J.B. v. New Jersey State Parole Board

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5435-10T2
A-1459-11T2
A-2138-11T3
A-3256-11T2
A-1385-15T2
J.B.,
Appellant,
APPROVED FOR PUBLICATION
v.
January 21, 2016
NEW JERSEY STATE PAROLE BOARD, APPELLATE DIVISION
Respondent.
__________________________________
L.A.,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
__________________________________
B.M.,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
____________________________________
W.M.,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
_____________________________________
R.L.1,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
_____________________________________
Argued October 29, 2013 - Referred to the
Law Division pursuant to Rule 2:5-5(b)
November 26, 2013
Reargued September 16, 2015 - Decided January 21, 2016
Before Judges Sabatino, Accurso, and
O'Connor.
On appeal from the New Jersey State Parole
Board.
Michael C. Woyce argued the cause for
appellants L.A., W.M. and R.L.2 (Murphy &
1
By consent of counsel for the parties and intervenor, a
separate appeal by R.L. raising similar issues was consolidated
with the present appeals in December 2015, and all parties
agreed to rely as to R.L. on their briefs and oral arguments
they had previously presented.
2
At oral argument in October 2013 and again in September 2015,
counsel represented that the issues relating to J.B. and B.M.,
(continued)
2 A-5435-10T2
Woyce, attorneys; Joseph S. Murphy, Jesse D.
Stovin, and Mr. Woyce, on the briefs).
Daniel M. Vannella, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel and on the brief; Mr.
Vannella and Christopher C. Josephson,
Deputy Attorney General, on the briefs).
Fletcher C. Duddy, Deputy Public Defender,
argued the cause for Intervenor New Jersey
Public Defender (Joseph E. Krakora, Public
Defender, attorney; Mr. Duddy and Stefan J.
Erwin, Assistant Deputy Public Defender, on
the brief).
The opinion of the Court was delivered by
SABATINO, P.J.A.D.
This matter returning to our court involves a challenge to
the practices of the New Jersey State Parole Board ("Parole
Board") in administering polygraph examinations. Pursuant to
statutory and regulatory authority, the Parole Board
periodically administers such polygraphs to released sex
offenders who are subject to either parole supervision for life
("PSL") or its statutory predecessor, community supervision for
life ("CSL"), N.J.S.A. 2C:43-6.4.
(continued)
are no longer in dispute and that the appeals are proceeding
solely as to L.A., W.M., and R.L.
3 A-5435-10T2
Appellants, all of whom are represented by the same
counsel, are individuals who have been convicted of sexual
offenses, have completed their respective prison terms, and are
now being monitored by the Parole Board as part of the terms of
their PSL or CSL. Appellants contend that the Parole Board's
practices of requiring them and other similarly-situated
offenders3 subject to PSL or CSL to submit to polygraphs, and the
manner in which it uses those polygraph results, violate their
constitutional rights. They also contend that the Parole
Board's practices in this regard are arbitrary and capricious
and should be invalidated on that basis as well.
For reasons that follow, we uphold the validity of the
Parole Board's polygraph program, subject to certain important
conditions and modifications. In particular, we disallow the
Parole Board from using the machine-generated technical results
of such exams as evidence to justify a curtailment of an
offender's activities. We also rule the Parole Board's
regulations and practices to protect the offenders' privileges
against self-incrimination should be enhanced.
Appellants' polygraph challenges were included in an
earlier phase of these consolidated appeals that also included
appellants' separate claim that the Parole Board had
3
Appellants have not sought class certification.
4 A-5435-10T2
unconstitutionally restricted their access to social media and
other websites on the Internet.
In November 2013, this court issued an opinion that
partially adjudicated the issues presented. J.B. v. N.J. State
Parole Bd., Nos. A-5435-10, A-1459-11, A-2138-11, A-2448-11, A-
3256-11 (App. Div. Nov. 26, 2013) ("J.B. I"). In the published
portion of that opinion in J.B. I, we rejected appellants'
facial challenge to the Internet access restrictions, without
prejudice to the ability of individual offenders to pursue
"as-applied" challenges to such restrictions in the future. See
J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 344-46 (App.
Div. 2013), certif. denied sub nom., B.M. v. N.J. State Parole
Bd., 217 N.J. 296 (2014).
In the unpublished portion of our November 2013 opinion, we
declined to resolve appellants' challenges to the Parole Board's
use of polygraph examinations. We did so because the factual
record at that time was inadequate to evaluate whether the
Parole Board's practices violate appellants' constitutional
rights or are arbitrary and capricious. J.B. I, supra, slip op.
at 28-50. Given the record's shortcomings and the exceptional
circumstances of this case, we referred the polygraph issues to
the trial court for evidentiary hearings and fact-finding
pursuant to Rule 2:5-5(b). Id. at 48-50.
5 A-5435-10T2
As part of the referral for fact-finding, we directed the
trial court to "explore the existence and strength of what the
[Parole Board] asserts are the therapeutic, rehabilitative, and
risk management benefits of polygraph examinations as
administered to released sex offenders." Id. at 47. We also
requested the trial court to indicate, to the extent possible,
any recommendations it may have concerning how the Parole
Board's existing procedures "might be altered to (1) enhance any
proven therapeutic, rehabilitative or risk management benefits
of the polygraph testing; or (2) achieve those benefits in a
manner that might be less intrusive of appellants' individual
rights." Id. at 49-50.
Following discovery and the exchange of expert reports, the
evidentiary hearings were conducted in the fall of 2014 over the
course of six intermittent dates. With our permission, the
State Office of the Public Defender, which had previously
commented on the Parole Board's polygraph regulations when they
were adopted, intervened in the proceedings and presented its
own expert proofs. Multiple experts and fact witnesses
testified at these hearings. The trial court also considered a
plethora of exhibits and written studies on the subject.
On January 12, 2015, the trial court issued lengthy written
findings of fact. In its conclusions, the court found what it
6 A-5435-10T2
termed a "reasonable basis" for the Parole Board to use
polygraph testing in the supervision and treatment of sex
offenders on PSL or CSL. However, consistent with the
constraints of our referral and Rule 2:5-5(b), the court
confined its decision to factual findings, and it did not
address the constitutionality or legal validity of the polygraph
testing program.
Appellants subsequently filed exceptions to the court's
factual findings, and also renewed their legal arguments
supporting their challenge. The Public Defender likewise filed
exceptions and also advanced its own legal arguments, urging
that we invalidate the polygraph testing program. The Parole
Board filed a written response and the legal issues were
reargued before this court, this time with the participation of
the Public Defender.
Having now considered these issues with the benefit of the
court's detailed fact-finding, we reach several conclusions,
which are amplified more fully in this opinion. First, we
reject appellants' categorical attempt to invalidate all
polygraph testing conducted by the Parole Board. We find ample
support in the record for the trial court's finding that such
testing can assist parole officers and treatment professionals
in making better-informed decisions as to supervision and
7 A-5435-10T2
treatment. However, in recognition of our judiciary's long-
standing concerns about the inaccuracy of the machine-generated
results produced by polygraph testing, we conclude that the
Parole Board may not utilize such "technical" results in any
evidential manner to support imposing sanctions or increased
restrictions on the monitored individuals. This proviso does
not, however, preclude the Parole Board from making evidential
use of the substance of any admissions or other statements made
by the offenders at a polygraph session, as distinguished from
the machine-generated technical results.
Second, we hold that the Parole Board must enhance its
regulations and practices to safeguard an offender's right to
invoke his constitutional privilege against self-incrimination
in responding to any questions posed before or during a
polygraph examination session. We reject, however, appellants'
specific claim that the polygraph sessions comprise a form of
custodial interrogation that require the administration of
Miranda4 warnings.
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
8 A-5435-10T2
I.
The following background derived from both the extensive
factual record and the overall regulatory scheme informs our
analysis of the constitutional and legal issues.5
The Court's Long-standing Aversion to the
Evidential Use of Polygraphs
For decades, our courts have declared machine-generated
polygraph results to be unreliable proof that must be excluded
as evidence, unless there is a mutual stipulation from the
parties agreeing to admit such proof. See, e.g., State v. A.O.,
198 N.J. 69, 83-84 (2009); State v. Domicz, 188 N.J. 285, 312-13
(2006); State v. McDavitt, 62 N.J. 36, 43-44 (1972); State v.
Driver, 38 N.J. 255, 261 (1962). As part of that unbroken line
of precedent, our State Supreme Court explained in McDavitt in
1972 that "[t]o date . . . lie detector testing has not yet
attained scientific acceptance as a reliable and accurate means
of ascertaining truth or deception." McDavitt, supra, 62 N.J.
at 44. In 2006, the Court reiterated the polygraph's scientific
unreliability and inaccuracy in Domicz, observing that "[i]n the
more than thirty years since McDavitt, serious questions about
5
Much of this background repeats, at times verbatim, the
unpublished portion of our November 2013 opinion in J.B. I, as
corrected or amplified by additional information that emerged at
the trial court proceedings. To the extent there is any
variation with our prior opinion, the details in our present
opinion supersede our earlier discussion.
9 A-5435-10T2
the reliability of polygraph evidence remain." Domicz, supra,
188 N.J. at 313.
In 2009 in A.O., the Court repeated these well-settled
principles, holding that polygraph evidence generated after a
stipulation entered into between the State and a criminal
suspect — without the involvement of the suspect's defense
counsel — is inadmissible at trial. A.O., supra, 198 N.J. at
90. Among other things, the Court in A.O. referred again to the
abundant scientific literature that raises doubts about the
reliability and accuracy of polygraph results. Id. at 83-84;
see also United States v. Scheffer, 523 U.S. 303, 309-12, 118 S.
Ct. 1261, 1265-66, 140 L. Ed. 2d 413, 419-21 (1998). As of the
time of the Court's 2009 opinion in A.O., twenty-eight states
had banned the admission of polygraph evidence outright. A.O.,
supra, 198 N.J. at 84. The Court noted that "[v]irtually all
the other states" that have considered the issue "limit the
admission of polygraph evidence to cases where both parties
stipulate to its use." Id. at 85. As the Court in A.O.
unambiguously declared, "[t]his Court has not sanctioned and
does not now entertain the admission of polygraph results." Id.
at 86.
