Grits for Breakfast: CCA oks junk science

[Winehole23]

The Texas Court of Criminal Appeals continues to struggle with how to handle junk science, issuing (at least) its second 5-4 opinion in the last year (Ex Parte Robbins (http://gritsforbreakfast.blogspot.com/2011/07/me-testimony-false-according-to-science.html) is the other I have in mind) allowing courts to rely on known junk science, this time reversing the lower court to proactively affirm the use of polygraphs as a basis for revoking sex offenders' probation. Chuck Lindell at the Austin Statesman gives the only MSM account I've see of the case of William Leonard ("Appeals court allows polygraph evidence, in limited way (http://www.statesman.com/news/texas-politics/appeals-court-allows-polygraph-evidence-in-limited-way-2223687.html)," Mar. 8), whose probation was revoked because he failed 5 polygraphs during mandatory treatment. Other than the polygraph, "appellant was halfway through his treatment plan and had faithfully attended the required meetings, participated in group therapy, and fulfilled all other terms and conditions of the treatment program," according to Judge Cathy Cochran's dissent. Moreover, "his therapist testified that the polygraph results were the only reason Leonard was discharged from treatment." Lindell explains the import of the decision:
In a 5-4 decision Wednesday, the Court of Criminal Appeals upheld Leonard's probation and prison term, saying the polygraph results were admissible in court because the information formed the basis of the therapist's expert opinion.

"Even generally inadmissible facts or data may be used by an expert in forming an opinion, as long as the facts or data are of a type reasonably relied upon by other experts in the field," said Judge Lawrence Meyers, writing for the majority.

"Polygraph exams are reasonably relied upon by experts in sex offender psychotherapy," Meyers added.

The majority reaffirmed that polygraph results are always inadmissible before a jury.

But there is less danger of undue influence if the information is revealed during revocation hearings because there is no jury and because the judge "is not determining guilt of the original offense," Meyers wrote.

But Judge Cathy Cochran, writing in dissent, said the majority opinion employs logic that leads the legal system "down a very steep and slippery slope."

Leonard was sent to prison based solely on the failed polygraphs, Cochran wrote, despite numerous scientific studies and reports that have cast doubt on the accuracy of the tests.

"No court should admit or consider scientifically unreliable evidence," Cochran wrote, adding that Leonard experienced "not only ‘revocation by polygraph' but also ‘revocation by an expert's reliance on unreliable science.' "http://gritsforbreakfast.blogspot.com/2012/03/tx-court-of-criminal-appeals-okays.html

[Winehole23]

However, as Cochran wrote, "Although an expert may base his opinion, at least in part, on otherwise inadmissible evidence, it must nonetheless be reliable inadmissible evidence." Or at least that was the case until yesterday. Now, probationers can be revoked based on testimony from experts who base their conclusions exclusively on unreliable evidence.

Bottom line, because we're talking about sex offenders, the courts are willing to bend over backward to maximize punitive sanctions, even to the point of allowing pseudoscience to dictate sentencing decisions, as in this case. But now that the precedent has been set, you can be sure prosecutors will get more creative about probation conditions that defer polygraph use to some third party so it will be admissible when it otherwise wouldn't be.
same (http://gritsforbreakfast.blogspot.co...als-okays.html)

[Drachen]

I love grits for breakfast, but I have only ever had grits from a package. I would like to try homemade grits. mmmmmmmm

Edit: Also, I find it disturbing that courts will use as a basis for probation revocation, evidence which they will not use as a basis for conviction.

[Winehole23]

grind the corn yourself do ye, Farmer Drachen?

[Drachen]

grind the corn yourself do ye, Farmer Drachen?

I have a vitamix, I may try that out.

[baseline bum]

Just suck your asshole in to give you a high heart rate to make the polygraph test inconclusive.

[Winehole23]

thanks for the tip!

[Winehole23]

I have a vitamix, I may try that out.that's pretty neat, actually

https://secure.vitamix.com/Vitamix-5200-Deluxe-Complete-Kitchen.aspx

[Drachen]

that's pretty neat, actually

https://secure.vitamix.com/Vitamix-5200-Deluxe-Complete-Kitchen.aspx

Yeah, I have used it every day since christmas. I love this thing (and no, I did not pay for it).

[ChumpDumper]

What a stupid decision.

[Winehole23]

What I got used to was HOMINY grits, which are milled from dried corn that has been soaked in lime or lye water and then dried again. http://chowhound.chow.com/topics/558162

[CosmicCowboy]

Technically, the guy is now just serving out his original sentence. They are under no obligation to give him probation.

[Winehole23]

Drachen is talking about something a little more like this, I think:

http://www.ansonmills.com/grits.htm

[ChumpDumper]

Technically, the guy is now just serving out his original sentence. They are under no obligation to give him probation.Technically, that's a lame rationalization.

[Winehole23]

Technically, the guy is now just serving out his original sentence. They are under no obligation to give him probation.They revoked it for bullshit. You cool with that?

[CosmicCowboy]

Drachen is talking about something a little more like this, I think:

http://www.ansonmills.com/grits.htm

Regular yellow grits are hard to find. We make jalapeno cheese grits with them and I normally can't find them at HEB...had to go to Sprouts last time...

[CosmicCowboy]

They revoked it for bullshit. You cool with that?

What if it turned out he was flunking the polygraph because he really was stalking little boys?

[ChumpDumper]

What if it turned out he was flunking the polygraph because he really was stalking little boys?What if he wasn't?

[Winehole23]

polygraphs aren't reliable. therefore, experts who rely on it to form their opinions are FOS.

[101A]

I have a vitamix, I may try that out.

Not quite a Vitamix, but a cool blender, nonetheless.

lAl28d6tbko

Ruling is ridiculous, btw.

[CosmicCowboy]

What if he wasn't?

Then they erred on the side of caution and the guy served out his original sentence.

On the other hand, if they had left him out on probation knowing he had failed the polygraph 5 times and he killed or raped a kid we would be screaming for their heads.

[ChumpDumper]

Then they erredNo shit.

You're in favor of thought police tactics even if they are monumentally flawed.

[101A]

On the other hand, if they had left him out on probation knowing he had failed the polygraph 5 times and he killed or raped a kid we would be screaming for their heads.

This is true.

However, "Individual rights" are supposed to trump all in this country; you are walking dangerously close to the left's "general welfare" tendencies with your argument.

On the flip side, this guy's presumption of innocence is already gone (at least until his probation is up)....

On second thought, I actually can see how a reasonable person could fall on the other side of THIS case; but, again ONLY in probation cases - though I would probably still side with the minority opinion.

[ChumpDumper]

On the flip side, this guy's presumption of innocence is already gone (at least until his probation is up)....It's gone for crimes he has yet to commit?

[Drachen]

LOL, I was trying to be funny in my first post, but I semi-hijacked the thread. Sorry about that, but not too sorry, because I am getting some good info (Jalapeno Cheese Grits? Fuckin-A that sounds great).


- If courts won't admit polygraphs as proof of guilt in court due to their being unreliable, I can't see why they would become any more reliable outside of a courtroom.

[CosmicCowboy]

This is true.

However, "Individual rights" are supposed to trump all in this country; you are walking dangerously close to the left's "general welfare" tendencies with your argument.

On the flip side, this guy's presumption of innocence is already gone (at least until his probation is up)....

On second thought, I actually can see how a reasonable person could fall on the other side of THIS case; but, again ONLY in probation cases - though I would probably still side with the minority opinion.

I can see both sides, but as you pointed out, the guy was found guilty and sentenced. Actually having to serve that sentence is not a violation of his rights no matter what the reason for the decision.

[Winehole23]

using junk science to revoke probation is bs, no matter the reason for the decision.

