VA: Polygraph Evidence Inadmissible in Probation Hearing

The following was posted to the SW Virginia law blog :

Polygraph evidence inadmissible in probation hearing

In White v. Com., the Virginia Court of Appeals in an opinion by Judge Benton joined by Judge Clements and Senior Judge Hodges held that evidence that a probationer failed a polygraph test is inadmissible in a hearing on probation revocation, and the trial court’s consideration of such evidence was apparently not harmless error, even though the probationer was a sex offender and the trial court had resolved not “to gamble with with this man and young children.”

“Lie-Detector Test During Probation Ruled OK”

Shannon P. Duffy of The Legal Intelligencer reports. Excerpt:

Requiring sex offenders to submit to random lie-detector tests during the probationary period after release from prison is not unconstitutional, but forbidding them from owning a computer may be going too far, a federal appeals court has ruled.

In a pair of opinions handed down this week, the 3rd U.S. Circuit Court of Appeals ruled that a man convicted of possessing child pornography should not have been barred from owning a computer, but upheld another judge’s decision to impose random polygraph testing of a man who confessed to both child pornography and molestation charges. In United States v. Lee, the court found that mandatory polygraph testing of a probationer is allowable since the defendant may still invoke the Fifth Amendment right not to answer a question that could be incriminating.

Writing for a unanimous three-judge panel, visiting Judge Robert J. Ward of the Southern District of New York found that requiring a probationer to submit to random polygraph tests “is reasonably related to the protection of the public, as well as the rehabilitation of the [defendant].”

Ward, who was joined by 3rd Circuit Judges Jane R. Roth and Morton I. Greenberg, found that such polygraph testing “could be beneficial in enhancing the supervision and treatment” that Albert M. Lee will undergo during the three years of supervised release after he serves his 57-month prison term.

POLYGRAPH TESTING

Albert Lee was arrested in February 2000 for knowingly transporting child pornography by computer. He was later indicted on additional charges that included enticing a minor by computer to engage in sex. In his guilty plea, Lee confessed that he met female minors via an Internet chat channel titled “GirlsandOlderGuys.” Through online conversations, he met a 15-year old girl, and later met her in person and engaged in sexual acts with her. He also confessed that he had attempted to meet other minors online in order to induce them to perform sexual acts with him, and that he had transmitted child pornography online.

Prior to sentencing, Lee was sent to the Federal Correctional Institution in Petersburg, Va., for a psychological evaluation. In a report, the psychiatrists recommended that Lee “should be required to register as a sex offender, not be allowed contact with his victims, have no contact with persons under the age of 18, not own or operate a personal computer or other devices that allows Internet access, and should not be housed in an area where minors congregate.”

The report also recommended that Lee not be allowed to hire any minors to perform household chores or yard work, and that random searches of his residence be conducted for the presence of sexual risk factors.

But it was the final recommendation that Lee challenged on appeal — that he be required to submit to “frequent polygraph examinations.”

Assistant Federal Defender Christopher S. Koyste argued that the polygraph condition violates Lee’s Fifth Amendment rights because the examiner could ask him about prior uncharged offenses or other potentially incriminating conduct.

Koyste said mandatory polygraph examination could put Lee in a situation in which he would be compelled to incriminate himself by providing the government with information that could be used against him.

But Assistant U.S. Attorney Leonard P. Stark argued that the Fifth Amendment provides no protection against answering questions when the answers pose no realistic threat of future criminal prosecution, even if the answers could serve as the basis for a revocation of supervised release for an offense on which appellant has already been convicted. Judge Ward found that the U.S. Supreme Court has held that defendants have a Fifth Amendment right when being questioned by probation officers, but that they must invoke it.

Koyste argued that polygraph testing substantially increases the coercive nature of the probation proceeding because the defendant is physically restrained by being attached to a polygraph machine, and a former police officer would be administering the test.

As a result, he said, Lee would be forced to choose between making incriminating statements and jeopardizing his liberty by refusing to answer questions.

Ward disagreed, saying Lee still has the right to remain silent.

“Should Lee choose to terminate the interview and exit the room while being questioned, he may do so by having the machine detached from him in a matter of moments. If [he] feels obligated or compelled to stay through the end of the proceeding, we are not persuaded that this differs in any significant way from an ordinary probation interview at which the probationer may feel that same obligation,” Ward wrote.

But Ward cautioned that Lee’s silence should not be used against him — even if his physiological reaction is detected by the machine.

“Auroran Protests Use of Polygraph Exams: Man Wants Probation Requirement for Tests Thrown Out”

Denver Post staff writer Ryan Morgan reports. Excerpt:

Thursday, December 26, 2002 – Ben Aragon swears he’s telling the truth.

The polygraph machine he’s hooked up to isn’t so sure.

So Aragon, who has been taking polygraph exams since he was put on probation for sexually assaulting his girlfriend two years ago, is fighting the machine.

He’s armed with a study issued by the National Academy of Sciences in October calling polygraphs junk science and urging the federal government to stop using the devices.

