RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5435-10T2 A-1459-11T2 A-2138-11T3 A-3256-11T2 A-1385-15T2

J.B.,

Appellant, APPROVED FOR PUBLICATION v. January 21, 2016

NEW JERSEY STATE PAROLE BOARD, APPELLATE DIVISION

Respondent. __________________________________

L.A.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent. __________________________________

B.M.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent. ____________________________________ W.M.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent. _____________________________________

R.L.1,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent. _____________________________________

Argued October 29, 2013 - Referred to the Law Division pursuant to Rule 2:5-5(b) November 26, 2013 Reargued September 16, 2015 - Decided January 21, 2016

Before Judges Sabatino, Accurso, and O'Connor.

On appeal from the New Jersey State Parole Board.

Michael C. Woyce argued the cause for appellants L.A., W.M. and R.L.2 (Murphy &

1 By consent of counsel for the parties and intervenor, a separate appeal by R.L. raising similar issues was consolidated with the present appeals in December 2015, and all parties agreed to rely as to R.L. on their briefs and oral arguments they had previously presented. 2 At oral argument in October 2013 and again in September 2015, counsel represented that the issues relating to J.B. and B.M., (continued)

2 A-5435-10T2 Woyce, attorneys; Joseph S. Murphy, Jesse D. Stovin, and Mr. Woyce, on the briefs).

Daniel M. Vannella, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief; Mr. Vannella and Christopher C. Josephson, Deputy Attorney General, on the briefs).

Fletcher C. Duddy, Deputy Public Defender, argued the cause for Intervenor New Jersey Public Defender (Joseph E. Krakora, Public Defender, attorney; Mr. Duddy and Stefan J. Erwin, Assistant Deputy Public Defender, on the brief).

The opinion of the Court was delivered by

SABATINO, P.J.A.D.

This matter returning to our court involves a challenge to

the practices of the New Jersey State Parole Board ("Parole

Board") in administering polygraph examinations. Pursuant to

statutory and regulatory authority, the Parole Board

periodically administers such polygraphs to released sex

offenders who are subject to either parole supervision for life

("PSL") or its statutory predecessor, community supervision for

life ("CSL"), N.J.S.A. 2C:43-6.4.

(continued) are no longer in dispute and that the appeals are proceeding solely as to L.A., W.M., and R.L.

3 A-5435-10T2 Appellants, all of whom are represented by the same

counsel, are individuals who have been convicted of sexual

offenses, have completed their respective prison terms, and are

now being monitored by the Parole Board as part of the terms of

their PSL or CSL. Appellants contend that the Parole Board's

practices of requiring them and other similarly-situated

offenders3 subject to PSL or CSL to submit to polygraphs, and the

manner in which it uses those polygraph results, violate their

constitutional rights. They also contend that the Parole

Board's practices in this regard are arbitrary and capricious

and should be invalidated on that basis as well.

For reasons that follow, we uphold the validity of the

Parole Board's polygraph program, subject to certain important

conditions and modifications. In particular, we disallow the

Parole Board from using the machine-generated technical results

of such exams as evidence to justify a curtailment of an

offender's activities. We also rule the Parole Board's

regulations and practices to protect the offenders' privileges

against self-incrimination should be enhanced.

Appellants' polygraph challenges were included in an

earlier phase of these consolidated appeals that also included

appellants' separate claim that the Parole Board had

3 Appellants have not sought class certification.

4 A-5435-10T2 unconstitutionally restricted their access to social media and

other websites on the Internet.

In November 2013, this court issued an opinion that

partially adjudicated the issues presented. J.B. v. N.J. State

Parole Bd., Nos. A-5435-10, A-1459-11, A-2138-11, A-2448-11, A-

3256-11 (App. Div. Nov. 26, 2013) ("J.B. I"). In the published

portion of that opinion in J.B. I, we rejected appellants'

facial challenge to the Internet access restrictions, without

prejudice to the ability of individual offenders to pursue

"as-applied" challenges to such restrictions in the future. See

J.B. v. N.J. State Parole Bd.,

(App.

Div. 2013), certif. denied sub nom., B.M. v. N.J. State Parole

Bd.,

(2014).

In the unpublished portion of our November 2013 opinion, we

declined to resolve appellants' challenges to the Parole Board's

use of polygraph examinations. We did so because the factual

record at that time was inadequate to evaluate whether the

Parole Board's practices violate appellants' constitutional

rights or are arbitrary and capricious. J.B. I, supra, slip op.

at 28-50. Given the record's shortcomings and the exceptional

circumstances of this case, we referred the polygraph issues to

the trial court for evidentiary hearings and fact-finding

pursuant to Rule 2:5-5(b). Id. at 48-50.

5 A-5435-10T2 As part of the referral for fact-finding, we directed the

trial court to "explore the existence and strength of what the

[Parole Board] asserts are the therapeutic, rehabilitative, and

risk management benefits of polygraph examinations as

administered to released sex offenders." Id. at 47. We also

requested the trial court to indicate, to the extent possible,

any recommendations it may have concerning how the Parole

Board's existing procedures "might be altered to (1) enhance any

proven therapeutic, rehabilitative or risk management benefits

of the polygraph testing; or (2) achieve those benefits in a

manner that might be less intrusive of appellants' individual

rights." Id. at 49-50.

Following discovery and the exchange of expert reports, the

evidentiary hearings were conducted in the fall of 2014 over the

course of six intermittent dates. With our permission, the

State Office of the Public Defender, which had previously

commented on the Parole Board's polygraph regulations when they

were adopted, intervened in the proceedings and presented its

own expert proofs. Multiple experts and fact witnesses

testified at these hearings. The trial court also considered a

plethora of exhibits and written studies on the subject.

On January 12, 2015, the trial court issued lengthy written

findings of fact. In its conclusions, the court found what it

6 A-5435-10T2 termed a "reasonable basis" for the Parole Board to use

polygraph testing in the supervision and treatment of sex

offenders on PSL or CSL. However, consistent with the

constraints of our referral and Rule 2:5-5(b), the court

confined its decision to factual findings, and it did not

address the constitutionality or legal validity of the polygraph

testing program.

Appellants subsequently filed exceptions to the court's

factual findings, and also renewed their legal arguments

supporting their challenge. The Public Defender likewise filed

exceptions and also advanced its own legal arguments, urging

that we invalidate the polygraph testing program. The Parole

Board filed a written response and the legal issues were

reargued before this court, this time with the participation of

the Public Defender.

Having now considered these issues with the benefit of the

court's detailed fact-finding, we reach several conclusions,

which are amplified more fully in this opinion. First, we

reject appellants' categorical attempt to invalidate all

polygraph testing conducted by the Parole Board. We find ample

support in the record for the trial court's finding that such

testing can assist parole officers and treatment professionals

in making better-informed decisions as to supervision and

7 A-5435-10T2 treatment. However, in recognition of our judiciary's long-

standing concerns about the inaccuracy of the machine-generated

results produced by polygraph testing, we conclude that the

Parole Board may not utilize such "technical" results in any

evidential manner to support imposing sanctions or increased

restrictions on the monitored individuals. This proviso does

not, however, preclude the Parole Board from making evidential

use of the substance of any admissions or other statements made

by the offenders at a polygraph session, as distinguished from

the machine-generated technical results.

Second, we hold that the Parole Board must enhance its

regulations and practices to safeguard an offender's right to

invoke his constitutional privilege against self-incrimination

in responding to any questions posed before or during a

polygraph examination session. We reject, however, appellants'

specific claim that the polygraph sessions comprise a form of

custodial interrogation that require the administration of

Miranda4 warnings.

4 Miranda v. Arizona,

,

,

(1966).

8 A-5435-10T2 I.

The following background derived from both the extensive

factual record and the overall regulatory scheme informs our

analysis of the constitutional and legal issues.5

The Court's Long-standing Aversion to the Evidential Use of Polygraphs

For decades, our courts have declared machine-generated

polygraph results to be unreliable proof that must be excluded

as evidence, unless there is a mutual stipulation from the

parties agreeing to admit such proof. See, e.g., State v. A.O.,

(2009); State v. Domicz,

(2006); State v. McDavitt,

(1972); State v.

Driver,

(1962). As part of that unbroken line

of precedent, our State Supreme Court explained in McDavitt in

1972 that "[t]o date . . . lie detector testing has not yet

attained scientific acceptance as a reliable and accurate means

of ascertaining truth or deception."

. In 2006, the Court reiterated the polygraph's scientific

unreliability and inaccuracy in Domicz, observing that "[i]n the

more than thirty years since McDavitt, serious questions about

5 Much of this background repeats, at times verbatim, the unpublished portion of our November 2013 opinion in J.B. I, as corrected or amplified by additional information that emerged at the trial court proceedings. To the extent there is any variation with our prior opinion, the details in our present opinion supersede our earlier discussion.

9 A-5435-10T2 the reliability of polygraph evidence remain."

.

In 2009 in A.O., the Court repeated these well-settled

principles, holding that polygraph evidence generated after a

stipulation entered into between the State and a criminal

suspect — without the involvement of the suspect's defense

counsel — is inadmissible at trial.

. Among other things, the Court in A.O. referred again to the

abundant scientific literature that raises doubts about the

reliability and accuracy of polygraph results.

;

see also United States v. Scheffer,

,

,

(1998). As of the

time of the Court's 2009 opinion in A.O., twenty-eight states

had banned the admission of polygraph evidence outright.

. The Court noted that "[v]irtually all

the other states" that have considered the issue "limit the

admission of polygraph evidence to cases where both parties

stipulate to its use."

. As the Court in A.O.

unambiguously declared, "[t]his Court has not sanctioned and

does not now entertain the admission of polygraph results."

.

10 A-5435-10T2 The Legislature's Authorization to the Parole Board to Administer Polygraphs for "Treatment" and "Risk Management" of PSL/CSL Sex Offenders

Despite this long-standing precedent treating

non-stipulated polygraph results as inadmissible in our courts,

the Legislature adopted the following provision in 2005

authorizing polygraph testing of offenders who are subject to

PSL or CSL. This statute is part of a larger set of provisions

addressing the post-release supervision of persons convicted of

certain sexual offenses. In pertinent part, the statute

provides:

The State Parole Board, on at least an annual basis, may administer to all offenders serving a special sentence of community or parole supervision for life, imposed pursuant to section 2 of P.L. 1994, c. 130 ([N.J.S.A.] 2C:43-6.4), polygraph examinations in order to obtain information necessary for risk management and treatment and to reduce the offender's denial mechanisms. A polygraph examination shall be conducted by a polygrapher trained specifically in the use of the polygraph for the monitoring of sex offenders, where available, and shall be paid for by the offender. The results of the polygraph examination shall not be used as evidence in court to prove that a violation of the special sentence of community or parole supervision for life or condition of discharge has occurred.

