Which Lie Did I Tell? Texas Case Reveals That Polygraph Results Are Admissible In Probation Revocation Proceedings

As I have noted on several occasions, polygraph evidence is per se inadmissible in the vast majority of jurisdictions in the United States. Only New Mexico allows for the admission of polygraph evidence without the prior stipulation of the parties. Moreover, about a dozen states allow for the admission of polygraph evidence based upon a prior stipulation by the prosecution and defense. In these jurisdictions, polygraph results will be admissible if both sides stipulate to admissibility before the defendant takes the polygraph test.

The above, however, refers to the (in)admissibility of polygraph evidence at trial. Can a court, however, place a condition on probation pursuant to which the probationer must submit to periodic polygraph examinations and have his probation revoked if he either (a) fails to submit to such examinations; or (b) fails one of these examinations?

Here's a story and news clip about Melissa Williams being given an eight year prison sentence for violating the terms of her probation. Williams was out on probation after being convicted in 2008 for having an improper relationship with a 17 year-old. According to the article,

In Wednesday's probation hearing, Lisa Page, a supervision officer for Angelina County's probation department, argued that there was enough evidence to revoke her probation. Those little things included accessing the Internet without supervision, possession of pornography, having direct contact with a child under 17 without supervision, possession of alcohol, and association with a known felon.  However, the biggest issue was the fact that Williams failed three separate polygraph exams while she was taking classes at a rehab center in the Houston area. (emphasis added)

Such a result is not surprising. Courts across the country consistently find that judges can impose such polygraph conditions as conditions of probation. For instance, in Hoeppner v. State, 918 N.E.2d 695 (Ind.App. 2009), the Court of Appeals of Indiana found that it was permissible

to require that Hoeppner submit to [polygraph] examinations, the results of which may be used in future probation revocation proceedings. We acknowledge Hoeppner's concern that the clause seems to deprive him of due process rights by stating that positive results will constitute a probation violation, seemingly removing the State's obligation to prove that a violation has, in fact, occurred.

Recently, in Leonard v. State, 2012 WL 715981 (Tex.Crim.App. 2012), a lower court initially found that polygraph evidence is admissible in the somewhat similar context of community-supervision revocation hearings:

The Court fully understands the general inadmissibility of polygraphs; however, the Court feels that there is a distinction between admitting polygraphs outright to show that someone did or did not tell the truth and using them—considering them as the basis of an expert opinion as to whether someone poses a danger and a risk to this community, which is the Court's understanding of what the policy consideration at issue in this case is, is secret keeping and whether it can and should be allowed.

As a matter of first impression, the Court of Criminal Appeals of Texas then agreed with this conclusion.

Do I agree? I don't know. If what's good for the goose is good for the gander, then what's bad for the goose is bad for the gander. If polygraph results are too unreliable to be used to place a defendant behind bars for committing a crime, why are they good enough to be used to place a probationer behind bars for eight years for violating a condition of probation?

-CM