[Winehole23]

you don't have to call 9/11 every time your own thoughts frighten you, let alone send compliant probationers back to prison.

[CosmicCowboy]

using junk science to revoke probation is bs, no matter the reason for the decision.

They don't even have to justify it with junk science. A probation officer can revoke probation just because they are having a bad day and don't like the tie you wore to the meeting.

[ChumpDumper]

I would understand if it was used as a basis to investigate the guy further and make a decision based on something other than thought police measures.

As it is, the judges who favored this are idiots.

[ChumpDumper]

They don't even have to justify it with junk science. A probation officer can revoke probation just because they are having a bad day and don't like the tie you wore to the meeting.Hey, the two wrongs make a right gambit.

Well played.

[CosmicCowboy]

using junk science to revoke probation is bs, no matter the reason for the decision.

They don't even have to justify it with junk science. A probation officer can pretty much revoke probation just because they are having a bad day and don't like the tie you wore to the meeting. That's an oversimplification, but not really that far from the truth.

[CosmicCowboy]

Hey, the two wrongs make a right gambit.

Well played.

I didn't revoke the guys probation, asshole.

[coyotes_geek]

Also, I find it disturbing that courts will use as a basis for probation revocation, evidence which they will not use as a basis for conviction.

Not really the same thing though, aren't they? Shouldn't there be different heights between the bars for determining whether or not someone gets convicted of a crime and whether or not someone who has already been convicted gets to serve their sentence inside our outside prison walls?

No doubt polygraphs aren't perfect, and it would be wrong to revoke probation for failing one. But by the time you get to five failed tests don't you have to start to wonder?

I'd be curious to know how many tests he took. 5 failed tests out of how many?

[ChumpDumper]

I didn't revoke the guys probation, asshole.But you're fine with its being revoked for any reason.

[ChumpDumper]

Not really the same thing though, aren't they? Shouldn't there be different heights between the bars for determining whether or not someone gets convicted of a crime and whether or not someone who has already been convicted gets to serve their sentence inside our outside prison walls?

No doubt polygraphs aren't perfect, and it would be wrong to revoke probation for failing one. But by the time you get to five failed tests don't you have to start to wonder?Yeah, you'd have to wonder why didn't you get off your ass and find out what was actually going on.

[CosmicCowboy]

But you're fine with its being revoked for any reason.

I'm just telling you how the system works. The guy was found guilty and sentenced to jail. They aren't obligated to give him probation. That's just the way it is.

[Winehole23]

That's an oversimplification, but not really that far from the truth.I get that. Still sucks.

[ChumpDumper]

I'm just telling you how the system works. The guy was found guilty and sentenced to jail. They aren't obligated to give him probation. That's just the way it is.So do you agree with basing the decision solely on polygraphs or not?

[Drachen]

I can see both sides, but as you pointed out, the guy was found guilty and sentenced. Actually having to serve that sentence is not a violation of his rights no matter what the reason for the decision.

I will say this: I can't imagine there being a huge gulf between those who agree and those who disagree with this. (i.e. I disagree with this, but feel really uneasy about it and I assume that those who agree with it feel uneasy about that decision too).

[Winehole23]

I assume that those who agree with it feel uneasy about that decision tooCC doesn't seem very uneasy about it.

[CosmicCowboy]

I will say this: I can't imagine there being a huge gulf between those who agree and those who disagree with this. (i.e. I disagree with this, but feel really uneasy about it and I assume that those who agree with it feel uneasy about that decision too).

Agreed

[101A]

It's gone for crimes he has yet to commit?

For the crime he was already convicted of - and for which he has not served his full sentence.

[Blake]

So do you agree with basing the decision solely on polygraphs or not?

Basing the decision solely on polygraphs is beyond ridiculous.

An expert forming an opinion based on polygraph results is a bit trickier, imo.

[Winehole23]

apparently any reason at all will satisfy when it comes to the civilly dead

[ChumpDumper]

For the crime he was already convicted of - and for which he has not served his full sentence.So not what they think he's doing or might be in the future.

I'll put you down as being against this then.

[101A]

So not what they think he's doing or might be in the future.

Not sure the reason or lack of reason for probation, frankly; my brother in law has been denied probation twice, but because he is completely disabled now; is no threat to society; is not capable of committing crimes; should they just let him out?


I'll put you down as being against this then.


I already put me down as being against it.

At least twice.

[ChumpDumper]

I already put me down as being against it.

At least twice.:tu

[Drachen]

Basing the decision solely on polygraphs is beyond ridiculous.

An expert forming an opinion based on polygraph results is a bit trickier, imo.

making a decision based on polygraphs or an expert making a decision based on polygraphs seems like 6 of one or a half-dozen of the other.

[Winehole23]

why should evidence which is not allowed in court as being unreliable to establish veracity, be accepted because some expert incorporates it into a professional opinion?

[101A]

why should evidence which is not allowed in court as being unreliable to establish veracity, be accepted because some expert incorporates it into a professional opinion?


Why is the expert, "expert"?

[Blake]

making a decision based on polygraphs or an expert making a decision based on polygraphs seems like 6 of one or a half-dozen of the other.

If an "expert" admits to basing his opinion on polygraph results, should his opinion be considered inadmissible? Is he/she no longer an "expert"?

[Winehole23]

Why is the expert, "expert"?Dunno. The court accepts his testimony and he holds bona fide professional credentials?

[coyotes_geek]

Yeah, you'd have to wonder why didn't you get off your ass and find out what was actually going on.

Depends what kind of questions he's failing on the test.

"Are you stalking children?" "No." Fail. OK, follow the guy and see for yourself.

"Do you have urges to stalk children?" "No." Fail. Now what?

[Winehole23]

doesn't matter. the test isn't reliable.

[coyotes_geek]

doesn't matter. the test isn't reliable.

Does reliability increase with additional tests?

[ChumpDumper]

Depends what kind of questions he's failing on the test.

"Are you stalking children?" "No." Fail. OK, follow the guy and see for yourself.

"Do you have urges to stalk children?" "No." Fail. Now what?Indeed, now what?

Thoughtcrime?

[Winehole23]

when the CCA says experts can rely exclusively on pseudoscience, what need is there to administer more reliable tests?

[vy65]

Dunno. The court accepts his testimony and he holds bona fide professional credentials?

http://en.wikipedia.org/wiki/Daubert_standard

There's a Texas version of Daubert but the case's name escapes me.

[101A]

when the CCA says experts can rely exclusively on pseudoscience, what need is there to administer more reliable tests?

If non-experts can trump the opinion of experts, what need is there for experts?

[vy65]

http://scholar.google.com/scholar_case?case=550693821240862347&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[coyotes_geek]

when the CCA says experts can rely exclusively on pseudoscience, what need is there to administer more reliable tests?

How much reliable science was involved in determing whether or not he went to prison or got probation in the first place?

[Blake]

Does reliability increase with additional tests?

If it's not 100% reliable, then it's unreliable.

[coyotes_geek]

If it's not 100% reliable, then it's unreliable.

Fortunately for us judges and juries are 100% reliable.

[Blake]

http://scholar.google.com/scholar_case?case=550693821240862347&hl=en&as_sdt=2&as_vis=1&oi=scholarr

I guess if an expert bases his opinion solely on polygraph tests, he can be found to be an unreliable witness.

Nice find.

[Winehole23]

How much reliable science was involved in determing whether or not he went to prison or got probation in the first place?good point on both counts. strict standards were in place for the conviction, and presumably some kind of sober, reasonable assessment was made of the man's danger to society at the time he was put on probation.

odd though that probation would be granted (presumably on some solid, professional basis,) only to be revoked later based solely on fake science backing up a professional hunch.

[Blake]

Fortunately for us judges and juries are 100% reliable.

terrific analogy. :tu

[coyotes_geek]

terrific analogy. :tu

Care to offer up a reason why that's a bad analogy?

