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Lies, Damned Lies, and Polygraphs

It's relatively common for judges to order sex offenders to submit to regular lie detector exams as a condition of their probation.  The legality of that was at issue last week in the Ohio Supreme Court case of In re D.S.  The case answered some questions about the procedure, but left others unresolved.

Can this procedure be routinely ordered?  Certainly not for juveniles.  The Court was quite clear on that:

We are unpersuaded, however, that polygraphs should be used indiscriminately as a tool for juvenile community control. At the very least, before a polygraph can be considered to be a reasonable probationary condition there must be a showing that a polygraph is needed for therapeutic reasons in a particular case, that is, for the treatment and monitoring of the juvenile's behavior. The juvenile court judge may then select the condition on a case-by-case basis, based upon advice of a therapist or other relevant expert.

Noting that the probation department's recommendation of polygraph testing "was simply boilerplate language," and that "there is no evidence that it would serve as a therapeutic tool for him," the Court concluded that no specific need had been shown in this case.

What about adults?  The Court took pains to note that it was dealing with a juvenile here -- an 11-year-old, learning-disabled juvenile at that.  But it's not clear why adults should be treated any differently.  The Court's distinction between adults and juveniles rested entirely upon the US Supreme Court's rationale for prohibiting capital punishment for juveniles.  Putting juveniles to death and making them submit to lie detector examinations is not a comparison that is readily discernible, to put it mildly.  In fact, the Court cites an adult felony case for the proposition that probation conditions should be tailored for the specific offense, so D.S. seems to offer a fairly good rationale for contesting the imposition of a polygraph examination as a routine condition for adult sex offenders as well.

What about the 5th Amendment?  D.S. argued that the polygraph condition violated his rights against self-incrimination, but the Court fluffed that off.  The case law is pretty clear that the state can't use the answers compelled by such a process against the defendant in a subsequent criminal case, or use his refusal to answer on 5th Amendment grounds as a basis for terminating probation.  But there's a huge caveat here:  the case cited for this, the US Supreme Court case of Minnesota v. Murphy, holds that such testimony can be used unless the defendant specifically invokes his right against self-incrimination.  What's worse, the Court there specifically refused to apply the Miranda requirements because it deemed the setting "non-custodial." 

This is bad law:  it's hard to see how being in a police interrogation room is inherently more coercive than sitting with your probation officer in his office and having him demand you take a polygraph test after the judge has told you that not doing what the PO says gets you shipped to prison.

If you do run into this situation, though, there's a fallback:  I found a 1985 case out of the 9th District which held that the defendant's probation couldn't be violated because of statements he'd made in his polygraph exam.  The argument's actually based upon state law, which prohibits the use of lie detector evidence unless both sides stipulate, and notes the inherent unreliability of the polygraph.  (It didn't hurt that the defense presented expert testimony that the test given in this case was bogus.) 

When should this issue be raised?  If the judge slaps on a requirement that the defendant submit to mandatory polygraph tests, it could be argued that you waive any complaint you have about that condition if you don't raise it at that time, and don't appeal it immediately.  (The defense in D.S. did.)  You should still be able to argue about the use of the evidence at a later time, and you may be able to go in and ask for a modification of the conditions after the sentencing.  At the very least, you should advise your client in this situation that he has the right to refuse to take the polygraph.

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