10 A-5435-10T2
The Legislature's Authorization to the
Parole Board to Administer Polygraphs for
"Treatment" and "Risk Management" of PSL/CSL
Sex Offenders
Despite this long-standing precedent treating
non-stipulated polygraph results as inadmissible in our courts,
the Legislature adopted the following provision in 2005
authorizing polygraph testing of offenders who are subject to
PSL or CSL. This statute is part of a larger set of provisions
addressing the post-release supervision of persons convicted of
certain sexual offenses. In pertinent part, the statute
provides:
The State Parole Board, on at least an
annual basis, may administer to all
offenders serving a special sentence of
community or parole supervision for life,
imposed pursuant to section 2 of P.L. 1994,
c. 130 ([N.J.S.A.] 2C:43-6.4), polygraph
examinations in order to obtain information
necessary for risk management and treatment
and to reduce the offender's denial
mechanisms. A polygraph examination shall
be conducted by a polygrapher trained
specifically in the use of the polygraph for
the monitoring of sex offenders, where
available, and shall be paid for by the
offender. The results of the polygraph
examination shall not be used as evidence in
court to prove that a violation of the
special sentence of community or parole
supervision for life or condition of
discharge has occurred.
[N.J.S.A. 30:4-123.88 (emphasis added).]
11 A-5435-10T2
As part of this polygraph initiative and the related
provisions allowing electronic monitoring and other restrictions
of sex offenders on PSL or CSL, the Legislature articulated the
following general purposes to improve, with the aid of
technology, the post release monitoring of sex offenders:6
a. Offenders who commit serious and
violent sex crimes have demonstrated high
recidivism rates and, according to some
studies, are four to five times more likely
to commit a new sex offense than those
without such prior convictions, thereby
posing an unacceptable level of risk to the
community.
b. Intensive supervision of serious and
violent sex offenders is a crucial element
in both the rehabilitation of the released
inmate and the safety of the surrounding
community.
c. Technological solutions currently exist
to provide improved supervision and
behavioral control of sex offenders
following their release.
d. These solutions also provide law
enforcement and correctional professionals
with new tools for electronic correlation of
the constantly updated geographic location
of supervised sex offenders following their
release with the geographic location of
6
Contemporaneous with the passage of N.J.S.A. 30:4-123.88, the
Legislature issued these findings and declarations that were
applicable to the subchapter. L. 2005, c. 189, § 2. A later
amendment in 2007 recodified those same findings and
declarations to its current form, N.J.S.A. 30:4-123.90. L.
2007, c. 128, § 8.
12 A-5435-10T2
reported crimes, to possibly link released
offenders to crimes or to exclude them from
ongoing criminal investigations.
e. Continuous 24 hours per day, seven days
per week, monitoring is a valuable and
reasonable requirement for those offenders
who are determined to be a high risk to
reoffend, were previously committed as
sexually violent predators and conditionally
discharged, or received or are serving a
special sentence of community or parole
supervision for life. A program to monitor
these sex offenders should be established.
[L. 2007, c. 128 (emphasis added); see also
N.J.S.A. 30:4-123.90.]
The Parole Board's Development of Polygraph
Testing Procedures and Regulations
The Parole Board then undertook to develop procedures and
regulations to implement the polygraph testing the Legislature
authorized in N.J.S.A. 30:4-123.88. See N.J.A.C. 10A:71-
6.11(b)(21); N.J.A.C. 10A:72-3.1 to -3.10. Those regulations
and procedures are at the heart of the legal challenges advanced
here by appellants and the intervenor Public Defender.
In objection to the Parole Board's initial set of proposed
polygraph regulations, the Public Defender's Office questioned
the reliability and utility of the device. That comment from
the Public Defender was summarized by the Parole Board in the
New Jersey Register:
The section requiring convicted sex
offenders to submit to an annual polygraph
13 A-5435-10T2
examination at their expense is both unfair
and an extremely unreliable tool. The fact
that the section (N.J.A.C. 10A:71-6.13(b))
provides for a polygrapher specially trained
in the use of the polygraph for monitoring
of sex offenders highlights this
proposition. If the polygraph examination
was a reliable tool for determining
deception, any qualified polygrapher would
be equally capable of determining deception,
whether the issue was taking money from a
bank or continued interest in deviant sex.
The commenter viewed the proposed new rule
as just another step to make the lives of
sex offenders in this State unbearable with
no public benefit.
[40 N.J.R. 3726(b) (emphasis added).]
In response to that comment, the Board rested upon the
Legislature's own findings:
New rule N.J.A.C. 10A:71-6.13 (Polygraph
examinations) codified N.J.S.A. 30:4-123.88,
[a statute] which was enacted effective
August 11, 2005. As the language of the new
rule is the same as the statutory language,
the State Parole Board elected to adopt
N.J.A.C. 10A:71-6.13 as proposed.
[Ibid.]
Because certain provisions in the proposed regulations, as
initially drafted, seemed to incorrectly mandate that the Parole
Board administer polygraph examinations on an annual basis to
all sex offenders, the Parole Board subsequently issued a rule
amendment. Consistent with N.J.S.A. 30:4-123.88, the amendment
clarified the discretionary nature of its polygraph testing to
14 A-5435-10T2
make it plain that the testing is not a universal or annual
requirement. N.J.A.C. 10A:71-6.11(b)(21).
Subsequently, one of the appellants in this case, B.M.,
filed an appeal challenging the validity of the Parole Board's
practices in administering such polygraphs. In ruling on that
appeal in 2010, we did not address the merits of B.M.'s
constitutional arguments. Instead, we directed the Parole Board
to undertake additional formal rulemaking to codify its internal
practices in accordance with the rulemaking principles of
Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984).
B.M. v. N.J. State Parole Bd., No. A-2599-09 (App. Div. June 30,
2010) (slip op. at 6-8).
Consequently, in January 2011, the Parole Board proposed
additional polygraph regulations, in an effort to address the
need for rulemaking identified in our 2010 opinion. 43 N.J.R.
121(a). The bulk of those rule amendments, which were adopted
in July 2011, are now set forth in N.J.A.C. 10A:72-3.1 to -3.10.7
During the public comment process concerning these proposed
clarifying rules, the Public Defender as well as a group of
individual offenders (none of whom are parties to the
7
The proposal also sought to amend N.J.A.C. 10A:71-6.11(b)(21)
to clarify that an Assistant District Parole Supervisor or a
Supervising Parole Officer may also direct an offender to submit
to a polygraph examination.
15 A-5435-10T2
consolidated appeals presently before this court) submitted
objections to the Parole Board. The objectors criticized the
proposed new provisions on a variety of constitutional and legal
grounds, all of which are now before us in the current appeals.
As the Parole Board summarized those objections:
The comments submitted by the group of
offenders related to their concern that
polygraph examinations have been found to be
unreliable; that based on a process found to
be unreliable an offender may be subject to
a course of action that would result in the
loss of liberty; that an offender would be
forced to give up his right to remain
silent; and that as parole is part of the
criminal process an offender's submission
for a polygraph examination would violate
his right to be represented by counsel.
[43 N.J.R. 3087(a) (emphasis added).]
The Parole Board rejected all of the objectors' claims of
unconstitutionality in its published response. Ibid. Except
for certain revisions to the notice requirements in N.J.A.C.
10A:72-3.5, the Parole Board adopted the newest rules in
otherwise substantively-unchanged form on July 27, 2011,
effective November 21, 2011. Ibid.; see generally N.J.A.C.
10A:72-3.1 to -3.10. These newer regulations implemented the
more general authorization set forth in N.J.A.C. 10A:71-6.13.
That regulation, in turn, tracks the enabling statute, N.J.S.A.
30:4-123.88, almost verbatim, and reads:
16 A-5435-10T2
(a) . . . [T]he Board, on at least an
annual basis, may administer to all
offenders serving a special sentence of
community or parole supervision for life,
imposed pursuant to N.J.S.A. 2C:43-6.4,
polygraph examinations in order to obtain
information necessary for risk management
and treatment and to reduce the offender's
denial mechanisms.
(b) A polygraph examination shall be
conducted by a polygrapher trained
specifically in the use of the polygraph for
monitoring of sex offenders, where
available, and shall be paid for by the
offender.
(c) The results of the polygraph
examination shall not be used as evidence in
court to prove that a violation of the
special sentence of community or parole
supervision for life or condition of
discharge pursuant to N.J.S.A. 30:4-27.36
has occurred.
[N.J.A.C. 10A:71-6.13 (emphasis added).]
The Three Types of Polygraph Examinations Authorized by the
Regulations
The Parole Board's regulations describe three kinds of
polygraphs: (1) an "instant offense examination," (2) a
"periodic maintenance examination," and (3) a "sexual history
examination." N.J.A.C. 10A:72-3.3(a) to (c). An instant
offense examination is proper when "either an offender denies
guilt regarding the commitment offense or an offender's version
of the commitment offense differs significantly from the
17 A-5435-10T2
official version of the commitment offense as noted in the pre-
sentence report." N.J.A.C. 10A:72-3.3(a).
By comparison, a periodic maintenance examination, which
appears to be much broader in scope, may be administered when it
is needed "to verify the activities, behavior and truthfulness
of an offender as related to compliance with the conditions of
supervision." N.J.A.C. 10A:72-3.3(b).
Lastly, the regulations note that the third kind of test, a
sexual history examination8 may be administered "to obtain
comprehensive information regarding an offender's sexual
interests and behaviors in order to identify the offender's
predilections and to assist in case planning and treatment
objectives." N.J.A.C. 10A:72-3.3(c).
The decision as to whether any of these kinds of polygraphs
should be administered to a particular offender serving a PSL or
CSL sentence is initially considered by the individual's
assigned parole officer. The parole officer is to be guided by
the following standards set forth in the regulations:
The assigned parole officer shall review the
offender's case with an Assistant District
Supervisor, District Parole Supervisor, or
Supervising Parole Officer for consideration
of a polygraph examination, if the assigned
8
The record before us indicates that the Parole Board has yet to
administer a "sexual history examination" to any offender on PSL
or CSL.
18 A-5435-10T2
parole officer has a reasonable belief that
an offender is non-compliant with a
condition(s) of supervision; if an offender
denies guilt regarding the commitment
offense; or if an offender's treatment
provider believes that the administration of
a polygraph examination would assist in the
treatment or supervision of the offender.
In addition, the reviewing supervisor must
determine that there is a need to obtain and
verify information regarding an offender's
behaviors and sexual interests.
[N.J.A.C. 10A:72-3.4(a) (emphasis added).]
The ultimate decision to administer a polygraph must be made by
a supervisor. N.J.A.C. 10A:72-3.4(b). If a polygraph is
ordered, the offenders are to be supplied with thirty days'
advance notice of the procedure, N.J.A.C. 10A:72-3.5, and are
presented with a disclosure form detailing the terms of the
polygraph, N.J.A.C. 10A:73-3.6(a), including notification that
"the results"9 of the examination "shall not be used as evidence
in court to prove that a violation of the [terms of PSL or CSL]
or condition of discharge has occurred," N.J.A.C. 10A:72-
3.6(b)(6). Failure to submit to a polygraph, absent good cause,
is now a third-degree crime, as a result of a change in the law
in 2013. N.J.S.A. 2C:43-6.4(d).
