The bill establishing a legal framework for the use of the polygraph in Belgium does not sufficiently guarantee the rights of the defence, the Order of Flemish Bars (OVB) said on Wednesday, the day before the scheduled vote on the text at the House’s plenary session.
Currently, the use of the polygraph — known as a lie detector —has no legal framework. It is therefore regulated through non-binding circulars. Strictly speaking, it does not detect lies, but rather the subject’s emotional reactions in order to test the credibility of his/her statements.
The bill proposed by Open VLD (Flemish Liberal Democrats) MP Katja Gabriels, which would introduce a legal framework, is up for a vote on the House’s plenary session agenda on Thursday. Both the police and the judiciary are asking for such legislation.
If the proposal passes, it will be possible to use the instrument with the consent of the person concerned, who will have to be in good physical and mental condition, and who will be allowed to terminate the test at any time. The use of the polygraph will be limited to crimes, and only when other means of investigation have failed to gather sufficient evidence.
Submitting pregnant women and youth under 16 to the polygraph will not be permitted. The hearing will have to be recorded and a lawyer will be allowed to monitor it. It will be up to the judge to decide on the legal use of the test’s results.
On Wednesday, OVB reiterated its opposition to the use of polygraphs. According to him, the results are not reliable, the device does not detect lies, but only certain physical reactions of a suspect when he/she responds.
OVB also underlines that the use of a polygraph is not considered to be a hearing as such. For the Bars, this means that the legal safeguards which are applied during a hearing are not guaranteed during the test, and that the lawyer may not directly assist the suspect. The defence’s rights, therefore, are not sufficiently guaranteed, the Order says.