The majority of states in the United States and some foreign countries such as England, have adopted the containment approach to sex offender management. The containment approach is defined as “a particular method of individual case processing and case management of sex offenders in the criminal justice system.” It involves the collaboration and the frequent access and exchange of information between the supervision officer, the treatment provider and the polygraphist which are essential to the execution of internal control, external control and the use of psychophysiological veracity (PV) examinations using the polygraph. The goal of the PV examination is to obtain information necessary for offender risk management and treatment, and to reduce the offender’s denial mechanisms. Deceptive results flag areas of concern that the treatment provider and supervising officer need to investigate further. Every effort is made to assist the offender in obtaining a positive evaluation so that treatment and supervision can be informed and relevant. To this end, polygraph data should be used in conjunction with other verified information when making decision about case management of sex offenders. (Bullens, ed. 2002; Matte 2002). Most states that have adopted the Post-Conviction Sex Offender Testing program, including New York State, have enacted laws that require sex offenders periodically submit to a PV examination in compliance with the PCSOT program.
There are four categories of PV examinations for sex offender management. Different types of PV examinations are used in post-conviction sex offender testing which are classified as follows:
(1) The Disclosure Test over the Instant Offense
(2) The Disclosure Test over the Sexual History
(3) The Monitoring PV Examination
(4) The Maintenance PV Examination
The Disclosure Test over the Instant Offense
is used when the offender denies all or part of the accusations for which he/she is under court supervision. This test is used primarily in the clinical setting to promote progress in sex offender specific treatment. The type of PV examination used in this case should be a validated single-issue control (comparison) question test.
The Disclosure Test over Sexual History
is used to obtain a complete and truthful disclosure of the offender’s sexual history in order to assist the treatment provider in developing an effective treatment plan for the offender. This type of PV examination has come under much debate since its development. In most cases, sex offenders are asked to complete a Sexual History Questionnaire that identifies victims previous to the Instant Offense by age, gender and description of abuse and sexual paraphilias. An accurate and complete sexual history document is an important part of the sex offender treatment program as it relates specifically and individually to an offender’s risk to the community (by identifying potential victims) and often assists in determining effective treatment and behavioral modification techniques. (Bullens, Ed 2002; Matte 2002). The role of this PV examination is to verify that the offender is not lying or withholding important information from the document, specifically as it relates to victims. For the polygraphist, the administration of a sexual history examination is similar to the use of PV examinations in applicant screening, such as the use of a police applicant booklet. It is common for the examinee, in this case the offender, to add information at the last minute when the polygraphist reviews the completed document with him/her during the pre-test phase of the PV examination. A non-deceptive test, even with significant disclosures during the pretest phase of the PV examination, is seen as a measurement of success for the offender who can demonstrate truthfulness about his/her sexual history. Deceptive results generally result in treatment sanctions until such time that the offender retests with non-deceptive results. (Bullens, Ed 2002; Matte 2002).
The scientific problem with Sex History Disclosure PV examinations can also present a legal problem that defense attorneys can make use of in the representation of a client sex offender on probation who is declared deceptive on such a PV examination. If the polygraphist used a multiple-issue examination and declared the offender deceptive without using the successive hurdles approach that employs a validated single-issue test to resolve the deceptive response to a question on the multiple-issue test, he is in violation of the American Polygraph Association’s Model Policy for Post-Conviction Sex Offender Testing, May 26, 2009, Section 4, paragraph 4.2 Successive Hurdles Approach, which states the following:
4.2 Successive Hurdles Approach. Examiners should use a successive hurdles approach to testing to maximize both the informational efficiency and sensitivity of multi-issue (mixed-issue) screening polygraphs and the diagnostic efficiency and specificity of event-specific single-issue exams. The term screening, as it applies to PCSOT, is based on the fact that some exams are conducted for exploratory purposes in the absence of known allegations or known incidents. Follow-up examinations should employ a single-issue technique whenever increased validity is required to resolve an issue. Successive-hurdles may include following an unresolved mixed-issue polygraph test with additional attempts to resolve the issue(s), including posttest discussion, additional field or background investigation, or additional polygraph testing. Follow-up examinations may be completed on the same date as the initial exam, or they may be scheduled for a later date. On the other hand, the polygraphist may decide to use a validated single-issue test to determine the truthfulness of the examinee/offender who has executed a written statement containing his entire sexual history, by asking the examinee if he has deliberately withheld any information from his written statement, or has falsified any portion of his written statement, thus avoiding the use of a multiple-issue screening type test. However, such an examination is fraught with significant danger of a false positive result because the examinee is confronted with a test question that elicits mental effort in the review of a lenthly statement that encompasses his entire life. Published studies (C.D. Lee 1953; F. Boiten 1993; S Bongard, J. S. Pfeiffer, M. Al’Absi, V. Hodapp, and G. Linnenkemper 1997; D. S. Fokkema 1999; A Winzer, C. Ring, D. Carroll, G. Willemsen, M. Drayson, M. Kendall 1999; C. Ring, D. Carroll, G. Willemsen, J. Cooke, A. Ferraro, M. Drayson 1999) have shown that mental effort or exercise can generate an autonomic arousal which would be indistinguishable from deception. Indeed, C. D. Lee (1953) warned that relevant test questions must be succinct, as short as possible, void of rationalization potential, and thoroughly reviewed with the examinee and thus not elicit any mental exercise from the examinee. “All effort must be avoided except that involved in the deception syndrome.” (Matte, 2000).
The Monitoring PV Examination and the Maintenance PV Examination
are both multiple-issue screening type of examinations which must employ the Successive Hurdles Approach to resolve any unresolved responses. Hence the same problems encountered in the Disclosure Test over Sexual History are present and the same cautionary measures must be applied.
The defense attorney representing a sex offender
on probation does not have the expertise to evaluate the validity of a PV examination and/or determine whether there were any procedural violations committed by the polygraphist. The original polygraphist may have used a single-issue test that was not validated by published research or could have deviated from the protocol that validated the polygraph technique. He could have found his client deceptive on the basis of a multiple-issue test without the use and confirmation of a successive-hurdles approach. He should therefore hire a forensic psychophysiology expert to conduct a Quality Control Review of the entire PV examination on behalf of the attorney and his client. The attorney must subpoena the original polygraphist to provide all of the polygraph charts, list of test questions used in the PV examination, worksheets, numerical scores assigned to the physiological data collected from the examinee, and the video recording of the entire PV examination including any posttest interview. A list of all documents required for a Quality Control Review can be found in the textbook Forensic Psychophysiology Using The Polygraph
by James Allan Matte, 1996 or Examination and Cross-Examination of Experts in Forensic Psychophysiology Using the Polygraph
by James Allan Matte, 2000.
All references listed in the above text may be found in the aforementioned textbooks authored by James Allan Matte