The interplay between polygraphs and adjudication of sex offender community supervision

Robert DuBoise

Assistant District ­Attorney in Parker ­County

Two Court of Criminal Appeals cases, Leonard and Dansby, have changed the way prosecutors should handle sex offender community supervision. Here’s how.

At any given time in our county, and I suspect in yours too, there are multiple defendants on community supervision for sex offenses. Whether the imposition of community supervision resulted from the facts of a particular offense or unique characteristics of either the victim or offender, or it was imposed by the court over the State’s objection, prosecutors must remain aware of recent changes in Texas law when attempting to adjudicate a sex offender’s community supervision. Headlining these changes is a pair of decisions from the Texas Court of Criminal Appeals, Leonard v. State1 and more recently, Dansby vs. State.2 To understand the scope of the rulings, a brief review of each case is required.

The Leonard decision
In Leonard, the defendant was indicted for aggravated sexual assault of a child. He pled guilty to injury to a child and was placed on a five years’ deferred adjudication community supervision, which included sex offender conditions requiring him, among other things, to:
Submit to sex offender treatment and evaluation as directed by the supervision officer. Attend and participate fully in and successfully complete psychological counseling, treatment, and aftercare sessions for sex offenders with an individual or organization as specified by or approved by the Court or the supervision officer. Pay all costs of evaluation, counseling, treatment, and aftercare. Treatment must be completed within three years of its initiation, with a least one-third of treatment completed each year.
    And also:
Must submit to, pay all costs for, and show no deception on any polygraph examination and other diagnostic test or evaluation as directed by the court or supervision officer.3
    In Leonard’s fourth year of community supervision, the State petitioned the trial court to proceed to adjudication. In its petition, the State alleged three counts:
    1) the defendant had been unsuccessfully discharged from sex offender treatment, or alternatively, failed to complete one-third of the sex offender treatment within the first year;
    2) the defendant’s polygraphs revealed significant criteria indicative of deception; and
    3) the defendant failed to pay his fine and supervision fees.4
    At the adjudication hearing the State waived the second count (dealing specifically with the polygraph examinations) and the third count (dealing with the failures to pay) and called the defendant’s sex offender treatment provider to testify. Over defense objection, the treatment provider testified that he discharged the defendant from sex offender counseling after he failed five polygraph examinations.5 The treatment provider explained that the defendant had failed three earlier polygraphs but then made several admissions and passed. The defendant then failed the next five polygraphs, three of which asked about sexual contact with children, if the defendant had isolated children, if he had sexual contact with children, and if he had committed a sex crime.6 Ultimately, the treatment provider testified that the sole basis of the defendant’s dismissal from the program was that the defendant could not pass a polygraph exam, leading the treatment provider to conclude that the defendant was not being truthful and was engaging in “secret-keeping.”7 The trial court found the first portion of the count (failure to complete sex offender counseling) true, adjudicated the defendant guilty, and sentenced him to seven years in prison.8

Abuse-of-discretion ­finding
When the Court of Criminal Appeals began its analysis in Leonard, it initially pointed out that both the court of appeals and the parties framed the issue as one of the admissibility of polygraph exams and whether an expert could base his opinion solely on the results of polygraph exams.9 Correctly framed, according to the Court, the issue was solely whether the trial court abused its discretion in proceeding to adjudication.10
    What made this abuse of discretion review different, according to the Court, was that the trial court made a condition of the defendant’s community supervision (the completion of sex offender counseling) subject to the discretion of a third party (the treatment provider). In such a case, the determination of whether the trial court abused its discretion necessitated a review of the treatment provider’s use of its discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision.11 Viewed in this context, the Court opined that if the polygraph results were inadmissible, either on their own or as the underlying basis of an expert’s opinion, then the trial court record would not contain any legitimate reason supporting the treatment provider’s decision to discharge the defendant, and the trial court abused its discretion in adjudicating the defendant guilty.
    The Court first examined the admissibility of polygraph exams as an independent piece of evidence. After a multi-page discussion on the historical inadmissibility of such exams, the Court stood behind its previous decisions that polygraph exams are inadmissible, even in situations where a stipulation of admissibility has been signed by the parties.12
    The Court then turned to the issue of whether the polygraph results were admissible as the basis of a testifying expert’s (the treatment provider’s) opinion. It initially acknowledged that the plain language of Texas Rule of Evidence 703 allows an expert to rely upon inadmissible evidence if it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”13 In interpreting the language of Rule 703, the Court decided that the use of the word “reasonably,” rather than another word such as “customarily” or “regularly,” was an indicator that judicial oversight of the reliability of the underlying facts and data forming the experts opinion was required.14 In short, if the methodology or data underlying the expert’s opinion would not survive a Rule 705 hearing, then Rule 703 does not provide a basis to render the opinion admissible.15 Having eliminated the sole basis for the treatment provider’s testimony, the Court found that the trial court abused its discretion in adjudicating the defendant guilty.16
    The Leonard opinion squarely lays down two rules:
    1) polygraph exams are not admissible now, nor will they be in the foreseeable future; and
    2) a defendant’s failure of a polygraph exam may not serve as the sole basis of a treatment provider’s discharge of a defendant from sex offender counseling.

