Telling Lies in America: New Jersey Class Action Challenges Use of Polygraph Exams For Sex Offenders on Parole

I’ve written before about what could be seen as an inconsistency in the American criminal justice system: Polygraph evidence is inadmissible to prove a defendant’s innocence (or guilt) at trial, and yet such evidence is routinely admitted for other purposes, such as determining whether a convicted sex offender violated parole. Apparently, this inconsistency is not part of a potentially viable class action lawsuit in New Jersey.

According to an article in The Trentonian, 

Convicted sex offenders on the streets of New Jersey are asking Mercer County’s top judge to block parole officers from giving them polygraph tests to make sure they’re staying out of trouble.  

A convicted child molester, identified only as J.B. in court papers, is contending that because lie detector tests aren’t reliable enough for use at a trial, they can’t be used to lock up a parolee for a new violation.  

J.B. was part of a wider class-action lawsuit by Jersey sex offenders that argued that restrictions on them using social media and submitting to lie testing were violations of their constitutional rights.

Unsurprisingly, “virtually all the molester constitutional arguments were shot down.” That said, the judge handling the case ruled that

appellants have at least preliminarily raised genuine and material issues about the actual utility of polygraphs (for lifetime parolees) particularly in light of the long-standing case law underscoring the unreliable and controversial nature of this testing device.  

For these many reasons, an evidentiary hearing is vital to explore the existence and strength of what the State asserts are the therapeutic, rehabilitative, and risk management benefits of polygraph examinations as administered to released sex offenders.  

Such a hearing ideally should encompass expert testimony, cross-examination, and neutral judicial inquiry. Appropriate findings of fact (and, on the points where the experts may disagree, findings of credibility) must also be generated. That amplified record, along with detailed factual findings, will enable this reviewing court’s more informed ultimate resolution of the competing constitutional interests at stake.

Last Monday, a first hearing on the issue was held, with more hearings planned and review of the issue expected to be completed by next April. It will be interesting to see how this all shakes out.

-CM