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Therapeutic Polygraphs and Their Infringement on Rights

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A convicted Megan's Law offender is not required to provide incriminatory statements to a polygraph examiner.

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By Attorney Elisabeth K.H. Pasqualini, Megan's Law Attorney, Harrisburg, PA

There are many mandatory duties thrust upon a convicted sexual offender pursuant to their standard probation and parole conditions.  These include, mandatory reporting requirements, not associating with anyone under the age of 18, not being present in parks or other places where children may congregate, and even not being within 1000 feet of any daycare or school.  The courts have upheld all of these requirements as valid requirements.

Among these standard requirements, is the obligation to undergo therapeutic polygraph examinations as a recommended path for psychological or psychiatric treatment.  The offender will be asked to submit to a polygraph examintion to ensure that they are being truthful.  After all, a therapist or parole intake worker cannot be assumed to rely upon "self-reports" of non-sexual activity by the offender.  The purpose of these polygraphs is to ensure the proper diagnosis, prognosis and regimen of treatment for the offender.  The stated purpose is not to create a situation where the offender may risk providing evidence of a prior crime or current parole violation.

However, parole authorities rely heavily on a failed polygraph to revoke an offender's parole.  They want you to be truthful.  But, how truthful must I be?  Do I have to tell on myself and get sent back to jail or worse, charged with a new crime for something I may have done years ago?  You see the irony?

The truth is that a parole authority may NOT ask you to incriminate yourself.  You may not  be compelled to provide facts relating to a charge for which you are not currently on probation or parole.  This is true for both questionnaires and polygraph exams.  The U.S. Supreme Court and the Courts of this Commonwealth have individually held that [the right against self incrimination] effectively limits the information that may be sought in therapeutic polygraphs or questionnaires. Assuming that the questions posed "relate to the underlying offense for which an offender has been sentenced[,]" they (meaning questionnaires and polygraphs) must also refrain from seeking information "that could be used against [the offender] in a subsequent criminal trial."  Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984); Commonwealth v. Shrawder, 940 A.2d 436 (Pa.Super.2007); Commonwealth v. Fink, 990 A.2d 751 (Pa.Super.2010).

If you've been placed on probation or parole supervision for a Megan's Law offense, do not supply specific information about prior criminal conduct.  If you have questions or concerns about your rights, call an experienced attorney at Shaffer & Engle Law Offices, LLC toll free or email us today.

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