[N.J.S.A. 30:4-123.88 (emphasis added).]

11 A-5435-10T2 As part of this polygraph initiative and the related

provisions allowing electronic monitoring and other restrictions

of sex offenders on PSL or CSL, the Legislature articulated the

following general purposes to improve, with the aid of

technology, the post release monitoring of sex offenders:6

a. Offenders who commit serious and violent sex crimes have demonstrated high recidivism rates and, according to some studies, are four to five times more likely to commit a new sex offense than those without such prior convictions, thereby posing an unacceptable level of risk to the community.

b. Intensive supervision of serious and violent sex offenders is a crucial element in both the rehabilitation of the released inmate and the safety of the surrounding community.

c. Technological solutions currently exist to provide improved supervision and behavioral control of sex offenders following their release.

d. These solutions also provide law enforcement and correctional professionals with new tools for electronic correlation of the constantly updated geographic location of supervised sex offenders following their release with the geographic location of

6 Contemporaneous with the passage of N.J.S.A. 30:4-123.88, the Legislature issued these findings and declarations that were applicable to the subchapter. L. 2005, c. 189, § 2. A later amendment in 2007 recodified those same findings and declarations to its current form, N.J.S.A. 30:4-123.90. L. 2007, c. 128, § 8.

12 A-5435-10T2 reported crimes, to possibly link released offenders to crimes or to exclude them from ongoing criminal investigations.

e. Continuous 24 hours per day, seven days per week, monitoring is a valuable and reasonable requirement for those offenders who are determined to be a high risk to reoffend, were previously committed as sexually violent predators and conditionally discharged, or received or are serving a special sentence of community or parole supervision for life. A program to monitor these sex offenders should be established.

[L. 2007, c. 128 (emphasis added); see also N.J.S.A. 30:4-123.90.]

The Parole Board's Development of Polygraph Testing Procedures and Regulations

The Parole Board then undertook to develop procedures and

regulations to implement the polygraph testing the Legislature

authorized in N.J.S.A. 30:4-123.88. See N.J.A.C. 10A:71-

6.11(b)(21); N.J.A.C. 10A:72-3.1 to -3.10. Those regulations

and procedures are at the heart of the legal challenges advanced

here by appellants and the intervenor Public Defender.

In objection to the Parole Board's initial set of proposed

polygraph regulations, the Public Defender's Office questioned

the reliability and utility of the device. That comment from

the Public Defender was summarized by the Parole Board in the

New Jersey Register:

The section requiring convicted sex offenders to submit to an annual polygraph

13 A-5435-10T2 examination at their expense is both unfair and an extremely unreliable tool. The fact that the section (N.J.A.C. 10A:71-6.13(b)) provides for a polygrapher specially trained in the use of the polygraph for monitoring of sex offenders highlights this proposition. If the polygraph examination was a reliable tool for determining deception, any qualified polygrapher would be equally capable of determining deception, whether the issue was taking money from a bank or continued interest in deviant sex. The commenter viewed the proposed new rule as just another step to make the lives of sex offenders in this State unbearable with no public benefit.

[40 N.J.R. 3726(b) (emphasis added).]

In response to that comment, the Board rested upon the

Legislature's own findings:

New rule N.J.A.C. 10A:71-6.13 (Polygraph examinations) codified N.J.S.A. 30:4-123.88, [a statute] which was enacted effective August 11, 2005. As the language of the new rule is the same as the statutory language, the State Parole Board elected to adopt N.J.A.C. 10A:71-6.13 as proposed.

[Ibid.]

Because certain provisions in the proposed regulations, as

initially drafted, seemed to incorrectly mandate that the Parole

Board administer polygraph examinations on an annual basis to

all sex offenders, the Parole Board subsequently issued a rule

amendment. Consistent with N.J.S.A. 30:4-123.88, the amendment

clarified the discretionary nature of its polygraph testing to

14 A-5435-10T2 make it plain that the testing is not a universal or annual

requirement. N.J.A.C. 10A:71-6.11(b)(21).

Subsequently, one of the appellants in this case, B.M.,

filed an appeal challenging the validity of the Parole Board's

practices in administering such polygraphs. In ruling on that

appeal in 2010, we did not address the merits of B.M.'s

constitutional arguments. Instead, we directed the Parole Board

to undertake additional formal rulemaking to codify its internal

practices in accordance with the rulemaking principles of

Metromedia, Inc. v. Dir., Div. of Taxation,

(1984).

B.M. v. N.J. State Parole Bd., No. A-2599-09 (App. Div. June 30,

2010) (slip op. at 6-8).

Consequently, in January 2011, the Parole Board proposed

additional polygraph regulations, in an effort to address the

need for rulemaking identified in our 2010 opinion. 43 N.J.R.

121(a). The bulk of those rule amendments, which were adopted

in July 2011, are now set forth in N.J.A.C. 10A:72-3.1 to -3.10.7

During the public comment process concerning these proposed

clarifying rules, the Public Defender as well as a group of

individual offenders (none of whom are parties to the

7 The proposal also sought to amend N.J.A.C. 10A:71-6.11(b)(21) to clarify that an Assistant District Parole Supervisor or a Supervising Parole Officer may also direct an offender to submit to a polygraph examination.

15 A-5435-10T2 consolidated appeals presently before this court) submitted

objections to the Parole Board. The objectors criticized the

proposed new provisions on a variety of constitutional and legal

grounds, all of which are now before us in the current appeals.

As the Parole Board summarized those objections:

The comments submitted by the group of offenders related to their concern that polygraph examinations have been found to be unreliable; that based on a process found to be unreliable an offender may be subject to a course of action that would result in the loss of liberty; that an offender would be forced to give up his right to remain silent; and that as parole is part of the criminal process an offender's submission for a polygraph examination would violate his right to be represented by counsel.

[43 N.J.R. 3087(a) (emphasis added).]

The Parole Board rejected all of the objectors' claims of

unconstitutionality in its published response.

Except

for certain revisions to the notice requirements in N.J.A.C.

10A:72-3.5, the Parole Board adopted the newest rules in

otherwise substantively-unchanged form on July 27, 2011,

effective November 21, 2011. Ibid.; see generally N.J.A.C.

10A:72-3.1 to -3.10. These newer regulations implemented the

more general authorization set forth in N.J.A.C. 10A:71-6.13.

That regulation, in turn, tracks the enabling statute, N.J.S.A.

30:4-123.88, almost verbatim, and reads:

16 A-5435-10T2 (a) . . . [T]he Board, on at least an annual basis, may administer to all offenders serving a special sentence of community or parole supervision for life, imposed pursuant to N.J.S.A. 2C:43-6.4, polygraph examinations in order to obtain information necessary for risk management and treatment and to reduce the offender's denial mechanisms.

(b) A polygraph examination shall be conducted by a polygrapher trained specifically in the use of the polygraph for monitoring of sex offenders, where available, and shall be paid for by the offender.

(c) The results of the polygraph examination shall not be used as evidence in court to prove that a violation of the special sentence of community or parole supervision for life or condition of discharge pursuant to N.J.S.A. 30:4-27.36 has occurred.

[N.J.A.C. 10A:71-6.13 (emphasis added).]

The Three Types of Polygraph Examinations Authorized by the Regulations

The Parole Board's regulations describe three kinds of

polygraphs: (1) an "instant offense examination," (2) a

"periodic maintenance examination," and (3) a "sexual history

examination." N.J.A.C. 10A:72-3.3(a) to (c). An instant

offense examination is proper when "either an offender denies

guilt regarding the commitment offense or an offender's version

of the commitment offense differs significantly from the

17 A-5435-10T2 official version of the commitment offense as noted in the pre-

sentence report." N.J.A.C. 10A:72-3.3(a).

By comparison, a periodic maintenance examination, which

appears to be much broader in scope, may be administered when it

is needed "to verify the activities, behavior and truthfulness

of an offender as related to compliance with the conditions of

supervision." N.J.A.C. 10A:72-3.3(b).

Lastly, the regulations note that the third kind of test, a

sexual history examination8 may be administered "to obtain

comprehensive information regarding an offender's sexual

interests and behaviors in order to identify the offender's

predilections and to assist in case planning and treatment

objectives." N.J.A.C. 10A:72-3.3(c).

The decision as to whether any of these kinds of polygraphs

should be administered to a particular offender serving a PSL or

CSL sentence is initially considered by the individual's

assigned parole officer. The parole officer is to be guided by

the following standards set forth in the regulations:

The assigned parole officer shall review the offender's case with an Assistant District Supervisor, District Parole Supervisor, or Supervising Parole Officer for consideration of a polygraph examination, if the assigned

8 The record before us indicates that the Parole Board has yet to administer a "sexual history examination" to any offender on PSL or CSL.

18 A-5435-10T2 parole officer has a reasonable belief that an offender is non-compliant with a condition(s) of supervision; if an offender denies guilt regarding the commitment offense; or if an offender's treatment provider believes that the administration of a polygraph examination would assist in the treatment or supervision of the offender. In addition, the reviewing supervisor must determine that there is a need to obtain and verify information regarding an offender's behaviors and sexual interests.

[N.J.A.C. 10A:72-3.4(a) (emphasis added).]

The ultimate decision to administer a polygraph must be made by

a supervisor. N.J.A.C. 10A:72-3.4(b). If a polygraph is

ordered, the offenders are to be supplied with thirty days'

advance notice of the procedure, N.J.A.C. 10A:72-3.5, and are

presented with a disclosure form detailing the terms of the

polygraph, N.J.A.C. 10A:73-3.6(a), including notification that

"the results"9 of the examination "shall not be used as evidence

in court to prove that a violation of the [terms of PSL or CSL]

or condition of discharge has occurred," N.J.A.C. 10A:72-

3.6(b)(6). Failure to submit to a polygraph, absent good cause,

is now a third-degree crime, as a result of a change in the law

in 2013. N.J.S.A. 2C:43-6.4(d).

