"Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes." -- Tennard v. State, 802 SW2d 678, 683 (Tex.Crim.App. 1990)That pronouncement by the Court of Criminal Appeals seems to put the matter of the admissibility of polygraph examinations to bed. The Court was concerned about the lack of reliability of a "test" that relied entirely upon the interpretation of one person.
William Leonard pled guilty to felony injury to a child and was placed on five years deferred adjudication. In other words, Mr. Leonard entered a guilty plea before the bench and the judge deferred a finding of guilt until a later date. If Mr. Leonard could complete his probation successfully, the case against him would be dismissed.
But, since we're discussing Mr. Leonard's case in this forum, you know it did not end well for him. As part of his conditions of probation, Mr. Leonard was required to attend counseling sessions for sex offenders and to submit to polygraph examinations.
On several occasions the polygraph examiner determined that Mr. Leonard was being deceptive. As a result he was discharged from the counseling sessions. The state then filed a motion to adjudicate Mr. Leonard's guilt. For those of y'all not familiar with the peculiar ways of the Lone Star State, a motion to adjudicate guilt is the way in which a prosecutor seeks to have a judge enter a finding of guilt in the underlying case. At a hearing before the court, the state argued that Mr. Leonard had been "unsuccessfully discharged" from the counseling sessions and that he had failed to make satisfactory progress in his treatment.
At the hearing the state called George Michael Strain, the psychotherapist who booted Mr. Leonard from the program. Mr. Strain testified that he kicked Mr. Leonard out of the program due to his failing five polygraph examinations. Mr. Leonard objected to the admissibility of the tests. The court, overruling Mr. Leonard's objections, granted the state's motion and entered a finding of guilt in the case.
On appeal, the Eastland Court of Appeals, in Leonard v. State, 315 SW3d 578 (Tex.App.-Eastland 2010), reversed the finding of guilt and ordered the case back to the trial court on the grounds that the results of the polygraph tests were inadmissible.
Well, that didn't sit too well with the District Attorney who appealed to the Texas Court of Criminal Appeals.
Judge Lawrence Meyers wrote for the 5-4 majority that in an administrative hearing the results of a polygraph examination are admissible because the judge isn't determining guilt and because there is no jury to be confused by the evidence. The Court held further that the failed test results were admissible as they were the basis of an expert's opinion as to why Mr. Leonard was discharged from the counseling program.
There were a couple of things that struck me as odd in that opinion. First, the Court had made it crystal clear in 1990 that the results of polygraph examinations were inadmissible for "all purposes." Not much wiggle room in that now, is there? Even though Judge Meyers makes a distinction between a trial and an administrative hearing, the Court made no such distinction in 1990. The Court wasn't presented any evidence that the tests were any more reliable in 2010 than they were in 1990.
Second, Judge Meyers was just plain wrong when it came to his rationale for admitting the test results in a hearing on a motion to adjudicate. Yes, it's an administrative hearing. Yes, the state's burden of proof is much lower than at trial. But, and this is a very big but, the entire purpose of the hearing in Mr. Leonard's case was to determine whether or not he was to be adjudicated guilty of the underlying offense. In other words, the judge was determining guilt.
In her concurring opinion, Judge Barbara Hervey acted as a mouthpiece for prosecutors when she said that issues of admissibility of scientific evidence were the purview of the trial courts, not the appellate court. I guess she would just as soon sidestep the entire issue of court precedent.
Apparently she was quite upset that Judge Cathy Cochran dared to write about the dearth of evidence that polygraph exams are reliable. Of course Judge Cochran was just following the principle of stare decisis as the trial court had not conducted a gatekeeper hearing to determine the admissibility of the test results.
Apparently conservative judges can be quite the little activists when it comes to finding ways to affirm convictions.