The Aurora man has to take the tests as a condition of his probation several times a year, but he wants that requirement thrown out. He has protested to his probation officers and shared the study with them.

“Ain’t that wild, that they can’t use it for national security or jobs at an airport, yet they’re using it as a form of punishment?” Aragon asked.

One of the study’s authors agrees with Aragon’s assessment.

“It’s an imprecise instrument,” said Kevin Murphy, a professor of psychology at Pennsylvania State University. “There are circumstances where people tend to give it a lot more deference than they should, and this would be an instance of probably making high-stakes decisions on the basis of polygraph exams, which may not be the best idea.”

UK: “Lie-Detector Tests on Paedophiles ‘Unreliable'”

David Derbyshire and Roger Highfield report for the Daily Telegraph Excerpt:

A scientist yesterday questioned a proposal to use lie-detector tests on convicted paedophiles to see if they would reoffend.

Initial trials by two American polygraph examiners in the West Midlands, Northumberland and Surrey found that a third of those taking the tests lied when they told probation officers that they were not having unsupervised contact with children.

As a result “significant action” was taken in three cases to prevent them reoffending and the Home Office is now considering a pilot scheme, marking the first time such tests have been used within the criminal justice system in Britain.

But, at the British Association for the Advancement of Science annual meeting in Leicester, Dr Richard Wiseman, of the University of Hertfordshire, Hatfield, said the results of these tests should be treated with caution.

UK: “Sex Offenders Could Face Lie Detector Tests”

The Guardian reports. Excerpt:

Sex offenders may soon be asked to take lie detector tests to monitor their behaviour, the national probation service said today.

The machines, which monitor physical responses such as heart rate, could be used regularly if further research proved their reliability, the service said.

Polygraph tests were tested by the national probation service in a series of low-key trials last year, and the use of the machines is still at a very early stage.

National probation chief Eithne Wallis said more research was still needed following the tests, by two American polygraph examiners, in the West Midlands, Northumberland and Surrey.

“If it worked and if there was a robust, demonstrable level of reliability it may be that there would be a place for that as a piece of supporting information in our management of sex offenders,” Ms Wallis told the BBC Radio 4 Today programme.

A total of 30 sex offenders on probation were asked a series of questions about their past offending, current behaviour and fantasies.

They were asked if they had been in contact with children or on the lookout for victims.

The BBC reported that the tests prevented at least three offenders from committing further crimes.

Sex offenders have been subjected to lie detectors in the US state of Arizona for the last 12 years.

Sandy Gray, a polygraph examiner for the US state, told BBC Breakfast: “They [paedophiles] are very deviant and usually very skilled at being manipulative.

“By monitoring, the polygraph examination is, by far, better than simply accepting and taking their word for what they are doing.”

Ms Gray said the machines monitored blood pressure, heart rate, sweating and breathing patterns.

As well as sex offenders, detectors in the US have also been used in criminal investigations, custody evaluations and professional sexual misconduct cases, while US police departments have even been known to use them in pre-employment checks.

Doubts over the accuracy of polygraphs mean they cannot currently be used by police in the UK and are not accepted as evidence in the courts.

Polygraph examiner Bruce Burgess is one of only two working in the UK and his clients include employers who suspect staff of theft or fraud, and people checking if their partners are being faithful.

Forensic psychiatrist Professor Don Grubin, who oversaw the tests, said the convicted paedophiles had disclosed unauthorised contact with children and that they had visited areas where they might meet children.

But Roger Stoodley, who led the investigation into the paedophile network that included the notorious child killer Sidney Cooke, said he was sceptical of the development.

Sex offenders are practised liars and would be able to fool the most sophisticated equipment, he said.

Australia: “Lie Test Plan to Stop Rape”

Tanya Giles reports in this article published by the Melbourne, Australia Herald Sun. Excerpt:

SEX offenders would be forced to take regular lie detector tests after their release from prison under a plan to stop them re-offending.

Police also would be given the power to use any information obtained from the hi-tech tests to launch new investigations and help victims.

The proposal, prepared by an FBI-trained forensic polygraph expert, is based on a program used in 36 US states and is being considered in Britain.

The [Victoria, Australia] State Government said it would consider any proposal by law enforcement agencies.

The Opposition promised to introduce the tests if elected.

Victims-of-crime support groups also backed the plan.

The expert behind the plan believes random lie detector tests would help stop pedophiles and rapists.

Steven Van Aperen, who regularly helps police on high-profile homicide cases, said polygraph testing had been shown to control the behaviour of sex offenders back in the community.

“The reality is, parole or probation officers cannot supervise sex offenders 24 hours a day,” he said.

“The advantage of polygraph surveillance is that it can regulate and control the behaviour of sex offenders. It acts as an artificial conscience.”

Under the US programs, sex offenders volunteer to sit lie detector tests every three to 12 months. The tests, which they pay for, are a condition of their parole.

If the parolee fails a test, they face further investigation, increased parole supervision and other sanctions.

