Polygraph Supervision

By Brett A. Purtzer; Dec 2001

     RCW 9.94A.120 sets forth the sentence terms a court may impose upon a conviction for a particular offense.  Within that section, the court is provided with guidelines on how to deal with an individual, depending upon the nature of the crime.  Importantly, the section provides latitude to the Department of Corrections on supervising an offender so that the court’s order may be followed. 

     Pursuant to subsection  (15), the statute authorizes the Department of Corrections to “require an offender to perform affirmative acts it deems appropriate to monitor compliance with the conditions of the sentence imposed.”  RCW 9.94A.120(15).  The Department of Corrections' Policy Directive 400.360 states as follows:

     The Department of Corrections shall recognize the polygraph as a viable tool in monitoring the compliance of offenders with conditions that have been established by the court or through a recognized administrative process.  Polygraph examinations shall be considered as supplementary to, not as a supplement for, other forms of investigation that may be required. No adverse action will be taken solely on the basis of a polygraph examination chart that indicates deception.  Department staff will require offenders to submit to polygraph testing per: A. The offender’s Judgment and Sentence and E. Internal investigation process.

     This legislation poses a potential problem.  I recently had client who was charged with a sex offense, but entered a guilty plea to a simple assault, gross misdemeanor.  He received a probation violation because he refused, upon counsel’s advice, to submit to a polygraph examination to make certain that he had not been in contact with the purported victim of his alleged offense.  As we all know, a polygraph is not admissible unless stipulated to by the parties and other safeguards are met.  See State v. Renfro, 96 Wn.2d 902, 905, 639 P.2d 737 (1982).  Nevertheless, rather than contacting the victim to find out first-hand whether any contact occurred, the Corrections Officer thought it much more efficient to use, and subject my client to, a polygraph examination. 

     Upon defense motion, the court ordered that my client was not required to submit to the polygraph examination.  Even though this is the first time I have had this occurrence dealing with a polygraph examination in something other than a sex offense setting, it gives everyone pause to be concerned that the Department of Corrections is using supervision tools that are not admissible as evidence.   In addition, as the Department acknowledges, a polygraph result should not be relied upon as the sole basis to take adverse actions against an offender.

     When you face a situation such as this, you should seek a court order to determine whether the polygraph examination should be allowed.  Although we all want offenders following the conditions of their sentence, individuals who are maintaining law-abiding behavior should not be unfairly punished if they do not pass a polygraph.  Relying on an admittedly unreliable machine to determine your client’s compliance with sentence conditions is troubling.  As such, when the Department of Corrections attempts to subject your client to a polygraph examination, be aware that, although a Policy Directive exists, it should be the court that determines whether the Department of Corrections can use such an intrusive method to determine sentence compliance.