Or is it merely the suggestion that there's already imperfection in our legal system that you're taking offense to?

[vy65]

Care to offer up a reason why that's a bad analogy?

Or is it merely the suggestion that there's already imperfection in our legal system that you're taking offense to?

The fact that juries and judges make mistakes isn't a justification for the use of polygraphs; imperfection isn't reason to introduce more imperfection.

[vy65]

By that logic, hearsay should be admissible because judges and juries sometimes get it wrong . . .

[CosmicCowboy]

The fact that juries and judges make mistakes isn't a justification for the use of polygraphs; imperfection isn't reason to introduce more imperfection.


They can use a ouija board if they want to. It's a probation, not a trial.

[ChumpDumper]

They can use a ouija board if they want to. It's a probation, not a trial.
So do you agree with basing the decision solely on polygraphs or not?

[vy65]

They can use a ouija board if they want to. It's a probation, not a trial.

The question was, to me, separate from the OP. But we get your point.

[CosmicCowboy]

:lmao @ chump thinking our criminal justice system is always fair.

[baseline bum]

No doubt polygraphs aren't perfect, and it would be wrong to revoke probation for failing one. But by the time you get to five failed tests don't you have to start to wonder?


You wouldn't be nervous as hell taking 5 polygraphs?

[ChumpDumper]

:lmao @ chump thinking our criminal justice system is always fair.:lmao @ CC's being a complete pussy about answering a question about his belief.

C'mon CC, check your vagina for the answer -- it's in there somewhere.

[Winehole23]

http://en.wikipedia.org/wiki/Daubert_standard

There's a Texas version of Daubert but the case's name escapes me.haven't found the name yet, but found this:

http://www.thefederation.org/documents/parker.htm

[CosmicCowboy]

:lmao @ CC's being a complete pussy about answering a question about his belief.

C'mon CC, check your vagina for the answer -- it's in there somewhere.

Chump, it is what it is.

I'm having a hard time working up fake outrage and crocodile tears for a child molester.

[ChumpDumper]

Chump, it is what it is.

I'm having a hard time working up fake outrage and crocodile tears for a child molester.:lol Way to take a manly stand.

Hypocrite.

[coyotes_geek]

good point on both counts. strict standards were in place for the conviction, and presumably some kind of sober, reasonable assessment was made of the man's danger to society at the time he was put on probation.

odd though that probation would be granted (presumably on some solid, professional basis,) only to be revoked later based solely on fake science backing up a professional hunch.

Wholeheartedly agree that polygraphs aren't perfect, and also wholeheartedly agree that they shouldn't be used to determine conviction. But calling them solely fake science seems to go a bit far IMO. I'm not sure where exactly we should put polygraphs on the Ouija Board to Wonder Woman's Magic Lasso scale, but it seems like they wouldn't be around at all if they didn't have at least some measure of reliability.


The fact that juries and judges make mistakes isn't a justification for the use of polygraphs; imperfection isn't reason to introduce more imperfection.

I guess I'm just having a hard time getting past why we would be okay with judges making gut calls but not okay letting them decide what they should and shouldn't use as part of their decision making process.

[vy65]

I must've missed something -- when are we ok with judges making gut calls?

[CosmicCowboy]

:lol Way to take a manly stand.

Hypocrite.


pfft

Like it's such a big deal

[CosmicCowboy]

I must've missed something -- when are we ok with judges making gut calls?

They do it all the time in sentencing.

[ChumpDumper]

pfft

Like it's such a big dealYou certainly shit your pants in the past when others didn't declare a definitive position on issues.

Hypocrite.

[Blake]

Care to offer up a reason why that's a bad analogy?

Or is it merely the suggestion that there's already imperfection in our legal system that you're taking offense to?

You don't use judges and juries for testimony.

I guess I should have said if it's not 100% reliable, then on it's own, it's unreliable as evidence.

The number of polygraph tests taken does nothing to increase the reliability of the test itself.

[CosmicCowboy]

You certainly shit your pants in the past when others didn't declare a definitive position on issues.

Hypocrite.

That is YOUR specialty.

asshole

[ChumpDumper]

That is YOUR specialty.

asshole:lmao

You can dish it out but you can't take it.

Pussy.

[vy65]

They do it all the time in sentencing.

No, they don't. Here's an example: http://www.ussc.gov/Guidelines/2011_guidelines/index.cfm

[CosmicCowboy]

nanny nanny boo boo...your mother dresses you funny...:p:

[Winehole23]

there are gut calls and bad calls.

this decision essentially gives junk forensics a license to print money in Texas and is grossly unfair to the probationer, but I understand others don't necessarily see it that way.

[coyotes_geek]

You wouldn't be nervous as hell taking 5 polygraphs?

I might be. But if I were nervous about taking the test I think I would be nervous during the control questions as well as the actual questions.

[CosmicCowboy]

No, they don't. Here's an example: http://www.ussc.gov/Guidelines/2011_guidelines/index.cfm

The Fed guidelines suck. State courts don't have the same guidelines and the judges have a lot more discretion.

[vy65]

I guess I'm just having a hard time getting past why we would be okay with judges making gut calls but not okay letting them decide what they should and shouldn't use as part of their decision making process.

Now that I think of it, gut calls have nothing to do with the point here.

The existence of arbitrariness in the system doesn't or shouldn't set precedent for introducing a demonstrably false and unreliable type of evidence, gut calls be damned.

[coyotes_geek]

I must've missed something -- when are we ok with judges making gut calls?

Maybe gut call isn't the best term to use, but aren't some of the decisions judges make subjective? How does a judge decide who's worthy of probation and who isn't?

[vy65]

Maybe gut call isn't the best term to use, but aren't some of the decisions judges make subjective? How does a judge decide who's worthy of probation and who isn't?

That's a fair point, and I agree with what I think you're getting at - there is some subjectivity in the criminal justice system. I don't feel comfortable commenting anymore because that's not my wheelhouse.

That said, I don't see the logic in claiming that the existence of some subjectivity in the CJS should invite more subjectivity, especially when that subjectivity is an unreliable test pretending to be scientific fact.

[CosmicCowboy]

That's a fair point, and I agree with what I think you're getting at - there is some subjectivity in the criminal justice system. I don't feel comfortable commenting anymore because that's not my wheelhouse.

That said, I don't see the logic in claiming that the existence of some subjectivity in the CJS should invite more subjectivity, especially when that subjectivity is an unreliable test pretending to be scientific fact.

I think it's safe to assume that a judge would know the facts about the relative reliability of lie detector tests and would take that in consideration in his decision.

[vy65]

I think it's safe to assume that a judge would know the facts about the relative reliability of lie detector tests and would take that in consideration in his decision.

Except that didn't happen at the district court in this case.

[CosmicCowboy]

Except that didn't happen at the district court in this case.

We know from the article that was what the appeal was based on but we don't know what other variables (not appealed) went into the decision.

[vy65]

We know from the article that was what the appeal was based on but we don't know what other variables (not appealed) went into the decision.

You didn't read the Court of Appeals decision, did you?


The State called psychotherapist George Michael Strain as a witness. Leonard was referred to him for therapy. Strain testified that he discharged Leonard from treatment for failing five polygraphs. Strain testified that he used polygraph examinations as part of sex offender treatment and that he and other experts in his field reasonably relied upon them. Leonard presented no evidence. The trial court found the State's allegation that Leonard had been unsuccessfully discharged from sex offender treatment true but found the failure to make satisfactory progress allegation not true. The trial court found Leonard guilty of injury to a child-bodily injury, revoked his community supervision, and sentenced him to seven years confinement.

There were no other variables.

[Blake]

I think it's safe to assume that a judge would know the facts about the relative reliability of lie detector tests and would take that in consideration in his decision.