9 See our discussion, infra in Part III, concerning the meaning of the term "results" and the implications of that definition.

19 A-5435-10T2 The polygraph session consists of a pre-examination

interview, the examination itself, and a post-examination

interview. N.J.A.C. 10A:72-3.7(a). During the post-examination

interview, the examiner must review the test results with the

offender, advise him or her of "any significant, deceptive or

inconclusive response[s,]" and provide him or her with a chance

"to explain or resolve any significant, deceptive or

inconclusive response[s]." N.J.A.C. 10A:72-3.7(h)(2). The

examiner is to immediately notify a supervisor or a supervisor's

designee of "any significant findings, conclusions and/or

admissions made during the polygraph examination process."

N.J.A.C. 10A:72-3.8(a). The supervisor or designee, in turn,

must review the individual's case "with the assigned parole

officer and/or treatment provider to determine a course of

action." N.J.A.C. 10A:72-3.9(a).

Notably, "any voluntary admission(s) made by the offender

regarding unreported victim(s) or crime(s)" must be immediately

reported to the appropriate law enforcement agencies. N.J.A.C.

10A:72-3.9(b). The costs of the examination must be paid for by

the offender. N.J.A.C. 10A:72-3.10(a).

These testing procedures, as they are deployed in practice,

were described in extensive detail by the Parole Board's

witnesses at the trial court's evidentiary hearing. The

20 A-5435-10T2 testimony reflects that to some extent, the Parole Board has

altered its actual practices over time, even as the present

litigation has been pending. The trial court accepted as expert

witnesses all of the testifying witnesses who were designated as

such by the parties and the Public Defender.

The Parole Board's Factual and Expert Proofs

Raymond Nelson

The Parole Board's chief factual and expert witness at the

hearing was Raymond Nelson. Nelson is employed by a company

that manufactures polygraph equipment used by the Parole Board.

He holds a master's degree in psychology, and has extensive

experience in both psychotherapy and statistical research. For

more than a dozen years, Nelson has counseled both perpetrators

and victims of sexual abuse. Consistent with guidelines

promulgated by the American Polygraph Association ("APA"),

Nelson trains other examiners who administer polygraphs to sex

offenders. Such tests are also known as Post Conviction Sex

Offender Testing ("PCSOT").

Nelson explained that polygraph testing operates on a

premise that certain human physiological responses correlate

with deception or truth-telling. The polygraph machine has

electrodermal, cardiac, and respiration sensors designed to

measure those responses as the subject answers questions

21 A-5435-10T2 carefully formulated and arranged by the examiner. Appropriate

questions, depending on the nature of the test and the subjects

of inquiry, are ordinarily prepared prior to the exam session.

The actual wording of the exam questions is finalized during the

pre-test interview.

The Parole Board uses an examination technique validated by

a 2011 APA "meta-analysis." As part of that technique, an

examiner intersperses "target" (or relevant) questions among

"control" questions and "neutral" questions. The examiner then

evaluates any differences in the subject's physiological

response to those stimuli to gauge the probability that he or

she is engaging in deception. According to Nelson, subjects

with stronger responses to relevant questions tend to be

deceptive, while those with stronger responses to control

questions tend to be telling the truth.

The polygraph machinery the Parole Board uses is equipped

with somatic sensors, most commonly attached to the subject's

chair. The sensors are designed to detect movement in any large

muscle group in the body, for example, by identifying changes in

distribution of weight on the chair. According to Nelson, the

equipment can thus detect whether a subject is deliberately

engaged in muscle tension or other known "countermeasures" to

affect the results of the test. The examinations typically last

22 A-5435-10T2 an hour and a half, with most of that time devoted to the pre-

test interview.

Nelson stated that polygraph testing had been used in the

post-conviction context for decades and that nearly all states

now used PCSOT in some manner. Nelson noted that some testing

was performed for diagnostic purposes, such as the "instant

offense" polygraphs authorized by N.J.A.C. 10A:72-3.3(a).

Other testing is primarily used for screening purposes,

such as the "maintenance" polygraphs authorized under N.J.A.C.

10A:72-3.3(b), as to which appellants here have most strenuously

objected. The purpose of such maintenance testing, Nelson

explained, is threefold: (1) to increase the information

available for treatment and supervision by encouraging

disclosure; (2) to act as a deterrent to violation by

encouraging compliance with the conditions of supervision; and

(3) to aid those responsible for the offender's treatment and

supervision in discriminating truth from deception.

Nelson cited research showing that the accuracy of PCSOT

polygraphs ranged from a median of 89% for diagnostic tests to a

median of 85% for screening tests such as maintenance

polygraphs, which are more complicated to administer. He

estimated the lower bound for accuracy of diagnostic tests at

83% and for screening polygraphs at 77%. Although polygraph

23 A-5435-10T2 reliability is not perfect, Nelson contended that polygraph

results nonetheless performed far better than chance predictions

of truthfulness. He also claimed that the testing promoted

better-informed decision-making by officials who are responsible

for offender treatment and supervision.

Dr. Bosley

The Parole Board also presented testimony from Dr. Jackson

Bosley, a licensed psychologist engaged in sex offender

treatment. Dr. Bosley developed and now runs the Parole Board's

treatment program for indigent sex offenders. He explained that

his program adopted a collaborative approach, in which treatment

professionals share information with parole officers. According

to Dr. Bosley, such collaboration fosters more informed

decision-making about treatment and monitoring. The

collaboration thereby promotes rehabilitation and reduces

recidivism among supervised parolees.

Dr. Bosley noted that the therapeutic process for sex

offenders is typically an initially uncomfortable one. This is

so because offenders participate in treatment only by mandate,

and tend to view the clinician as an enemy tasked with probing

the shameful behavior which led to the offender's conviction.

Dr. Bosley estimated that, as a consequence, about half of sex

offenders deny outright their offenses early in treatment, while

24 A-5435-10T2 the other half usually remain silent. The psychologist opined

that an offender's overcoming denial and accepting culpability

for his instant offenses is a crucial step in that individual's

process. Administering polygraphs aids that acceptance process,

Dr. Bosley explained, because such tests encourage offenders to

become more forthcoming with themselves and their treatment

professionals, thus fostering rehabilitation.

Dr. Bosley recounted that often the mere scheduling of a

polygraph examination motivates offenders to become more

forthcoming and ultimately to accept responsibility for their

behavior. He asserted this phenomenon creates a therapeutic

benefit that is not directly dependent on the accuracy of the

testing itself. He opined that some offenders would likely

never accept that responsibility without being subjected to

polygraph testing.

Captain Tallard

The Parole Board also presented testimony from Captain

Steven Tallard, a supervising parole officer who has been deeply

involved in the design and implementation of its PCSOT policies.

By the time of Tallard's testimony in September 2014, the Parole

Board had conducted a total of 1766 examinations pursuant to

those policies, including 594 "instant offense" and 1172

"maintenance" exams. Sexual history examinations had never been

25 A-5435-10T2 conducted, and there were no plans to begin administering any as

of the time of the hearing.

In the course of discussing the requirements for testing

set forth in the Parole Board's policies, Tallard confirmed that

maintenance exams were not meant to be used to obtain

identifying information of new crimes or unreported victims. He

added that no offender currently under criminal investigation or

whose case remained on appeal could be ordered to comply with a

polygraph test. Instead, he asserted that the goal of such an

exam was only to confirm or eliminate a parole officer's

concerns as to whether the examinee had been complying with the

conditions of his or her supervision. Thus, the Parole Board's

policies require that an offender only be subject to the exam on

a reasonable belief by the parole officer that the offender has

been non-compliant. Tallard noted that an offender may leave an

examination, but may be subject to adverse consequences to his

or her conditions of supervision as a result of such non-

compliance.

Tallard asserted that the Parole Board's decisions as to

conditions of supervision have never been based exclusively on

the technical results of an exam, but on a totality of the

circumstances, including any basis for the exam referral. To

the extent a published study conducted by Heather Carbone in

26 A-5435-10T2 2009 suggested to the contrary, i.e., that the Parole Board may

have made supervision decisions solely on the basis of technical

exam results in the past, Tallard believed her report was

inaccurate. He asserted that Carbone's survey failed to make

clear what she meant by the term exam result, implying that

Carbone's percentage figure included more than the machine-

generated results.

Sergeants Andresen and Cavanaugh

Sergeant Ryan Andresen, an assistant district parole

supervisor and a certified polygraph examiner, further explained

the agency's actual practices. Andresen has conducted about 150

polygraph exams. He noted that the polygraph techniques used by

the Parole Board's examiners have evolved over time. Some

"comparison" questions during the procedure have changed.

Andresen asserted, however, that all techniques used have been

validated by the APA. He also noted that each examiner is

required to submit two exam reports per year for peer review.

Sergeant Kimberly Cavanaugh, a certified polygrapher who

also has likewise administered about 150 examinations for the

Parole Board, provided similar testimony. Cavanaugh is

responsible for reviewing every request within the agency for

offender examinations. She acknowledged that in the early years

of the Parole Board's program, maintenance examinations could be

27 A-5435-10T2 performed at a parole officer's request, merely as a "general

compliance check." According to Cavanaugh, once the regulations

and policies were changed, exam requests could no longer be

approved without a reasonable suspicion of the offender's non-

compliance with his conditions of release.

Cavanaugh explained that, prior to administering the

polygraph, an examiner reviews information from the examinee's

case history, including the pre-sentence report as well as

treatment and supervision notes. The examiner does this to

prepare for the interview and design the exam. The resultant

exam questions, she cautioned, are meant only to explore the

examinee's behavior in complying with conditions of supervision,

and are not fashioned to uncover specific information about new

criminal activity. Cavanaugh agreed with Tallard that an

examinee is free to leave during an exam, but his refusal to

take a polygraph or non-cooperation during the test could,

although need not, lead to a parole violation.

Appellants' and Intervenor's Proofs

The expert and other witnesses who testified for appellants

and the Public Defender countered these alleged positive aspects

of the polygraph program. On the whole, they levied substantial

criticisms about the reliability of the polygraph testing

28 A-5435-10T2 results, as well as the fairness and consistency of the Parole

Board's practices.

Dr. Iacono

The chief opposing witness was Dr. William G. Iacono, a

prominent polygraph critic, who is an expert in physiology and

who has studied the scientific validity of polygraph testing.