9
See our discussion, infra in Part III, concerning the meaning
of the term "results" and the implications of that definition.
19 A-5435-10T2
The polygraph session consists of a pre-examination
interview, the examination itself, and a post-examination
interview. N.J.A.C. 10A:72-3.7(a). During the post-examination
interview, the examiner must review the test results with the
offender, advise him or her of "any significant, deceptive or
inconclusive response[s,]" and provide him or her with a chance
"to explain or resolve any significant, deceptive or
inconclusive response[s]." N.J.A.C. 10A:72-3.7(h)(2). The
examiner is to immediately notify a supervisor or a supervisor's
designee of "any significant findings, conclusions and/or
admissions made during the polygraph examination process."
N.J.A.C. 10A:72-3.8(a). The supervisor or designee, in turn,
must review the individual's case "with the assigned parole
officer and/or treatment provider to determine a course of
action." N.J.A.C. 10A:72-3.9(a).
Notably, "any voluntary admission(s) made by the offender
regarding unreported victim(s) or crime(s)" must be immediately
reported to the appropriate law enforcement agencies. N.J.A.C.
10A:72-3.9(b). The costs of the examination must be paid for by
the offender. N.J.A.C. 10A:72-3.10(a).
These testing procedures, as they are deployed in practice,
were described in extensive detail by the Parole Board's
witnesses at the trial court's evidentiary hearing. The
20 A-5435-10T2
testimony reflects that to some extent, the Parole Board has
altered its actual practices over time, even as the present
litigation has been pending. The trial court accepted as expert
witnesses all of the testifying witnesses who were designated as
such by the parties and the Public Defender.
The Parole Board's Factual and Expert Proofs
Raymond Nelson
The Parole Board's chief factual and expert witness at the
hearing was Raymond Nelson. Nelson is employed by a company
that manufactures polygraph equipment used by the Parole Board.
He holds a master's degree in psychology, and has extensive
experience in both psychotherapy and statistical research. For
more than a dozen years, Nelson has counseled both perpetrators
and victims of sexual abuse. Consistent with guidelines
promulgated by the American Polygraph Association ("APA"),
Nelson trains other examiners who administer polygraphs to sex
offenders. Such tests are also known as Post Conviction Sex
Offender Testing ("PCSOT").
Nelson explained that polygraph testing operates on a
premise that certain human physiological responses correlate
with deception or truth-telling. The polygraph machine has
electrodermal, cardiac, and respiration sensors designed to
measure those responses as the subject answers questions
21 A-5435-10T2
carefully formulated and arranged by the examiner. Appropriate
questions, depending on the nature of the test and the subjects
of inquiry, are ordinarily prepared prior to the exam session.
The actual wording of the exam questions is finalized during the
pre-test interview.
The Parole Board uses an examination technique validated by
a 2011 APA "meta-analysis." As part of that technique, an
examiner intersperses "target" (or relevant) questions among
"control" questions and "neutral" questions. The examiner then
evaluates any differences in the subject's physiological
response to those stimuli to gauge the probability that he or
she is engaging in deception. According to Nelson, subjects
with stronger responses to relevant questions tend to be
deceptive, while those with stronger responses to control
questions tend to be telling the truth.
The polygraph machinery the Parole Board uses is equipped
with somatic sensors, most commonly attached to the subject's
chair. The sensors are designed to detect movement in any large
muscle group in the body, for example, by identifying changes in
distribution of weight on the chair. According to Nelson, the
equipment can thus detect whether a subject is deliberately
engaged in muscle tension or other known "countermeasures" to
affect the results of the test. The examinations typically last
22 A-5435-10T2
an hour and a half, with most of that time devoted to the pre-
test interview.
Nelson stated that polygraph testing had been used in the
post-conviction context for decades and that nearly all states
now used PCSOT in some manner. Nelson noted that some testing
was performed for diagnostic purposes, such as the "instant
offense" polygraphs authorized by N.J.A.C. 10A:72-3.3(a).
Other testing is primarily used for screening purposes,
such as the "maintenance" polygraphs authorized under N.J.A.C.
10A:72-3.3(b), as to which appellants here have most strenuously
objected. The purpose of such maintenance testing, Nelson
explained, is threefold: (1) to increase the information
available for treatment and supervision by encouraging
disclosure; (2) to act as a deterrent to violation by
encouraging compliance with the conditions of supervision; and
(3) to aid those responsible for the offender's treatment and
supervision in discriminating truth from deception.
Nelson cited research showing that the accuracy of PCSOT
polygraphs ranged from a median of 89% for diagnostic tests to a
median of 85% for screening tests such as maintenance
polygraphs, which are more complicated to administer. He
estimated the lower bound for accuracy of diagnostic tests at
83% and for screening polygraphs at 77%. Although polygraph
23 A-5435-10T2
reliability is not perfect, Nelson contended that polygraph
results nonetheless performed far better than chance predictions
of truthfulness. He also claimed that the testing promoted
better-informed decision-making by officials who are responsible
for offender treatment and supervision.
Dr. Bosley
The Parole Board also presented testimony from Dr. Jackson
Bosley, a licensed psychologist engaged in sex offender
treatment. Dr. Bosley developed and now runs the Parole Board's
treatment program for indigent sex offenders. He explained that
his program adopted a collaborative approach, in which treatment
professionals share information with parole officers. According
to Dr. Bosley, such collaboration fosters more informed
decision-making about treatment and monitoring. The
collaboration thereby promotes rehabilitation and reduces
recidivism among supervised parolees.
Dr. Bosley noted that the therapeutic process for sex
offenders is typically an initially uncomfortable one. This is
so because offenders participate in treatment only by mandate,
and tend to view the clinician as an enemy tasked with probing
the shameful behavior which led to the offender's conviction.
Dr. Bosley estimated that, as a consequence, about half of sex
offenders deny outright their offenses early in treatment, while
24 A-5435-10T2
the other half usually remain silent. The psychologist opined
that an offender's overcoming denial and accepting culpability
for his instant offenses is a crucial step in that individual's
process. Administering polygraphs aids that acceptance process,
Dr. Bosley explained, because such tests encourage offenders to
become more forthcoming with themselves and their treatment
professionals, thus fostering rehabilitation.
Dr. Bosley recounted that often the mere scheduling of a
polygraph examination motivates offenders to become more
forthcoming and ultimately to accept responsibility for their
behavior. He asserted this phenomenon creates a therapeutic
benefit that is not directly dependent on the accuracy of the
testing itself. He opined that some offenders would likely
never accept that responsibility without being subjected to
polygraph testing.
Captain Tallard
The Parole Board also presented testimony from Captain
Steven Tallard, a supervising parole officer who has been deeply
involved in the design and implementation of its PCSOT policies.
By the time of Tallard's testimony in September 2014, the Parole
Board had conducted a total of 1766 examinations pursuant to
those policies, including 594 "instant offense" and 1172
"maintenance" exams. Sexual history examinations had never been
25 A-5435-10T2
conducted, and there were no plans to begin administering any as
of the time of the hearing.
In the course of discussing the requirements for testing
set forth in the Parole Board's policies, Tallard confirmed that
maintenance exams were not meant to be used to obtain
identifying information of new crimes or unreported victims. He
added that no offender currently under criminal investigation or
whose case remained on appeal could be ordered to comply with a
polygraph test. Instead, he asserted that the goal of such an
exam was only to confirm or eliminate a parole officer's
concerns as to whether the examinee had been complying with the
conditions of his or her supervision. Thus, the Parole Board's
policies require that an offender only be subject to the exam on
a reasonable belief by the parole officer that the offender has
been non-compliant. Tallard noted that an offender may leave an
examination, but may be subject to adverse consequences to his
or her conditions of supervision as a result of such non-
compliance.
Tallard asserted that the Parole Board's decisions as to
conditions of supervision have never been based exclusively on
the technical results of an exam, but on a totality of the
circumstances, including any basis for the exam referral. To
the extent a published study conducted by Heather Carbone in
26 A-5435-10T2
2009 suggested to the contrary, i.e., that the Parole Board may
have made supervision decisions solely on the basis of technical
exam results in the past, Tallard believed her report was
inaccurate. He asserted that Carbone's survey failed to make
clear what she meant by the term exam result, implying that
Carbone's percentage figure included more than the machine-
generated results.
Sergeants Andresen and Cavanaugh
Sergeant Ryan Andresen, an assistant district parole
supervisor and a certified polygraph examiner, further explained
the agency's actual practices. Andresen has conducted about 150
polygraph exams. He noted that the polygraph techniques used by
the Parole Board's examiners have evolved over time. Some
"comparison" questions during the procedure have changed.
Andresen asserted, however, that all techniques used have been
validated by the APA. He also noted that each examiner is
required to submit two exam reports per year for peer review.
Sergeant Kimberly Cavanaugh, a certified polygrapher who
also has likewise administered about 150 examinations for the
Parole Board, provided similar testimony. Cavanaugh is
responsible for reviewing every request within the agency for
offender examinations. She acknowledged that in the early years
of the Parole Board's program, maintenance examinations could be
27 A-5435-10T2
performed at a parole officer's request, merely as a "general
compliance check." According to Cavanaugh, once the regulations
and policies were changed, exam requests could no longer be
approved without a reasonable suspicion of the offender's non-
compliance with his conditions of release.
Cavanaugh explained that, prior to administering the
polygraph, an examiner reviews information from the examinee's
case history, including the pre-sentence report as well as
treatment and supervision notes. The examiner does this to
prepare for the interview and design the exam. The resultant
exam questions, she cautioned, are meant only to explore the
examinee's behavior in complying with conditions of supervision,
and are not fashioned to uncover specific information about new
criminal activity. Cavanaugh agreed with Tallard that an
examinee is free to leave during an exam, but his refusal to
take a polygraph or non-cooperation during the test could,
although need not, lead to a parole violation.
Appellants' and Intervenor's Proofs
The expert and other witnesses who testified for appellants
and the Public Defender countered these alleged positive aspects
of the polygraph program. On the whole, they levied substantial
criticisms about the reliability of the polygraph testing
28 A-5435-10T2
results, as well as the fairness and consistency of the Parole
Board's practices.
Dr. Iacono
The chief opposing witness was Dr. William G. Iacono, a
prominent polygraph critic, who is an expert in physiology and
who has studied the scientific validity of polygraph testing.
Dr. Iacono holds a doctoral degree in clinical psychology and
psychophysiology. He has conducted psychophysiological
research, including studies focused on the validity of polygraph
testing, for more than forty years. He has published about
twenty-five papers over the course of that career, and his work
has been cited by our own Supreme Court and the Supreme Court of
the United States.
