Tuesday, November 6, 2012
Where The Truth Lies: Court Of Criminal Appeals Of Texas Deems Polygraph Evidence Admissible At Community Supervision Revocation Hearing
Back on October 30th, I posted an entry about the admissibility of polygraph evidence at probation revocation proceedings. In that post, I peripherally mentioned the recent opinion of first impression by the Court of Criminal Appeals of Texas in Leonard v. State, 2012 WL 715981 (Tex.Crim.App. 2012). In this post, I will look at Leonard in a bit more detail.In Leonard,
William Thomas Leonard, pleaded guilty to injury to a child and received five years' deferred adjudication and a $750 fine. The conditions of his community supervision included sex offender evaluation and counseling, and required that he submit to, and show no deception on, polygraph exams. After a hearing on the motion to adjudicate, the trial court found that [Leonard] had violated the terms of his community supervision; he was adjudicated guilty and sentenced to seven years' confinement.
Specifically, at the hearing,
psychotherapist George Michael Strain....testified that [Leonard] was discharged from treatment for failing five polygraphs. Strain further testified that the use of polygraph testing is a common part of sex offender treatment, and that test results are reasonably relied upon by experts in the field of sex offender treatment. Strain testified that the five failed polygraphs led him to feel that [Lewis] was not being honest with him and caused him to be concerned about the community's safety. Finally, Strain testified that he had no other concerns about [Lewis]'s treatment and that the five failed polygraphs were the only basis for [Lewis]'s discharge from treatment.
In addressing Lewis' ensuing appeal, the Court of Criminal Appeals of Texas initially noted that
In Romero v. State, we held that polygraph results should not be received into evidence even if there had been a prior agreement or stipulation because "such stipulation does nothing to enhance the reliability of such evidence when offered by either side on the issue of the guilt or innocence of the accused."...Romero involved a jury trial in which the trial court failed to give an instruction to the jury that the polygraph evidence was not direct evidence of guilt, but evidence that tends to indicate only whether the subject was telling the truth when tested.
The court, however, found as a matter of first impression that polygraph results are admissible at a community supervision revocation hearing, concluding that
Some of the underlying issues with the use of polygraph results are: the polygraph's reliability in determining guilt, the jury's difficulty in interpreting the results, and the tendency to treat the results as conclusive evidence of guilt....Most of the problems usually associated with the admissibility of polygraph exam results are not present in a community-supervision revocation hearing. In such an administrative hearing, the polygraph results are not used to establish guilt of the original offense, there is no jury to be confused or to overvalue the results, and the judge is not deciding guilt. In the case before us, the judge even acknowledged the general concerns with polygraph evidence and noted the distinction between evidence of guilt and evidence of truthfulness when tested. The polygraphs were not attempting to determine whether Appellant had committed the original offense to which he had pled guilty, they were used to determine whether he was being truthful in sex offender treatment. Strain testified that Appellant had never taken a polygraph for the originally charged offense and that he had admitted to the offense. We continue to support our precedent that polygraph results are inadmissible before a jury. However, the dangers of undue influence by polygraph results are not present in a revocation hearing such as this. We acknowledge that the problem of polygraph reliability may remain even in a revocation hearing. However, the fact that Appellant failed five polygraph exams before the State moved to adjudicate guilt indicates to us that the results in this case remained consistent.
I have some serious problems with some of the court's analysis. Sure, there was no jury at the community supervision revocation hearing, but polygraph evidence is just as inadmissible at bench trials as it is at jury trials. And I don't see how the fact that Lewis failed five polygraphs is relevant. Is the court saying that if a defendant charged with a crime fails five polygraph exams, the results should be admissible? Surely not.
That leaves the one possible justification for admissibility: The polygraph results were not used to prove that Lewis was guilty of a crime. But they were used as the sole evidence to conclude that he violated the terms of his community supervision, which led to a term of imprisonment for seven years. That's not quite a criminal conviction and sentence, but isn't it close enough to deem the polygraph evidence inadmissible? Polygraph evidence is inadmissible if a defendant is charged with petit larceny and faces a fine or a short stay in prison. Shouldn't it also be inadmissible when seven years incarceration is on the table, even if the evidence isn't being used to prove criminal guilt?