Dr. Iacono holds a doctoral degree in clinical psychology and

psychophysiology. He has conducted psychophysiological

research, including studies focused on the validity of polygraph

testing, for more than forty years. He has published about

twenty-five papers over the course of that career, and his work

has been cited by our own Supreme Court and the Supreme Court of

the United States.

Dr. Iacono explained that polygraph machines were designed

simply to record physiological responses during the course of an

exam. The device shows changes in activity such as heart and

respiratory rates and blood pressure, but does not explain why

such changes occurred. According to Dr. Iacono, no unique

physiological activity is inherently indicative of deception.

Hence, different individuals can be expected to produce

different patterns of such activity while lying. As Dr. Iacono

explained, the machines, which merely record those patterns, do

not actually "detect lies."

29 A-5435-10T2 Dr. Iacono substantially criticized the Parole Board's

polygraph methodology. He noted that the agency's examiners

have used control questions presumed to elicit a lie, so that

the physiological response to those probable-lie questions can

serve as a frame of reference (i.e., as a "control") for

responses to the relevant questions. The assumption underlying

this methodology is that an honest subject will deny a relevant

question with no significant reaction, but have a stronger

reaction when lying in response to the control question. A

dishonest subject, on the other hand, would be expected to have

a stronger reaction when lying in response to the relevant

question than to the control. The questions are typically

repeated in varying order so as to produce a response pattern

that an examiner analyzes to gauge the subject's truthfulness.

All of this rests on the assumption that honest and dishonest

individuals will likely yield predictably different reaction

patterns to control questions.

Dr. Iacono disagreed with this assumption. He noted that a

subject who answers a control question truthfully might then

react strongly only to a relevant question, falsely registering

apparent deception. Dr. Iacono testified that he knew of no

theoretical explanation for the assumption that a deceptive

subject would respond more strongly to a relevant question.

30 A-5435-10T2 Because control questions often carry a different level of

accusation than relevant ones, he pointed out that a discrepancy

in response between the two queries could be attributable to a

poor pairing of questions, rather than to the subject's honesty.

According to Dr. Iacono, a relevant question can be relevant for

an honest examinee just as it is for a dishonest one, because he

would recognize it as a question on which his "fate hangs." The

truthful subject may then exhibit a strong reaction to the false

accusation in that question, but due only to fear of the

consequences of failing the test.

Dr. Iacono further expressed concerns with what he termed

examiner bias. He noted that for instant offense exams, for

example, the examiner begins with an assumption that the

examinee is guilty, an assumption which then influences the

formulation of test questions and compromises the integrity of

the whole testing process.

To be sure, Dr. Iacono acknowledged that examiners do tend

to be ethical and conscientious, and he agreed that a skilled

examiner can minimize subjectivity in designing and

administering the test and analyzing the results. Even so, he

concluded that some unconscious bias by the examiner will always

remain. Compounding the problem, Dr. Iacono added, is that

polygraph examiners seldom have any opportunity to learn when

31 A-5435-10T2 they have erred. He faulted the Parole Board for not having

implemented routine quality control measures, such as blind peer

reviews of examiners.

Dr. Iacono underscored recent research addressing

"contamination bias," a concept that had been illustrated by a

segment on the television show "60 Minutes." In that situation,

a number of polygraph firms were assigned four individuals to

test, identifying one among the four who was suspected of being

guilty. All four persons were actually innocent, but, in every

case, the polygraph firm deemed the identified "suspect" to be

deceptive.

Dr. Iacono also discussed research as to the accuracy of

exams administered by the Royal Canadian Mounted Police in the

1980s. The research showed that the polygraph results carried a

strong bias against innocent persons, with an accuracy level for

those individuals of only 57%, just slightly better than a 50/50

chance. Dr. Iacono also stated that previous laboratory studies

had revealed that dishonest individuals can confound the exam

results with certain known countermeasures.

Based on his research, Dr. Iacono opined that the claims of

accuracy by polygraph practitioners are exaggerated in general

and for maintenance exams in particular. He did acknowledge

that polygraph testing can provide some "therapeutic benefit" to

32 A-5435-10T2 certain individuals, including if testing encouraged them to

overcome denial of their offenses. He doubted, however, that

testing would carry such a benefit "across the board."

Dr. Iacono admitted that the Parole Board's expert, Dr.

Bosley, was in a better position than he was to evaluate the

impact of testing on the psychological treatment of the

offenders the Parole Board monitors. However, Dr. Iacono

cautioned that, if testing continues to be used, the technical

results of the tests should never be dispositive of a parole

supervision decision in isolation, but considered with all

available relevant information in light of the fallibility of

the device.

Dr. Atkins

Appellants also presented Dr. Elliot Atkins, an expert in

psychology with a focus on the assessment and treatment of sex

offenders. Dr. Atkins holds a master's degree in clinical

psychology and a doctorate in school psychology. He is licensed

to practice psychology in New Jersey and Pennsylvania. He has

extensive experience in clinical treatment of both victims and

perpetrators of sexual abuse.

Dr. Atkins testified that most sex offenders suffer from a

"lifetime condition." Consequently, the goals of their

treatment (most often cognitive-behavioral therapy) are twofold:

33 A-5435-10T2 (1) to help them understand the circumstances that led to their

offenses, and (2) to develop skills for managing their behavior

to prevent recidivism so that they can safely be reintegrated

into the community. The success of treatment in that regard,

Dr. Atkins explained, depends on the development of a

"therapeutic alliance," built on trust and respect between the

patient and therapist. The establishment of such a relationship

fosters a "feeling of safety[,]" which permits the patient to be

honest in treatment. This helps assure that the patient will

achieve meaningful therapeutic progress, thus reducing his or

her risk of recidivism.

Dr. Atkins opined that the "containment" approach used by

the Parole Board, in which clinicians and parole officers

collaborate, damages the therapeutic relationship by destroying

the confidentiality on which that relationship depends.

According to Dr. Atkins, the added requirement of polygraph

testing only serves to weaken the relationship. He agreed that

an offender's overcoming of denial for his initial offense is

important to progress in treatment. He did not agree, however,

that an acknowledgment of guilt had any established impact on

the risk of recidivism, or that forcing an offender to admit

guilt through a polygraph examination would be more beneficial

34 A-5435-10T2 than working through denial in therapy without resort to such

technology.

Indeed, Dr. Atkins testified that overcoming denial only

through the use of a polygraph might threaten the therapeutic

alliance critical to successful treatment, and have a

destabilizing effect on examinees. Dr. Atkins stated that he

would only use a polygraph examination on a voluntary basis, and

where a client believed the test would prove his or her

innocence.

Parole Officer Hritz

The court also heard the testimony of Ann Hritz, a parole

officer who supervises offenders serving PSL and CSL terms. She

is responsible for monitoring their compliance with conditions

of parole. Hritz recounted the case history of one of her CSL

supervisees, D.R. D.R. had reached the third phase of

supervision when he was referred for an instant offense

examination. D.R. continued to deny his guilt and consequently

failed the exam. He was then returned to the first phase of

supervision, which required him to attend further counseling to

address his denial.

Dennis Radabaugh's Deposition

Appellants also relied upon the deposition testimony of

Dennis Radabaugh, which the trial court considered with the

35 A-5435-10T2 parties' consent, due to his failing health10 and his consequent

inability to testify in court. Radabaugh was a police officer

who became a clinical social worker providing psychotherapy

mainly to sex offenders, first at the Adult Diagnostic and

Treatment Center and then in private practice. Radabaugh was

critical of the Parole Board's "containment" approach in matters

of treatment and risk management. He asserted that the use of

polygraph testing in connection with that approach was coercive

and traumatic. Radabaugh opined that polygraphs generally do

not yield benefits for treatment and, specifically, have no

beneficial effect on sex offenders' risk of recidivism.

The Trial Court's Findings

At the outset of its written conclusions analyzing the

pertinent facts presented at the hearing, the trial court11

acknowledged "the controversy that surrounds polygraph testing

generally[.]"12

10 Radabaugh has since died. 11 The panel expresses its deep appreciation to the trial court for undertaking the evidentiary hearing and issuing its lengthy findings of fact pursuant to our referral under Rule 2:5-5(b). 12 In a lengthy footnote within the unpublished portion of our opinion in J.B. I., we identified much of the competing literature on the subject. As we noted:

Several published articles reflect this scientific or academic disagreement (continued)

36 A-5435-10T2 (continued) regarding the rehabilitative or therapeutic value of polygraph examinations. See, e.g., Gershon Ben-Shakhar, The Case Against the Use of Polygraph Examinations to Monitor Post-Conviction Sex Offenders, 13 Legal & Criminological Psycho. 191 (2008) (exploring major polygraph techniques and applications for sex offenders, warning of the unreliability of one of the most common polygraph techniques, and concluding that such application may lead to an increase, rather than decrease, in rates of recidivism); Ewout H. Meijer et al., Sex Offender Management Using the Polygraph: A Critical Review, 13 Int'l J.L. & Psychiatry 423, 428 (2008) ("[T]here is no evidence supporting the accuracy of the [Control Question Test, a commonly-used polygraph testing method for sex offenders,] in PCSOT [post-conviction sex offender polygraph testing]."); Douglas C. Maloney, Comment, Lies, Damn Lies, and Polygraphs: The Problematic Role of Polygraphs in Postconviction Sex Offender Treatment (PCSOT),

(2012) (discussing the disputed reliability of polygraph testing for sex offenders, but noting, perhaps, its appropriateness for therapeutic purposes). But see Don Grubin, The Case for Polygraph Testing of Sex Offenders, 13 Legal & Criminological Pyschol. 177, 187 (2008) ("The evidence suggests that, whatever the pros and cons of polygraph use in other settings, [post- conviction sex offender polygraph testing] can make a valuable contribution to sex offender treatment and management."); Jill S. Levenson, Sex Offender Polygraph Examination: An Evidence-Based Case Management Tool for Social Workers, 6 J. Evidence-Based Soc. Work 261, 369 (2009) ("[P]olygraph examination has emerged as a useful tool in encouraging the disclosure of (continued)

37 A-5435-10T2 (continued) past sexual crimes . . . . [T]he accuracy of polygraph examination of sex offenders is unclear. On the other hand, a growing body of evidence supports the value of polygraph examination as a clinical tool in eliciting information for assessment . . . and monitoring purposes."); Lars Madsen, Shaun Parsons, & Don Grubin, A Preliminary Study of the Contribution of Periodic Polygraph Testing to the Treatment and Supervision of Sex Offenders, 15 J. Forensic Psychiatry & Psychol., 682, 682 (2004) (summarizing that "polygraph testing had an impact on the level of seriousness of the risk behaviours engaged in by sex offenders, but this only occurred after experience of the test itself"); Daniel T. Wilcox & Daniel E. Sosnowski, Polygraph Examination of British Sexual Offenders: A Pilot Study on Sexual History Disclosure Testing, 11 J. Sexual Aggression 3, 3 (2005) ("This application of the polygraph has shown merit as a means of obtaining additional information about past sexual offending behaviours. . . . This suggested that collaboration amongst treatment, supervision and polygraph professionals could help to contain sexual offending behavior more effectively, to improve and enhance public protection."); Theresa A. Gannon et al., The Evaluation of the Mandatory Polygraph Pilot (Univ. of Kent, Ministry of Justice Research Series, 2012) (observing an increased likelihood that sex offender case managers would rely on polygraph results to take preventative measures to protect the public from harm, and also that polygraph testing continued to elicit clinically-significant disclosures from sex offenders).