I don't think that's a safe assumption at all.

Even if he did know the facts regarding reliability, it should be irrelevant to the evidence that's actually presented.

[coyotes_geek]

That's a fair point, and I agree with what I think you're getting at - there is some subjectivity in the criminal justice system. I don't feel comfortable commenting anymore because that's not my wheelhouse.

None of this is my wheelhouse. Hasn't kept me from commenting. :)


That said, I don't see the logic in claiming that the existence of some subjectivity in the CJS should invite more subjectivity, especially when that subjectivity is an unreliable test pretending to be scientific fact.

If we're going to trust a judge to require polygraphs as a condition to someone's probation, why shouldn't we trust that judge enough to determine how credible the results are?

I get that they're not pefect, but I've got to beleive they're better than a coin flip. Otherwise they wouldn't be around.

[vy65]

None of this is my wheelhouse. Hasn't kept me from commenting. :)

If we're going to trust a judge to require polygraphs as a condition to someone's probation, why shouldn't we trust that judge enough to determine how credible the results are?

I thought you were making a slightly different point. But I think the answer to your question is that there is sufficient information out there to show that polygraph evidence is inherently unreliable and shouldn't be used as a basis for a legal decision.

This is from the court of appeals decision and I think makes a good point:

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program. Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation.[7] Nor do we hold that the failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

[coyotes_geek]

I thought you were making a slightly different point. But I think the answer to your question is that there is sufficient information out there to show that polygraph evidence is inherently unreliable and shouldn't be used as a basis for a legal decision.

When involved in a conversation I find interesting my point has been known to evolve from time to time just to keep things going. :)

[baseline bum]

I might be. But if I were nervous about taking the test I think I would be nervous during the control questions as well as the actual questions.

I disagree; I don't have to worry about getting sent to jail for what name I state.

[coyotes_geek]

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program. Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation.[7] Nor do we hold that the failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

So to try and simplify:

1. Ok to require polygraphs for probation.
2. Inadmissible (not stated, but presumably referring to only the trial part since #3 says it's....)
3. Ok for court to consider failure/refusal to take in decision to revoke probation.

I'm okay with this. Especially when the person in question has gone 0 for 5. If it were just one test, or if he had passed some tests, that would be a different case IMO.

[coyotes_geek]

I disagree; I don't have to worry about getting sent to jail for what name I state.

For a single test, I can see that. I have trouble stretching that out to five failed tests though.

[ChumpDumper]

What were the questions he failed?

[TeyshaBlue]

What were the questions he failed?

"Are you known as ChumpDumper on Spurs Talk?"

:lol

[Drachen]

"Are you known as ChumpDumper on Spurs Talk?"

:lol

"What specifically was your aim in asking that question? Remember, be specific."

[ChumpDumper]

:lol more of a Culburn joke tbh

[FuzzyLumpkins]

why should evidence which is not allowed in court as being unreliable to establish veracity, be accepted because some expert incorporates it into a professional opinion?

Is then the solution to completely discount the professional opinion? All or nothing?

[Winehole23]

I have no freeking idea, Fuzzy. I'm not a lawyer.

Didn't vy65 reference something vaguely related to this upstream?

[Winehole23]

(Jalapeno Cheese Grits? Fuckin-A that sounds great). According to the legend and lore of this board, CC throws down.

[Winehole23]

Hell, Fuzzy, I posted a link that addresses that question too. Did you read either one?

[Wild Cobra]

I must've missed something -- when are we ok with judges making gut calls?
That's a tough one. I would expect a judge to look at the facts, but in civil cases especially, they have to decide for one side or another. When the facts are unclear, what do you do. I have a very sour feeling since I was once wronged by a judges ruling in a civil case. however, I understand that they are in a predicament and must do the best they can.

Judges are human. They make mistakes like anyone else. I can forgive a mistake. I cannot forgive using the bench for activism.

[Mitt Romney]

I like grits.

[GSH]

How about some facts, instead of all the bullshit?

First of all, he was not sent to prison because of failed polygraph tests. He was sent to prison because he had been charged with aggravated sexual assault of a minor, and was allowed instead to plead guilty to injury to a child. He was convicted of a crime - without the use of a polygraph. That's why he went to prison. Period. The fact that he was granted probation to begin with is probably the only judicial abuse involved.

The revocation proceedings were brought because he failed to meet the terms of probation. The failures included failure to pay fines, as well as his being unsuccessfully discharged from treatment. So even without anything related to the polygraph, he was still in violation of his probation due to his failure to pay the fines.

Judges aren't required to grant probation, and they can set any terms they wish. Hell, the word "probation" literally means "testing". It's basically a test to see of the criminal can follow the rules. No one has to prove that an additional crime has been committed. Associating with a known felon is not a crime, but can be grounds for revoking probation. The same for consumption of alcohol, possession of a firearm, leaving the county, etc. In this case, the judge actually made the polygraphs part of the terms of probation. If the guy doesn't meet the terms, tough shit. He can serve his actual sentence. You know - the one he got for screwing a child?

In this case, the therapist kicked the guy out of therapy because he didn't feel like he was making satisfactory progress. That's an opinion. He can use any basis he wants to form his opinions. He could just as easily said, "I did not feel that the subject was being sincere and honest in therapy sessions." He didn't need the damned polygraph. Is it unfair that one person can have that kind of power over the situation? What's really unfair is when a 40 year-old man has that kind of power over a child. This guy had already been convicted. You people are arguing over whether he should be in jail for it. Probation isn't a fucking right.

One more thing. A lot of things that happen in these cases never make it into the court proceedings. They get suppressed - or waived, as in the unpaid fines. The therapist likely believed that this guy was gaming his therapy, and still presented a danger to children, and he used the 5 failed polygraphs as part of the basis for his belief. And it's just as likely that the defense seized on that one thing to try and find a way to keep the guy on the streets. Do people go looking for reasons to revoke probation, in certain cases. You bet your ass they do. And they should. In the case of a child predator, it shouldn't take much to give these guys the privelege of the prison sentence they earned.

Nobody is trying to make polygraphs admissable in court, for the purpose of conviction. Nobody is trying to make the opinion of a therapist, based solely on a polygraph, sufficient evidence for conviction. There's no slippery slope. There are enough other judicial and law enforcement abuses to get concerned aout, without blowing this one out of proportion.

[101A]

I like grits.

Mormons don't like grits.

[CosmicCowboy]

How about some facts, instead of all the bullshit?

First of all, he was not sent to prison because of failed polygraph tests. He was sent to prison because he had been charged with aggravated sexual assault of a minor, and was allowed instead to plead guilty to injury to a child. He was convicted of a crime - without the use of a polygraph. That's why he went to prison. Period. The fact that he was granted probation to begin with is probably the only judicial abuse involved.

The revocation proceedings were brought because he failed to meet the terms of probation. The failures included failure to pay fines, as well as his being unsuccessfully discharged from treatment. So even without anything related to the polygraph, he was still in violation of his probation due to his failure to pay the fines.

Judges aren't required to grant probation, and they can set any terms they wish. Hell, the word "probation" literally means "testing". It's basically a test to see of the criminal can follow the rules. No one has to prove that an additional crime has been committed. Associating with a known felon is not a crime, but can be grounds for revoking probation. The same for consumption of alcohol, possession of a firearm, leaving the county, etc. In this case, the judge actually made the polygraphs part of the terms of probation. If the guy doesn't meet the terms, tough shit. He can serve his actual sentence. You know - the one he got for screwing a child?