Dr. Iacono explained that polygraph machines were designed
simply to record physiological responses during the course of an
exam. The device shows changes in activity such as heart and
respiratory rates and blood pressure, but does not explain why
such changes occurred. According to Dr. Iacono, no unique
physiological activity is inherently indicative of deception.
Hence, different individuals can be expected to produce
different patterns of such activity while lying. As Dr. Iacono
explained, the machines, which merely record those patterns, do
not actually "detect lies."
29 A-5435-10T2
Dr. Iacono substantially criticized the Parole Board's
polygraph methodology. He noted that the agency's examiners
have used control questions presumed to elicit a lie, so that
the physiological response to those probable-lie questions can
serve as a frame of reference (i.e., as a "control") for
responses to the relevant questions. The assumption underlying
this methodology is that an honest subject will deny a relevant
question with no significant reaction, but have a stronger
reaction when lying in response to the control question. A
dishonest subject, on the other hand, would be expected to have
a stronger reaction when lying in response to the relevant
question than to the control. The questions are typically
repeated in varying order so as to produce a response pattern
that an examiner analyzes to gauge the subject's truthfulness.
All of this rests on the assumption that honest and dishonest
individuals will likely yield predictably different reaction
patterns to control questions.
Dr. Iacono disagreed with this assumption. He noted that a
subject who answers a control question truthfully might then
react strongly only to a relevant question, falsely registering
apparent deception. Dr. Iacono testified that he knew of no
theoretical explanation for the assumption that a deceptive
subject would respond more strongly to a relevant question.
30 A-5435-10T2
Because control questions often carry a different level of
accusation than relevant ones, he pointed out that a discrepancy
in response between the two queries could be attributable to a
poor pairing of questions, rather than to the subject's honesty.
According to Dr. Iacono, a relevant question can be relevant for
an honest examinee just as it is for a dishonest one, because he
would recognize it as a question on which his "fate hangs." The
truthful subject may then exhibit a strong reaction to the false
accusation in that question, but due only to fear of the
consequences of failing the test.
Dr. Iacono further expressed concerns with what he termed
examiner bias. He noted that for instant offense exams, for
example, the examiner begins with an assumption that the
examinee is guilty, an assumption which then influences the
formulation of test questions and compromises the integrity of
the whole testing process.
To be sure, Dr. Iacono acknowledged that examiners do tend
to be ethical and conscientious, and he agreed that a skilled
examiner can minimize subjectivity in designing and
administering the test and analyzing the results. Even so, he
concluded that some unconscious bias by the examiner will always
remain. Compounding the problem, Dr. Iacono added, is that
polygraph examiners seldom have any opportunity to learn when
31 A-5435-10T2
they have erred. He faulted the Parole Board for not having
implemented routine quality control measures, such as blind peer
reviews of examiners.
Dr. Iacono underscored recent research addressing
"contamination bias," a concept that had been illustrated by a
segment on the television show "60 Minutes." In that situation,
a number of polygraph firms were assigned four individuals to
test, identifying one among the four who was suspected of being
guilty. All four persons were actually innocent, but, in every
case, the polygraph firm deemed the identified "suspect" to be
deceptive.
Dr. Iacono also discussed research as to the accuracy of
exams administered by the Royal Canadian Mounted Police in the
1980s. The research showed that the polygraph results carried a
strong bias against innocent persons, with an accuracy level for
those individuals of only 57%, just slightly better than a 50/50
chance. Dr. Iacono also stated that previous laboratory studies
had revealed that dishonest individuals can confound the exam
results with certain known countermeasures.
Based on his research, Dr. Iacono opined that the claims of
accuracy by polygraph practitioners are exaggerated in general
and for maintenance exams in particular. He did acknowledge
that polygraph testing can provide some "therapeutic benefit" to
32 A-5435-10T2
certain individuals, including if testing encouraged them to
overcome denial of their offenses. He doubted, however, that
testing would carry such a benefit "across the board."
Dr. Iacono admitted that the Parole Board's expert, Dr.
Bosley, was in a better position than he was to evaluate the
impact of testing on the psychological treatment of the
offenders the Parole Board monitors. However, Dr. Iacono
cautioned that, if testing continues to be used, the technical
results of the tests should never be dispositive of a parole
supervision decision in isolation, but considered with all
available relevant information in light of the fallibility of
the device.
Dr. Atkins
Appellants also presented Dr. Elliot Atkins, an expert in
psychology with a focus on the assessment and treatment of sex
offenders. Dr. Atkins holds a master's degree in clinical
psychology and a doctorate in school psychology. He is licensed
to practice psychology in New Jersey and Pennsylvania. He has
extensive experience in clinical treatment of both victims and
perpetrators of sexual abuse.
Dr. Atkins testified that most sex offenders suffer from a
"lifetime condition." Consequently, the goals of their
treatment (most often cognitive-behavioral therapy) are twofold:
33 A-5435-10T2
(1) to help them understand the circumstances that led to their
offenses, and (2) to develop skills for managing their behavior
to prevent recidivism so that they can safely be reintegrated
into the community. The success of treatment in that regard,
Dr. Atkins explained, depends on the development of a
"therapeutic alliance," built on trust and respect between the
patient and therapist. The establishment of such a relationship
fosters a "feeling of safety[,]" which permits the patient to be
honest in treatment. This helps assure that the patient will
achieve meaningful therapeutic progress, thus reducing his or
her risk of recidivism.
Dr. Atkins opined that the "containment" approach used by
the Parole Board, in which clinicians and parole officers
collaborate, damages the therapeutic relationship by destroying
the confidentiality on which that relationship depends.
According to Dr. Atkins, the added requirement of polygraph
testing only serves to weaken the relationship. He agreed that
an offender's overcoming of denial for his initial offense is
important to progress in treatment. He did not agree, however,
that an acknowledgment of guilt had any established impact on
the risk of recidivism, or that forcing an offender to admit
guilt through a polygraph examination would be more beneficial
34 A-5435-10T2
than working through denial in therapy without resort to such
technology.
Indeed, Dr. Atkins testified that overcoming denial only
through the use of a polygraph might threaten the therapeutic
alliance critical to successful treatment, and have a
destabilizing effect on examinees. Dr. Atkins stated that he
would only use a polygraph examination on a voluntary basis, and
where a client believed the test would prove his or her
innocence.
Parole Officer Hritz
The court also heard the testimony of Ann Hritz, a parole
officer who supervises offenders serving PSL and CSL terms. She
is responsible for monitoring their compliance with conditions
of parole. Hritz recounted the case history of one of her CSL
supervisees, D.R. D.R. had reached the third phase of
supervision when he was referred for an instant offense
examination. D.R. continued to deny his guilt and consequently
failed the exam. He was then returned to the first phase of
supervision, which required him to attend further counseling to
address his denial.
Dennis Radabaugh's Deposition
Appellants also relied upon the deposition testimony of
Dennis Radabaugh, which the trial court considered with the
35 A-5435-10T2
parties' consent, due to his failing health10 and his consequent
inability to testify in court. Radabaugh was a police officer
who became a clinical social worker providing psychotherapy
mainly to sex offenders, first at the Adult Diagnostic and
Treatment Center and then in private practice. Radabaugh was
critical of the Parole Board's "containment" approach in matters
of treatment and risk management. He asserted that the use of
polygraph testing in connection with that approach was coercive
and traumatic. Radabaugh opined that polygraphs generally do
not yield benefits for treatment and, specifically, have no
beneficial effect on sex offenders' risk of recidivism.
The Trial Court's Findings
At the outset of its written conclusions analyzing the
pertinent facts presented at the hearing, the trial court11
acknowledged "the controversy that surrounds polygraph testing
generally[.]"12
10
Radabaugh has since died.
11
The panel expresses its deep appreciation to the trial court
for undertaking the evidentiary hearing and issuing its lengthy
findings of fact pursuant to our referral under Rule 2:5-5(b).
12
In a lengthy footnote within the unpublished portion of our
opinion in J.B. I., we identified much of the competing
literature on the subject. As we noted:
Several published articles reflect this
scientific or academic disagreement
(continued)
36 A-5435-10T2
(continued)
regarding the rehabilitative or therapeutic
value of polygraph examinations. See, e.g.,
Gershon Ben-Shakhar, The Case Against the
Use of Polygraph Examinations to Monitor
Post-Conviction Sex Offenders, 13 Legal &
Criminological Psycho. 191 (2008) (exploring
major polygraph techniques and applications
for sex offenders, warning of the
unreliability of one of the most common
polygraph techniques, and concluding that
such application may lead to an increase,
rather than decrease, in rates of
recidivism); Ewout H. Meijer et al., Sex
Offender Management Using the Polygraph: A
Critical Review, 13 Int'l J.L. & Psychiatry
423, 428 (2008) ("[T]here is no evidence
supporting the accuracy of the [Control
Question Test, a commonly-used polygraph
testing method for sex offenders,] in PCSOT
[post-conviction sex offender polygraph
testing]."); Douglas C. Maloney, Comment,
Lies, Damn Lies, and Polygraphs: The
Problematic Role of Polygraphs in
Postconviction Sex Offender Treatment
(PCSOT), 84 Temp. L. Rev. 903 (2012)
(discussing the disputed reliability of
polygraph testing for sex offenders, but
noting, perhaps, its appropriateness for
therapeutic purposes). But see Don Grubin,
The Case for Polygraph Testing of Sex
Offenders, 13 Legal & Criminological
Pyschol. 177, 187 (2008) ("The evidence
suggests that, whatever the pros and cons of
polygraph use in other settings, [post-
conviction sex offender polygraph testing]
can make a valuable contribution to sex
offender treatment and management."); Jill
S. Levenson, Sex Offender Polygraph
Examination: An Evidence-Based Case
Management Tool for Social Workers, 6 J.
Evidence-Based Soc. Work 261, 369 (2009)
("[P]olygraph examination has emerged as a
useful tool in encouraging the disclosure of
(continued)
37 A-5435-10T2
(continued)
past sexual crimes . . . . [T]he accuracy of
polygraph examination of sex offenders is
unclear. On the other hand, a growing body
of evidence supports the value of polygraph
examination as a clinical tool in eliciting
information for assessment . . . and
monitoring purposes."); Lars Madsen, Shaun
Parsons, & Don Grubin, A Preliminary Study
of the Contribution of Periodic Polygraph
Testing to the Treatment and Supervision of
Sex Offenders, 15 J. Forensic Psychiatry &
Psychol., 682, 682 (2004) (summarizing that
"polygraph testing had an impact on the
level of seriousness of the risk behaviours
engaged in by sex offenders, but this only
occurred after experience of the test
itself"); Daniel T. Wilcox & Daniel E.
