CCA Reverses Course on Polygraph Admissibility

Although polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this "opinion is troubling," as Sarah puts it.  I agree.

Just Answer the Question, But You Can Lie if You Want

The 11th District Court of Appeals (Eastland) released an opinion yesterday regarding whether the results of polygraph examinations can be used as evidence to revoke community supervision.

Here are some highlights:

This case presents an interesting paradox: courts routinely require sex offenders on community supervision to take and pass polygraph exams - even though their mere existence, let alone results, is inadmissible. But Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes.

Unless and until, the Court of Criminal Appeals lifts its ban on polygraph test results, trial courts lack the discretion to revoke an individual's community supervision for failing an exam.

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program.  Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation.  Nor do we hold that failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

So, to summarize the summary, Courts may impose polygraph exams as a condition of community supervision and the inidividual must submit to the exam, but they can completely fail the exam by totally lying throughout and their community supervision cannot be revoked.  That's an interesting loophole.

See the full opinion in Leonard v. State HERE.