You know, I can be pretty hard of appellate decisions I don’t agree with. One of my main sources of blog inspiration is outrage at the loss of civil liberties through appellate decisions. It’s only fair that I point out when our State’s highest criminal court does something right, and today is that day.
Today’s case of the day is Leonard vs. State, the Sequel!
William Leonard was put on deferred probation for sexual assault. Like most sexual assault defendants Leonard was required to take Sex Offender treatment and counseling. Sex offender treatment includes regular polygraph sessions. Leonard failed some polygraphs and was kicked out of treatment.
Not completing sex offender treatment was a violation of a term of Leonard’s probation. The State filed a motion to revoke, and had a hearing. At the hearing the sex offender Psychotherapist, Dr. Strain, testified that he kicked Leonard out of treatment for failing the polygraphs.
The defense lawyer objected that polygraph results are not admissible, the trial judge disagreed and revoked Leonard’s probation. The judge believed that the polygraph was part of the expert’s opinion, and our rules of evidence allow experts to some leeway to use otherwise inadmissible evidence to form an opinion.
Polygraphs in Texas
As long as I have been a lawyer polygraphs have been inadmissible in court. The science is not sound, and the prejudicial value is extremely high. What can be worse than some State “expert” saying he has scientifically proven your client is a liar? Good luck un-ringing that bell.
Polygraphs are routinely used in sexual assault investigations, especially in he said/she said cases with no evidence. They are also used in sex offender treatment and are a common probation requirement.
Despite a lack of reliability, the system views a polygraph as better than nothing. Fortunately, our State’s appellate courts (to their great credit) have kept lie detector tests away from the jury (but strangely allowed “dog scent lineups to pollute our court rooms).
This is interesting. A few months ago the Court of Criminal Appeals ruled on the Leonard case and allowed the expert to use the polygraph to form his opinion. but that they could The defense bar was disappointed, but not entirely surprised. However, last week the Court of Criminal Appeals withdrew their earlier opinion and issued this opinion which again affirms that polygraphs are not admissible, even if used by an expert, because of the unreliability of polygraphs. Great job CCA.
From the opinion-
Rule 703 and Reliability In its first four issues, the State argues that, while polygraph results are inadmissible on their own, an expert who testifies under Rule 702 may, according to Rule 703, base his opinion on inadmissible evidence and, under Rule 705, inform the trial court of the basis for his opinion. So, in this case, it would have been permissible for Strain to (1) testify regarding his opinion of the appellant’s honesty while the appellant was in treatment, (2) base that opinion entirely on polygraph results, and (3) because his opinion was based on the polygraph results, tell the trial court of the polygraph results. The State does not ask us to revisit our holding in Romero and, in its brief on rehearing, concedes that the results of polygraph examinations should continue to be inadmissible “for a number of reasons ….”
Rule of Evidence 702 allows “a witness qualified as an expert by knowledge, skill, experience, training, or education” to give opinion testimony based on “scientific, technical, or other specialized knowledge.” Rule 703 specifies the bases on which an expert may base his testimony, and specifically allows that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [relied upon] need not be admissible in evidence.”
We believe the State’s interpretation stretches Rule 703 beyond its limits. Rule 703 allows opinions based only upon inadmissible evidence if the inadmissible evidence is of a sort “reasonably relied upon.” “The use of [the word] ‘reasonably’ rather than ‘customarily’ or ‘regularly’ implies that judicial oversight was intended.” While Strain did make the conclusory statement that those in his field reasonably rely on polygraph results, the sole basis of his opinion was the results of a test that we have held inadmissible because it is not reliable. “Total reliance on inadmissible and untrustworthy facts cannot be reasonable. Nor would such an opinion achieve the minimum level of reliability necessary for admission under Rule 702.” Rule 703 is not a conduit for admitting opinions based on “scientific, technical, or other specialized knowledge” that would not meet Rule 702’s reliability requirement. If the methodology or data underlying an expert’s opinion would not survive the scrutiny of a Rule 702 reliability analysis, Rule 703 does not render the opinion admissible. Thus Rule 703 did not provide a basis for the trial court to admit Strain’s testimony, and we overrule the State’s first four grounds for review.