In this case, the therapist kicked the guy out of therapy because he didn't feel like he was making satisfactory progress. That's an opinion. He can use any basis he wants to form his opinions. He could just as easily said, "I did not feel that the subject was being sincere and honest in therapy sessions." He didn't need the damned polygraph. Is it unfair that one person can have that kind of power over the situation? What's really unfair is when a 40 year-old man has that kind of power over a child. This guy had already been convicted. You people are arguing over whether he should be in jail for it. Probation isn't a fucking right.

One more thing. A lot of things that happen in these cases never make it into the court proceedings. They get suppressed - or waived, as in the unpaid fines. The therapist likely believed that this guy was gaming his therapy, and still presented a danger to children, and he used the 5 failed polygraphs as part of the basis for his belief. And it's just as likely that the defense seized on that one thing to try and find a way to keep the guy on the streets. Do people go looking for reasons to revoke probation, in certain cases. You bet your ass they do. And they should. In the case of a child predator, it shouldn't take much to give these guys the privelege of the prison sentence they earned.

Nobody is trying to make polygraphs admissable in court, for the purpose of conviction. Nobody is trying to make the opinion of a therapist, based solely on a polygraph, sufficient evidence for conviction. There's no slippery slope. There are enough other judicial and law enforcement abuses to get concerned aout, without blowing this one out of proportion.

X2 :toast

[CosmicCowboy]

FYI, this recipe is pretty close to what I do...

2 c. uncooked yellow grits
1/2 lb. sharp Cheddar cheese, grated
1/2 c. butter
2 cloves garlic, crushed
2 tsp. Tabasco
1 (4 oz.) can chopped green chilis
2 jalapeno peppers, seeded and chopped
3 eggs, well beaten

Cook grits. Mix in other ingredients. Add beaten eggs last. Bake in a large greased casserole. 350 degrees for 45 minutes. Serves 12-14.

I also add cayenne pepper

[Winehole23]

How about some facts, instead of all the bullshit?

First of all, he was not sent to prison because of failed polygraph tests. He was sent to prison because he had been charged with aggravated sexual assault of a minor, and was allowed instead to plead guilty to injury to a child. He was convicted of a crime - without the use of a polygraph. That's why he went to prison. Period. The fact that he was granted probation to begin with is probably the only judicial abuse involved.

The revocation proceedings were brought because he failed to meet the terms of probation. The failures included failure to pay fines, as well as his being unsuccessfully discharged from treatment. So even without anything related to the polygraph, he was still in violation of his probation due to his failure to pay the fines.

Judges aren't required to grant probation, and they can set any terms they wish. Hell, the word "probation" literally means "testing". It's basically a test to see of the criminal can follow the rules. No one has to prove that an additional crime has been committed. Associating with a known felon is not a crime, but can be grounds for revoking probation. The same for consumption of alcohol, possession of a firearm, leaving the county, etc. In this case, the judge actually made the polygraphs part of the terms of probation. If the guy doesn't meet the terms, tough shit. He can serve his actual sentence. You know - the one he got for screwing a child?

In this case, the therapist kicked the guy out of therapy because he didn't feel like he was making satisfactory progress. That's an opinion. He can use any basis he wants to form his opinions. He could just as easily said, "I did not feel that the subject was being sincere and honest in therapy sessions." He didn't need the damned polygraph. Is it unfair that one person can have that kind of power over the situation? What's really unfair is when a 40 year-old man has that kind of power over a child. This guy had already been convicted. You people are arguing over whether he should be in jail for it. Probation isn't a fucking right.

One more thing. A lot of things that happen in these cases never make it into the court proceedings. They get suppressed - or waived, as in the unpaid fines. The therapist likely believed that this guy was gaming his therapy, and still presented a danger to children, and he used the 5 failed polygraphs as part of the basis for his belief. And it's just as likely that the defense seized on that one thing to try and find a way to keep the guy on the streets. Do people go looking for reasons to revoke probation, in certain cases. You bet your ass they do. And they should. In the case of a child predator, it shouldn't take much to give these guys the privelege of the prison sentence they earned.

Nobody is trying to make polygraphs admissable in court, for the purpose of conviction. Nobody is trying to make the opinion of a therapist, based solely on a polygraph, sufficient evidence for conviction. There's no slippery slope. There are enough other judicial and law enforcement abuses to get concerned aout, without blowing rthis one out of proportion.not saying you're wrong, but much of this post repeats what's gone before, much is strawman argument challenging claims not made in the thread, and what's your source for the details of the case?

[Blake]

How about some facts, instead of all the bullshit?

The revocation proceedings were brought because he failed to meet the terms of probation. The failures included failure to pay fines, as well as his being unsuccessfully discharged from treatment. So even without anything related to the polygraph, he was still in violation of his probation due to his failure to pay the fines.

Where are you reading that he failed to pay fines?

If failure to pay is all that's needed to revoke probation, why this fuss over the polygraph tests?


Is it unfair that one person can have that kind of power over the situation? What's really unfair is when a 40 year-old man has that kind of power over a child. This guy had already been convicted. You people are arguing over whether he should be in jail for it. Probation isn't a fucking right.

The ol' two unfairs make it fair line of reasoning.


There's no slippery slope.


Judge Cathy Cochran, writing in dissent, said the majority opinion employs logic that leads the legal system "down a very steep and slippery slope."
Leonard was sent to prison based solely on the failed polygraphs,

How bout some facts instead of bull shit?

[vy65]

Is then the solution to completely discount the professional opinion? All or nothing?

Don't know what you mean by "discount." To the extent that an expert's opinion relies on a methodology that fails Daubert or Robinson, the conclusions based on that (flawed) methodology as well as the methodology itself are inadmissible at trial:

We are persuaded by the reasoning in Daubert and Kelly. Therefore, we hold that in addition to showing that an expert witness is qualified, Rule 702 also requires the proponent to show that the expert's testimony is relevant to the issues in the case and is based upon a reliable foundation. The trial court is responsible for making the preliminary determination of whether the proffered testimony meets the standards set forth today. See TEX.R.CIV.EVID. 104(a) (stating that the trial court is to decide preliminary questions concerning the admissibility of evidence).

Rule 702 contains three requirements for the admission of expert testimony: (1) the witness must be qualified; (2) the proposed testimony must be "scientific ... knowledge"; and (3) the testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." TEX.R.CIV.EVID. 702. In order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.

[GSH]

Where are you reading that he failed to pay fines?

I should tell you to do your own research, you lazy piece of shit. It took me about 30 seconds to find this. But then, I'm obviously more interested in finding facts than you are. You don't have time for thought, but you have plenty of time to attack? http://www.leagle.com/xmlResult.aspx?xmldoc=In%20TXCO%2020120307723.xml&docbase=CSLWAR3-2007-CURR

If failure to pay is all that's needed to revoke probation, why this fuss over the polygraph tests?

It's a last ditch effort by a defense attorney to keep a child predator out of prison. What's you point?

BTW - this is from the link I posted, which you STILL will undoubtedly not bother to read. "The State filed a motion to proceed to adjudication, alleging that Appellant had been unsuccessfully discharged from treatment, failed to make satisfactory progress in treatment, failed to pass polygraph exams, and failed to pay fines."


The ol' two unfairs make it fair line of reasoning.

No, asshole. There's only one unfair. It's unfair that a child gets fucked by some degenerate old man. It's perfectly fair that the degenerate old man is sent to prison for it. I was pretty clear about that. You're either too stupid to understand, or you purposely want to create a straw man argument to knock down.

How bout some facts instead of bull shit?

I gave the facts. You're too lazy to even look for facts before posting bullshit. Or maybe you just have a soft spot for child molestors? Either way, you're a waste of the air you breathe.




Why are people like you so happy to remain ignorant? It literally took me 30 seconds to find the facts in this case. I notice you didn't even attempt to dispute the facts that: probation isn't a right, and that the judge was perfectly within his bounds to revoke it in this case. But I am sort of surprised that you didn't try and argue that the judge is part of the one percent, or something equally irrelevant.

