VA: Polygraph Inadmissible in Probation Hearing

[George W. Maschke]

From the SW Virginia law blog (29 July 2003):

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."

[orolan]

Love this sentence from the opinion. Pretty much says it all

In a long line of cases, spanning almost thirty years, [the Supreme Court has] made clear that polygraph examinations are so thoroughly unreliable as to be of no proper evidentiary use whether they favor the accused, implicate the accused, or are agreed to by both parties.  

[suethem]

I wonder what the ramifications will be?

Seems like without a confession the polygraph will have little meaning in VA probation cases.

I am guessing that confessions in VA probation cases will sharply drop off.

Does anyone know what the law in VA is regarding the admissability of the polygraph in criminal trials?

What does the pro-poly side think?

[orolan]

Suethem,
Virginia does not allow polygraph evidence in criminal trials, but the exclusion is by court precedent, not statute.

[suethem]

Orolan,

Thanks for the info.

from the VA state police officer selection process.

"Phase II:

Polygraph examination

All applicants who successfully complete Phase I will be contacted and arrangements made for the administration of a polygraph examination.

Background Investigation.

A thorough background investigation is conducted on all applicants who proceed to Phase III of the hiring process."

Interesting wording.  Obviously if you do not pass the polygraph they never conduct a background investigation. At least most agencies pretend that your background comes first and then the polygraph is used to confirm your story.  Its like the VA state police are not even trying to hide it.

The Polygraph, not good enough for VA criminal court or probation, but good enough to pick it's state troopers!!  

[Saidme]

Suethem

I'm not sure what the effect will be regarding probation cases, but I seriously doubt confessions will drop off significantly.  This ruling will have no affect on confessions obtained as a result of polygraph in criminal cases.  

[suethem]

Saidme,

I am guessing that once people in the probation system in VA are told by other probationers that, if you don't confess during the polygraph interview, you will not be violated,  the number of confessions will drop off.  

People on probation in VA read the papers, share information and use the internet just like eveyone else.  

I would assume that you are right that confessions obtained  by a polygraph examination in a criminal case will still be used in court.

But I would also guess that the number of confession during a polygraph examination are on the decline (of course that is just a guess based on the availibility of information regarding the dubious accuracy of polygraphy and the use of countermeasures).

Its a shame that perspective VA state troopers have to pass a 'test' that  VA's own courts don't think is accurate or valid.  

[Saidme]

They don't think they're valid regarding judicial processes.  As George has previously stated it's based in part on the Frye standard and other cases.  Although I don't agree with pre-employment polygraphs, they exist and I support those organizations who choose to use them.  Don't let old George fool you.  He's got his sights set on pre-employment polygraph's right now, but he and his criminal followers (rapists, pedophiles, murderers, and thieves) have all polygraph's in their sights, including criminal specific testing.  Why, because more often than not those same people are providing confessions on a daily basis that are admitted in court and ultimately put their guilty asses in jail.  From a personal stand point, I can say without a doubt confessions as a result of polygraph have not subsided.  Now we're just getting confessions to CM's along with the relevant issues.  George, continue to challenge us.

[suethem]

Saidme,

If the polygraph is not good enough for judicial proceedings than it should not be used it all.

Regarding your stance on pre-employ polys...

That does not make sense to me.  If you don't agree that they are accurate in this use, then why support the agencies that use them, for using them?

[Leisa]

If someone goes for a polygraph test and they ask a question of if they have been on the internet and it comes back that they have been and they aren't supposed to be on there what will happen? Will they be arrested immediately or what?  :-/

[Ex Member]

Will they be arrested immediately or what?

Leisa, nobody here can give any kind of legal advice and policies differ by jurisdiction. In a general sense though, the polygraph is used by probation and parole officers to aid them in helping where they should dedicate their resources. I doubt if someone would be immediately arrested for showing deception about violating terms, but it would for sure bring intense scrutiny, questioning and searches.