TX Court of Criminal Appeals okays 'trial by polygraph'

The Texas Court of Criminal Appeals continues to struggle with how to handle junk science, issuing (at least) its second 5-4 opinion in the last year (Ex Parte Robbins is the other I have in mind) allowing courts to rely on known junk science, this time reversing the lower court to proactively affirm the use of polygraphs as a basis for revoking sex offenders' probation. Chuck Lindell at the Austin Statesman gives the only MSM account I've see of the case of William Leonard ("Appeals court allows polygraph evidence, in limited way," Mar. 8), whose probation was revoked because he failed 5 polygraphs during mandatory treatment. Other than the polygraph, "appellant was halfway through his treatment plan and had faithfully attended the required meetings, participated in group therapy, and fulfilled all other terms and conditions of the treatment program," according to Judge Cathy Cochran's dissent. Moreover, "his therapist testified that the polygraph results were the only reason Leonard was discharged from treatment." Lindell explains the import of the decision:

In a 5-4 decision Wednesday, the Court of Criminal Appeals upheld Leonard's probation and prison term, saying the polygraph results were admissible in court because the information formed the basis of the therapist's expert opinion.

"Even generally inadmissible facts or data may be used by an expert in forming an opinion, as long as the facts or data are of a type reasonably relied upon by other experts in the field," said Judge Lawrence Meyers, writing for the majority.

"Polygraph exams are reasonably relied upon by experts in sex offender psychotherapy," Meyers added.

The majority reaffirmed that polygraph results are always inadmissible before a jury.

But there is less danger of undue influence if the information is revealed during revocation hearings because there is no jury and because the judge "is not determining guilt of the original offense," Meyers wrote.

But Judge Cathy Cochran, writing in dissent, said the majority opinion employs logic that leads the legal system "down a very steep and slippery slope."

Leonard was sent to prison based solely on the failed polygraphs, Cochran wrote, despite numerous scientific studies and reports that have cast doubt on the accuracy of the tests.

"No court should admit or consider scientifically unreliable evidence," Cochran wrote, adding that Leonard experienced "not only ‘revocation by polygraph' but also ‘revocation by an expert's reliance on unreliable science.' "

The 11th Court of Appeals had reversed the trial judge's back-door theory for admitting inadmissible evidence, calling this "trial by polygraph," and that's exactly right. The Statesman headline says polygraph evidence will be allowed in a "limited" way, but Cochran's more accurate when she decries the "steep and slippery slope" down which the opinion launches the court's jurisprudence: The harm from allowing unreliable evidence as the sole basis for incarceration decisions isn't mitigated because the probation officer and/or the court deferred their evaluation to a therapist. Hokum is hokum, no matter who relies on it.

If it were one piece of evidence among a panoply resulting from an investigation, that's one thing (you'll sometimes see polygraphs used in actual innocence cases that way, particularly out of Dallas). However, as Cochran wrote, "Although an expert may base his opinion, at least in part, on otherwise inadmissible evidence, it must nonetheless be reliable inadmissible evidence." Or at least that was the case until yesterday. Now, probationers can be revoked based on testimony from experts who base their conclusions exclusively on unreliable evidence.

Bottom line, because we're talking about sex offenders, the courts are willing to bend over backward to maximize punitive sanctions, even to the point of allowing pseudoscience to dictate sentencing decisions, as in this case. But now that the precedent has been set, you can be sure prosecutors will get more creative about probation conditions that defer polygraph use to some third party so it will be admissible when it otherwise wouldn't be. Consider the implications, for example, of using polygraphs vis a vis treatment programs associated with DWI convictions: If that happened, this decision could balloon quite quickly into a big deal affecting a lot of cases.

See Judge Meyers opinion (joined by Keller, Hervey, Keasler and Alcala) and Judge Cochran's dissent (joined by Price, Womack and Johnson). I'm particularly disappointed to see Judge Alcala was the critical swing vote for Keller and Co. on the opinion. There are a ton of junk science issues looming before criminal courts in the wake of the National Academy of Sciences reevaluation of forensics, so this blasé attitude toward relying on junk science bodes particularly ill at this historical juncture.

Bad, bad opinion. So bad maybe the Lege should act next year to say that polygraph tests can't be the sole basis for probation revocation, whether they're administered by law enforcement or a therapist at the direction of the court.