[Winehole23]

do you mind sharing the links you found?

[vy65]

The revocation proceedings were brought because he failed to meet the terms of probation. The failures included failure to pay fines, as well as his being unsuccessfully discharged from treatment. So even without anything related to the polygraph, he was still in violation of his probation due to his failure to pay the fines.

Judges aren't required to grant probation, and they can set any terms they wish. Hell, the word "probation" literally means "testing". It's basically a test to see of the criminal can follow the rules. No one has to prove that an additional crime has been committed. Associating with a known felon is not a crime, but can be grounds for revoking probation. The same for consumption of alcohol, possession of a firearm, leaving the county, etc. In this case, the judge actually made the polygraphs part of the terms of probation. If the guy doesn't meet the terms, tough shit. He can serve his actual sentence. You know - the one he got for screwing a child?

I'm not so sure this is right - but I'm not a criminal lawyer, so I could very well be wrong about criminal procedure.

From what I've seen, a trial is required to officially revoke a criminal's probation. Given revocation requires a full-blown trial, all the normal rules of evidence, procedure, etc... apply. And because it's a trial, a judicial order is (obviously) required to revoke probation.

From what I've read, the sole issue in Leonard was whether to accept an expert's testimony -- testimony which relied solely on an inadmissible type of evidence. As the Court put it, Leonard was essentially tried-by-polygraph. Given an inadmissible type of evidence was the sole basis for his parole-revocation, the trial court got it wrong and was reversed.

You're right that probation isn't required, and you might be right that a wide array of conditions can be placed on parole (the part about "additional crimes" is wholly irrelevant). What you're getting wrong is the fact that a trial (with all applicable rules of evidence and procedure) is required to "officially" revoke parole. To the extent that a trial is necessary, you can't bootstrap in inadmissible evidence under the guise that 1) it was a condition to parole or 2) an expert relied upon it.

[vy65]

How about some facts, instead of all the bullshit?

First of all, he was not sent to prison because of failed polygraph tests. He was sent to prison because he had been charged with aggravated sexual assault of a minor, and was allowed instead to plead guilty to injury to a child. He was convicted of a crime - without the use of a polygraph. That's why he went to prison. Period. The fact that he was granted probation to begin with is probably the only judicial abuse involved.

The revocation proceedings were brought because he failed to meet the terms of probation. The failures included failure to pay fines, as well as his being unsuccessfully discharged from treatment. So even without anything related to the polygraph, he was still in violation of his probation due to his failure to pay the fines.

It's one thing for the revocation proceedings to be brought on a particular claim. It's another thing entirely for that claim to be the basis of a judge's decision.

From your own link

FACTS
Appellant was indicted for aggravated sexual assault. He agreed to plead guilty to injury to a child and was placed on deferred-adjudication community supervision. Appellant also agreed to the conditions of community supervision, including that he complete sex offender evaluation and treatment and submit to polygraph exams, on which he was required to show no deception. The State filed a motion to proceed to adjudication, alleging that Appellant had been unsuccessfully discharged from treatment, failed to make satisfactory progress in treatment, failed to pass polygraph exams, and failed to pay fines. At the adjudication hearing, the State waived the failed polygraph and failure to pay fines allegations. Appellant pleaded not true to the allegations of being unsuccessfully discharged and to not making satisfactory progress in treatment. Over Appellant's proper objection, the State called the sex offender therapist who had been treating Appellant, psychotherapist George Michael Strain. Strain testified that Appellant was discharged from treatment for failing five polygraphs. Strain further testified that the use of polygraph testing is a common part of sex offender treatment, and that test results are reasonably relied upon by experts in the field of sex offender treatment. Strain testified that the five failed polygraphs led him to feel that Appellant was not being honest with him and caused him to be concerned about the community's safety. Finally, Strain testified that he had no other concerns about Appellant's treatment and that the five failed polygraphs were the only basis for Appellant's discharge from treatment. The trial court found true the allegation that Appellant was unsuccessfully discharged from sex offender treatment and found Appellant guilty of injury to a child. He was sentenced to seven years' confinement.

[vy65]

In this case, the therapist kicked the guy out of therapy because he didn't feel like he was making satisfactory progress. That's an opinion. He can use any basis he wants to form his opinions. He could just as easily said, "I did not feel that the subject was being sincere and honest in therapy sessions." He didn't need the damned polygraph. Is it unfair that one person can have that kind of power over the situation? What's really unfair is when a 40 year-old man has that kind of power over a child. This guy had already been convicted. You people are arguing over whether he should be in jail for it. Probation isn't a fucking right.

That's incorrect. Expert testimony still has to meet the requirements for admissibility - whether that be Daubert or Robinson


One more thing. A lot of things that happen in these cases never make it into the court proceedings. They get suppressed - or waived, as in the unpaid fines. The therapist likely believed that this guy was gaming his therapy, and still presented a danger to children, and he used the 5 failed polygraphs as part of the basis for his belief. And it's just as likely that the defense seized on that one thing to try and find a way to keep the guy on the streets. Do people go looking for reasons to revoke probation, in certain cases. You bet your ass they do. And they should. In the case of a child predator, it shouldn't take much to give these guys the privelege of the prison sentence they earned.

Is that just conjecture? Do you have any bases for these claims?

[GSH]

Don't know what you mean by "discount." To the extent that an expert's opinion relies on a methodology that fails Daubert or Robinson, the conclusions based on that (flawed) methodology as well as the methodology itself are inadmissible at trial:

We are persuaded by the reasoning in Daubert and Kelly. Therefore, we hold that in addition to showing that an expert witness is qualified, Rule 702 also requires the proponent to show that the expert's testimony is relevant to the issues in the case and is based upon a reliable foundation. The trial court is responsible for making the preliminary determination of whether the proffered testimony meets the standards set forth today. See TEX.R.CIV.EVID. 104(a) (stating that the trial court is to decide preliminary questions concerning the admissibility of evidence).

Rule 702 contains three requirements for the admission of expert testimony: (1) the witness must be qualified; (2) the proposed testimony must be "scientific ... knowledge"; and (3) the testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." TEX.R.CIV.EVID. 702. In order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.


Your professor did explain who the gatekeeper is with Daubert?

If the state had included failing a polygraph as reason for revocation, there might have been a problem. They didn't.

The judge relied on expert opinion. The expert indicated that Leonard wasn't being honest with him. Yes, he used a polygraph. But he could just as easily have based it on body language. Would you deem that any more scientific? Expert witnesses do it all the time.

Whether you like it or not, all that was required was the mental health professional's expert opinion that Leonard was not satisfactorily participating in his treatment, or that he was showing deception in his answers. If he had testified that he believed Leonard had molested other children, based on a polygraph, that would have been inadmissable. But psychiatrists use all sorts of arcane methods to assess patient behavior. Their expert opinion as to the mental state of a defendant is just that - opinion. And that is admissable.

And that's what the Court found.




Is that just conjecture? Do you have any bases for these claims?

The only specific fact I have is that the failure to pay fines, which was enough to revoke, in and of itself, wasn't part of the proceedings. (So, yes, I have a basis for the claim.) I'm sure that was because they felt that the failure to successfully complete treatment was enough. And it was.

[Blake]

Why are people like you so happy to remain ignorant? It literally took me 30 seconds to find the facts in this case. I notice you didn't even attempt to dispute the facts that: probation isn't a right, and that the judge was perfectly within his bounds to revoke it in this case. But I am sort of surprised that you didn't try and argue that the judge is part of the one percent, or something equally irrelevant.

lol ignorant to the fact that the State waived the allegation of failing to pay the fines.

You're all over the place, and obviously didn't read all the facts in this case.

