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Court Limits Polygraph Orders in Juvenile Cases, Bars Compulsion of Self-Incriminating Statements
2005-0992. In re D.S., 2006-Ohio-5851.
Warren App. Nos. CA2004-04-036 and CA2004-04-046, 160 Ohio App.3d 552, 2005-Ohio-1803. Judgment reversed and cause remanded.
Pfeifer, Lundberg Stratton, O'Donnell and Lanzinger, JJ., concur.
Moyer, C.J., Resnick and O'Connor, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-5851.pdf
(Nov. 29, 2006) In a 4-3 decision announced today, the Supreme Court of Ohio held that in juvenile cases involving crimes of a sexual nature, the juvenile court, before ordering the use of polygraph tests as a community-control condition, must have supporting evidence for their use for a particular juvenile. The Court held further that, under the Fifth and 14th amendments to the U.S. Constitution, self-incriminating statements may not be compelled by polygraph examinations as a community control condition.
The Court's decision, authored by Justice Judith Ann Lanzinger, reversed a ruling of the 12th District Court of Appeals and remanded the case to the trial court for further proceedings.
The case involved an 11-year-old juvenile, identified by the initials D.S., who was found guilty of sexually molesting two other boys of approximately the same age in 2003.
As part of its sentencing disposition, the Warren County Juvenile Court ordered D.S. to comply with “intensive sex-offender probation” which included the requirement that he “submit to and pass … a full disclosure polygraph and such further maintenance polygraphs as may be directed by his probation officer/therapists.” Under the terms of probation adopted by the court, D.S. was required to fully submit to questioning during these polygraph examinations, and “any lie” told “during any phase of the procedure … is an automatic failure of the entire process.”
Attorneys for D.S. appealed his convictions and probation order on multiple grounds, all of which were rejected by the 12th District Court of Appeals. The Supreme Court agreed to hear D.S.'s appeal of the 12th District's ruling on the specific issue of whether requiring a juvenile to undergo unlimited polygraph testing on demand, compelling answers to every question and requiring the offender to pass every test is an unreasonable probation term and a violation of the child's constitutional right against self-incrimination.
Writing for the majority in today's decision, Justice Lanzinger said that while polygraphs are common in the treatment of adult sex offenders, “juveniles are not adults.” She pointed out that, in holding that the death penalty is unconstitutional for offenders under 18 years old, the U.S. Supreme Court noted three distinctions between juvenile and adult offenders: a lack of maturity and underdeveloped sense of responsibility, vulnerability and susceptibility to negative influences and outside pressures, and underdeveloped character.
“The state cites studies that evaluated the use of polygraphs to treat sex offenders,” Justice Lanzinger wrote. “The studies cited by the state, however, do not discuss the use of polygraphs with a learning-disabled 11-year-old. Even with adult sex offenders, polygraph use is not always part of the therapeutic treatment.”
Lanzinger continued, “We are unpersuaded … that polygraphs should be used indiscriminately as a tool for juvenile community control. At the very least, before a polygraph can be considered to be a reasonable probationary condition there must be a showing that a polygraph is needed for therapeutic reasons in a particular case, that is, for the treatment and monitoring of the juvenile's behavior. She noted that in this case the juvenile court's rationale for adding a polygraph condition was “boilerplate,” and that no witness had specifically asked for such testing to be required. She also noted that the juvenile's truthfulness was not identified as a concern, and there was no evidence that he ever lied about the offense.
Regarding the constitutionality of mandatory “full disclosure” polygraph examinations, Justice Lanzinger cited the U.S. Supreme Court's 1984 decision in Minnesota v. Murphy, which she said held that “(t)he Fifth Amendment prohibits compelling a person on community control who claims privilege to give answers that might incriminate him in future criminal proceedings.” Since D.S. did not allege that he had yet been compelled to answer incriminating questions after asserting his Fifth Amendment privilege, Justice Lanzinger wrote that there was no evidence of a constitutional violation to date. She added, however, that “(t)he polygraph order does not eliminate D.S.'s rights against self-incrimination, and thus he may assert them before giving answers that might incriminate him. … He may challenge as inadmissible in any future criminal proceeding, including at a hearing on an alleged community-control violation, any incriminating statement he may have been compelled to make in response to a polygraph test question.”
Justice Lanzinger's opinion was joined by Justices Paul. E Pfeifer, Evelyn Lundberg Stratton and Terrence O'Donnell.
Justice Maureen O'Connor entered a dissenting opinion that was joined by Chief Justice Thomas J. Moyer and Justice Alice Robie Resnick. Justice O'Connor wrote that “an array of federal and state courts recognize that polygraph testing may be a viable tool in the rehabilitation, treatment, and monitoring of sex offenders. The trial and appellate courts in this case also found that polygraph testing was reasonably related to the offenses committed by this juvenile, as well as to the juvenile's rehabilitation and probation. Given those findings and the broad discretion afforded to trial courts in setting terms of probation, I would affirm the decision of the court of appeals insofar as it concluded that the use of polygraph testing may be imposed as a requirement of probation.”Contacts
Joshua A. Engel, 513.695.1325, for
the State of Ohio and Warren County prosecutor's office.
Thomas Eagle, 937.743.2545, for juvenile offender D.S.
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