Sosnowski, Polygraph Examination of British
Sexual Offenders: A Pilot Study on Sexual
History Disclosure Testing, 11 J. Sexual
Aggression 3, 3 (2005) ("This application of
the polygraph has shown merit as a means of
obtaining additional information about past
sexual offending behaviours. . . . This
suggested that collaboration amongst
treatment, supervision and polygraph
professionals could help to contain sexual
offending behavior more effectively, to
improve and enhance public protection.");
Theresa A. Gannon et al., The Evaluation of
the Mandatory Polygraph Pilot (Univ. of
Kent, Ministry of Justice Research Series,
2012) (observing an increased likelihood
that sex offender case managers would rely
on polygraph results to take preventative
measures to protect the public from harm,
and also that polygraph testing continued to
elicit clinically-significant disclosures
from sex offenders).
[J.B. I, supra, slip op. at 45-46 n.15.]
38 A-5435-10T2
Illustrative of that general controversy, as the trial
court noted, "the record in this case contains strong expert
opinions on both sides as to the use and accuracy of polygraph
testing for sex offenders." The court observed that it is
"undisputed" that "everyone agrees it is an area where more
research would be beneficial." Even so, the court found the
factual record here sufficient to address the contentions we had
referred for findings.
Having sifted through the proofs, the court offered this
ultimate conclusion:
The court finds that the Parole Board's
current policies and practices regarding
PCSOT polygraph testing for sex offenders
represent a reasonable choice among
competing alternatives for supervision of
sex offenders. While clearly not free from
controversy or valid criticism, both as to
theory and practice, there is enough support
in the record for this court to conclude
that there is a reasonable basis for using
polygraph testing in the supervision of sex
offenders serving CSL and PSL sentences in
the community.
[(Emphasis added).]
The court provided several detailed reasons for this
assessment. First, it addressed the persistent concerns about
the scientific inaccuracy of polygraphs:
Firstly, while Raymond Nelson relied on
polygraph accuracy estimates of between 81%
and 91% found in a review of polygraph
research conducted by the National Research
39 A-5435-10T2
Council of the National Academy of Sciences,
these findings came with many caveats that
included a conclusion by the Council that
the estimates were likely overstated. . . .
The study did find, however, that specific
incident polygraph testing of examinees
untrained in countermeasures designed to
skew the test can discriminate lying from
truth-telling at rates well above chance,
though well below perfection. Nelson
reached a similar conclusion in a
statistical review of polygraph research he
conducted with others for the American
Polygraph Association in 2010-2011. . . .
Notably, neither the National Research
Council study nor the more recent APA study
focused on PCSOT testing, but dealt more
generally with polygraph reliability across
many contexts. Studies addressing
polygraphs used in sex offender treatment
programs, however, have confirmed similar
results. See, e.g., [Don] Grubin et al., A
Prospective Study of the Impact of
Polygraphy on High-Risk Behaviors in Adult
Sex Offenders[,] 16 Sexual Abuse: A Journal
of Research and Treatment 3 (July 2004),
. . .; [Ron] K[o]kish, et al, Post-
conviction Sex Offender Polygraph
Examination: Client-Reported Perceptions of
Utility and Accuracy[,] 17 Sexual Abuse: A
Journal of Research and Treatment 2 (April
2005). . . . The court is persuaded that
the National Academy of Sciences report,
augmented by the conclusions in the recent
APA meta-analysis and the PCSOT studies by
Grubin and K[ok]ish, provide sufficient
support to conclude that [PCSOT] polygraph
testing is accurate enough to be used by the
Parole Board for parole supervision and risk
management.
Next, the court explained why, despite the criticisms of
Dr. Iacono and others, current assessments of the polygraph
regard it as a useful aid to parole supervision:
40 A-5435-10T2
Of critical importance to the court in
this regard is that the instant offense
exams and maintenance exams based on a
reasonable belief that particular parole
conditions have been violated are both
specific issue exams that come within the
broad context of the studies conducted by
the National Academy and APA. While Dr.
Iacono testified that polygraph testing has
been largely rejected by the scientific
community, the National Academy study
refutes that argument, although it is clear
from that report and the APA study that the
modern approach to polygraphy views the
testing more as an aid to decision-making
based on information produced in the test
rather than as an infallible measure of
lying. Also, the National Academy study in
particular reviewed the same kind of
criticisms of polygraph accuracy raised by
Dr. Iacono, but ultimately still confirmed
high levels of reliability for the testing,
assuming that the exams were based on
specific issues and involved examinees
untrained in countermeasures. Moreover,
while asserting that there is no theoretical
explanation for assuming a deceptive
individual would respond more strongly to a
relevant question, [Dr.] Iacono grudgingly
admitted that such an assumption was "not
preposterous" and that testing could have
some value when applied to sex offenders in
treatment.
[(Emphasis added).]
The court did find that the accuracy rates of 71% to over
90%, as set forth in the National Academy and APA studies,
"likely" overestimated the device's reliability. However, the
court found that the fallibility of test results did not warrant
a total elimination of polygraph testing in sex offender
41 A-5435-10T2
monitoring and, instead, found "sufficient support in the record
for the Parole Board's use of [PCSOT] polygraph testing." It
noted:
Even Dr. Iacono, with his harsh critique of
the science undergirding polygraphs, could
not state unequivocally that the Parole
Board should stop performing instant offense
exams. While the court acknowledges the
validity of many of the concerns raised by
Dr. Iacono, and reflected in an article he
relied on by Ben-Shak[ha]r (The case against
the use of polygraph examinations to monitor
post-conviction sex offenders, Legal and
Criminal Psychology (2008) . . . ), the
court finds that their concerns do not
require banning use of the exams altogether,
but rather suggest that the Parole Board
should use care in incorporating polygraph
results in decision-making regarding the
supervision and risk management of sex
offenders. The National Academy report, for
example, fully considered Ben-Shak[ha]r's
opinions, which mirror the ones expressed by
Dr. Iacono in his testimony, and found them
unpersuasive as a challenge to the
conclusions reached by the Academy.
[(Emphasis added).]
The court commented favorably on the more recent changes
made by the Parole Board to limit its reliance on technical
polygraph results:
While [Dr.] Iacono opposed using
technical polygraph results alone to make
parole decisions, the Parole Board does not
use results in that fashion anymore. In
fact, although the Carbone report . . .
regarding the Parole Board Program found
that parole status changed following
administration of polygraphs 42% of the
42 A-5435-10T2
time, Parole Board officials explained why
they thought that figure was unreliable even
in 2009 and certainly would not be true
today. They asserted unequivocally that
polygraph results are not now used alone to
make decisions, but are considered as part
of a totality of the circumstances approach
to decision-making. In addition, while Dr.
Iacono also emphasized the ability of
examinees to intentionally affect polygraph
results, he had not reviewed the measures
employed by the Parole Board to defeat such
efforts. Those measures include using
modern machines with specially designed
sensors to detect even slight movements that
could skew test results and examiner
training to combat examinee manipulation.
Employment of those measures cannot defeat
all efforts by test takers to produce false
results, but did somewhat blunt [Dr.]
Iacono's criticism regarding countermeasures
employed by examiners to affect test
results.
[(Emphasis added).]
The court found especially persuasive the expert testimony
of Dr. Bosley explaining how the Parole Board has been using
"instant offense" polygraphs effectively in the treatment of
sexual offenders:
Perhaps even more compelling support
for continuing PCSOT polygraph testing by
the Parole Board came from Dr. Bosley, who
supervises a large treatment program for New
Jersey sex offenders living in the
community. He leads one therapy group of
sex offenders and supervises other
clinicians who work in the program. He is
highly supportive of the use of polygraph
instant offense exams because he has seen
their efficacy in assisting sex offenders
overcome denial of responsibility for their
43 A-5435-10T2
sex crimes. He believes that overcoming
denial is a critical component for most sex
offender therapy because it shows the
offender's ability to accept responsibility
for his actions and enables the offender to
move on to learning strategies to avoid
similar conduct in the future. Although
there was little research support in the
record to prove that instant offense exams
reduce sex offender recidivism, the court
finds that successful therapy does lead to
reducing recidivism and that administration
of instant offense exams can be a useful
tool for therapists working with sex
offenders. This conclusion is supported by
the Practice Guidelines for the Assessment,
Treatment, and Management of Male Adult
Sexual Abusers (2014), published by the
Association for the Treatment of Sexual
Abusers ("ATSA"), which acknowledges that
polygraph testing can be beneficial in sex
offender treatment even though reliability
and validity questions exist about
polygraphs generally. . . . ATSA includes
the utilization of polygraph testing as an
acceptable mechanism to employ in sex
offender management, but does not endorse it
over other methods. Moreover, there was
evidence in the record that approximately
70% of community-based sex offender
treatment programs for adults utilize some
form of polygraph testing.
[(Emphasis added).]
The court added:
The court was struck by Dr. Bosley's
endorsement of the instant offense exam even
if polygraph accuracy was questionable.
That view has been characterized as
utilitarian because it considers the
positive impact a polygraph program can have
on sex offender treatment regardless of
testing reliability. [Dr.] Bosley mentioned
that even the threat of having to take a
44 A-5435-10T2
polygraph can stimulate admissions relating
to the instant offense that help sex
offenders attain therapeutic goals. Captain
Tallard testified, for example, that 200 sex
offenders admitted their instant offenses
after the PCSOT program was initiated in New
Jersey, allowing those offenders to progress
in treatment without having to submit to a
polygraph exam. Moreover, there was
testimony of disclosures being made in the
interview portions of polygraph testing that
were not reliant on the technical
physiological results of the exam. [Dr.]
Bosley also noted the positive impact in
group therapy sessions of an offender's
discussing having taken a polygraph exam.
He testified that the impact of such
discussions often allowed the examinee to be
more honest with himself and encouraged
other group members to embrace similar
attitudes. That conclusion also was echoed
in the Carbone report . . . , which found
that administering a polygraph to one member
of a therapy group produces a "vicarious"
effect among other group members and
encourages honesty with parole officers and
treatment providers.
[(Emphasis added).]
