Wednesday, May 4, 2011

Do convicted sex offenders lose their right against self-incrimination?

Guest report by Ken Blackstone*

The polygraph is used by the U.S. government and to some degree all U.S. states during the management and treatment of convicted sex offenders, both in prison and in the community. Arizona is no exception. Hundreds of offenders have filed appeals based on a concern that disclosures and opinions will result in further prosecution or be used to support their civil commitment as sexually violent predators (SVP’s). Almost all of these appeals have been denied, but Arizona is now the exception.

Yes, it is optional for an inmate to enroll in treatment that includes polygraph and yes, it is optional to participate in community treatment that includes polygraph, but the only other option is prison. In most jurisdictions, when an offender is sentenced to probation this “option” comes either as a court order at sentencing or as a subsequent probation condition that is introduced after sentencing. Arizona is now the exception.

In October 2009 in Yavapai County, Ryan Jacobsen pled guilty to three counts of Luring a Minor for Sexual Exploitation and was subsequently sentenced to probation. His 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.”

When he entered a treatment program, his treatment provider gave him a 15-page sexual history 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. Jacobsen’s attorney approached the prosecution, but they declined to give him immunity for any crimes he might disclose.

Jacobsen then filed a motion to preclude the polygraph and the questionnaire. 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 the defense filed an amicus brief on post-conviction sex offender polygraph.

That brief described the weaknesses of post-conviction sex offender testing and described the differences between forensic (single-issue) testing and utility (multiple issue) testing and the steps the state of Arizona should take to optimize its use of the polygraph:


The 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. Other reasons for popularity are convenience, the appearance of economy, and the appearance of 'covering more issues.' ... How disclosures actually relate to treatment success is unknown.

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 probation.

*Ken Blackstone is a forensic psychophysiologist and licensed polygraph examiner based in Atlanta. He is the author of the forthcoming book,  Polygraph, Sex Offenders, and the Court; What Professionals Should Know About Polygraph . . . and a Lot More, to be published in May by Emerson Books. To learn more about the book, email Mr. Blackstone or polygraphbook@gmail.com.

1 comment:

  1. My client was charged with sexual assault of a child. The plea bargain changed the charge to "causing mental injury to a child" making it no longer a sex. The State did insist he take a sex offender evaluation and any conditions the therpist recommended. The LSOP required clients to take polygraphs or she removed them from treatment and probation would file a motion to revoke and the client faced the possibility of prison. We objected to any conditions that violated his 5th Amendment rights since the proposed questions involved uncharged conduct. Judge Suzanne Wooten, 380th District Court, agreed and amended his probation

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