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The Polygraph in the English Courts

Document Cited authorities 10 Cited in Related
AuthorJacqueline Elton
Published date01 February 2017
Date01 February 2017
DOIhttp://doi.org/10.1177/0022018316688722
Article
The Polygraph in the English
Courts: A Creeping Inevitability
or a Step too Far?
Jacqueline Elton
DeMontfort Law School, UK
Abstract
This paper considers the possibilityof polygraph evidence being utilised in criminal trials.There is
evidence that a properly conducted polygraph is between 70 and 90 per cent accurate. Evidence
from the field of human psychology is that, in the absence of corroborating information, human
beings do little better than chance in determining truth from lies. I argue that it is illogical to
ignore the possibility of usingthe more reliable form of evidence in favour of theless reliable, and
that there is little English case law to prevent the use of polygraph evidence, but that there is
relevant case law from other jurisdictions which could support its use. With the introduction of
the polygraph as a license condition under the Offender Management Act 2007, the English
judicial system sees the first, very limited use of this technique, could this be the start of a
creeping development?
Keywords
Evidence, polygraph reliability, admissibility, demeanour
The Search for Truth
At its most basic, the purpose of a criminal trial is to determine the guilt or innocence of the accused.
To do this, a court or jury must usually determine whether accounts given by witnesses can be relied
upon as true, or (in the case of the accused or other defence witnesses) cannot at least be dismissed as
clearly false.
Witnesses may of course be mistaken or confused, or the wrong inferences may be drawn from
circumstantial evidence. The task of the court or jury may also be complicated by the inconvenient truth
that witnesses sometimes resort to wilful lies. In some cases, it may be clear that one or more witnesses
must be lying, because the opposing accounts differ in ways that cannot be attributed to anything else. At
a criminal trial, we rely upon the court or jury to detect both honest errors and lies; but a false witness in
court will usually be repeating lies that he has told before, and we rely on the police and CPS to weed out
manifestly false or untrustworthy accusations before they even get to court.
Corresponding author:
Jacqueline Elton, DeMontfort Law School, UK.
Email: jacqueline.elton@dmu.ac.uk
The Journal of Criminal Law
2017, Vol. 81(1) 66–79
ªThe Author(s) 2017
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DOI: 10.1177/0022018316688722
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