[J.B.

slip op. at 45-46 n.15.]

38 A-5435-10T2 Illustrative of that general controversy, as the trial

court noted, "the record in this case contains strong expert

opinions on both sides as to the use and accuracy of polygraph

testing for sex offenders." The court observed that it is

"undisputed" that "everyone agrees it is an area where more

research would be beneficial." Even so, the court found the

factual record here sufficient to address the contentions we had

referred for findings.

Having sifted through the proofs, the court offered this

ultimate conclusion:

The court finds that the Parole Board's current policies and practices regarding PCSOT polygraph testing for sex offenders represent a reasonable choice among competing alternatives for supervision of sex offenders. While clearly not free from controversy or valid criticism, both as to theory and practice, there is enough support in the record for this court to conclude that there is a reasonable basis for using polygraph testing in the supervision of sex offenders serving CSL and PSL sentences in the community.

[(Emphasis added).]

The court provided several detailed reasons for this

assessment. First, it addressed the persistent concerns about

the scientific inaccuracy of polygraphs:

Firstly, while Raymond Nelson relied on polygraph accuracy estimates of between 81% and 91% found in a review of polygraph research conducted by the National Research

39 A-5435-10T2 Council of the National Academy of Sciences, these findings came with many caveats that included a conclusion by the Council that the estimates were likely overstated. . . . The study did find, however, that specific incident polygraph testing of examinees untrained in countermeasures designed to skew the test can discriminate lying from truth-telling at rates well above chance, though well below perfection. Nelson reached a similar conclusion in a statistical review of polygraph research he conducted with others for the American Polygraph Association in 2010-2011. . . . Notably, neither the National Research Council study nor the more recent APA study focused on PCSOT testing, but dealt more generally with polygraph reliability across many contexts. Studies addressing polygraphs used in sex offender treatment programs, however, have confirmed similar results. See, e.g., [Don] Grubin et al., A Prospective Study of the Impact of Polygraphy on High-Risk Behaviors in Adult Sex Offenders[,] 16 Sexual Abuse: A Journal of Research and Treatment 3 (July 2004), . . .; [Ron] K[o]kish, et al, Post- conviction Sex Offender Polygraph Examination: Client-Reported Perceptions of Utility and Accuracy[,] 17 Sexual Abuse: A Journal of Research and Treatment 2 (April 2005). . . . The court is persuaded that the National Academy of Sciences report, augmented by the conclusions in the recent APA meta-analysis and the PCSOT studies by Grubin and K[ok]ish, provide sufficient support to conclude that [PCSOT] polygraph testing is accurate enough to be used by the Parole Board for parole supervision and risk management.

Next, the court explained why, despite the criticisms of

Dr. Iacono and others, current assessments of the polygraph

regard it as a useful aid to parole supervision:

40 A-5435-10T2 Of critical importance to the court in this regard is that the instant offense exams and maintenance exams based on a reasonable belief that particular parole conditions have been violated are both specific issue exams that come within the broad context of the studies conducted by the National Academy and APA. While Dr. Iacono testified that polygraph testing has been largely rejected by the scientific community, the National Academy study refutes that argument, although it is clear from that report and the APA study that the modern approach to polygraphy views the testing more as an aid to decision-making based on information produced in the test rather than as an infallible measure of lying. Also, the National Academy study in particular reviewed the same kind of criticisms of polygraph accuracy raised by Dr. Iacono, but ultimately still confirmed high levels of reliability for the testing, assuming that the exams were based on specific issues and involved examinees untrained in countermeasures. Moreover, while asserting that there is no theoretical explanation for assuming a deceptive individual would respond more strongly to a relevant question, [Dr.] Iacono grudgingly admitted that such an assumption was "not preposterous" and that testing could have some value when applied to sex offenders in treatment.

[(Emphasis added).]

The court did find that the accuracy rates of 71% to over

90%, as set forth in the National Academy and APA studies,

"likely" overestimated the device's reliability. However, the

court found that the fallibility of test results did not warrant

a total elimination of polygraph testing in sex offender

41 A-5435-10T2 monitoring and, instead, found "sufficient support in the record

for the Parole Board's use of [PCSOT] polygraph testing." It

noted:

Even Dr. Iacono, with his harsh critique of the science undergirding polygraphs, could not state unequivocally that the Parole Board should stop performing instant offense exams. While the court acknowledges the validity of many of the concerns raised by Dr. Iacono, and reflected in an article he relied on by Ben-Shak[ha]r (The case against the use of polygraph examinations to monitor post-conviction sex offenders, Legal and Criminal Psychology (2008) . . . ), the court finds that their concerns do not require banning use of the exams altogether, but rather suggest that the Parole Board should use care in incorporating polygraph results in decision-making regarding the supervision and risk management of sex offenders. The National Academy report, for example, fully considered Ben-Shak[ha]r's opinions, which mirror the ones expressed by Dr. Iacono in his testimony, and found them unpersuasive as a challenge to the conclusions reached by the Academy.

[(Emphasis added).]

The court commented favorably on the more recent changes

made by the Parole Board to limit its reliance on technical

polygraph results:

While [Dr.] Iacono opposed using technical polygraph results alone to make parole decisions, the Parole Board does not use results in that fashion anymore. In fact, although the Carbone report . . . regarding the Parole Board Program found that parole status changed following administration of polygraphs 42% of the

42 A-5435-10T2 time, Parole Board officials explained why they thought that figure was unreliable even in 2009 and certainly would not be true today. They asserted unequivocally that polygraph results are not now used alone to make decisions, but are considered as part of a totality of the circumstances approach to decision-making. In addition, while Dr. Iacono also emphasized the ability of examinees to intentionally affect polygraph results, he had not reviewed the measures employed by the Parole Board to defeat such efforts. Those measures include using modern machines with specially designed sensors to detect even slight movements that could skew test results and examiner training to combat examinee manipulation. Employment of those measures cannot defeat all efforts by test takers to produce false results, but did somewhat blunt [Dr.] Iacono's criticism regarding countermeasures employed by examiners to affect test results.

[(Emphasis added).]

The court found especially persuasive the expert testimony

of Dr. Bosley explaining how the Parole Board has been using

"instant offense" polygraphs effectively in the treatment of

sexual offenders:

Perhaps even more compelling support for continuing PCSOT polygraph testing by the Parole Board came from Dr. Bosley, who supervises a large treatment program for New Jersey sex offenders living in the community. He leads one therapy group of sex offenders and supervises other clinicians who work in the program. He is highly supportive of the use of polygraph instant offense exams because he has seen their efficacy in assisting sex offenders overcome denial of responsibility for their

43 A-5435-10T2 sex crimes. He believes that overcoming denial is a critical component for most sex offender therapy because it shows the offender's ability to accept responsibility for his actions and enables the offender to move on to learning strategies to avoid similar conduct in the future. Although there was little research support in the record to prove that instant offense exams reduce sex offender recidivism, the court finds that successful therapy does lead to reducing recidivism and that administration of instant offense exams can be a useful tool for therapists working with sex offenders. This conclusion is supported by the Practice Guidelines for the Assessment, Treatment, and Management of Male Adult Sexual Abusers (2014), published by the Association for the Treatment of Sexual Abusers ("ATSA"), which acknowledges that polygraph testing can be beneficial in sex offender treatment even though reliability and validity questions exist about polygraphs generally. . . . ATSA includes the utilization of polygraph testing as an acceptable mechanism to employ in sex offender management, but does not endorse it over other methods. Moreover, there was evidence in the record that approximately 70% of community-based sex offender treatment programs for adults utilize some form of polygraph testing.

[(Emphasis added).]

The court added:

The court was struck by Dr. Bosley's endorsement of the instant offense exam even if polygraph accuracy was questionable. That view has been characterized as utilitarian because it considers the positive impact a polygraph program can have on sex offender treatment regardless of testing reliability. [Dr.] Bosley mentioned that even the threat of having to take a

44 A-5435-10T2 polygraph can stimulate admissions relating to the instant offense that help sex offenders attain therapeutic goals. Captain Tallard testified, for example, that 200 sex offenders admitted their instant offenses after the PCSOT program was initiated in New Jersey, allowing those offenders to progress in treatment without having to submit to a polygraph exam. Moreover, there was testimony of disclosures being made in the interview portions of polygraph testing that were not reliant on the technical physiological results of the exam. [Dr.] Bosley also noted the positive impact in group therapy sessions of an offender's discussing having taken a polygraph exam. He testified that the impact of such discussions often allowed the examinee to be more honest with himself and encouraged other group members to embrace similar attitudes. That conclusion also was echoed in the Carbone report . . . , which found that administering a polygraph to one member of a therapy group produces a "vicarious" effect among other group members and encourages honesty with parole officers and treatment providers.

[(Emphasis added).]