Dansby, the Court’s next step
After Leonard, I remember distinctly thinking, “I know Texas law requires that persons on sex offender community supervision are required to have polygraph exams17—even if I’m prohibited from introducing the results at an adjudication hearing, I can at least use the information gained during the polygraph process in the hearing.” And then along came the Dansby decision.
    In Dansby, the defendant pled guilty to indecency with a child and was placed on five years’ deferred adjudication community supervision. At the time of his plea, Dansby was ordered by the trial court to comply with “sex offender terms and conditions.” Only that general term was used in open court, and there was no discussion as to what the defendant’s obligations would be under those conditions.18 Later that day outside the courtroom, the defendant’s general probation conditions were modified through a written document that the defendant signed. The modification document, for the first time, included conditions requiring the defendant to pass a polygraph examination and to successfully complete a sex offender treatment program.19
    The defendant complied with the vast majority of his sex offender counseling requirements, including the completion of written screening questionnaires, participation in therapy sessions, and passing polygraphs inquiring about his compliance with his community supervision conditions.20 Issues developed, however, when Dansby was given a sexual history polygraph exam. The defendant refused to talk about any victims other than the one for whom he was on probation, even when told that he could use “generic, non-identifying information.”21 As a result of the defendant’s failure to complete a sexual history polygraph, his treatment provider discharged him from sex offender counseling.
    The State petitioned the trial court to proceed to adjudication alleging that the defendant refused to obtain a sexual history polygraph and failed to attend and successfully complete his sex offender treatment program.22 The defendant entered a plea of “not true” and filed a motion to quash the State’s petition, alleging in part that his community supervision conditions violated his right to remain silent and be protected from self-incrimination under both the Texas Constitution and the United States Constitution.23 An adjudication hearing was held, during which the polygraph examiner and defendant’s community supervision officer testified. The defendant also testified, stating that he was aware his modified conditions required him to take a sexual history polygraph but that he never agreed to forfeit his Fifth Amendment rights. The trial court adjudicated the defendant guilty and sentenced him to 18 years in prison.24

Dansby’s appellate history
Unfortunately, understanding Dansby entails a quick review of its lengthy appellate journey. The Dallas Court of Appeals initially affirmed the trial court’s adjudication, declining to reach the merits of the defendant’s Fifth Amendment argument.25 In its first bite at the apple, the Court of Criminal Appeals ruled that the court of appeals erred in determining that the defendant’s discharge from sex offender treatment was not a product of his invocation of his Fifth Amendment privilege.26 Upon remand, the court of appeals once again affirmed the trial court, finding that the defendant forfeited his Fifth Amendment argument by failing to object to the specific conditions of community supervision at the time they were imposed.27