Because polygraph “tests” are easily beaten through the use of simple countermeasures that polygraphers cannot detect, reliance on any such screening program has the potential to shield and enable recidivists who understand “the lie behind the lie detector.”

“Lie Detector Tests Now Part of Sex Offenders’ Conditional Parole”

Muskegon [Michigan] Chronicle staff writer John S. Hausman reports on post-conviction sex offender polygraph “testing” in Michigan. Excerpt:

In a program launched last March in Muskegon, also under way in Flint and Detroit, the Michigan Department of Corrections is requiring paroled sex offenders to submit to periodic polygraph tests as a condition of their freedom. Refusal to take the test constitutes a parole violation, which can lead to a return to prison.

By late December, 29 of the tests had been given in Muskegon, said Tom Combs, the corrections department official in charge of the program statewide. Three or four are done in a typical month, at the parole office in the former Muskegon Corrections Center building off Barney Avenue.

Polygraph tests are not infallible. That’s why the results of such tests are not admissible in court. Similarly, parolees can’t be “violated” simply because the test indicates they’re being deceptive, corrections officials say.

But officials say test answers sometimes can open avenues for further investigation, which can lead to reincarceration if parole violations are uncovered.

A typical parolee’s test takes about two hours, polygraphers said.

Each offender in the program is required to take at least three polygraph tests: first at the start of parole, then about seven months later, and finally a short time before discharge from parole.

“No Lie: Paroled Sex Offenders Get Polygraphs”

Staff writer Bryn Mickle of the Flint Journal reports on post-conviction polygraph “testing” of sex offenders in Michigan. Excerpt:

Hooked up to a machine that measured his body’s response to questions, a convicted Burton sex offender spent about 45 minutes Tuesday answering “yes” or “no” to queries about his activities in the month since he was released from a prison in Muskegon.

After serving 8 years for fondling an 8-year-old Genesee Township girl, the man knows that if he gets caught in a lie, he could be headed back to jail.

“It forces a guy to be honest,” the man said. “If you do something wrong, you’re more or less forced to come forward with it and deal with it up front.”

The man, 52, who asked not to be identified, is among more than 60 sex offenders on parole in Genesee and Lapeer counties who are getting lie detector tests to help determine whether they are telling the truth.

The state Department of Corrections has been using polygraph tests locally since March to test the honesty of sex offenders. Sex offenders also are given polygraphs in Detroit and Muskegon.

By relying on a pseudoscientific fraud to monitor sex offenders’ compliance with the terms of their parole, public officials give recidivists who take the time to learn how to beat the polygraph the opportunity to escape serious scrutiny.

Los Angeles Considering Sex Offender Polygraphs

Stuart Pfeifer of the Los Angeles Times reports on the monitoring of sex offenders in “O.C. to Track Sex Criminals With GPS.” Excerpt:

Authorities said the tracking and lie detector tests represent powerful deterrents for offenders and could also tip off police to crimes the probationers might commit. “It is a controversial issue for us. But our primary concern is the protection of the community,” said Bill Daniel, director of special operations for the Orange County Probation Department.. .

By taking polygraph tests, offenders are more likely to tell the truth during counseling sessions and therefore can more easily confront and deal with their problems, Daniel said.

“To be successful treating sex offenders, we need them to be completely honest,” he said .. .

Los Angeles, however, has expressed interest in the polygraph program Orange County has instituted but is waiting to see what kind of reception it receives in the courtroom.

Orange and San Diego counties are the only major jurisdictions in the state to use random lie detector tests on sex offenders. And in the year since it began, some judges have raised warning flags.

“County Uses Lie Detectors to Supervise Sex Offenders”

North County Times staff writer Scott Marshall reports in a lengthy article on the use of polygraph “testing” to supervise sex offenders on probation in San Diego County, California. Be sure to see the full article. Excerpt:

VISTA —- San Diego County probation officers are using lie-detector tests to help them supervise the roughly 600 sex offenders on probation countywide, a probation department official said.

Although state law prohibits the use of polygraph test results in court, probation officers can use the statements sex offenders make during interviews before and after the test is administered.

Those statements can be used to increase the supervision of the offenders, alter the counseling they receive or rearrest them for probation violations, said Susan Storm, a supervising probation officer in San Diego.

“It can help us monitor them when we can’t watch them 24 hours a day,” Storm said. “Bottom line is to provide safer communities.”

However, criminal defense attorneys decry the practice as a violation of the rights of those on probation and a waste of money.

“My argument is it’s a waste of time and money because polygraph results, as a matter of law, are inadmissible in court for any reason because results are unreliable,” said Deputy Public Defender Jack Campbell, who works in the public defender’s North County office in Vista. “Once the defendant knows the result is meaningless, they can lie at will.”

Once a sex offender on probation discovers that polygraphy is a fraud and learns how to beat the polygraph (see Chapters 3 & 4 of The Lie Behind the Lie Detector to find out how), he or she can also lie at will. The use of pseudoscientific polygraph “tests” to supervise sex offenders is bad public policy.