The court recognized, but ultimately found non-dispositive,

appellants' criticism of the Parole Board's past manner of using

maintenance polygraphs as "fishing expeditions":

While the record shows greater support for the accuracy of instant offense exams than maintenance polygraphs, the Parole Board modified its policies in 2012 and effectively did away with broad screening exams akin to fishing expeditions that apparently had been conducted in the early days of the program. Such general inquiries into a parolee's behavior in the community were the least accurate type of PCSOT

45 A-5435-10T2 polygraph exam performed by the Parole Board, and such tests elicited the harshest attack from Dr. Iacono. One of the reasons for [Dr.] Iacono's criticism was the difficulty in formulating appropriate control questions when there was no proof or reasonable suspicion that a parolee had engaged in a particular dangerous behavior or parole violation. General screening tests untethered to specific incidents were also found to be unreliable in the National Academy study. . . . Testing in such a manner is no longer conducted by the Parole Board, however, because N.J.A.C. 10A:72-3.4 now requires that a parole officer have "a reasonable belief that an offender is non- compliant with a condition(s) of supervision," and that such an assertion be reviewed and confirmed by a supervisor before a maintenance polygraph will be scheduled. So maintenance polygraphs are now supported by some evidence to connect a parolee to dangerous behaviors and are not as vulnerable to attack on the basis of accuracy as randomly assigned exams with no basis to suspect that the parolee is engaging in dangerous behaviors. Since test questions for maintenance exams can now be designed to examine the occurrence of specific behaviors or incidents, and Board examiners use question formulation techniques validated in the 2010-2011 APA study, the court finds that such targeted maintenance exams are sufficiently reliable to allow the Parole Board to use them, largely based on the analyses done by the National Research Council and Nelson's work for the APA. Such exams, while not as reliable as instant offense testing, are likely to produce information that would be useful to parole supervision and treatment teams in making decisions regarding sex offenders in the community serving PSL and CSL sentences. Even Dr. Atkins acknowledged as much in his testimony, reserving his highest criticism for the instant offense

46 A-5435-10T2 exams because of his belief that they undermined the therapeutic relationship.

[(Emphasis added).]

The court also found significant the Parole Board's change

of its practices to avoid relying on polygraph results alone as

a basis for altering an offender's conditions of supervision:

[T]he Parole Board officials who testified made it clear that the program as currently administered does not use technical polygraph results from maintenance exams alone to change parole conditions for sex offenders, as [Dr.] Iacono assumed was a common practice based on his review of the Carbone report. That 2009 study reviewed information from the early days of the Parole Board program and reported that polygraph results led to changes in parole supervision for 42% of the sex offenders who took the exams. . . . [Dr.] Iacono was highly critical of using questionable results alone to alter conditions of parole. Nelson also strongly conveyed that maintenance polygraph results should only be used as one of many factors in making parole supervision decisions—a position consistent with the ATSA practice guidelines, which note that, "When the polygraph is utilized, findings are to be interpreted in conjunction with other relevant information to inform decision-making." . . .

Although the court is not convinced that such a policy [of limited relevance] was carefully followed in the early days of the Parole Board's PCSOT program, and may not have been followed in individual cases in recent years, the court does conclude that the current program is based upon that approach. Since that approach is a reasonable one when coupled with the testing requirements now contained in N.J.A.C.

47 A-5435-10T2 10A:72-3.4, the court finds sufficient support in the record for the continued used of maintenance polygraphs by the Parole Board. While some of the recorded polygraph exams played during the trial revealed less than optimal practices, continued PCSOT examiner training apparently has led to changes in the administration of maintenance polygraphs by the Parole Board and how the results are utilized. Nelson testified, for example, that interviews should not be interrogations. Yet some excerpts of exams in the record showed examiner conduct that was very adversarial in nature. Sergeant Cavanaugh testified, however, that a different, less accusatory approach is now being utilized. The court finds that, while somewhat disconcerting, deviations from reasonable policies in individual cases simply are insufficient to compromise the overall policy choices made by the Parole Board about using maintenance polygraphs for parole supervision of sex offenders serving PSL and CSL sentences in the community.

[(Emphasis added).]

Lastly, the court addressed the so-called "containment

model" of treatment utilized by the Parole Board with the input

of the polygraph results:

Although not directly part of the issues referred to this court for review, the record also reveals strong differences of opinion about the containment model of treatment and parole supervision adopted by the Parole Board. This approach to sex offender parole supervision is endorsed by ATSA, which sees clearly delineated collaboration between parole officers and treatment professionals as a means to promote "successful public safety and client outcomes." . . . The criticism of this kind of program voiced by Dr. Atkins and Dennis

48 A-5435-10T2 Radabaugh focused on the absence of confidentiality between therapist and offender in a collaborative approach and the damage to the therapeutic alliance that could be caused by such lack of confidentiality. Dr. Bosley noted, however, that the scope of the collaboration is made clear to participants when they enter the program. In his view, the positive aspects of collaboration to the offender and the community far outweigh any negatives.

The record shows that collaboration is an appropriate and reasonable approach to the parole supervision of sex offenders. While not the only way to structure a treatment and supervision program, and while not free of controversy, the court did not find the expert critique of the approach sufficient to undermine the Parole Board's policy choice in this complicated area of parole supervision, especially when Dr. Bosley provided such strong support for the design of the program and the approach is sanctioned by ATSA.

[(Emphasis added).]

II.

We now consider appellants' legal arguments, joined by the

Public Defender, in light of these findings of the trial court

and the applicable law.

Appellants contend that the Parole Board's use of polygraph

testing — particularly maintenance examinations — violates their

constitutional rights of privacy, freedom of thought, and due

process under the First, Ninth, and Fourteenth Amendments. They

further argue that the polygraph testing procedures

49 A-5435-10T2 unconstitutionally impinge upon their Fifth Amendment privilege

against self-incrimination and their Sixth Amendment right to

counsel. Appellants also invoke cognate protections under the

New Jersey Constitution. Apart from these constitutional

arguments, appellants also contend, as a matter of

administrative law, that the Parole Board's polygraph program

must be set aside as arbitrary, capricious, and unreasonable.

As this court previously elaborated in J.B. I, supra,

, a discussion which we incorporate by

reference here, parolees and sex offenders such as appellants

who are under post-release PSL or CSL supervision have limited

constitutional protection from governmental oversight of their

activities in society.

The United States Supreme Court has constitutionally

permitted parolees to be "subjected to 'conditions [that]

restrict their activities substantially beyond the ordinary

restrictions imposed by law on an individual citizen.'"

(alteration in original) (quoting Morrissey v. Brewer,

,

,

(1972)). Because of their recognized special proclivity toward

recidivism, sexual offenders on post-release oversight under PSL

or CSL can be constitutionally restricted in their activities by

the Parole Board, so long as they receive due process

50 A-5435-10T2 protections such as notice and an opportunity to object to those

restrictions and provided that the Parole Board does not engage

in "arbitrary government action." Id. at 336, 338 (citing

Jamqochian v. N.J. State Parole Bd.,

, 241-

42 (2008)).

In essence, persons such as appellants on PSL or CSL have

less constitutional freedoms than other civilians. Even so, the

government must treat them with fairness and not in an arbitrary

or unreasonable manner.

Aside from these constitutional standards, we also must

apply the well-established criteria for the review of

administrative agency actions. In general, an agency's decision

will be sustained "unless there is a clear showing that it is

arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record." In re Herrmann,

(2007) (citing Campbell v. Dep't of Civil Serv.,

(1963)); see also Aqua Beach Condo. Ass'n v. Dep't of Cmty.

Affairs,

(2006). "The burden of demonstrating

that the agency's action was arbitrary, capricious or

unreasonable rests upon the [party] challenging the

administrative action." In re Arenas,

, 443-

44 (App. Div.), certif. denied,

(2006); McGowan v.

N.J. State Parole Bd.,

(App. Div.

51 A-5435-10T2 2002); Barone v. Dep't of Human Servs., Div. of Med. & Health

Servs.,

(App. Div. 1986), aff'd,

(1987).

We now apply these principles in the next two parts of this

opinion. First, we address in Part III appellants' general

challenges to the Parole Board's use of polygraph testing.

Second, in Part IV we consider their discrete claims under the

Fifth and Sixth Amendment relating to self-incrimination and the

right to counsel.

III.

An important predicate to our legal analysis in this Part

is specifying exactly what the polygraph test "results" are and

how the Parole Board uses them. Conceptually, a polygraph

session might produce two very distinct kinds of "results."

First, an individual who is examined can make statements

before, during, or after being strapped to the machine, either

in response to queries from the examiner, or through unprompted

assertions. Those statements might convey information about the

individual's past conduct, his present circumstances, or his

future plans. In this sense, substantive assertions can

"result" from the polygraph process. Indeed, as some of the

witnesses indicated and the trial court found, the mere

scheduling of a polygraph session at times will provoke a sex

52 A-5435-10T2 offender who is on PSL or CSL to make revelations, or speak

about certain topics more candidly, than might occur if the

offender were taking part in a routine interview with a parole

officer.

The second kind of conceivable "result" from a polygraph

encompasses the machine-generated data or report of the

examiner, measuring whether the subject's physiological

responses are indicative of deception, or truthfulness, or are

inconclusive. This machine-generated "result" is not in the

form of an assertion by the individual with substantive content.

Instead, it is a technical response.

As we noted in N.J.S.A. 30:4-123.88, the Legislature

instructed that "[t]he results of the polygraph examination

shall not be used as evidence in court to prove that a violation

of the special sentence of [PSL or CSL] or condition of

discharge has occurred." (Emphasis added). See also N.J.A.C.

10A:72-3.9(c) (repeating this identical proviso in the polygraph

regulations). We consider the term "results" in this passage to

refer to the machine-generated technical data produced from an

administered polygraph, rather than any substantive assertions

that the individual made during the session. That is the most

logical interpretation of the phrase. See Saccone v. Bd. of

Trs. of Police & Firemen's Ret. Sys.,

(2014)

53 A-5435-10T2 (reiterating the well-settled proposition that "[t]he language

of [a] statute must be construed in accordance with its ordinary

and common-sense meaning"); see also State ex rel. K.O.,

(2014).

Parolees and offenders on PSL or CSL oversight have a

general duty to cooperate with their parole officers, and

provide them with honest information in response to their

questioning. Those substantive responses commonly are used by

parole officers to make day-to-day decisions about the

individual's conditions of release, even when no polygraph

device is used during the interview.