The CCA’s second dance with Dansby
The narrow issue before the Court was whether the defendant was placed on notice that his conditions of community supervision required him to waive his Fifth Amendment constitutional right by having to discuss other victims in a sexual history polygraph exam.28 As an initial matter, the Court quickly disposed of one of the State’s primary arguments, that the ability of the defendant to describe his other victims in general, non-identifying terms removes such disclosures from Fifth Amendment protection.29 Having determined that the defendant’s Fifth Amendment rights were implicated, the Court then determined:
    1) the requirement that a defendant preserve his complaint at the time the community supervision condition is imposed; and
    2) the reasons the defendant did not forfeit his complaint in this case.30
    The Court then turned its attention to the State’s contention that Dansby had waived his right to complain. In doing so, the Court reiterated that the placement of a defendant on community supervision occurs in the form of a contract between the trial court and the defendant.31 If the defendant does not object to a condition of community supervision (except those involving a systemic right or prohibition) at the time of imposition, that condition will be deemed to be affirmatively accepted by the defendant.32
    The Court then reviewed each of the ways the court of appeals stated that the defendant was placed on notice that he would have to disclose his sexual history with other victims, namely:
    1) his offense report mentioned other victims;
    2) during formal court proceedings, the trial court told the defendant he would have to comply with sex offender conditions;
    3) outside of formal court proceedings, the trial court modified his conditions to add the polygraph exam requirement and the defendant signed numerous consents during his sex offender treatment agreeing to take polygraphs and disclose his sexual history; and
    4) the defendant was constructively aware of statutes regarding sex offender conditions and treatment.33
    In reviewing these points, the Court began by stating that the appearance of certain facts in an offense report is immaterial and does not equate to a defendant’s waiver of his Fifth Amendment privilege with respect to those facts.34 It then reviewed the formal trial court proceedings at the time of the plea, during which the defendant agreed to comply with sex offender conditions in general, and found that those proceedings did not amount to a waiver of the defendant’s Fifth Amendment right with respect to statements about his sexual history with victims other than the complainant.35
    In discussing the third basis of notice, the modification of the defendant’s community supervision outside of formal court proceedings and his subsequent execution of consents during treatment, the Court determined those insufficient to place the defendant on notice because:
    1) the clear language of the modifications did not inform the defendant he would be required to waive his Fifth Amendment rights;36
    2) the modification was made outside of formal court proceedings, thereby denying the defendant a right to object and obtain a ruling on any such challenge;37 and
    3) the waivers the defendant signed either failed to reflect whether the defendant’s attorney was present (with respect to the modification document executed after the plea) or failed to indicate that the defendant understood the consequences of the waivers (with respect to both the modification document and the treatment waivers).38
    Finally, with respect to the State’s argument that the defendant had constructive notice of his Fifth Amendment waiver due to the statutes describing the requirements for sex offender treatment, the Court held that no law particularly requires a sex offender, such as the defendant, to disclose all of his sexual victims; thereby, the defendant was not on notice that he would be required to waive his Fifth Amendment rights.
    In light of the above, the Court remanded the case to the court of appeals for consideration of the defendant’s Fifth Amendment violation argument.39 On remand, the court of appeals reversed the trial court and remanded the case for further proceedings and presumably the continuation of the defendant on his community supervision.40

How to proceed
In my review of the holdings, and almost as importantly, the factors considered by the respective courts in reaching those holdings, I’ve found that making several small changes on the front end greatly enhances a prosecutor’s position at an adjudication hearing for defendants on deferred community supervision. These changes are:

1

Avoid revocations solely based on polygraphs. In both Leonard and Dansby, the defendants were adjudicated solely based on polygraphs. Quite simply, make sure you allege another violation. In 16 years of prosecution, I cannot recall a case where I filed a motion to revoke or petition to proceed to adjudication consisting of a single violation—though I recall several times where the probation department sent over a violation listing a single infraction. When that happens, I comb the defendant’s progress notes from the probation department to find and allege other legitimate violations. Under the Texas Administrative Code, sex offender counselors are required to file monthly treatment progress reports with the probation department.41 Review those reports to look for and list other violations.

2

Have all your paperwork ready at the plea. One of the first things that struck me in Dansby, which I believe played a role in the ultimate reversal of the adjudication, was that the sex offender conditions that contained the obligations to attend, participate in, and successfully complete sex offender counseling and to take a sexual history polygraph were not imposed in open court. Instead, they were done in a modification document after the plea. A defendant has a much harder time avoiding a waiver argument if he was present and had the right to object to the imposition of the conditions in open court but failed to do so. In fact, since Dansby, the Court of Criminal Appeals has already issued one opinion finding a defendant waived his right to challenge his community supervision conditions by not objecting to them at the time of imposition.42

3

Increase the specificity of conditions so that they provide notice. As I write this, Parker County’s current condition imposing sex offender counseling reads:
The defendant shall attend, participate in, and successfully complete a sex offender counseling program with a therapist who is registered with the Interagency Council on Sex Offender Treatment and approved by the Community Supervision Officer. This will include any testing, group sessions, and aftercare prescribed by the counselor, and the defendant will be responsible for the costs for this program.
To guard against the type of notice issues encountered in Dansby, I anticipate that the condition will change in the near future to something along the lines of:
The defendant shall attend, participate in, and successfully complete a sex offender counseling program with a therapist who is registered with the Interagency Council on Sex Offender Treatment and approved by the Community Supervision Officer. Included in this counseling program shall be a comprehensive assessment as required by 22 Texas Administrative Code §810.64(a)–(c), a treatment plan in accordance with 22 Texas Administrative Code Rule §810.64(d)–(e), and any other testing, polygraph examinations, group sessions, and aftercare prescribed by the counselor. The defendant will be responsible for the costs of this program and all testing.
In short, we don’t want to leave the slightest doubt in the mind of the trial court or the appellate court that a defendant had any misunderstanding as to the nature and extent of his obligations under the terms of his community supervision.

