Lies, Damn Lies, and Polygraphs: The Problematic Role of Polygraphs in Postconviction Sex Offender Treatment (PCSOT)
Volume 84, No. 4, Summer 2012
By Douglas C. Maloney

In the United States, sex offenders are distrusted and reviled above all other criminals. The Supreme Court has “embraced a deeply held view in American society—that sex offenders are a different breed of offenders whose horrendous crimes render them less deserving of . . . constitutional guarantees.” Congress has joined in the Supreme Court’s special distrust and disgust towards sex offenders by enacting Federal Rules of Evidence 413, 414, and 415, which make admissible prior act evidence against sex offenders that would be inadmissible against non-sex offender defendants. This attitude towards sex offenders stems, in part, from the short prison sentences they often receive and the well-known high recidivism rate of sex offenders. As a result, the criminals most likely to again violate the law are released from prison after an average of three and a half years in prison. Because of this scenario, and the public and governmental sentiment towards sex offenders, there is a heightened interest in providing adequate treatment for sex offenders and strict monitoring of their behavior. Unfortunately, the chosen method for achieving both of these goals is the Control Question Polygraph Test (“CQT”). The purpose of this Comment is to highlight two problems created by the use of the CQT polygraph in the context of postconvicted sex offender treatment (“PCSOT”) and why these problems render CQT inappropriate for use in the criminal justice system.

The first problem is based on the Fifth Amendment of the United States Constitution–specifically, the Self-Incrimination Clause. An integral part of PCSOT, and one in which the polygraph is heavily used, is getting the offender to completely disclose his sexual history, including any past, uncharged crimes. This implicates the Fifth Amendment when the offender is under a court order to answer all questions asked of him and there is no guarantee that incriminatory responses will not be used against him in later prosecution.

The second major problem is based on the CQT polygraph itself. A large body of research, including a comprehensive study conducted by the National Research Council, has called into question not just the current reliability of CQT polygraphs but whether technological or methodological advancement could ever increase reliability of the examinations. This raises questions as to whether it is appropriate for test results to play any role in determining whether an individual will be deprived of personal liberty.

This Comment analyzes both of these issues by examining how they have been addressed in federal and state courts throughout the country. In doing so, this Comment explains why the current systems and methodologies employed in many jurisdictions fail to adequately address the Fifth Amendment concerns and/or the reliability concerns raised by PCSOT polygraphs. A proposed solution, calling for the inadmissibility of polygraph results in any court proceedings while allowing for their continued use in the therapeutic context, is introduced. As of this writing, there is little literature that analyzes both the constitutional implications and reliability concerns raised by PCSOT polygraphs and the treatment these issues receive in a broad range of jurisdictions.

Part II provides an overview of the legal scholarly discussions of PCSOT polygraphs. Specifically, Part II.A briefly explains the role of therapy and CQT polygraphs in PCSOT, how the CQT works, and current arguments for and against CQT polygraphs in the PCSOT context. Parts II.B, II.C, and II.D describe how the Supreme Court, the Circuit Courts of Appeals, and various state appellate courts, respectively, have dealt with the polygraph-related challenges raised by convicted sex offenders.

Part III assesses courts’ decisions regarding PCSOT polygraphs in light of the scientific and theoretical literature concerning CQT polygraphs. Part III.A.1 analyzes the problems with certain approaches towards the Fifth Amendment issue raised by PCSOT polygraphs, whereas Part III.A.2 addresses the problems of some of the courts’ decisions in light of the unreliability of CQT polygraphs. Part III.A.3 explains why it is problematic for the courts to consider the two fundamental problems of self-incrimination and unreliability separately. Finally, Part III.B proposes a solution that would address the two major concerns of self-incrimination and reliability; namely, a rule that the practice of PCSOT should be allowed to assist in sex offender rehabilitation efforts, but that the results of any such test should be inadmissible at a later criminal proceeding against the offender.

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