131 A.3d 413
N.J. Super. Ct. App. Div.2016Background
- Appellants are PSL/CSL sex offenders challenging NJ State Parole Board polygraph practices.
- Statute N.J.S.A. 30:4-123.88 authorizes annual polygraph examinations for risk management and treatment, with results not admitted as evidence in court.
- Regulations 10A:71-6.11 and 10A:72-3.1 to -3.10 implement the statutory framework and describe three types of polygraphs: instant offense, periodic maintenance, and sexual history.
- Trial court conducted six-days of evidentiary hearings; expert and lay witnesses addressed reliability, treatment value, and procedural safeguards.
- Court previously remanded unresolved polygraph issues to fact-finding; this opinion resolves those issues, upholding program with conditions.
- Key dispute: whether machine-generated polygraph results may be used to penalize offenders; whether procedures adequately protect self-incrimination and Miranda rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether polygraph results can be used to justify sanctions | Polygraph data are unreliable and should not support penalties. | Polygraphs provide useful information for supervision and treatment and can inform decisions when used with other evidence. | Polygraph results cannot be used as evidence to prove violations or justify curtailment; therapeutic use allowed. |
| Whether maintenance polygraphs violate privacy or due process | Maintenance tests invade privacy and enable arbitrary action. | Regulations limit use and require reasonable belief; safeguards exist against arbitrary actions. | Maintenance polygraphs may be used with limits; however, evidential reliance is prohibited and safeguards must be strengthened. |
| Whether polygraph sessions trigger Fifth or Sixth Amendment protections | Statements during polygraph could incriminate; coercive or custodial interrogation concerns arise. | Parole interviews and polygraph sessions are non-custodial; warnings and counsel protections are appropriate and adequate. | Polygraph sessions are not custodial interrogation requiring Miranda; counsel is not normally required during testing; privilege protections apply to self-incrimination and must be clear in procedures. |
| Whether the Board must adjust regulations to clarify permissible uses of polygraph data | Regulations are vague and invite misuse of machine-generated results. | Current rules and practice are reasonable and have evolved to limit reliance on technical results. | Remands to Parole Board for rule updates within six months to delineate non-evidential uses and disclosures. |
Key Cases Cited
- State v. A.O., 198 N.J. 69 (N.J. 2009) (polygraph evidence generally inadmissible absent stipulation)
- State v. Domicz, 188 N.J. 285 (N.J. 2006) (polygraph reliability questioned; exclusions apply)
- State v. McDavitt, 62 N.J. 36 (N.J. 1972) (lie detector testing not accepted as reliable proof)
- Minnesota v. Murphy, 465 U.S. 420 (U.S. Supreme Court 1984) (parole/probation interviews non-custodial; Fifth Amendment limits apply to self-incrimination)
- Jamgochian v. N.J. State Parole Bd., 196 N.J. 222 (N.J. 2008) (due process and parole conditions framework for review)
- United States v. Daniels, 541 F.3d 915 (9th Cir. 2008) (polygraphs not custodial interrogation; limits on use)
- Engel v. N.J. Dep't of Corrections, 270 N.J. Super. 176 (App. Div. 1994) (acknowledges unreliability of polygraph evidence in institutional settings)