The court recognized, but ultimately found non-dispositive,
appellants' criticism of the Parole Board's past manner of using
maintenance polygraphs as "fishing expeditions":
While the record shows greater support
for the accuracy of instant offense exams
than maintenance polygraphs, the Parole
Board modified its policies in 2012 and
effectively did away with broad screening
exams akin to fishing expeditions that
apparently had been conducted in the early
days of the program. Such general inquiries
into a parolee's behavior in the community
were the least accurate type of PCSOT
45 A-5435-10T2
polygraph exam performed by the Parole
Board, and such tests elicited the harshest
attack from Dr. Iacono. One of the reasons
for [Dr.] Iacono's criticism was the
difficulty in formulating appropriate
control questions when there was no proof or
reasonable suspicion that a parolee had
engaged in a particular dangerous behavior
or parole violation. General screening
tests untethered to specific incidents were
also found to be unreliable in the National
Academy study. . . . Testing in such a
manner is no longer conducted by the Parole
Board, however, because N.J.A.C. 10A:72-3.4
now requires that a parole officer have "a
reasonable belief that an offender is non-
compliant with a condition(s) of
supervision," and that such an assertion be
reviewed and confirmed by a supervisor
before a maintenance polygraph will be
scheduled. So maintenance polygraphs are
now supported by some evidence to connect a
parolee to dangerous behaviors and are not
as vulnerable to attack on the basis of
accuracy as randomly assigned exams with no
basis to suspect that the parolee is
engaging in dangerous behaviors. Since test
questions for maintenance exams can now be
designed to examine the occurrence of
specific behaviors or incidents, and Board
examiners use question formulation
techniques validated in the 2010-2011 APA
study, the court finds that such targeted
maintenance exams are sufficiently reliable
to allow the Parole Board to use them,
largely based on the analyses done by the
National Research Council and Nelson's work
for the APA. Such exams, while not as
reliable as instant offense testing, are
likely to produce information that would be
useful to parole supervision and treatment
teams in making decisions regarding sex
offenders in the community serving PSL and
CSL sentences. Even Dr. Atkins acknowledged
as much in his testimony, reserving his
highest criticism for the instant offense
46 A-5435-10T2
exams because of his belief that they
undermined the therapeutic relationship.
[(Emphasis added).]
The court also found significant the Parole Board's change
of its practices to avoid relying on polygraph results alone as
a basis for altering an offender's conditions of supervision:
[T]he Parole Board officials who testified
made it clear that the program as currently
administered does not use technical
polygraph results from maintenance exams
alone to change parole conditions for sex
offenders, as [Dr.] Iacono assumed was a
common practice based on his review of the
Carbone report. That 2009 study reviewed
information from the early days of the
Parole Board program and reported that
polygraph results led to changes in parole
supervision for 42% of the sex offenders who
took the exams. . . . [Dr.] Iacono was
highly critical of using questionable
results alone to alter conditions of parole.
Nelson also strongly conveyed that
maintenance polygraph results should only be
used as one of many factors in making parole
supervision decisions—a position consistent
with the ATSA practice guidelines, which
note that, "When the polygraph is utilized,
findings are to be interpreted in
conjunction with other relevant information
to inform decision-making." . . .
Although the court is not convinced
that such a policy [of limited relevance]
was carefully followed in the early days of
the Parole Board's PCSOT program, and may
not have been followed in individual cases
in recent years, the court does conclude
that the current program is based upon that
approach. Since that approach is a
reasonable one when coupled with the testing
requirements now contained in N.J.A.C.
47 A-5435-10T2
10A:72-3.4, the court finds sufficient
support in the record for the continued used
of maintenance polygraphs by the Parole
Board. While some of the recorded polygraph
exams played during the trial revealed less
than optimal practices, continued PCSOT
examiner training apparently has led to
changes in the administration of maintenance
polygraphs by the Parole Board and how the
results are utilized. Nelson testified, for
example, that interviews should not be
interrogations. Yet some excerpts of exams
in the record showed examiner conduct that
was very adversarial in nature. Sergeant
Cavanaugh testified, however, that a
different, less accusatory approach is now
being utilized. The court finds that, while
somewhat disconcerting, deviations from
reasonable policies in individual cases
simply are insufficient to compromise the
overall policy choices made by the Parole
Board about using maintenance polygraphs for
parole supervision of sex offenders serving
PSL and CSL sentences in the community.
[(Emphasis added).]
Lastly, the court addressed the so-called "containment
model" of treatment utilized by the Parole Board with the input
of the polygraph results:
Although not directly part of the
issues referred to this court for review,
the record also reveals strong differences
of opinion about the containment model of
treatment and parole supervision adopted by
the Parole Board. This approach to sex
offender parole supervision is endorsed by
ATSA, which sees clearly delineated
collaboration between parole officers and
treatment professionals as a means to
promote "successful public safety and client
outcomes." . . . The criticism of this kind
of program voiced by Dr. Atkins and Dennis
48 A-5435-10T2
Radabaugh focused on the absence of
confidentiality between therapist and
offender in a collaborative approach and the
damage to the therapeutic alliance that
could be caused by such lack of
confidentiality. Dr. Bosley noted, however,
that the scope of the collaboration is made
clear to participants when they enter the
program. In his view, the positive aspects
of collaboration to the offender and the
community far outweigh any negatives.
The record shows that collaboration is
an appropriate and reasonable approach to
the parole supervision of sex offenders.
While not the only way to structure a
treatment and supervision program, and while
not free of controversy, the court did not
find the expert critique of the approach
sufficient to undermine the Parole Board's
policy choice in this complicated area of
parole supervision, especially when Dr.
Bosley provided such strong support for the
design of the program and the approach is
sanctioned by ATSA.
[(Emphasis added).]
II.
We now consider appellants' legal arguments, joined by the
Public Defender, in light of these findings of the trial court
and the applicable law.
Appellants contend that the Parole Board's use of polygraph
testing — particularly maintenance examinations — violates their
constitutional rights of privacy, freedom of thought, and due
process under the First, Ninth, and Fourteenth Amendments. They
further argue that the polygraph testing procedures
49 A-5435-10T2
unconstitutionally impinge upon their Fifth Amendment privilege
against self-incrimination and their Sixth Amendment right to
counsel. Appellants also invoke cognate protections under the
New Jersey Constitution. Apart from these constitutional
arguments, appellants also contend, as a matter of
administrative law, that the Parole Board's polygraph program
must be set aside as arbitrary, capricious, and unreasonable.
As this court previously elaborated in J.B. I, supra, 433
N.J. Super. at 336-39, a discussion which we incorporate by
reference here, parolees and sex offenders such as appellants
who are under post-release PSL or CSL supervision have limited
constitutional protection from governmental oversight of their
activities in society.
The United States Supreme Court has constitutionally
permitted parolees to be "subjected to 'conditions [that]
restrict their activities substantially beyond the ordinary
restrictions imposed by law on an individual citizen.'" Id. at
337 (alteration in original) (quoting Morrissey v. Brewer, 408
U.S. 471, 478, 92 S. Ct. 2593, 2598, 33 L. Ed. 2d 484, 492
(1972)). Because of their recognized special proclivity toward
recidivism, sexual offenders on post-release oversight under PSL
or CSL can be constitutionally restricted in their activities by
the Parole Board, so long as they receive due process
50 A-5435-10T2
protections such as notice and an opportunity to object to those
restrictions and provided that the Parole Board does not engage
in "arbitrary government action." Id. at 336, 338 (citing
Jamqochian v. N.J. State Parole Bd., 196 N.J. 222, 237-38, 241-
42 (2008)).
In essence, persons such as appellants on PSL or CSL have
less constitutional freedoms than other civilians. Even so, the
government must treat them with fairness and not in an arbitrary
or unreasonable manner.
Aside from these constitutional standards, we also must
apply the well-established criteria for the review of
administrative agency actions. In general, an agency's decision
will be sustained "unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record." In re Herrmann, 192 N.J. 19, 27-28
(2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556,
562 (1963)); see also Aqua Beach Condo. Ass'n v. Dep't of Cmty.
Affairs, 186 N.J. 5, 15-16 (2006). "The burden of demonstrating
that the agency's action was arbitrary, capricious or
unreasonable rests upon the [party] challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-
44 (App. Div.), certif. denied, 188 N.J. 219 (2006); McGowan v.
N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div.
51 A-5435-10T2
2002); Barone v. Dep't of Human Servs., Div. of Med. & Health
Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107
N.J. 355 (1987).
We now apply these principles in the next two parts of this
opinion. First, we address in Part III appellants' general
challenges to the Parole Board's use of polygraph testing.
Second, in Part IV we consider their discrete claims under the
Fifth and Sixth Amendment relating to self-incrimination and the
right to counsel.
III.
An important predicate to our legal analysis in this Part
is specifying exactly what the polygraph test "results" are and
how the Parole Board uses them. Conceptually, a polygraph
session might produce two very distinct kinds of "results."
First, an individual who is examined can make statements
before, during, or after being strapped to the machine, either
in response to queries from the examiner, or through unprompted
assertions. Those statements might convey information about the
individual's past conduct, his present circumstances, or his
future plans. In this sense, substantive assertions can
"result" from the polygraph process. Indeed, as some of the
witnesses indicated and the trial court found, the mere
scheduling of a polygraph session at times will provoke a sex
52 A-5435-10T2
offender who is on PSL or CSL to make revelations, or speak
about certain topics more candidly, than might occur if the
offender were taking part in a routine interview with a parole
officer.
The second kind of conceivable "result" from a polygraph
encompasses the machine-generated data or report of the
examiner, measuring whether the subject's physiological
responses are indicative of deception, or truthfulness, or are
inconclusive. This machine-generated "result" is not in the
form of an assertion by the individual with substantive content.
Instead, it is a technical response.
As we noted in N.J.S.A. 30:4-123.88, the Legislature
instructed that "[t]he results of the polygraph examination
shall not be used as evidence in court to prove that a violation
of the special sentence of [PSL or CSL] or condition of
discharge has occurred." (Emphasis added). See also N.J.A.C.
10A:72-3.9(c) (repeating this identical proviso in the polygraph
regulations). We consider the term "results" in this passage to
refer to the machine-generated technical data produced from an
administered polygraph, rather than any substantive assertions
that the individual made during the session. That is the most
logical interpretation of the phrase. See Saccone v. Bd. of
Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014)
53 A-5435-10T2
(reiterating the well-settled proposition that "[t]he language
of [a] statute must be construed in accordance with its ordinary
and common-sense meaning"); see also State ex rel. K.O., 217
N.J. 83, 94 (2014).
Parolees and offenders on PSL or CSL oversight have a
general duty to cooperate with their parole officers, and
provide them with honest information in response to their
questioning. Those substantive responses commonly are used by
parole officers to make day-to-day decisions about the
individual's conditions of release, even when no polygraph
device is used during the interview.
