In Re The Detention Of: Donald Herrick
198 Wash. App. 439
| Wash. Ct. App. | 2017Background
- Donald Herrick, convicted of first-degree rape (1997) and later convicted of voyeurism, faced an SVP civil-commitment petition filed in 2010; State alleged he has a mental abnormality making him likely to reoffend sexually.
- State expert Dr. Brian Judd diagnosed paraphilia NOS (nonconsent) and relied in part on a 2009 penile plethysmograph (PPG) showing arousal to coercive sexual stimuli; defense expert and treatment evaluator found the 2009 PPG inconclusive.
- Herrick had a history of attempting to manipulate PPG results (recorded jail call requesting research on how to "beat" the PPG).
- In December 2012 the State moved to compel updated PPG and a specific-issue polygraph as part of the SVP evaluation; the trial court ordered testing and Herrick sought review.
- Herrick challenged RCW 71.09.050(1) as unconstitutional on its face and as applied, and argued the 2012 amendment violating the single-subject rule of the Washington Constitution.
- The Court of Appeals affirmed: statute constitutional on its face and as applied; amendment complied with single-subject requirement; PPG reliability challenges go to weight, not admissibility.
Issues
| Issue | Herrick's Argument | State's Argument | Held |
|---|---|---|---|
| Facial challenge to RCW 71.09.050(1) (compulsory PPG/polygraph) | Statute permits compulsory testing upon mere request and violates substantive due process/privacy | Statute authorizes testing only in SVP evaluation context, requires evaluator qualifications, and leaves testing to court discretion | Statute is constitutional on its face; challenger failed to prove unconstitutionality beyond reasonable doubt |
| As-applied challenge (ordering testing for Herrick) | Court relied on generalized precedents, not individualized necessity | Court made specific findings: prior inconclusive/treatment PPG, attempts to manipulate results, state expert request, statutory authority | As-applied challenge rejected; court found good cause to order tests |
| Reliability of PPG testing | PPG is scientifically unreliable and should not be used for forensic diagnosis | Washington Supreme Court and legislature recognize PPG as permissible diagnostic tool; reliability affects weight, not admissibility | PPG reliability challenge fails; questions of weight for factfinder |
| Single-subject clause challenge to 2012 amendment (Senate Bill 6493) | Amendment provision allowing court-ordered testing is unrelated to other provisions and violates article II, §19 | Bill title is general; provisions relating to evaluator authority, funding, and testing are germane and have rational unity | Amendment did not violate single-subject rule; upheld |
Key Cases Cited
- In re the Detention of Halgren, 156 Wn.2d 795 (2006) (Washington Supreme Court recognizes PPG as useful diagnostic tool)
- State v. Riles, 135 Wn.2d 326 (1998) (PPG regarded as effective for diagnosing/treating sex offenders)
- In re the Detention of Hawkins, 169 Wn.2d 796 (2010) (statutory construction regarding mandatory polygraph; left open other testing methods)
- United States v. Weber, 451 F.3d 552 (9th Cir. 2006) (discusses PPG as condition of supervised release and requires individualized necessity determination)
- State v. McCuistion, 174 Wn.2d 369 (2012) (standard: constitutional challenges reviewed de novo; statutes presumed constitutional)