criminal Procedure Code. This modality of analysis is superficial and speculative and the conclusion can only be false.

We will demonstrate below what is the correct and logical interpretation of the law texts that regulate the polygraph activity.

The Criminal Procedure Code, in Title III, Chapter I, article 64, enumerates the probation means admitted by law, these being:

- Declarations of the recriminated or of the defendant;

- Declarations of the harmed party, civil party and of the civil responsible party;

- Declarations of the witnesses;

- the inscribed papers;

- audio or video recordings;

- photographs;

- material means of probation;

- forensic medicine findings;

- expertises.

As we can notice, indeed, the polygraph is not mentioned among the probation means, and we consider that it should not even be mentioned as such among the probation means.

On the other hand, however, it must be mentioned that the polygraph examinations are materialized in expertises and these are proof means stipulated by the law.

We can see that the law maker, when elaborating the Criminal Procedure Code had in mind at the chapter of proof means, without naming them,  the existence of any reports, of technical-scientific findings or expertises, that could help finding out the truth and settle a cause. 

Of course, the position of the law maker was objective and fair, as he had in mind the development of science and technology, and realizing that he cannot restrain the area of the proof means, he nominated only the probation known means at the date of the elaboration of the Procedure Code, as such including them all in the category mentioned above. An example in this sense can be as well the genetic fingerprint, unknown at the date of the elaboration of the Criminal Procedure Code, but that is currently known as a means of proof, without being expressly mentioned, but through the expertises drafted by the specialists in the field.

With reference to the enumeration of the probation means in the article 64 in the Criminal Procedure Code, we must specify that these (the inscribed papers, audio or video recordings, photographs, material mens of proof), although mentioned alone, are not admitted as such as exhibits, but after they have been subject of the expertise. To be more precise, the photography, enumerated as a means of proof in itself, is not validated as exhibit until a specialist demonstrates in an expertise that is authentic and not fake. And this is only an example. The same regime applies to the inscribed papers, the audio or video recordings, material means of proof.

On the other hand, those called to make justice have the obligation, in order to find out the truth, to dispose all kinds of expertises, to settle the causes they investigate based on scientific proof means. As such, article 62 in the Criminal Procedure Code stipulates: "in order to find out the truth, the criminal investigation body and the court are obliged to settle the cause under all aspects based on proves".

In article 63 in the Criminal Procedure Code, the law maker explicitly defines what is understood by proves, showing also that there is no hierarchy of proves in the report of a pre-established value of these: "It is a proof any element of fact that serves to find out the existence or non existence of an offense, to identify the person that committed it and to know the circumstances necessary to justly settle the cause".

The proves do not have a value previously established. The appreciation of each proof is done by the criminal investigation body and by the court in accordance with their conviction, formed following the examination of all proves administered and following their conscience.

From the analysis of the above mentioned texts, it is to be concluded that the polygraph examinations, materialized in expertises, perfectly fit in the legislative provisions referring to means of proof. Therefore, the polygraph examinations are allowed and done for the purpose of finding out the truth, serving to the ascertain of the existence or non existence of the offense, to the identification of the person committing it and to the acknowledging of the circumstances necessary for the correct settlement of the cause. The conclusions formulated are scientific, based on the fundamental laws of psychology and physiology and materialized in expertises, that, in their turn, are means pf proof recognized by the legislation.

Further, article 67, chapter "'Conclusiveness and usefulness of proof" din Criminal Procedure Code, stipulates that during the criminal trial, the parties may suggest proof and require their administration and "the request for the administration of a proof cannot be rejected, if the proof is conclusive and useful" and "the admission or rejection of the request is done with reason".

The conclusion is this: in a state with the rule of law, in order to find out the truth, any type of expertise can be allowed, that are recognized as means of proof, and they must be made available for the criminal investigation bodies and courts that shall appreciate their value in accordance with their convictions, formed following the examination of all proves administrated and following their conscience.

On the other hand, it is to be mentioned the fact that in a judicial or extra judicial investigation, searching for the truth, the polygraph experts, through specialized examinations,  are the only ones that have at their disposal a scientific method and ultra performant medical equipment with the help of which they can access the information stored in the memory of the examined subjects, real information, established in time, that no other means of investigation or research can reveal or interpret.

Moreover, by comparing the conclusions formulated in the criminal expertises and the polygraph expertises we can ascertain the following:

- in the criminal expertises the traces picked up with the occasion of the perpetration of the offense are analyzed and the conclusions formulated refer to the their origin. The expert can as such demonstrate that the traces belong to a certain person, but cannot appreciate if the respective person committed or not the offense investigated. In other words, the experts can place a person in the offenses area, but cannot specify if such person committed the offense.

- in the polygraph expertises the information stored in the memory of the examined person with respect to the perpetration of the investigated offense are analyzed, and by formulating the questions, a connection of direct causality is made between the offense and the author, and by interpreting the honesty in the answers supplied, it can be established that the person tested is or not involved in the perpetration of the offense or has knowledge about the identity of those who committed it.

At the same time, the entirely humane method of the polygraph examinations ensures in accordance with the legislation, both through form and through the technique used presumption of innocence (art. 66 CPP), and the legal means of searching of proof. The methods used in investigation are non-violent, do not harm life, integrity  and security of the natural person, do not touch the honor, liberty and dignity of the person examined. These reflect the text and the meaning of the Universal Declaration of Human Rights, defend the innocents, reestablish and protect the rights of the victims.

The entire procedure of examination in its complexity aims at both identifying the dishonest persons, but especially the honest ones, being able to be considered an important help for the latter ones when suspected from reasons not imputable to them.

Also, the transparency of the method, neutrality of the examiner and the confidentiality of the examinations, but also the huge percentage of exactness (between 96-98%) allow to the tested subject, unlike any other direct investigation method, to free himself of any prejudice or external source of stress, as such a sincere collaboration being established, free of any refrain in favor of the solving of the examined cause.

Analyzing the proving value of the materialized polygraph expertises in international context, we find out that this method used for over 115 years, in states with a consolidated democracy, this proving value follows the same trajectory as in our legislation in the sense that they are not forbidden by law, but on the contrary, there is a legislative framework that allow its usage. The power of the expertise is not pre-established anywhere, it is left to the consideration of the judges.