Thanks for the link to the case though. I'm on my phone while doing 3 things at once, so your gesture was appreciated. :tu

[vy65]

Your professor did explain who the gatekeeper is with Daubert?

The judge. Don't see why who the gatekeeper is has any relevance though.


If the state had included failing a polygraph as reason for revocation, there might have been a problem. They didn't.

Except that is exactly what happened. It formed the sole basis for the experts opinion - an opinion which was the trial court's sole basis for revoking probation. The guy was "tried by polygraph." This is the transcript the Court of Appeals quoted:



Q. Mr. Strain, why was Mr. Leonard discharged from treatment?

A. Because he failed five polygraphs.

Q. And so you're saying that was your reason for unsuccessfully discharging him from treatment?

A. That's correct.

. . . .

Q. Mr. Strain, to make sure on this, the — the — as you related to me yesterday, the sole basis for your making the discharge was because of this — because of the reasons that you previously stated to the prosecutor regarding polygraphs?

A. That's correct.

. . . .

Q. Okay. With — and your — your basis for your testimony of saying that you were concerned that he was not being completely honest with him rests entirely on the failure of the polygraphs; is that correct?

A. Yes, it does.

Your understanding of the facts is wholly inconsistent with the record.


The judge relied on expert opinion. The expert indicated that Leonard wasn't being honest with him. Yes, he used a polygraph. But he could just as easily have based it on body language. Would you deem that any more scientific? Expert witnesses do it all the time.

Whether you like it or not, all that was required was the mental health professional's expert opinion that Leonard was not satisfactorily participating in his treatment, or that he was showing deception in his answers. If he had testified that he believed Leonard had molested other children, based on a polygraph, that would have been inadmissable. But psychiatrists use all sorts of arcane methods to assess patient behavior. Their expert opinion as to the mental state of a defendant is just that - opinion. And that is admissable.

And that's what the Court found.


That's wrong - the Robinson factors require an expert's methodology to be reliable and his testimony be relevant. I'd hardly call personal impressions of someone reliable scientific evidence. Wouldn't you?

And it would be the judge's gate-keeping function to exclude said testimony if the expert's scientific opinion was based solely on how the defendant "seemed to him."

[vy65]

The only specific fact I have is that the failure to pay fines, which was enough to revoke, in and of itself, wasn't part of the proceedings. (So, yes, I have a basis for the claim.) I'm sure that was because they felt that the failure to successfully complete treatment was enough. And it was.


One more thing. A lot of things that happen in these cases never make it into the court proceedings. They get suppressed - or waived, as in the unpaid fines. The therapist likely believed that this guy was gaming his therapy, and still presented a danger to children, and he used the 5 failed polygraphs as part of the basis for his belief. And it's just as likely that the defense seized on that one thing to try and find a way to keep the guy on the streets. Do people go looking for reasons to revoke probation, in certain cases. You bet your ass they do. And they should. In the case of a child predator, it shouldn't take much to give these guys the privelege of the prison sentence they earned.

Wasn't asking about fines - I was asking about the underlined portions of your quote. Your conjecture is inconsistent with the therapist's testimony, so I'll ask the same question: where are you getting that from?

[ChumpDumper]

Well, if the polygraph was explicitly part of the plea agreement, the decision is slightly easier to understand. However, folks are getting really emotionally charged over the crime he was charged with. I understand that as well but if you can't see the slippery slope here, I can't help you. What's to stop it from being used for any charge?

[GSH]

The judge. Don't see why who the gatekeeper is has any relevance though.

Of course you don't. Your failure to understand is prevalent in all your comments.

The guy was "tried by polygraph."
You do understand that he wasn't being tried, don't you? That this wasn't a trial? Of course you don't.

That's wrong - the Robinson factors require an expert's methodology to be reliable and his testimony be relevant. I'd hardly call personal impressions of someone reliable scientific evidence. Wouldn't you?

You're also either hopeless naive, or stupid. See the sentences below, in huge text. That was straight from the Court of Criminal Appeals.


You finally connected the dots for me. You're a student, aren't you? You've got some facts, but not much knowledge.


This is straight from the Court of Criminal Appeals:

A revocation hearing is an administrative proceeding and is neither a criminal nor a civil trial. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Texas Code of Criminal Procedure article 42.12, section 21(b), specifies that, when a condition of community supervision is violated, the judge shall conduct a hearing without a jury to determine whether to continue, extend, modify, or revoke community supervision. Even though revocation of community supervision may result in the defendant's loss of liberty, a revocation hearing does not involve findings of guilt; rather it is a forum in which the judge decides whether the defendant has broken the contract he made with the court after a determination of guilt has already been made. While the rules of evidence and procedure generally apply to revocation hearings, evidence not normally admissible at a trial can be presented to the judge at a revocation hearing. And, because the judge is not determining guilt, the standard of proof is lower than in a criminal trial; the State must prove by a preponderance of the evidence that the conditions of community supervision were violated.

And this:

Even generally inadmissible facts or data may be used by an expert in forming an opinion, as long as the facts or data are of a type reasonably relied upon by other experts in the field.4 As discussed above, polygraph exams are reasonably relied upon by experts in sex offender psychotherapy. As such, Rule 703 permits Strain to rely on polygraph results in forming his expert opinion that Appellant should be discharged from the sex offender treatment program.

While Rule 703 allows experts to rely on inadmissible evidence in forming an opinion, Rule 705 dictates whether the basis for the opinion is disclosed to the court. Under Rule 705(a): "The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data." Thus, Rule 705(a) allows Strain to disclose that the failed polygraphs were the basis for his opinion. Put simply, Rule 703 allows Strain to say, "I discharged the defendant because I felt that he was being dishonest," and under Rule 705(a), he may add, "I felt he was being dishonest because he failed the mandated polygraphs exams."


You're just wrong. On almost everything you say - at least as it applies to this case. But, hey, thanks for playing.

[GSH]

Well, if the polygraph was explicitly part of the plea agreement, the decision is slightly easier to understand. However, folks are getting really emotionally charged over the crime he was charged with. I understand that as well but if you can't see the slippery slope here, I can't help you. What's to stop it from being used for any charge?


You can be a reasonable guy, Chump. So I'll explain it. There is no slippery slope, and it can't be used for just any charge for one big reason. This wasn't a trial. The judge wasn't trying to determine guilt - that had already been established at a trial. Nobody, anywhere, is going for the idea of a polygraph being used in a trial, to determine guilt. Okay - maybe a few idiots. But there is absolutely zero chance of them ever being used that way. And this case is not a step in that direction.

[Blake]

You can be a reasonable guy, Chump. So I'll explain it. There is no slippery slope, and it can't be used for just any charge for one big reason. This wasn't a trial. The judge wasn't trying to determine guilt - that had already been established at a trial. Nobody, anywhere, is going for the idea of a polygraph being used in a trial, to determine guilt. Okay - maybe a few idiots. But there is absolutely zero chance of them ever being used that way. And this case is not a step in that direction.

They were trying to determine if he was guilty of a probation violation in a court of law.

The proceedings are obviously different in this hearing than in a criminal trial, but the slippery slope is rather obvious.

[ChumpDumper]

You can be a reasonable guy, Chump. So I'll explain it. There is no slippery slope, and it can't be used for just any charge for one big reason. This wasn't a trial. The judge wasn't trying to determine guilt - that had already been established at a trial. Nobody, anywhere, is going for the idea of a polygraph being used in a trial, to determine guilt. Okay - maybe a few idiots. But there is absolutely zero chance of them ever being used that way. And this case is not a step in that direction.Not all the rules of evidence apply to trials?

Serious question. I don't understand.

[vy65]

Not all the rules of evidence apply to trials?

Serious question. I don't understand.

It's technically not a trial - but an administrative hearing, so some rules of evidence and procedure may not apply.

