No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
– Fifth Amendment - United States
In 1973, in the
Multnomah County Circuit of Oregon,
Judge John C. Beatty, Jr. was the first to order the use of the polygraph in the
management of convicted sexual offenders. Today, almost 40 years later, the post-adjudication
polygraph has reached near-celebrity status among treatment providers and
supervising officers. Nonetheless, not
everyone is a fan; a small fraction of sexual offenders have assumed that the
polygraph will violate their Fifth Amendment rights and have taken subsequent legal
action. The number of appeals filed by
probationers is even smaller and, of these, only two (Antelope, Jacobsen) have reached
their objective. In a third ruling, the Washington
State Supreme Court ruled that an inmate (Hawkins) could not be forced to take
a sexual history polygraph examination as part of his SVP evaluation. How these
three rulings affect ATSA and its members is the focus of this article.
1993, Jake Hawkins was convicted of Attempted Rape in the Second Degree by Forcible
Compulsion. While incarcerated, he successfully completed a 13-month sexual
offender treatment program. On February 21, 2006, the State submitted a
petition alleging that Hawkins was an SVP based on the criteria set forth in Revised
Code of Washington (RCW 71.09.020). At the probable cause hearing, Dr.
Christopher North testified “to a reasonable degree of scientific certainty,”
that Hawkins was likely to reoffend. The trial court then found probable cause
to believe that Hawkins was an SVP; he was detained and ordered to have another
evaluation conducted by Dr. North. As part of that evaluation, North requested
that Hawkins submit to a sexual history polygraph examination. Hawkins refused.
The State sought, and the trial court granted, an order compelling him to
submit to the polygraph examination. He appealed and, in an unpublished
opinion, the Court of Appeals affirmed the trial court’s order. Hawkins then successfully
argued to the Washington Supreme Court that RCW 71.09.04(4) prohibits the state
from compelling respondents to SVP commitment proceedings to submit to
polygraph examinations. In re Detention of Hawkins 169
Wash.2d 796, 238 P.3d 1175 Wash.,
2010 is a published opinion.
In Stevensville, Montana, Larry Antelope ordered a child
pornography video over the internet from undercover federal agents. He pled
guilty to Federal Possession of Child Pornography and received a sentence of
five years’ federal probation in May of 2001. At sentencing, Antelope raised a Fifth Amendment challenge
to “mandatory periodic and random polygraph examinations” but was told by the
district judge that the “use of that information is, I think, subject to the privilege between
the counselor and the patient.” He appealed his sentencing a total of
five times before the court considered his appeal ripe, possibly due to his
subsequent incarceration during his appeals.
appealed the original sentencing decision (Appeal #1) and, while awaiting the
result from the appellate court, he refused to take the polygraph as required
by the treatment program. He was
returned to court for failing to comply with probation; the judge re-imposed
Antelope’s probation, added six months of electronic monitoring to his
conditions, and warned Antelope that he would return to prison unless he
complied with the polygraph conditions. Antelope appealed this new order
(Appeal #2). While waiting for a decision on Appeal #1 and #2, he refused to
take the polygraph exam again and was returned to court. This time the judge
heard testimony that Mr. Antelope refused to complete a sexual history
autobiography assignment and a full disclosure polygraph that would verify his
full sexual history. The court sentenced him to 30 months in prison and he
appealed for a third time (Appeal #3). The three appeals made it to the higher
Ninth Circuit Court of Appeals and his complaints about the Fifth Amendment were
heard along with other issues that applied to sentencing. The Ninth Circuit
Court sent the case back down to the lower court to be re-sentenced and did not
consider the three appeals based on the Fifth Amendment. The lower court
changed the 30-month sentence to 24 months followed by 30 months of supervised
release, along with the same polygraph requirement. Antelope appealed again
(appeal #4) because his sexual history polygraph requirement still remained.
After serving his prison term, he entered the treatment program and refused to
take the polygraph once again. He was taken back to court and sentenced to an
additional 10 months in prison and 26 months of supervised release.
appealed again, for the fifth time (appeal #5). In an unpublished opinion (United
States v. Antelope, 2005) the Ninth Circuit Court found that government’s
actions violated Antelope’s Fifth Amendment right against compelled self-incrimination
and reversed the earlier judgment, stating:
Constitution does not countenance the sort of government coercion imposed on
Antelope, and because his claim is ripe for adjudication, we reverse the
judgment of the district court.
