Post-Conviction Sex Offender Polygraph Testing: Not the Same as Pre-Conviction Testing

TASA ID: 2996

            The two primary types of examinations used in PCSOT are the sexual history polygraph examination (SHPE) and the maintenance polygraph. The maintenance examination is used to assess the offender's compliance with treatment and supervision over a limited period of time (usually about 6 months). The SHPE is used to gain information about the offender's lifetime history of sexual offending and other sexually deviant behaviors. It is believed that having a complete history of the offender's deviant behaviors will improve the quality of treatment delivered as well as provide information to the probation officer to manage the risk of the offender.  It is also believed that knowing the offender's prior patterns and choices of victims will give direction to the probation officer on how to best supervise the offender.  I will focus on the SHPE for this discussion as it has been more frequently studied.

            The SHPE is a process where the offender is required to fill out a lengthy questionnaire of his/her prior sexual behaviors and list all victims. Some questionnaires ask for identifying information on victims, and others request that no identifying information be given. After the offender fills out the questionnaire, it is recommended that his or her work be pre-approved by the therapist and/or probation officer. Once the therapist or probation officer determines that the offender has adequately filled out the questionnaire, the offender then undergoes a polygraph examination.

            There are several questions and concerns with this type of testing. Although it has been shown that offenders who undergo a SHPE provide more information, there has been little evidence to demonstrate that the information traditionally obtained from the SHPE is relevant to the reduction of recidivism. After all, that is the purpose of supervision and treatment, to reduce risk of reoffense, or danger to the community. However, many therapists and community corrections officials make risk management decisions based on how the offender performs on the SHPE. A case that may demonstrate the belief of the importance of the SHPE is United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005). Apparently the therapist and/or probation officer, as well as the court, believed Antelope was enough of a threat for not undergoing the SHPE that his supervision was revoked. A higher court eventually found that Antelope could not be forced to incriminate himself, and he was remanded back to the lower court.

            Similar rulings have also been found more recently (2010). In Texas, William Thomas Leonard v. The State of Texas involved an offender who was revoked for failing numerous polygraph examinations. This case was later reversed. In Arizona, a similar ruling was made where the appellate court found that Jacobsen could not be forced to waive his rights (Ryan Jacobsen, Petitioner v. The Honorable Thomas Lindberg, Judge of the Superior Court of the State of Arizona).

            Although these rulings indicate that a majority of courts may find that an offender cannot be forced to incriminate himself, there was a Supreme Court decision where it was upheld that an inmate could be required to undergo a SHPE as a treatment condition. This case was somewhat different in that the offender was not compelled to incriminate himself, as the treatment program (in prison) was voluntary (McKune v Lile, 536 U.S. 24).

            The above cases suggest that these matters are not completely settled, and that apparently some therapists and or corrections officials believe that the SHPE is an important part of treatment and supervision. Therefore, this would also suggest that there is a belief that undergoing a SHPE and passing it must reduce recidivism. However, in my research for my *dissertation, I found that passing or failing a SHPE did not significantly predict recidivism for 93 sexual offenders. (*"Predicting Recidivism of the Convicted Sexual Offender Using the Sexual History Polygraph and the Static 99"- pending publication). Similarly, factors traditionally believed important, such as paraphilias and being victimized as a child, were not predictive of recidivism.

            With the aforementioned concerns regarding the SHPE, it is evident that there are some differences between PCSOT and the traditional criminal investigative testing that has come before the courts. When testifying regarding post-conviction testing, I have found that many tend to approach the issue of post-conviction testing in the same manner as pre-conviction testing. For example, the focus is on the type of test conducted, the scoring method used, and issues of reliability and validity or accuracy. This is understandable in that many polygraph examiners do not understand the issues in PCSOT. Most polygraph examiners have an undergraduate degree and have had little advanced training in the issues of base rates and the basics of reliability and validity for testing. Some erroneously assume that information learned from pre-conviction testing holds true for post-conviction testing.

            Although the post-conviction test should hold up as a sound test based on current standards, this is just the beginning. Scoring the examination in an appropriate manner may be an initial concern, but again, it is just making sure that the basics were conducted correctly. After the PCSOT has passed the initial phase of being an examination that was conducted according to standards, then other arguments are to be made.

• Reliability, for the polygraph has been primarily studied regarding scoring in specific incident pre-conviction testing. Assumptions from what we know with pre-conviction tests can only carry over to post-conviction testing if we are comparing similar methods, which is usually not the case.
• Validity or accuracy is still a question that cannot be answered with any certainty with pre-conviction. Some examiners mistakenly cite the findings of the National Research Council (2003) as the level of accuracy. This is incorrect and cannot transfer over to PCSOT (with any reasonable levels of confidence) due to base rates and comparing a known event (criminal investigation) to an unknown event (PCSOT).

            Once the basics of the polygraph have been put to rest, there is an additional area that should be considered with PCSOT. With pre-conviction testing, we are trying to determine whether or not the person is guilty of the crime of which he or she is being accused. With PCSOT, we are attempting to demonstrate (using the CA) the offender's amenability to treatment, conformance to supervision, and ultimately, risk to the community. Therefore, the next consideration for the relevance of the examination performed on the offender is whether or not the questions are targeting behaviors that are appropriate to determine conformance and risk that rise to the level of the reactions of the therapist and probation officer. Many polygraph examiners do not have a thorough grasp on these issues. Similarly, there are many misunderstandings or disagreements amongst therapists regarding these issues that may also be of concern. Many of these concerns are not raised during a hearing, leaving the question of risk of the defendant to be based solely on how well he or she did on the polygraph, rather than the relevance of the polygraph. Therefore, the trier of fact should have all available information to make an informed decision as to the risk of the defendant and whether or not the risk was appropriately assessed.

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