4

Consider granting use immunity for information obtained during polygraphs or sex offender counseling. In Dansby, Justice Cochran writes a concurring opinion dedicated to the idea that the simple solution to this quandary is for the prosecution to grant full use immunity (both direct use and derivative use) to a defendant for information obtained during sex offender counseling, including polygraph exams.43 She discusses the status of the law for use immunity in situations where a defendant is compelled to provide incriminating statements as a condition of community supervision, noting that in the Fifth Circuit a defendant does not need any notice of use immunity because the immunity attaches to coerced statements whether the defendant knows it or not.44 Keep in mind, however, that this increased ability to revoke a defendant for less than full compliance with his terms of community supervision, including polygraph exams, must be weighed against the cost of possibly granting a “free pass” for other criminal acts disclosed by a defendant.

Conclusion
Our obligation as prosecutors is to get it right—to seek justice above all else. Sometimes that means placing a sex offender on community supervision and giving him a chance at rehabilitation outside the penal system. When a defendant does not (or will not) take advantage of the resources provided, he may present a continuing danger to the community. In that circumstance, let’s make sure that the adjudication hearing is done once and done correctly. Keeping focused on the factors outlined by the Texas Court of Criminal Appeals in Leonard and Dansby will help us achieve that goal.

Endnotes

1 Leonard v. State, 385 S.W.3d 57 (Tex.Crim. App. 2012).
2 Dansby v. State, 448 S.W.3d 441 (Tex. Crim. App. 2014).
3 Leonard, 385 S.W.3d at 572.
4 Id., at 572-573.
5 Id., at 573.
6 Ibid.
7 Ibid.
8 Id., at 574
9 Id., at 576
10 Ibid.
11 Id., at 577 (citing Tex. Code Crim. Proc. art. 42.12 §11(a)(“The judge may impose any reasonable condition that is designed to protect or restore the victim, or punish, rehabilitate, or reform the defendant”).
12 Id., at 581 (citing Romero v. State, 493 S.W.2d 206, 213 (Tex. Crim. App. 1973).
13 Id., at 581-582 (citing Tex. R. Evid. 703).
14 Id. at 582.
15 Ibid.
16 Id. at 583.
17 See 22 Tex. Admin. Code §810.68(3)(“Autobiographies, sexual history polygraphs, offense reports, interviews, and cognitive-behavioral chains shall be used to identify antecedents to offending”); see also 22 Tex. Admin. Code §810.64(d)(17)(“Licensees should refer the client for a polygraph exam as soon as possible if the client is suspected of engaging in suppression behaviors on the [penile plethysmograph]”).
18 Dansby v. State, 448 S.W.3d 441, 444 (Tex. Crim. App. 2014).
19 Ibid.
20 Ibid.
21 Id. at 445.
22 Ibid.
23 Ibid.
24 Ibid.
25 Id. at 446 (citing Dansby v. State, No. 05-10-00866-CR, 2012 WL 1150530, at *5 (Tex.App.—Dallas, April 9, 2012)).
26 Ibid (citing Dansby v. State, 398 S.W.3d 233, 234 (Tex. Crim. App. 2013)).
27 Ibid (citing Dansby v. State, No. 05-10-00866-CR, 2014 WL 259014 at *4 (Tex.App.—Dallas January 22, 2014)).
28 Ibid.
29 Ibid. (citing Chapman v. State, 115 S.W.3d 1, 5-6 (Tex. Crim. App. 2003).
30 Id. at 447.
31 Ibid. (citing Speth vs. State, 6 S.W.3d 530, 534-35 (Tex. Crim. App. 1999)).
32 Ibid. (citing Speth, 6 S.W.3d at 534).
33 Id. at 448.
34 Ibid.
35 Id. at 449.
36 Id. at 450.
37 Ibid.
38 Id. at 451.
39 Id. at 452
40 Dansby v. State, No. 05-10-00866-CR, 2015 WL 3657749 at *7 (Tex.App.—Dallas June 15, 2015, 2014)).
41 See 22 Tex. Admin. Code §810.64(d)(7)(“Monthly treatment progress reports shall be distributed to the supervision officer, referring agency, and/or court”).
42 Donovan v. State, No. PD-0474-14, 2015 WL 4040599 at *3 (Tex. Crim. App. July 1, 2015)(not designated for publication).
43 Dansby, 448 S.W.3d at 452.
44 Id. at 454 (citing Guiden v. McCorkle, 680 F.2d 1070, 1071 (5th Cir. 1982)).