COURT OF CRIMINAL APPEALS CONFIRMS THAT POLYGRAPH HAS NOT REPLACED JUDGE IN SEX OFFENDER PROBATION REVOCATIONS

 Polygraph tests are used routinely in Dallas County as a means of obtaining information and assuring compliance with conditions of probation (Community Supervision) in sex offender cases. In Dallas, and across State of Texas, sex offenders who are subject to rehabilitation are often granted deferred adjudication community supervision on condition that they participate in sex offender treatment. Lawyer office in Georgia. This week the Texas Court of Criminal Appeals held in a case out of Fort Worth (Tarrant County) that polygraph results cannot be used as the sole basis for revoking probation, for adjudicating guilt or for imprisoning the defendant in the Texas Department of Criminal Justice.

People who are charged with sex offenses are often faced with a difficult choice: go to trial and risk up to a life sentence, or admit guilt and accept deferred adjudication community supervision, with the risk of up to life in prison remaining an option if the probation department motions the court to revoke probation based on alleged non-compliance with conditions of probation. If a defendant is going to serve probation, he must give up the rights he would normally have that most people take for granted, such as where he might work, go to school, go out to eat, etc. The defendant also agrees to participate in rehabilitation, which will include the polygraph examinations taken in connection with psychotherapy.

Polygraphs can be a useful tool in terms of the therapeutic process and rehabilitation, but people often fail polygraph tests for innocent reasons. If a psychotherapist believes that a defendant is not participating in good faith in therapy and in the sex offender treatment program, the therapist can terminate the defendant from therapy, which will lead to the probation department requesting the District Court to adjudicate and to revoke probation. At the revocation hearing in this week's case, the therapist testified against his former client based on polygraph results from testing conducted by a third-party polygraph examiner.

Of course, polygraphs are not admissible to prove someone's guilt at trial because they are so unreliable, but once somebody gives up their rights to be on probation, polygraphs can be used during probation. Its quite another thing to bring mandatory polygraph results into a revocation hearing in support of claims of non-compliance with probation conditions. This week the Texas Court of Criminal Appeals decided that the district court in Tarrant County abused its authority by revoking probation based solely on polygraph failures during sex offender therapy. Since polygraph results are inherently unreliable, it didn't matter that the burden of proof is lower at a revocation hearing; that there are no juries at revocation hearings; or that a defendant gave up his rights to be on probation.

It goes both ways, which might explain the Court's reluctance to allow polygraph evidence as the sole basis for adjudication and revocation. I represented a murder defendant about 16 years ago in seeking discretionary review from a decision that kept him from using his polygraph results at his jury trial; the defendant wanted to show the jury that he passed the test as a reason for him to be found not guilty. The Court refused to grant review, but there was a dissenting opinion that indicated that maybe it was time to reconsider. Fast forward 16 years, and the Court is still firm in its opposition to polygraph testing, even when there is no jury. This is unlikely to change.