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Polygraph examinations for defendants being monitored by probation officers can be used to determine compliance with the terms of their supervised release, the 2d U.S. Circuit Court of Appeals has ruled in an issue of first impression. U.S. v. Johnson, No. 04-4992. Jeffrey A. Johnson, an aerospace engineer, used the Internet to contact minors and lure them to meetings. He was arrested while on his way to one of those meetings, pleaded guilty and was sentenced to serve 7 years and 4 months in prison followed by three years’ supervised release. Probation officials proposed polygraph testing. Johnson objected, saying it would violate his rights under the Fifth Amendment and force him to choose between making an admission or staying silent, which would violate the terms of his supervised release. He also argued that the testing was unreliable and was not reasonably related to the purposes of sentencing. Judge Thomas McAvoy of the Northern District of New York allowed the polygraph testing but limited the scope of questioning to “information necessary for supervision, case monitoring, and treatment.” He also said that although Johnson would be compelled to answer, “if a truthful answer would expose him to prosecution for a crime different from the one on which he was already convicted,” he could still challenge the statements as violations of his Fifth Amendment rights. The 2d Circuit affirmed. Writing on behalf of the panel, Judge Dennis Jacobs said that polygraph testing, in promoting candor, “furthers the objectives of sentencing by allowing more careful scrutiny of offenders on supervised release.” Johnson’s citing of the U.S. Supreme Court’s recognition of studies showing polygraph reliability to be between 50% and 87% failed to persuade the court. “Since even the bottom of the range is still more-likely-than-not, the technology produces an incentive to tell the truth, and thereby advances the sentencing goals.” So while polygraph results are inadmissible as evidence, they still have a “therapeutic” value, Jacobs said. “Moreover, the exclusion of polygraph evidence in many cases has been based in part on a risk of prejudicial effect,” he said. “Prejudice is not as salient a risk in the absence of a jury; generally speaking, sentencing judges are better equipped to decide what weight if any to afford polygraph results.” Here, the judge said that the case for polygraph testing was strong because of the nature of Johnson’s offense as well as his history and personal characteristics. Probation officers were unconvinced that he was committed to recovery and cited his antagonistic attitude. “The polygraph can help penetrate deception and encourage an offender to confront his own motivations and behaviors,” Jacobs said. “These outcomes further sentencing objectives such as rehabilitation and deterrence, with reasonably small incremental deprivations of liberty.” Johnson’s Fifth Amendment challenge failed easily, Jacobs said, because 2d Circuit case law clearly allows for supervised release to be revoked where an offender “fails to answer questions even if they are self-incriminating.”

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