Admissions of wrongful conduct that the individual being

interviewed makes to the officer can be used as evidence in a

parole revocation hearing. If the statement comprises an

admission of a criminal offense, it may be used as evidence in a

criminal prosecution. Subject to the constraints we express in

Part IV of this opinion for the protection of the offender's

privilege against self-incrimination, we discern no

constitutional or legal prohibition against the Parole Board

using such substantive assertions to make decisions concerning

the individual's status.13

13 We also do not regard the disclosures to the parole officer or parole authorities as an improper invasion of the offender's (continued)

54 A-5435-10T2 The Legislature plainly contemplated that its restriction

on the use of polygraph "results" in N.J.S.A. 30:4-123.88 refers

to the device's, machine-generated data, and the technical

analysis of that data. Given that common-sense understanding,

we turn to the next phrase of the statute, i.e., prohibiting

such "results" from being "used as evidence in court to prove

that a violation of [the offender's PSL or CSL status] or

condition of discharge has occurred." N.J.S.A. 30:4-123.88

(emphasis added).

Literally construed, this clause omits a wide range of

negative consequences that an individual might face from the

results of a polygraph, apart from a "violation" of the terms of

his supervision or the conditions of his discharge. The

statute's reference to "violations" of a special sentence or

conditions of discharge apparently does not cover prospective

adjustments that a parole officer might consider making to the

(continued) privacy. The offender on PSL or CSL must reveal his activities and plans to his parole officer as a matter of course during his monitoring. See

. We also perceive a constitutional difference between the compelled disclosure of a released sex offender's private information to a supervising parole officer, rather than to the public at large or to some other wide span of recipients. Cf. Doe v. Poritz,

(1995) (addressing the more substantial privacy interests implicated by the public disclosure of the whereabouts of convicted sex offenders mandated by Megan's Law).

55 A-5435-10T2 individual's permitted activities if he has "failed" a

polygraph. For example, nothing in the statute or the related

regulation appears to prevent the parole officer from imposing a

curfew, an out-of-state travel ban, a prohibition on going to

schools or other specified locations, and the like, after

considering the technical results of a polygraph examination.

The statute poses further ambiguity by not clearly defining

the term "in court" when instructing that polygraph results

"shall not be used as evidence in court" for purposes of proving

a violation.

The term "court" surely encompasses the

trial divisions of the Superior Court and the federal courts.

We construe the term "court," however, to have an even wider

meaning, deeming it to also cover quasi-judicial administrative

hearings, as well as appeals that may be taken from the Parole

Board's agency decisions to this court and to the Supreme Court.

At oral argument on this appeal, the Deputy Attorney

General representing the Parole Board acknowledged that the word

"court" in the text of N.J.S.A. 30:4-123.88 does, in fact,

encompass appellate courts reviewing the Parole Board's final

agency decisions. Hence, if, hypothetically, an offender on PSL

or CSL fails a polygraph examination and his parole officer then

decides to increase restrictions on his liberty, appellate

review of that agency decision would occur in a "court," within

56 A-5435-10T2 the meaning of N.J.S.A. 30:4-123.88. Of concern, however, is

that the statutory prohibition is limited to polygraph results

used to prove a "violation" of the individual's past conditions

of release. The prohibition literally does not extend, as

written, to decisions made to tighten future supervision of an

individual on PSL or CSL.

We have no difficulty with the Parole Board using technical

polygraph results for what have been discussed in this record

and in research literature as purely "therapeutic" purposes in

the treatment of sex offenders. We specifically adopt the trial

court's well-supported findings in this record that "instant

offense" polygraphs administered pursuant to N.J.A.C. 10A:72-

3.3(a) do provide a reasonable tool to the Parole Board in the

treatment of sex offenders who may continue to exhibit denial of

the sexual offenses they committed, or the details of such

reflected in the pre-sentence report. Polygraph results, when

considered in this relatively benign fashion, appear to provide

at least some indicia that an offender who is in denial might,

for example, benefit from greater or a different method of

psychological counseling.

To be sure, the primary focus of appellants and the

intervenor in this case has not been on instant offense

polygraphs. Rather, their main target has been periodic

57 A-5435-10T2 maintenance examinations administered under N.J.A.C. 10A:72-

3.3(b) "to verify the activities, behavior and truthfulness of

an offender as related to compliance with the conditions of

supervision." Appellants and the Public Defender argue that the

technical results produced from such maintenance polygraphs have

led the Parole Board arbitrarily to take adverse actions against

persons monitored on PSL or CSL, such as tightening limitations

on their prospective activities.

In this regard, the challengers emphasize the data gathered

by Carbone, cited in the trial court's decision,14 finding that

offenders' parole status changed 42% of the time following a

polygraph examination. The challengers urge that such decisions

predicated on, in full or in part, polygraph test results —

which our New Jersey court system continues to deem unreliable

and inadmissible — violates their constitutional rights and is

arbitrary, unreasonable, and capricious.

The Parole Board responds that, as the trial court found,

it has revised its practices in recent years to reduce the

potential for misuse or overuse of polygraph results. For one

thing, the Parole Board has enacted a regulation, N.J.A.C.

14 We also cited the Carbone study in the unpublished portion of our earlier opinion. J.B. I, supra, slip op. at 43 n.14. We need not decide whether the Parole Board's past citation to the Carbone study on its website comprises an adoptive admission under N.J.R.E. 803(b)(2).

58 A-5435-10T2 10A:72-3.4(a), that now requires a parole officer to have "a

reasonable belief that an offender is non-compliant with a

condition[] of supervision[,]" a belief reviewed and confirmed

by a supervisor, before a maintenance examination can be

administered. In addition, the Parole Board has adopted a

policy, apparently voluntarily, that it will not use adverse

polygraph results as the "sole" basis of decision-making. Both

of these caveats were identified in the trial court's decision

as positive factors that help assure that the polygraph program

is administered in a fair manner.

We agree that the "reasonable belief" prerequisite for

scheduling maintenance polygraphs and the Parole Board's

self-imposed policy to require additional evidence separate from

a failed polygraph to take adverse action serve to ameliorate,

to some degree, the problems cited by appellants and the Public

Defender. Yet, we must not lose sight of this State's

long-standing judicial aversion to polygraph evidence and our

persisting institutional concerns about the scientific

inaccuracy and unreliability of the instruments. See, e.g.,

. Even the Parole Board's own

witnesses in this case agreed that the device's error rate, when

used for a maintenance exam, has been estimated by some

researchers to be as high as 29%. Indeed, there is a

59 A-5435-10T2 fundamental difference between the evidential use of a polygraph

to prove or dispute facts in a court where a person's rights are

adjudicated versus a therapeutic context.

We also must be mindful that as an administrative agency,

the Parole Board must base its decisions on non-arbitrary

grounds. When those agency decisions are challenged on appeal

in this court, the Parole Board must point to competent evidence

in the administrative record that supports its determination.

In reviewing such agency decisions, we "must survey the record

to determine whether there is sufficient credible competent

evidence in the record to support the agency['s] . . .

conclusions." Clowes v. Terminix Int'l, Inc.,

(1988) (emphasis added) (overturning an agency's decision where

its determination was not adequately supported by such competent

evidence, including medical test results that were not

sufficiently shown to be probative of the issues); see also

Wojtkowiak v. N.J. Motor Vehicle Comm'n,

(App. Div. 2015) (reiterating the need for "sufficient competent

proof" in administrative proceedings) (emphasis added).

The Parole Board's continued reliance on technical

polygraph results as an acceptable form of corroborating

evidence to support its decisions to increase restrictions on

persons who are on PSL or CSL monitoring clashes with our

60 A-5435-10T2 judiciary's15 systemic aversion to the evidential use of

polygraphs. We do not, for example, allow prosecutors to

present polygraph results not properly stipulated to at criminal

trials as "extra" proof of a defendant's guilt. See

. Nor do we ordinarily tolerate the non-

stipulated admission of polygraph evidence in civil litigation.

Cf. Senders v. CNA Insurance Cos.,

(Law

Div. 1986) (recognizing that "almost all courts that have

considered the question" of the admissibility of polygraph

evidence in civil suits "have held that the results of a

15 We do not read Engel v. N.J. Dep't of Corrections,

(App. Div. 1994) (allowing certain polygraph evidence in prison disciplinary matters) to the contrary. Nothing in the court's opinion indicates that Engel argued that the polygraph of the informant taken by the Department of Corrections ("DOC") was incompetent evidence or unconstitutional. Instead, he sought his own polygraph of the informant pursuant to a DOC regulation, as defense proof that could "level [the] playing field."

. The panel in Engel recognized the "degree of unreliability which continues to attend polygraph testing,"

, but simply "accede[d] to it" in the context presented in light of the controlling administrative regulation.

at 181 n.3. The panel declined to endorse the use of polygraph evidence "beyond the extent to which it is otherwise now admissible" under the DOC regulation.

Moreover, there was no detailed record in Engel with expert testimony, as there is here, exploring in depth both the uses and pitfalls of polygraph testing.

61 A-5435-10T2 polygraph test or the refusal to take a polygraph test are not

admissible in evidence").16

Polygraphs continue to be treated as incompetent evidence

in our courts of law. Unless and until our Supreme Court says

otherwise, we do not countenance allowing polygraph results to

"tip the balance" in satisfying the applicable standards of

evidential proof.

Our legal analysis — informed as it is by the thorough and

meticulous fact-finding of the trial court — ultimately hinges

here upon the critical distinction between using polygraphs as a

therapeutic tool to aid in the treatment of a sex offender in a

manner that does not curtail his liberties, as opposed to a

competent source of forensic proof in a court with rules of

evidence dedicated to the search for the truth. See N.J.R.E.

102 (identifying the ascertainment of the truth as a key

objective of the Rules of Evidence). The line between these two

very different contexts must be scrupulously honored.

Otherwise, juries and other fact-finders would have the

16 Despite this almost universal exclusion, the Law Division in Senders permitted the polygraph results of the insured in an insurance coverage dispute to be admitted into evidence because the subject of the test, i.e., the insured, volunteered to be tested and tendered the results affirmatively to show that he was not involved in the arson. Id. at 520-21.

62 A-5435-10T2 prerogative to engage in random exercises such as coin-flipping

when the competent evidence in the record is in equipoise.