Antelope decision was not the first court ruling on post-conviction sexual
offender polygraph, but it was the first ruling in favor of a sexual offender
on probation. Also, and most importantly from a legal
standpoint, Antelope is an unpublished opinion; some court systems, such as the
California state court system and the
federal Court of Appeals for the Second, Seventh, and Ninth Circuits—forbid
attorneys to cite unpublished cases as precedent.
In October 2009 in Yavapai County, Arizona,
Ryan Jacobsen pled guilty to three counts of Luring a Minor for Sexual
Exploitation and was sentenced to
probation. His subsequent probation
conditions included: “Defendant shall submit to any program of psychological or
physiological assessment at the direction of the Probation Officer, including
but not limited to Abel testing and/or the polygraph and/or the penile
plethysmograph, to assist in treatment, planning, and case monitoring” and
he was asked to complete several forms.
One was a consent to participate which included a waiver of
confidentiality that noted his probation officer would be fully informed of his
issues and progress. It also noted: “I understand that distressed polygraphs
cannot and will not be used in court or for probation revocation or treatment
When he entered a
treatment program the polygraph was discussed and Jacobsen asked his counselor
what the consequence would be if he exercised his right against
self-incrimination and refused to answer questions in the polygraph. He was told that a refusal to answer any
question for any reason would constitute a failure of the polygraph. His
treatment provider gave him a 15-page questionnaire to fill out before taking a
sexual history polygraph test. Jacobsen declined to answer some questions he
felt were incriminating and could be used against him.
approached the trial court with a motion to preclude the polygraph and the
questionnaire and the trial court responded by issuing an order “granting
Defendant immunity according to A.R.S. § 13-4066.” Jacobsen stated that the immunity given by
that law was insufficient, but after further argument, the trial court ruled
that A.R.S. § 13-4066 provides a probationer with adequate Fifth Amendment
protection as to information or statements elicited during sexual offender
treatment and declined to give him any further immunity.
The Appeals Court ruled in favor of Jacobsen,
holding that "a waiver of the privilege against self-incrimination may not
be made a condition of probation." The state then petitioned the Arizona
Supreme Court (Jacobsen v. Superior Court and State of Arizona, Supreme Ct. No.
CV-10-0309-PR) and Jacobsen’s attorney invited me to write an amicus brief for
the Arizona Supreme Court.
That brief I composed described
differences between forensic (single-issue) testing and utility (multiple-issue)
testing and how utility testing has become the norm for sexual offender testing.
validity of the forensic examination has been scientifically proven while the
utility test is without any scientific foundation. However, the utility test is
popular in sex offender treatment and
supervision for several reasons, the main one being that the polygraph
instrument, even when used in a less than optimal fashion, will encourage
respondents to make disclosures ... Forensic
polygraph has safeguards which keep its error-rate below 10 per cent, while
utility tests, such as the ones popular in sex offender management, actually
invite errors. A “false positive” can result in a waste of resources while
investigating unfounded concerns and it can unfairly hamper the otherwise
honest sex offender who is trying to rebuild his life while a “false negative” can
allow recidivism that could have been stopped before anything happened.
described the quality control mechanism and how it is a necessity if a state wants to optimize its use of the polygraph. The Arizona Supreme Court accepted the brief
and, in April 2011, the state filed a motion to withdraw its petition for
review. That motion was granted one day before oral arguments were scheduled to
begin. This leaves the appellate opinion in place, making it illegal in Arizona to compel people
to waive their privilege against self-incrimination as a condition of
Jacobsen versus Antelope
Many would say that to
compare Hawkins to Antelope and Jacobsen would be comparing apples to oranges,
and I agree, so let’s compare apples to apples. The relevant similarities of
the Antelope and Jacobsen cases end with the fact that both probationers refused
when told that they had to take sexual history polygraph tests as part of their
treatment. The major differences were:
1) Antelope learned of the polygraph during the plea bargain while Jacobsen was
told after sentencing, 2) Antelope actually served time due to his refusal to
comply with his sentence and Jacobsen did not, 3) the Antelope ruling was not
published and the Jacobsen ruling was a published opinion, and 4) the Antelope
ruling held “the
government’s actions violated his Fifth Amendment right against compelled
self-incrimination” while the Arizona Court of Appeals ruled on Jacobsen: “that
a waiver of the privilege against self-incrimination may not be made a
condition of probation” and should be an element of the sentence. A non-lawyer summation would be: The court
felt that Antelope should not have been punished for exercising his Fifth
Amendment rights and the court felt that Jacobsen should have been notified of
an expected waiver of those rights before his sentence.