Admissions of wrongful conduct that the individual being
interviewed makes to the officer can be used as evidence in a
parole revocation hearing. If the statement comprises an
admission of a criminal offense, it may be used as evidence in a
criminal prosecution. Subject to the constraints we express in
Part IV of this opinion for the protection of the offender's
privilege against self-incrimination, we discern no
constitutional or legal prohibition against the Parole Board
using such substantive assertions to make decisions concerning
the individual's status.13
13
We also do not regard the disclosures to the parole officer or
parole authorities as an improper invasion of the offender's
(continued)
54 A-5435-10T2
The Legislature plainly contemplated that its restriction
on the use of polygraph "results" in N.J.S.A. 30:4-123.88 refers
to the device's, machine-generated data, and the technical
analysis of that data. Given that common-sense understanding,
we turn to the next phrase of the statute, i.e., prohibiting
such "results" from being "used as evidence in court to prove
that a violation of [the offender's PSL or CSL status] or
condition of discharge has occurred." N.J.S.A. 30:4-123.88
(emphasis added).
Literally construed, this clause omits a wide range of
negative consequences that an individual might face from the
results of a polygraph, apart from a "violation" of the terms of
his supervision or the conditions of his discharge. The
statute's reference to "violations" of a special sentence or
conditions of discharge apparently does not cover prospective
adjustments that a parole officer might consider making to the
(continued)
privacy. The offender on PSL or CSL must reveal his activities
and plans to his parole officer as a matter of course during his
monitoring. See Jamgochian, supra, 196 N.J. at 238. We also
perceive a constitutional difference between the compelled
disclosure of a released sex offender's private information to a
supervising parole officer, rather than to the public at large
or to some other wide span of recipients. Cf. Doe v. Poritz,
142 N.J. 1, 77-91 (1995) (addressing the more substantial
privacy interests implicated by the public disclosure of the
whereabouts of convicted sex offenders mandated by Megan's Law).
55 A-5435-10T2
individual's permitted activities if he has "failed" a
polygraph. For example, nothing in the statute or the related
regulation appears to prevent the parole officer from imposing a
curfew, an out-of-state travel ban, a prohibition on going to
schools or other specified locations, and the like, after
considering the technical results of a polygraph examination.
The statute poses further ambiguity by not clearly defining
the term "in court" when instructing that polygraph results
"shall not be used as evidence in court" for purposes of proving
a violation. Ibid. The term "court" surely encompasses the
trial divisions of the Superior Court and the federal courts.
We construe the term "court," however, to have an even wider
meaning, deeming it to also cover quasi-judicial administrative
hearings, as well as appeals that may be taken from the Parole
Board's agency decisions to this court and to the Supreme Court.
At oral argument on this appeal, the Deputy Attorney
General representing the Parole Board acknowledged that the word
"court" in the text of N.J.S.A. 30:4-123.88 does, in fact,
encompass appellate courts reviewing the Parole Board's final
agency decisions. Hence, if, hypothetically, an offender on PSL
or CSL fails a polygraph examination and his parole officer then
decides to increase restrictions on his liberty, appellate
review of that agency decision would occur in a "court," within
56 A-5435-10T2
the meaning of N.J.S.A. 30:4-123.88. Of concern, however, is
that the statutory prohibition is limited to polygraph results
used to prove a "violation" of the individual's past conditions
of release. The prohibition literally does not extend, as
written, to decisions made to tighten future supervision of an
individual on PSL or CSL.
We have no difficulty with the Parole Board using technical
polygraph results for what have been discussed in this record
and in research literature as purely "therapeutic" purposes in
the treatment of sex offenders. We specifically adopt the trial
court's well-supported findings in this record that "instant
offense" polygraphs administered pursuant to N.J.A.C. 10A:72-
3.3(a) do provide a reasonable tool to the Parole Board in the
treatment of sex offenders who may continue to exhibit denial of
the sexual offenses they committed, or the details of such
reflected in the pre-sentence report. Polygraph results, when
considered in this relatively benign fashion, appear to provide
at least some indicia that an offender who is in denial might,
for example, benefit from greater or a different method of
psychological counseling.
To be sure, the primary focus of appellants and the
intervenor in this case has not been on instant offense
polygraphs. Rather, their main target has been periodic
57 A-5435-10T2
maintenance examinations administered under N.J.A.C. 10A:72-
3.3(b) "to verify the activities, behavior and truthfulness of
an offender as related to compliance with the conditions of
supervision." Appellants and the Public Defender argue that the
technical results produced from such maintenance polygraphs have
led the Parole Board arbitrarily to take adverse actions against
persons monitored on PSL or CSL, such as tightening limitations
on their prospective activities.
In this regard, the challengers emphasize the data gathered
by Carbone, cited in the trial court's decision,14 finding that
offenders' parole status changed 42% of the time following a
polygraph examination. The challengers urge that such decisions
predicated on, in full or in part, polygraph test results —
which our New Jersey court system continues to deem unreliable
and inadmissible — violates their constitutional rights and is
arbitrary, unreasonable, and capricious.
The Parole Board responds that, as the trial court found,
it has revised its practices in recent years to reduce the
potential for misuse or overuse of polygraph results. For one
thing, the Parole Board has enacted a regulation, N.J.A.C.
14
We also cited the Carbone study in the unpublished portion of
our earlier opinion. J.B. I, supra, slip op. at 43 n.14. We
need not decide whether the Parole Board's past citation to the
Carbone study on its website comprises an adoptive admission
under N.J.R.E. 803(b)(2).
58 A-5435-10T2
10A:72-3.4(a), that now requires a parole officer to have "a
reasonable belief that an offender is non-compliant with a
condition[] of supervision[,]" a belief reviewed and confirmed
by a supervisor, before a maintenance examination can be
administered. In addition, the Parole Board has adopted a
policy, apparently voluntarily, that it will not use adverse
polygraph results as the "sole" basis of decision-making. Both
of these caveats were identified in the trial court's decision
as positive factors that help assure that the polygraph program
is administered in a fair manner.
We agree that the "reasonable belief" prerequisite for
scheduling maintenance polygraphs and the Parole Board's
self-imposed policy to require additional evidence separate from
a failed polygraph to take adverse action serve to ameliorate,
to some degree, the problems cited by appellants and the Public
Defender. Yet, we must not lose sight of this State's
long-standing judicial aversion to polygraph evidence and our
persisting institutional concerns about the scientific
inaccuracy and unreliability of the instruments. See, e.g.,
A.O., supra, 198 N.J. at 86. Even the Parole Board's own
witnesses in this case agreed that the device's error rate, when
used for a maintenance exam, has been estimated by some
researchers to be as high as 29%. Indeed, there is a
59 A-5435-10T2
fundamental difference between the evidential use of a polygraph
to prove or dispute facts in a court where a person's rights are
adjudicated versus a therapeutic context.
We also must be mindful that as an administrative agency,
the Parole Board must base its decisions on non-arbitrary
grounds. When those agency decisions are challenged on appeal
in this court, the Parole Board must point to competent evidence
in the administrative record that supports its determination.
In reviewing such agency decisions, we "must survey the record
to determine whether there is sufficient credible competent
evidence in the record to support the agency['s] . . .
conclusions." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587
(1988) (emphasis added) (overturning an agency's decision where
its determination was not adequately supported by such competent
evidence, including medical test results that were not
sufficiently shown to be probative of the issues); see also
Wojtkowiak v. N.J. Motor Vehicle Comm'n, 439 N.J. Super. 1, 20
(App. Div. 2015) (reiterating the need for "sufficient competent
proof" in administrative proceedings) (emphasis added).
The Parole Board's continued reliance on technical
polygraph results as an acceptable form of corroborating
evidence to support its decisions to increase restrictions on
persons who are on PSL or CSL monitoring clashes with our
60 A-5435-10T2
judiciary's15 systemic aversion to the evidential use of
polygraphs. We do not, for example, allow prosecutors to
present polygraph results not properly stipulated to at criminal
trials as "extra" proof of a defendant's guilt. See A.O.,
supra, 198 N.J. at 90. Nor do we ordinarily tolerate the non-
stipulated admission of polygraph evidence in civil litigation.
Cf. Senders v. CNA Insurance Cos., 212 N.J. Super. 518, 520 (Law
Div. 1986) (recognizing that "almost all courts that have
considered the question" of the admissibility of polygraph
evidence in civil suits "have held that the results of a
15
We do not read Engel v. N.J. Dep't of Corrections, 270 N.J.
Super. 176, 179-81 (App. Div. 1994) (allowing certain polygraph
evidence in prison disciplinary matters) to the contrary.
Nothing in the court's opinion indicates that Engel argued that
the polygraph of the informant taken by the Department of
Corrections ("DOC") was incompetent evidence or
unconstitutional. Instead, he sought his own polygraph of the
informant pursuant to a DOC regulation, as defense proof that
could "level [the] playing field." Id. at 180. The panel
in Engel recognized the "degree of unreliability which continues
to attend polygraph testing," id. at 180-81, but simply
"accede[d] to it" in the context presented in light of the
controlling administrative regulation. Id. at 181 n.3. The
panel declined to endorse the use of polygraph evidence "beyond
the extent to which it is otherwise now admissible" under the
DOC regulation. Ibid. Moreover, there was no detailed record
in Engel with expert testimony, as there is here, exploring in
depth both the uses and pitfalls of polygraph testing.
61 A-5435-10T2
polygraph test or the refusal to take a polygraph test are not
admissible in evidence").16
Polygraphs continue to be treated as incompetent evidence
in our courts of law. Unless and until our Supreme Court says
otherwise, we do not countenance allowing polygraph results to
"tip the balance" in satisfying the applicable standards of
evidential proof.
Our legal analysis — informed as it is by the thorough and
meticulous fact-finding of the trial court — ultimately hinges
here upon the critical distinction between using polygraphs as a
therapeutic tool to aid in the treatment of a sex offender in a
manner that does not curtail his liberties, as opposed to a
competent source of forensic proof in a court with rules of
evidence dedicated to the search for the truth. See N.J.R.E.
102 (identifying the ascertainment of the truth as a key
objective of the Rules of Evidence). The line between these two
very different contexts must be scrupulously honored.
Otherwise, juries and other fact-finders would have the
16
Despite this almost universal exclusion, the Law Division in
Senders permitted the polygraph results of the insured in an
insurance coverage dispute to be admitted into evidence because
the subject of the test, i.e., the insured, volunteered to be
tested and tendered the results affirmatively to show that he
was not involved in the arson. Id. at 520-21.
62 A-5435-10T2
prerogative to engage in random exercises such as coin-flipping
when the competent evidence in the record is in equipoise.