This leads us to conclude, as a matter of law, that the

terms of the statute and the Parole Board's more recent

practices reducing the evidential role of polygraph results do

not go far enough to assure appellants and other persons on PSL

and CSL that they will not have their liberties restricted or

taken away arbitrarily after "failing" a polygraph exam. In

stating that conclusion, we need not and do not find that the

statutory scheme or the Parole Board's regulations and policies

violate the Federal Due Process Clause or equivalent guarantees

under the New Jersey Constitution. Instead, we rest our

decision in this regard on well-settled principles of

administrative law, which require agency decisions, when they

are challenged in court, to be based upon substantial credible

evidence that is legally competent.

We therefore hold that the Parole Board may continue to use

"instant offense" and "maintenance" polygraph examinations for

therapeutic purposes in the treatment of sex offenders on PSL or

CSL. The Parole Board may also use the substantive assertions

made by such polygraphed offenders for both therapeutic and

evidential purposes. Consistent with our Supreme Court's long-

standing precedent treating non-stipulated polygraph results as

63 A-5435-10T2 incompetent evidence, we disallow, however, the Parole Board

from relying on technical polygraph results in any evidential

manner when making decisions to penalize PSL or CSL offenders or

to curtail their activities.

That said, nothing in this opinion forecloses the Parole

Board from continuing to administer polygraphs for what have

been described as "risk management" or "containment" objectives,

provided that the technical results of polygraph exams are not

relied on or cited by the Parole Board in justifying a

curtailment of the subject's liberties.

A simple example will help illuminate these principles.

Suppose that an offender on PSL or CSL, as a condition of his

monitoring by his parole officer, is currently allowed to leave

the State of New Jersey only during weekdays and solely for

employment purposes. Suppose that the Parole Board then

receives information from a third party that she thinks,

although she is not certain, that she recently saw the offender

on a Sunday attending a Phillies game at Citizens Bank Park in

Pennsylvania. Assume that an appropriate supervisor considers

the informant's report as "reasonable belief" under N.J.A.C.

10A:72-3.4(a) to bring the offender in for a maintenance

polygraph, to ascertain if he has not complied with his weekend

out-of-state travel ban. Suppose further that the parole

64 A-5435-10T2 authorities decide that, if the allegation of the offender's

presence at the Sunday Phillies game is true, they will not

charge him with a violation but instead will tighten his

existing travel restrictions.

If the offender freely makes any statements, either during

the pre-interview, the polygraph session itself, or the post-

interview admitting that he was at the game in Pennsylvania on a

Sunday, the Parole Board may use such admissions as evidence to

support a decision to tighten the offender's travel limitations.

For instance, the Parole Board may disallow him from leaving the

State at any time except when specifically authorized by his

parole officer.

By contrast, suppose the offender in this hypothetical

denies being out of state at the Phillies game on a Sunday, and

when asked about that topic while on the polygraph he generates

a reading on the device indicative of deception. In that

scenario, under the principles set forth in this opinion, the

Parole Board may not rely, even in part, on the machine-

generated result. The Parole Board must instead rest its

decision to increase the offender's restrictions solely on non-

polygraph evidence such as the informant's observations.

In sum, we uphold the Parole Board's non-evidential use of

polygraphs in this distinctive PSL and CSL setting, subject to

65 A-5435-10T2 the conditions we have expressed. We find no other

constitutional impediments to the Parole Board's use of

polygraphs for these limited purposes.

IV.

We now turn to the discrete issues of self-incrimination

and the right to counsel.

As a starting point, one must adhere to the guiding

principles set forth long ago by the United States Supreme Court

in its seminal opinion on this subject in Minnesota v. Murphy,

,

,

(1984). The

Court recognized in Murphy that states may require a person who

is under the supervision of a parole or probation officer "to

appear and discuss matters that affect his probationary

status[.]"

,

,

.

"[S]uch a requirement, without more, does not give rise to a

self-executing privilege [against self-incrimination]."

The Court further held in Murphy that routine parole

interviews do not comprise an instance of "custodial

interrogation" that require parole officers to issue Miranda

warnings.

,

, 70 L. Ed. 2d at 423.

As the Court noted, the probationer in that case, Murphy, "was

not physically restrained and could have left the office[.]"

Ibid. Moreover, his "regular meetings with his probation

66 A-5435-10T2 officer should have served to familiarize him with her and her

office and to insulate him from psychological intimidation that

might overbear his desire to claim the privilege [against self-

incrimination]." Ibid.

Significantly, the Court in Murphy did hold that, when

invoked by the parolee or probationer, he does have a

constitutional right under the Fifth Amendment to refuse to

answer questions from his parole officer with responses that

could incriminate him. Id. at 426,

,

. The Court expressly instructed that the Fifth

Amendment entitles a person "not to answer official questions

put to him in any other proceeding, civil or criminal, formal or

informal, where the answers might incriminate him in future

criminal proceedings."

(emphasis added). "A defendant

does not lose this protection by his conviction of a

crime; . . . if those statements are compelled[,] they are

inadmissible in a subsequent trial for a crime other than that

for which he has been convicted." Ibid.; see also State v.

Davis,

(1975) (similarly holding that parole

interviews are non-custodial in nature and do not require

Miranda warnings, despite the parolee's obligation to cooperate

and "fully and unreservedly in the parole experiment").

67 A-5435-10T2 The Parole Board has made a substantial effort to honor

these Fifth Amendment precepts by adopting a regulation,

N.J.A.C. 10A:72-3.7(d), which requires a polygraph examiner to

"comply with the procedures of the Division of Parole regarding

an offender's right to remain silent as it relates to divulging

identifying information of any unreported victim(s) or

crime(s)." Nonetheless, "any voluntary admission(s) made by the

offender regarding unreported victim(s) or crime(s)" must be

reported to law enforcement. N.J.A.C. 10A:72-3.9(b). Moreover,

as we have already noted, an offender's failure to submit to a

polygraph, absent good cause, may be prosecuted as a third-

degree crime. N.J.S.A. 2C:43-6.4(d).

As the trial court found, largely based upon Captain

Tallard's testimony at the hearing, if "a parolee makes a

spontaneous incriminating statement during the course of the

polygraph examination, the examiner is instructed to provide

Miranda warnings to the test subject." See also N.J.A.C.

10A:72-3.6 (detailing the required contents of the "disclosure

form" to be provided to the offender before he submits to the

examination).

We reject appellants' contention that the polygraph

sessions conducted by the Parole Board are a form of custodial

interrogation that requires the examiner to administer Miranda

68 A-5435-10T2 warnings at the outset of the session. Accord United States v.

Daniels,

(9th Cir. 2008) (concluding that the

polygraphs administered as a condition of supervised release are

not custodial interrogations), cert. denied,

,

,

(2009); United States v.

Stoterau,

(9th Cir. 2008) (same), cert.

denied,

,

,

(2009);

United States v. Lee,

(3d Cir.) (same), cert.

denied,

,

,

(2003).

The individual being tested is not handcuffed or shackled.

Although he is attached with straps to the machine while it is

measuring his responses to the examiner's questions, the subject

is not being confined with the same degree of physical restraint

as a person who has been placed under arrest. The subject can

face later consequences if he chooses to leave before the

examination is completed but, unlike an arrestee at a police

station, he is not subject to immediate confinement if he

refuses to cooperate. The tests, including the interview

portion, typically do not last more than an hour and a half.

As the record shows, the Parole Board strives to avoid

having the polygraph sessions conducted as interrogations. The

trial court specifically found that although some examinations

in the past did reflect overly adversarial examiner conduct, a

69 A-5435-10T2 practice that the court termed "disconcerting," the Parole Board

presented credible testimony that "a different, less accusatory

approach is now being utilized."17

On the whole, we conclude that the polygraph examinations,

as currently administered by the Parole Board, in light of the

trial court's findings, are not the equivalent of custodial

interrogation that requires Miranda warnings to be administered

at the beginning of the session or which authorize test subjects

to skip the scheduled testing appointments.

We also reject appellants' argument that they are entitled

under the Sixth Amendment to have counsel present during the

polygraph session. The presence of counsel is likely to

diminish the positive potential therapeutic benefits of the

polygraph testing and to inject adversarial elements into the

procedure. We decline to strike down the Parole Board's

regulation that disallows examinees from having an attorney or

other personal representation present. N.J.A.C. 10A:72-3.7(e).

That said, if an examiner refuses to honor an examinee's

invocation of privilege in response to specific questions that

could be incriminatory, or is abusive during the session, the

17 Nevertheless, we suggest that the Parole Board give serious consideration to Dr. Iacono's testimony indicating that the use of blind peer review can aid in achieving consistency among examiners in the future.

70 A-5435-10T2 subject may pursue appropriate redress against the Parole Board

on a case-by-case basis.

Although the topic was not addressed either way in the

trial court's conclusions, we are persuaded that it would be

beneficial for the Parole Board to revise its disclosure and

exam procedure regulations in N.J.A.C. 10A:72-3.6 and -3.7 to

spell out more clearly what uses of the polygraph testing are

allowed and disallowed. In particular, the limitations on the

non-evidential use of the machine-generated test results that we

have mandated in this opinion should be made known to test

subjects, so that they understand how the testing can and cannot

be used by the Parole Board. These updated policies should be

adopted formally through rule-making, which we require the

Parole Board to complete, with appropriate public notice and

comment, within six months of this opinion. See

.

V.

The remaining arguments raised by appellants and the Public

Defender seeking to invalidate the Parole Board's polygraph

testing program lack sufficient merit to be discussed in this

opinion. R. 2:11-3(e)(1)(E). Aside from the important

conditions or limitations we have identified, appellants have

not met their burden to set aside the presumptively-valid

71 A-5435-10T2 statutory and regulatory scheme. N.J. Sports & Exposition Auth.

v. McCrane,

, appeal dismissed sub nom., Borough of

E. Rutherford N.J. v. Sports & Exposition Auth.,

,

S. Ct. 270,

(1972). As with the Internet

access issues in J.B. I, we do not, however, foreclose future

as-applied challenges by offenders who establish that these

requirements have not been met in their individual cases. J.B.

I, supra, slip op. at 4.

The Parole Board's policies and procedures for polygraph

testing that have been challenged in this case are consequently

affirmed in part, modified in part, and remanded to the Parole

Board for corrective action in a manner consistent with this

opinion. The previously-imposed stay of the polygraph testing

of appellants is lifted, effective ninety days from this

opinion. We do not retain jurisdiction.

72 A-5435-10T2