What do these cases mean to ATSA?
As a published opinion,
the Hawkins ruling is important to all professionals working in the civil
commitment arena. It can be cited in all court systems as a precedent and it should,
in my opinion, be a warning to all professionals, whether they are in the SVP
arena, a prison, or in the community, that a person cannot be forced to take a
sexual history polygraph when the outcome may be used in pending adjudication. As a polygraph examiner, I find it
preposterous to consider testing anyone against their will. This is because the polygraph is a means of
determining certainty−certainty about their answer and certainty about the
objectivity of the examiner. The outcome of a ‘forced’ examination would be
very questionable. With one exception,
the idea of giving a person a sexual history test prior to sentencing or prior
to an SVP trial is unethical. The only
exception is if this is done with concurrence from that person’s attorney.
I was not involved in
the Antelope case and may well be wrong, but it is my opinion that an open
channel of communication between Antelope, the polygraph examiner, his
treatment provider, and his probation officer might have saved a good deal of
time and money. For example, I have seen several convicted sexual offenders who
at first did not want to take a sexual history test and the treatment provider
was flexible, after discussing this with me.
Instead I saw these offenders for maintenance tests and after some time
they requested a sexual history test to prove that they were ‘ready’ for after-care.
When Ryan Jacobsen agreed
to a plea bargain and was sentenced to probation, he was not told that he would
be required to take a possibly incriminating sexual history polygraph
test. It was not until after sentencing,
when he signed a list of probation conditions, that he was told about the
polygraph. This is why the appeals court
ruled in Jacobsen’s favor, in finding that “a waiver of the privilege against
self-incrimination may not be made a condition of probation”. The polygraph should have been introduced
when the plea was offered. When he asked his treatment provider what would
be the consequence of refusing to answer questions, he was told “failure of the
polygraph.” I have no further knowledge
of the actual discourse between Jacobsen and the treatment provider, but if
“failure of the polygraph” is another way of saying “you will be deceptive”
then that is untrue.
The polygraph is
currently used by the U.S.
government and, to some degree, all U.S. states during the management
and treatment of convicted or committed sexual offenders. It is used in Federal and State prisons,
during Federal probation, and during state probation and parole. It is also used in civil commitment; in the
Federal program and in 19 of 20 states with civil commitment statutes. Despite the
popularity and tenure of the polygraph, each of these user groups has its own policies
regarding polygraph. For example, the protocol for introducing polygraph into sexual
offender treatment varies by jurisdiction and even within a jurisdiction.
Hawkins, Antelope, and
Jacobsen remind us that Fifth Amendment rights apply to all citizens,
regardless of the jurisdiction. Specifically,
Hawkins reminds us that we have the Fifth Amendment to prevent forced
self-incrimination, Antelope suggests that a sexual offender should not be
incarcerated for refusing to waive those rights, and Jacobsen suggests that the
polygraph should be introduced prior to sentencing. ATSA and its members must
remember that probation and parole are alternatives to prison, and the acceptance
of the parameters of those alternatives is the court’s offer and the individual
offender’s option. Treatment providers and polygraph examiners are not arms of the court (U.S. v. Saxena)
and to act otherwise jeopardizes the rationale of treatment and the objectivity
of the polygraph examiner.
In the Robert Bolt play
“A Man for All Seasons,” Sir Thomas More, then Chancellor of England (1529-1532), argued with his son-in-law William Roper about
his willingness to “knock down every law in England” in pursuit of the devil.
And when the last law was down and the Devil
turned round on you, where would you hide, Roper, the laws all being flat?
(2008). Post conviction polygraph in the community and court: Raising the bar
on PCSOT examiners. The Forensic
Examiner, 17, 72-79.
(2011). The polygraph, sex offenders, and the court: What professionals should know about polygraph .
. . and a lot more. Concord:
(2011). Jacobsen v. Arizona (2010). Amicus Brief presented
by Blackstone Polygraph, Inc.
Jones, L., & Patrick, D. (2002). The polygraph plays a key role as a
containment tool for convicted sex offenders in the community. Polygraph, 31, 240-253.
In re Detention of Hawkins 169 Wash.2d
796, 238 P.3d 1175 Wash.,
v. Superior Court and State of Arizona, Supreme Ct. No.
States v. Saxena,
229 F.3d 1, 5 n.1 (1st Cir. 2000).
United States v. Antelope, 395 F.3d 1128 (2005).
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