INDIAN JOURNAL OF MEDICAL RESEARCH

Indian J Med Res. 2011 Jul; 134(1): 4–7.

PMCID: PMC3171915
PMID: 21808125

Supreme Court judgment on polygraph, narco-analysis & brain-

mapping: A boon or a bane

Introduction
The deception detection tests (DDT) such as polygraph, narco-analysis and brain-mapping
have important clinical, scientific, ethical and legal implications1. The DDTs are useful to
know the concealed information related to crime. This information, which is known only to
self, is sometimes crucial for criminal investigation 2. The DDTs have been used widely by
the investigating agencies. However, investigating agencies know that the extracted
information cannot be used as evidence during the trial stage. They have contested that it is
safer than ‘third degree methods’ used by some investigators. Here, the claim is that, by using
these so called, “scientific procedures” in fact-finding, it will directly help the investigating
agencies to gather evidences, and thereby increase the rate of prosecution of the guilty and
the rate of acquittal of the innocent 3. Recently, these methods are being promoted as more
accurate and best to none, without convincing evidence. In a landmark judgment, the apex
court of India has clearly stated that DDTs cannot be administered without consent3.

Debate
The core debate arising out of the DDT is its legality of using inhuman degrading methods to
confess the crime. The interrogation of the accused plays a vital role in collecting evidence. If
the accused remains silent and does not answer any questions of the investigating agencies
then to what extent the investigating agencies can coerce or force the accused to reveal
information. In a civilized world police torture is unacceptable to extract information about
the crime. Even in the court of law, confession made to a police officer is not valid. Now, the
question is, “Can police use DDT to extract information from the accused”? There are many
who support the view that in this age of ever increasing crime rate, such tests often help to the
investigating agencies but others rejecting it as a clear violation of constitutional provisions.
This viewpoint looks into the earlier court's view, recent Supreme Court judgment and
scientific basis of DDTs.

Earlier Judgments on DDTs

In a landmark judgment4 the Madras High Court conveyed that investigating agency is
required to complete investigation within a reasonable time, if not, the benefit of delay is
given to the accused. If accused fails to co-operate with the investigation process undertaken
during custodial interrogation, to unravel the mystery surrounding the crime, scientific
investigation methods may have to be carried out to find the truth4.
Keeping the same spirit in another judgment, the court had held that the narco-analysis test is
a step in aid of investigation5. It forms an important base for further investigation as it may
lead to collection of further evidences. Therefore, with reference to the proliferation of crimes
against society, it is necessary to keep in mind the necessity of the society at large and the
need of a thorough and proper investigation as against individual rights while ensuring that
constitutional rights are not infringed. Consequently, in the court's opinion, the narco-analysis
test does not suffer from any constitutional infirmity as it is a step in aid of investigation and
any self incriminatory statement, if made by the accused, cannot be used or relied upon by the
prosecution. The court ordered the accused to undergo the narco-analysis test in stipulated
period5. These judgments were clearly supporting the use of DDTs in investigations.

Recent Supreme Court judgment on DDTs

The Supreme Court judgment3 on May 5, 2010 related to the involuntary administration of
DDT for the purpose of improving investigation efforts in criminal cases was questioned on
the account of violation of fundamental rights such as:

 (i)

‘Right against self-incrimination’ enumerated in Article 20(3) of the Constitution,

which states that no person accused of an offence shall be compelled to be a witness
against himself/herself, and

 (ii)

Article 21 (Right to life and personal liberty) has been judicially expanded to include
a ‘right against cruel, inhuman or degrading treatment’.

DDT also raises serious concerns related to the professional ethics of medical personnel
involved in the administration of these techniques and violation of human rights of an
individual3. Concerns regarding human rights violations in conducting DDTs were raised
long back and the National Human Rights Commission had published Guidelines in 2000 for
the Administration of Polygraph tests6. However, only few of the investigating agencies seen
to follow these guidelines.

Scientific evidence of DDTs

Narco-analysis: This test involves the intravenous administration of a drug (such as sodium
pentothal, scopolamine and sodium amytal) that causes the subject to enter into various stages
of anaesthesia. In the hypnotic stage, the subject becomes less inhibited and is more likely to
divulge information, which would usually not be revealed in the conscious state. He or she
may also divulge all his/her fantasies, personal wishes, impulses, instinctual drive, illusions,
delusions, conflicts, misinterpretations, etc. The main drawback of this technique is that some
persons are able to retain their ability to deceive even in the hypnotic state, while others can
become extremely suggestible to questioning. This is especially worrying, since investigators
may frame questions in a manner that may prompt incriminatory responses. The drugs used
do not guarantee that the subject will speak only the truth. The statements made in a hypnotic
state are not voluntary and are also not in a clear state of mind; hence these have not been
admitted as evidence in the court of law. Narco-analysis “without consent” raises certain
issues such as (i) a physical assault on the body by giving injections and also multiple painful
stimuli such as slapping, pinching, pushing, hitting, shaking the body and so forth to wake a
person from hypnotic state to answer the questions, and (ii) mental assault through the effect
of the injection on his/her mind and also an unrestricted access to the utmost privacy, the
privacy of his/her own mind. In the era of evidence-based medicine, it does not have any
significant role in the treatment of any psychiatric conditions. Though this technique is
known since the Second World War7, it has not been supported with adequate research to
justify its claim.