This leads us to conclude, as a matter of law, that the
terms of the statute and the Parole Board's more recent
practices reducing the evidential role of polygraph results do
not go far enough to assure appellants and other persons on PSL
and CSL that they will not have their liberties restricted or
taken away arbitrarily after "failing" a polygraph exam. In
stating that conclusion, we need not and do not find that the
statutory scheme or the Parole Board's regulations and policies
violate the Federal Due Process Clause or equivalent guarantees
under the New Jersey Constitution. Instead, we rest our
decision in this regard on well-settled principles of
administrative law, which require agency decisions, when they
are challenged in court, to be based upon substantial credible
evidence that is legally competent.
We therefore hold that the Parole Board may continue to use
"instant offense" and "maintenance" polygraph examinations for
therapeutic purposes in the treatment of sex offenders on PSL or
CSL. The Parole Board may also use the substantive assertions
made by such polygraphed offenders for both therapeutic and
evidential purposes. Consistent with our Supreme Court's long-
standing precedent treating non-stipulated polygraph results as
63 A-5435-10T2
incompetent evidence, we disallow, however, the Parole Board
from relying on technical polygraph results in any evidential
manner when making decisions to penalize PSL or CSL offenders or
to curtail their activities.
That said, nothing in this opinion forecloses the Parole
Board from continuing to administer polygraphs for what have
been described as "risk management" or "containment" objectives,
provided that the technical results of polygraph exams are not
relied on or cited by the Parole Board in justifying a
curtailment of the subject's liberties.
A simple example will help illuminate these principles.
Suppose that an offender on PSL or CSL, as a condition of his
monitoring by his parole officer, is currently allowed to leave
the State of New Jersey only during weekdays and solely for
employment purposes. Suppose that the Parole Board then
receives information from a third party that she thinks,
although she is not certain, that she recently saw the offender
on a Sunday attending a Phillies game at Citizens Bank Park in
Pennsylvania. Assume that an appropriate supervisor considers
the informant's report as "reasonable belief" under N.J.A.C.
10A:72-3.4(a) to bring the offender in for a maintenance
polygraph, to ascertain if he has not complied with his weekend
out-of-state travel ban. Suppose further that the parole
64 A-5435-10T2
authorities decide that, if the allegation of the offender's
presence at the Sunday Phillies game is true, they will not
charge him with a violation but instead will tighten his
existing travel restrictions.
If the offender freely makes any statements, either during
the pre-interview, the polygraph session itself, or the post-
interview admitting that he was at the game in Pennsylvania on a
Sunday, the Parole Board may use such admissions as evidence to
support a decision to tighten the offender's travel limitations.
For instance, the Parole Board may disallow him from leaving the
State at any time except when specifically authorized by his
parole officer.
By contrast, suppose the offender in this hypothetical
denies being out of state at the Phillies game on a Sunday, and
when asked about that topic while on the polygraph he generates
a reading on the device indicative of deception. In that
scenario, under the principles set forth in this opinion, the
Parole Board may not rely, even in part, on the machine-
generated result. The Parole Board must instead rest its
decision to increase the offender's restrictions solely on non-
polygraph evidence such as the informant's observations.
In sum, we uphold the Parole Board's non-evidential use of
polygraphs in this distinctive PSL and CSL setting, subject to
65 A-5435-10T2
the conditions we have expressed. We find no other
constitutional impediments to the Parole Board's use of
polygraphs for these limited purposes.
IV.
We now turn to the discrete issues of self-incrimination
and the right to counsel.
As a starting point, one must adhere to the guiding
principles set forth long ago by the United States Supreme Court
in its seminal opinion on this subject in Minnesota v. Murphy,
465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984). The
Court recognized in Murphy that states may require a person who
is under the supervision of a parole or probation officer "to
appear and discuss matters that affect his probationary
status[.]" Id. at 435, 104 S. Ct. at 1146, 79 L. Ed. 2d at 424.
"[S]uch a requirement, without more, does not give rise to a
self-executing privilege [against self-incrimination]." Ibid.
The Court further held in Murphy that routine parole
interviews do not comprise an instance of "custodial
interrogation" that require parole officers to issue Miranda
warnings. Id. at 433, 104 S. Ct. at 1145, 70 L. Ed. 2d at 423.
As the Court noted, the probationer in that case, Murphy, "was
not physically restrained and could have left the office[.]"
Ibid. Moreover, his "regular meetings with his probation
66 A-5435-10T2
officer should have served to familiarize him with her and her
office and to insulate him from psychological intimidation that
might overbear his desire to claim the privilege [against self-
incrimination]." Ibid.
Significantly, the Court in Murphy did hold that, when
invoked by the parolee or probationer, he does have a
constitutional right under the Fifth Amendment to refuse to
answer questions from his parole officer with responses that
could incriminate him. Id. at 426, 104 S. Ct. at 1141, 79 L.
Ed. 2d at 418. The Court expressly instructed that the Fifth
Amendment entitles a person "not to answer official questions
put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future
criminal proceedings." Ibid. (emphasis added). "A defendant
does not lose this protection by his conviction of a
crime; . . . if those statements are compelled[,] they are
inadmissible in a subsequent trial for a crime other than that
for which he has been convicted." Ibid.; see also State v.
Davis, 67 N.J. 222, 226 (1975) (similarly holding that parole
interviews are non-custodial in nature and do not require
Miranda warnings, despite the parolee's obligation to cooperate
and "fully and unreservedly in the parole experiment").
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The Parole Board has made a substantial effort to honor
these Fifth Amendment precepts by adopting a regulation,
N.J.A.C. 10A:72-3.7(d), which requires a polygraph examiner to
"comply with the procedures of the Division of Parole regarding
an offender's right to remain silent as it relates to divulging
identifying information of any unreported victim(s) or
crime(s)." Nonetheless, "any voluntary admission(s) made by the
offender regarding unreported victim(s) or crime(s)" must be
reported to law enforcement. N.J.A.C. 10A:72-3.9(b). Moreover,
as we have already noted, an offender's failure to submit to a
polygraph, absent good cause, may be prosecuted as a third-
degree crime. N.J.S.A. 2C:43-6.4(d).
As the trial court found, largely based upon Captain
Tallard's testimony at the hearing, if "a parolee makes a
spontaneous incriminating statement during the course of the
polygraph examination, the examiner is instructed to provide
Miranda warnings to the test subject." See also N.J.A.C.
10A:72-3.6 (detailing the required contents of the "disclosure
form" to be provided to the offender before he submits to the
examination).
We reject appellants' contention that the polygraph
sessions conducted by the Parole Board are a form of custodial
interrogation that requires the examiner to administer Miranda
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warnings at the outset of the session. Accord United States v.
Daniels, 541 F.3d 915, 926 (9th Cir. 2008) (concluding that the
polygraphs administered as a condition of supervised release are
not custodial interrogations), cert. denied, 566 U.S. 1111, 129
S. Ct. 1600, 173 L. Ed. 2d 687 (2009); United States v.
Stoterau, 524 F.3d 988, 1004 (9th Cir. 2008) (same), cert.
denied, 555 U.S. 1123, 129 S. Ct. 957, 173 L. Ed. 2d 153 (2009);
United States v. Lee, 315 F.3d 206, 212 (3d Cir.) (same), cert.
denied, 540 U.S. 858, 124 S. Ct. 160, 157 L. Ed. 2d 106 (2003).
The individual being tested is not handcuffed or shackled.
Although he is attached with straps to the machine while it is
measuring his responses to the examiner's questions, the subject
is not being confined with the same degree of physical restraint
as a person who has been placed under arrest. The subject can
face later consequences if he chooses to leave before the
examination is completed but, unlike an arrestee at a police
station, he is not subject to immediate confinement if he
refuses to cooperate. The tests, including the interview
portion, typically do not last more than an hour and a half.
As the record shows, the Parole Board strives to avoid
having the polygraph sessions conducted as interrogations. The
trial court specifically found that although some examinations
in the past did reflect overly adversarial examiner conduct, a
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practice that the court termed "disconcerting," the Parole Board
presented credible testimony that "a different, less accusatory
approach is now being utilized."17
On the whole, we conclude that the polygraph examinations,
as currently administered by the Parole Board, in light of the
trial court's findings, are not the equivalent of custodial
interrogation that requires Miranda warnings to be administered
at the beginning of the session or which authorize test subjects
to skip the scheduled testing appointments.
We also reject appellants' argument that they are entitled
under the Sixth Amendment to have counsel present during the
polygraph session. The presence of counsel is likely to
diminish the positive potential therapeutic benefits of the
polygraph testing and to inject adversarial elements into the
procedure. We decline to strike down the Parole Board's
regulation that disallows examinees from having an attorney or
other personal representation present. N.J.A.C. 10A:72-3.7(e).
That said, if an examiner refuses to honor an examinee's
invocation of privilege in response to specific questions that
could be incriminatory, or is abusive during the session, the
17
Nevertheless, we suggest that the Parole Board give serious
consideration to Dr. Iacono's testimony indicating that the use
of blind peer review can aid in achieving consistency among
examiners in the future.
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subject may pursue appropriate redress against the Parole Board
on a case-by-case basis.
Although the topic was not addressed either way in the
trial court's conclusions, we are persuaded that it would be
beneficial for the Parole Board to revise its disclosure and
exam procedure regulations in N.J.A.C. 10A:72-3.6 and -3.7 to
spell out more clearly what uses of the polygraph testing are
allowed and disallowed. In particular, the limitations on the
non-evidential use of the machine-generated test results that we
have mandated in this opinion should be made known to test
subjects, so that they understand how the testing can and cannot
be used by the Parole Board. These updated policies should be
adopted formally through rule-making, which we require the
Parole Board to complete, with appropriate public notice and
comment, within six months of this opinion. See Metromedia,
supra, 97 N.J. at 331.
V.
The remaining arguments raised by appellants and the Public
Defender seeking to invalidate the Parole Board's polygraph
testing program lack sufficient merit to be discussed in this
opinion. R. 2:11-3(e)(1)(E). Aside from the important
conditions or limitations we have identified, appellants have
not met their burden to set aside the presumptively-valid
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statutory and regulatory scheme. N.J. Sports & Exposition Auth.
v. McCrane, 61 N.J. 1, 8, appeal dismissed sub nom., Borough of
E. Rutherford N.J. v. Sports & Exposition Auth., 409 U.S. 943,
S. Ct. 270, 34 L. Ed. 2d 215 (1972). As with the Internet
access issues in J.B. I, we do not, however, foreclose future
as-applied challenges by offenders who establish that these
requirements have not been met in their individual cases. J.B.
I, supra, slip op. at 4.
The Parole Board's policies and procedures for polygraph
testing that have been challenged in this case are consequently
affirmed in part, modified in part, and remanded to the Parole
Board for corrective action in a manner consistent with this
opinion. The previously-imposed stay of the polygraph testing
of appellants is lifted, effective ninety days from this
opinion. We do not retain jurisdiction.
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