NJ Court Sets Polygraph Limits for Sex Offenders

TRENTON, N.J. (CN) - Polygraph testing is par for the course when New Jersey releases sexual offenders on permanent supervision, but the state's parole board is barred from using such tests as evidence, a state appeals court ruled today.

The decision comes in answer to a lawsuit five convicted sex offenders brought in 2013.

Linking the tests to parole-status changes in 42 percent of New Jersey cases, the offenders called parole board's use of lie-detector tests tantamount to pursuing thought crimes.

Though the New Jersey Appellate Division upheld the validity of polygraph examinations today, it did so with restrictions.

The court called the tests a "therapeutic tool" when used to help treat sex offenders but "incompetent evidence" when used to punish them.

The five convicted sexual offenders, all of whose names have been redacted from court filings, condemned the polygraph tests as unconstitutional and ineffective.

Parole board officials meanwhile presented their own experts who spoke to recent test revisions and decreasing reliance on the tests.

A lower court ruled in early 2015 that polygraphs were fine for the supervision and treatment of sex offenders, but the court declined to answer the constitutional question of whether the tests as conducted violated prisoner rights.

In its 72-page ruling, the New Jersey Appellate Division rejected the offenders' attempts to invalidate all polygraph testing by the parole board, saying the tests "assist parole officers and treatment professionals in making better-informed decisions as to supervision and treatment."

In addition to barring New Jersey from using the test results to impose sanctions or increased restrictions on monitored sex offenders, the appeals court ordered the parole board to beef up regulations protecting offenders from incriminating themselves.

The parole board's use of the tests to increase restrictions on monitored sex offenders - such as travel bans or restrictions on where a sex offender an live - "clashes with our judiciary's systemic aversion to the evidential use of polygraphs," Judge Jack Sabatino wrote for the court.

Courts in New Jersey and elsewhere have for years shied away from taking polygraph test results as gospel, noting the proven ability for certain individuals to "beat" the test and the degree of unreliability test results can have.

While most states have banned the use of lie detector test results as evidence, nearly all states use the test for post-conviction screening.

Polygraph tests typically rely on muscle and pulse sensors attached all over the subject's body. The tests are thought to have an accuracy rate as high as 90 percent, though critics have argued the error rate can be as high as 29 percent.

New Jersey's parole board has used three types of polygraphs for sexual offenders: those who proclaim their innocence; those who require so-called maintenance exams to verify that their activities outside prison comply with the terms of their supervision; and those under scrutiny by the state when it needs information about their sexual history, interests, and behaviors. After each test, the test administrator is required to go over the results with the offender.

The appellants in the case mainly objected to the maintenance exams, saying the parole board has arbitrarily tightened limitations on offenders' activities. The parole board has countered that it administers those tests only when it has a reasonable belief that the offender has been noncompliant.

Judge Sabatino said policymakers "must not lose sight of this state's long-standing judicial aversion to polygraph evidence."

But "there is a fundamental difference between the evidential use of a polygraph to prove or dispute facts in a court where a person's rights are adjudicated versus a therapeutic context," the ruling continues.

The court also ruled that the polygraph tests did not equal "custodial interrogation" - cases in which a prisoner is queried about crimes without first being warned about his right not to incriminate himself - because the parole board instructs its test examiners to administer Miranda warnings at the beginning of each session.

Another part of the ruling allows the parole board to continue its practice of disallowing offenders from having an attorney present during the test.

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