2nd Circuit Approves Post-Release Use of Polygraph

Mike Hamblett writes for the New York Law Journal in an article carried by Law.com:

2nd Circuit Approves Post-Release Use of Polygraph

Mark Hamblett
New York Law Journal
Polygraph examinations for defendants being monitored by probation officials can be used to determine compliance with the terms of their supervised release, the 2nd U.S. Circuit Court of Appeals has ruled.

Deciding the issue for the first time, the circuit said a polygraph meets the test for federal sentencing policy — that the “conditions of supervised release impose no greater restraint than reasonably necessary to promote sentencing goals.”

In United States v. Johnson, 04-4992, the court also found that the use of a polygraph on a convicted sex offender does not violate the Fifth Amendment right against self-discrimination.

Judges Dennis Jacobs, Jose Cabranes and Robert Sack ruled for the circuit, with Judge Jacobs writing for the panel.

The appeal was filed by Jeffrey A. Johnson, a convicted sex offender who was challenging the terms of his supervised release imposed by Northern District of New York Judge Thomas McAvoy.

Johnson is an aerospace engineer and experienced computer user who went on the Internet between 1995 and 1997 to contact minors and lure them to meetings.

He was arrested while on his way to one of those meetings, pleaded guilty and was sentenced to serve 7 years and 4 months in prison followed by three years supervised release.

Johnson objected to polygraph testing that was proposed by probation officials, saying it would violate his rights under the Fifth Amendment and force him to choose between making an admission or staying silent, which would violate the terms of his supervised release.

He also argued the testing was unreliable and was not reasonably related to the purposes of sentencing.

McAvoy allowed the polygraph testing but limited the scope of questioning to “information necessary for supervision, case monitoring, and treatment.”

The judge also said that, although Johnson would be compelled to answer, “if a truthful answer would expose him to prosecution for a crime different from the one on which he was already convicted,” he could still challenge the statements as violations of his Fifth Amendment rights.


On the appeal, Jacobs said that the “[o]ther circuits have concluded that polygraph testing may serve salutary purposes in the supervised release contest,” but the 2nd Circuit had yet to consider the issue.

“Obviously, the incremental tendency of polygraph testing to promote such candor furthers the objectives of sentencing by allowing more careful scrutiny of offenders on supervised release,” he said.

Johnson had cited the U.S. Supreme Court’s own recognition of studies that have figured polygraph reliability between greater than 50 percent and 87 percent.

But his claim that this made the testing unreliable for sentencing purposes left the circuit unpersuaded.

“Since even the bottom of the range is still more-likely-than-not, the technology produces an incentive to tell the truth, and thereby advances the sentencing goals,” so while polygraph results are inadmissible as evidence, they still have a “therapeutic” value, the judge said.

“Moreover, the exclusion of polygraph evidence in many cases has been based in part on a risk of prejudicial effect,” he said. “Prejudice is not as salient a risk in the absence of a jury; generally speaking, sentencing judges are better equipped to decide what weight if any to afford polygraph results.”

Here, the judge said the case for polygraph testing was strong because of the nature of Johnson’s offense as well as his history and characteristics. He had left probation officers unconvinced that he was committed to recovery and showed an antagonistic attitude.

“The polygraph can help penetrate deception and encourage an offender to confront his own motivations and behaviors,” Jacobs said. “These outcomes further sentencing objectives such as rehabilitation and deterrence, with reasonably small incremental deprivations of liberty.”

Johnson’s Fifth Amendment challenge failed easily, the judge said, because 2nd Circuit case law clearly allows for supervised release to be revoked where an offender “fails to answer questions even if they are self-incriminating.”

Bruce R. Bryan of Syracuse, N.Y., represented Johnson.

Assistant U.S. Attorneys Robert P. Storch and Thomas Spina appeared for the government, with Northern District U.S. Attorney Glenn T. Suddaby.

For commentary, see Polygraph tests may be used… on Robert M. Felton’s Civil Commotion and Court-sanctioned Pseudoscience on Chronicles of Dissent.

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