Polygraph: This is also called a lie detector test, but this term is a misnomer. The theory
behind polygraph tests is that a guilty subject is more likely to be concerned with lying about
the relevant facts about the crime, which in turn produces a hyper-arousal state which is
picked up by a person trained in reading polygraph results. Measurement of hyper-arousal
state is based on a number of parameters such as heart rate, blood pressure, respiratory rate,
skin conductance and electromyography. The principle behind these tests is questionable
because the measured changes in arousal state are not necessarily triggered by lying or
deception. Instead, these could be triggered by nervousness, anxiety, fear, confusion,
hypoglycaemia, psychosis, depression, substance induced (nicotine, stimulants), substance
withdrawal state (alcohol withdrawal) or other emotions. This state has also been attributed to
the way the questions are asked by the investigating officers. At the same time, it is not
difficult to beat polygraph tests by a trained person, who is able to control or suppress his/her
arousal symptoms through relaxation exercises, Yoga, meditation, etc. Hence, the reliability
of the polygraph test has been repeatedly questioned in empirical studies.

Brain mapping: It measures the changes in the electrical field potentials produced by the sum
of the neuronal activity in the brain by means of electrodes placed on the surface of the skin
covering the head and face. The changes directly related to specific perceptual or cognitive
events are called event-related potentials8. In simple words, it is based on the finding that the
brain generates a unique brain-wave pattern when a person encounters a familiar stimulus 9,10.
Commonly used method in India is called as Brain Electrical Activation Profile test, also
known as the ‘P300 Waves test’.

During the test, subjects are exposed to auditory or visual stimuli (pictures, videos and
sounds) that are relevant to the facts being investigated alongside other irrelevant words and
pictures. Such stimuli can be broadly classified as material ‘probes’ and neutral ‘probes’. The
underlying theory is that in the case of guilty suspects, the exposure to the material probes
will lead to the emission of P300 wave components which will be duly recorded by the
instruments. By examining the records of these wave components, the examiner can make
inferences about the individual's familiarity with the information related to the crime 3,11.
However, this measures only the memory or knowledge of the crime scene and nothing else.
For instance, a by-stander who witnessed a murder could potentially be implicated as an
accused if the test reveals that the said person was familiar with the information related to the
same. Similarly, little is known about the impact of viewing portrayal of crime scene in the
media such as television, movies and newspaper on brain mapping. Hence, this test cannot be
used to prosecute an accused but can be used by an innocent as an ‘alibi’ by proving that
he/she does not have any memory about the crime on this test.

The published literature on this technique is very sparse. The term ‘Brain Fingerprinting’ has
not yet entered the Medical Sub-Headings (MeSH) term of -PubMed (Medline). On
conducting a literature search in PubMed by combining two MeSH terms “Event-Related
Potentials, P300” and “Forensic Medicine” yielded only 23 publications and another PubMed
search by combining two MeSH terms “Brain Mapping” AND “Forensic Medicine” (1966-
June 2011) yielded only 72 publications. On reviewing this published literature, it was found
that results were inconclusive. The sample sizes were small. Majority of the studies were
open label and with poor methodology. Sample studied were from the normal population
rather than forensic population. Each study has used a different protocol to interpret the data.
There was one interesting study which reported that deception detection based on P300
amplitude as a recognition index may be readily defeated with simple countermeasures that
can be easily learned12. Non availability of data on the effect of brain wave mapping on
neurological conditions (such as stroke, dementia, delirium, head injury, amnestic syndromes,
etc.) and psychiatric conditions (such as substance intoxication or dependence conditions,
schizophrenia, mood disorders, anxiety disorders) makes matters worse. There is a paucity of
data on this technique, and applicability of this technique in the forensic field is remote at this
point of time9,10. There are several ongoing research studies using functional brain imaging
studies in the field of brain mapping, however, results from these studies are also
inconclusive and researchers have recommended that the functional brain images in brain
mapping also should not be admitted as evidence in the court of law13.

In conclusion, DDT has faced a number of criticisms and it is still unclear to what degree lie
detectors and brain mapping can be used to reveal concealed knowledge in applied real-world
settings. The Supreme Court judgment on involuntary DDTs is that it has no place in the
judicial process. On the contrary, it will disrupt proceedings, cause delays, and lead to
numerous complications which will result in no greater degree of certainty in the process than
that which already exists3. Contemporary DDT needs to undergo rigorous research in
normative and pathological populations. Premature application of these technologies outside
research settings should be resisted. The vulnerability of the techniques to countermeasures
also needs to be explored. It is also important to know the sensitivity and specificity of these
tests. There should be standard operating guidelines for conducting DDT. The recent
Supreme Court judgment on DDT is admirable from the scientific, human rights, ethical,
legal and constitutional perspectives.

Acknowledgments
Author thanks Dr Maria Christine Nirmala for her valuable comments and suggestions on the
manuscript.

Footnotes
Conflict of Interest: none.

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