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New Jersey Appellate Court Modifies Use of Polygraphs for Paroled Sex Offenders

On January 21, 2016, a New Jersey appellate court upheld the State Parole Board’s requirement that sex offenders take polygraph examinations but modified how the results could be used, prohibiting evidentiary use that could result in the revocation of parole or tightening of parole conditions to reduce the parolee’s liberty.

Several sex offenders on parole who were under either parole supervision for life or community supervision for life brought a state court challenge to the State Parole Board’s administration of polygraph examinations. Pursuant to N.J.S.A. § 30:4-123.88, all such parolees are required to undergo a Post-Conviction Sex Offender Treatment (PCSOT) polygraph exam in which they are asked about the offense of conviction. If the parole officer has a “reasonable belief” the parolee is violating a condition of parole, a “maintenance” polygraph is performed to ask about the parolee’s current behavior. A sexual history polygraph is also allowed, but none had ever been requested. The trial court upheld the use of polygraphs by the parole board and the plaintiffs appealed.

The Superior Court’s Appellate Division found the use of polygraphs for therapeutic, rehabilitative and risk management purposes was permissible. However, the technical evidence (the determination of whether a parolee was being deceitful) could not be used – even in part – to revoke parole or increase restrictions on the parolee’s liberty because such evidence was not admissible in court and such actions were appealable. The Appellate Division also ruled that the parole board must enhance its regulations and practices to safeguard a parolee’s right to invoke the constitutional privilege against self-incrimination in responding to polygraph examinations. However, any voluntary admission of criminal conduct elicited during a polygraph exam would be admissible in a criminal prosecution.

The court found that a parolee has no right to counsel during polygraph examinations, but does have the right not to answer incriminating questions if their response would incriminate them. However, the recitation of Miranda rights prior to the polygraph exam was not required. The Appellate Division ordered the State Parole Board to revise its disclosure and examination regulations to more clearly spell out what uses of polygraph exams are allowed and disallowed, and to inform parolees about the prohibition against evidentiary use of technical results.

The policies for polygraph testing were affirmed in part, modified in part and remanded to the parole board for corrective action consistent with the appellate ruling. The plaintiffs were represented by attorney Michael C. Woyce. See: J.B. v. New Jersey State Parole Board, 444 N.J. Super. 115, 131 A.3d 413 (App. Div. 2016). 


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Related legal case

J.B. v. New Jersey State Parole Board