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Chapter 3: Polygraph for Sex Offender Management (Probation and Supervised Release Conditions)

A. Statutory Authority

Under 18 U.S.C. § 3563(b)(9), the court may provide that the defendant “undergo available medical, psychiatric, or psychological treatment.”

Under 18 U.S.C. § 3563(b)(22), the court may provide that the defendant “satisfy such other conditions as the court may impose.”

B. Sample Condition Language

You must submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure that you are in compliance with the requirements of your supervision or treatment program.

C. Purpose

  1. This condition serves the statutory sentencing purposes of public protection, deterrence, and rehabilitation. 18 U.S.C. § 3553(a)(2)(B)-(D).
  2. The polygraph examination is used to provide historical information about the defendant’s past behaviors, which is used for assessing risks and targeting treatment interventions, and to increase disclosure of activities, which may serve as a deterrent to re-offending behavior during the supervision period.
  3. This condition enables the probation officer to satisfy the statutory requirements to keep informed as to the conduct and condition of the defendant, report the defendant’s conduct and condition to the sentencing court, and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. §§ 3603(2)-(3).

D. Method of Implementation

  1. The physical and psychological harm caused by sex offenses is particularly traumatic, and probation and pretrial services officers should give priority to minimizing the impact on victims and to preventing new sex crimes from occurring. Not all persons charged with or convicted of sex offenses are alike. Rather, they present a spectrum of criminogenic risk and therapeutic need. Officers’ investigation and supervision techniques should vary accordingly.
  2. The polygraph test measures and records physiological responses such as heart rate, blood pressure, breathing patterns, and galvanic skin response while a person is asked and responds to specific questions. Testing consists of taking physiological measurements, interpreting the results, and offering an opinion by a professional polygraph examiner regarding deception.
  3. Types of Polygraph Examinations
    1. Sexual History Disclosure: A sexual history disclosure examination is used to investigate the examinee’s lifetime history of involvement in unknown or unreported offenses and other sexual compulsion, sexual preoccupation, or sexual deviancy behaviors. The instant offense may also be examined if the defendant exhibits denial regarding the commission of, or circumstances surrounding, the crime of conviction.
    2. Maintenance and Monitoring:
      1. A maintenance examination is used to verify the defendant’s compliance with treatment and supervision conditions. Maintenance examinations are administered periodically, usually every six months. Maintenance polygraph examinations cover a wide variety of sexual behaviors and compliance issues that may be related to victim selection, deviancy activities, or high-risk behaviors.
      2. A monitoring examination may be used to investigate the possibility of new unlawful sexual behavior while on supervision based on concerns expressed by the supervision and treatment team. Other relevant questions dealing with behaviors related to probation and treatment compliance should not be included.
    3. Issue-Specific: Issue-specific examinations can be used to follow up on previous unresolved/deceptive maintenance/monitoring examinations.
  4. The probation officer should collaborate with the polygraph examiner in the design of the questions presented during a polygraph test. The questions should consider any treatment issues (if the defendant is in treatment), behavior that is not in compliance with the conditions of supervision, and other supervision concerns.
  5. Polygraph examinations, which consist of interviews before, during, and after the polygraph test itself, may detect deception from the person’s demeanor during the interviews, deter unwanted activities by persons who know they will be asked about such activities, and elicit admissions or confessions of undesired activity.1
  6. Under approved judiciary procedures, polygraph results may be used to increase the level of supervision, modify treatment plans, or generate a separate investigation. A polygraph result may not be used as the sole basis to revoke supervision.2
  7. If the defendant refuses to answer a specific question during the polygraph examination or in any other interview on the grounds that it is incriminating, the probation officer may not compel (e.g., through threat of revocation) the defendant to answer the question. If there is uncertainty about whether the question may lead to a realistic chance of incrimination, the probation officer should refer the matter to the court to make this determination.3 
  8. Probation officers must be aware of situations that may lead to reasonably foreseeable risk of harm to a third party (see: Chapter 2, Section XII), which may include information received during a polygraph examination.
  9. After the polygraph test is administered, the probation officer should interview the defendant to discuss the results and future treatment and supervision needs.

 

1 National Research Council, The Polygraph and Lie Detection (Washington, D.C.: The National Academies Press, 2003).

2 For a further discussion of guidance provided to federal probation officers during polygraph examinations, which has been endorsed by the Criminal Law Committee of the Judicial Conference of the United States, see Stephen E. Vance, Looking at the Law: An Updated Look at the Privilege Against Self-Incrimination in Post-Conviction Supervision, 75 Fed. Probation 33, 37 (June 2011).

3 Id.