[vy65]

This is straight from the Court of Criminal Appeals:

A revocation hearing is an administrative proceeding and is neither a criminal nor a civil trial. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Texas Code of Criminal Procedure article 42.12, section 21(b), specifies that, when a condition of community supervision is violated, the judge shall conduct a hearing without a jury to determine whether to continue, extend, modify, or revoke community supervision. Even though revocation of community supervision may result in the defendant's loss of liberty, a revocation hearing does not involve findings of guilt; rather it is a forum in which the judge decides whether the defendant has broken the contract he made with the court after a determination of guilt has already been made. While the rules of evidence and procedure generally apply to revocation hearings, evidence not normally admissible at a trial can be presented to the judge at a revocation hearing. And, because the judge is not determining guilt, the standard of proof is lower than in a criminal trial; the State must prove by a preponderance of the evidence that the conditions of community supervision were violated.

This is wholly irrelevant. Can you point to any case-law indicating that the rules of evidence regarding experts don't apply to a revocation hearing? That's what this has been all about: whether the rules of evidence would allow the fact that Leonard failed multiple polygraphs into the hearing.

This is also irrelevant because the State agreed that a straight-up polygraph test would be inadmissible at the probation hearing: The State acknowledges that polygraphs are generally inadmissible but argues that Leonard's test results were admissible under TEX. R. EVID. 703 because Strain was an expert and because he testified that experts in his field reasonably rely upon polygraph exams when treating sex offenders.

I'd ask you to explain why the administrative nature of probation hearings or the fact that some rules of evidence might not apply, but I have a feeling you'll just make some weak ass insult to cover your ignorance.


And this:

Even generally inadmissible facts or data may be used by an expert in forming an opinion, as long as the facts or data are of a type reasonably relied upon by other experts in the field.4 As discussed above, polygraph exams are reasonably relied upon by experts in sex offender psychotherapy. As such, Rule 703 permits Strain to rely on polygraph results in forming his expert opinion that Appellant should be discharged from the sex offender treatment program.

While Rule 703 allows experts to rely on inadmissible evidence in forming an opinion, Rule 705 dictates whether the basis for the opinion is disclosed to the court. Under Rule 705(a): "The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data." Thus, Rule 705(a) allows Strain to disclose that the failed polygraphs were the basis for his opinion. Put simply, Rule 703 allows Strain to say, "I discharged the defendant because I felt that he was being dishonest," and under Rule 705(a), he may add, "I felt he was being dishonest because he failed the mandated polygraphs exams."

Again, wholly irrelevant. For one, I have no idea where you're getting this because you didn't give a link. For two, it's not in the TCCA or Court of Appeal's decisions. For three, no one has ever said anything about the fact that an expert can rely on evidence that would otherwise not be admissible at trial in coming to their conclusions.

Remember when you thought there were reasons for the revocation other than the failed polygraph test? And I had to quote the record -- where the expert said his sole basis for his conclusions were the 5 polygraphs.

The whole dispute here is about whether an expert can bootstrap in otherwise inadmissible evidence into trial, a hearing, whatever, by "relying" (in fact, solely relying) on said inadmissible evidence. I'm still waiting to hear a reason why this boot-strapping would be good. So far, you've just complained that child molesters are evil.

[GSH]

Not all the rules of evidence apply to trials?

Serious question. I don't understand.

It was an administrative hearing. Not a trial at all. Not used to determine guilt. (In this case, the guy admitted to "harming a child", so that he didn't have to face trial for raping a child.") So, no, not all the rules of evidence apply. It's far from a kangaroo court, but it's not as stringent as a trial.

Probation is a contract between the state and the criminal. The administrative hearing is to determine if the criminal has violated that contract. It's not nearly as hard to revoke probation, as to convict in the first place. And it is supposed to be that way.

[vy65]

The judge. Don't see why who the gatekeeper is has any relevance though.

Of course you don't. Your failure to understand is prevalent in all your comments.

So it's not relevant. Got it.


The guy was "tried by polygraph."
You do understand that he wasn't being tried, don't you? That this wasn't a trial? Of course you don't.

You do understand that the difference between a hearing vs. a trial are irrelevant when you haven't given a reason why the lower evidentiary standards at a probation hearing should make polygraph results admissible.

Serious question: did you bother reading any of the opinions in this case?


That's wrong - the Robinson factors require an expert's methodology to be reliable and his testimony be relevant. I'd hardly call personal impressions of someone reliable scientific evidence. Wouldn't you?

You're also either hopeless naive, or stupid. See the sentences below, in huge text. That was straight from the Court of Criminal Appeals.

Your reference to the sentences below and the fact that you couldn't answer my question leads me to believe you don't know how the rules of evidence work.

[CosmicCowboy]

vy65 REALLY cares about polygraphs...

[vy65]

vy65 REALLY cares about polygraphs...

Dude, your recipe for grits sounds gross . . .

[GSH]

This is wholly irrelevant. Can you point to any case-law indicating that the rules of evidence regarding experts don't apply to a revocation hearing? That's what this has been all about: whether the rules of evidence would allow the fact that Leonard failed multiple polygraphs into the hearing.

I'd ask you to explain why the administrative nature of probation hearings or the fact that some rules of evidence might not apply, but I have a feeling you'll just make some weak ass insult to cover your ignorance.



Again, wholly irrelevant. For one, I have no idea where you're getting this because you didn't give a link. For two, it's not in the TCCA or Court of Appeal's decisions. For three, no one has ever said anything about the fact that an expert can rely on evidence that would otherwise not be admissible at trial in coming to their conclusions.

You didn't say it, because you didn't know it until I told you. If you can't find your own link, try this one. http://www.leagle.com/xmlResult.aspx?page=6&xmldoc=In%20TXCO%2020120307723.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7
And, yes, it's a fact. And you just proved my point. And the state's.

Remember when you thought there were reasons for the revocation other than the failed polygraph test? And I had to quote the record -- where the expert said his sole basis for his conclusions were the 5 polygraphs.

Stop with the straw man shit. I never said that. I said that there are often things involved with a case that never make it to the court proceedings. In these kinds of cases, the psychiatrist/psychologist often has reason to believe that the guy is still staking children that either won't hold up in court, or that a judge suppresses. Read State v Nesbitt - another revocation hearing, where a polygraph was also brought up. I may send you a private message explaining the REAL reason they wanted the guy locked up. That reason never showed up in the court proceedings. Don't be a naive child.

The whole dispute here is about whether an expert can bootstrap in otherwise inadmissible evidence into trial, a hearing, whatever, by "relying" (in fact, solely relying) on said inadmissible evidence. I'm still waiting to hear a reason why this boot-strapping would be good. So far, you've just complained that child molesters are evil.

The whole issue here is whether an expert witness in an administrative hearing must be disqualified because he/she used a polygraph. You sound like you've watched too much Law And Order. (BTW - you already admitted above that an expert in an administrative hearing can rely on evidence that would otherwise be inadmissable. What do you think that means?



You were wrong before. You're wrong now. The court says so, too.

For the record, I'm not crazy about expert witnesses in general. Almost every one of them are prostitutes, willing to say whatever they get paid to say. I don't know the expert in this case, and I automatically don't trust him. But that isn't really the point. The fact that he used a polygraph to form his expert opinion is no less legitimate than the other methods that the prostitutes use. If this guy's opinion had been what convicted Leonard to begin with, I'd be right with you. But in a revocation hearing? Fuck 'em. Once you plead guilty to the crime, you don't have any right to stay out of jail. And that, more than anything, is the real issue. People act like these social contracts have more weight than the underlying criminal law.




Your reference to the sentences below and the fact that you couldn't answer my question leads me to believe you don't know how the rules of evidence work.

Fuck off, Skippy. Jack McCoy isn't a real person.

[Drachen]

Dude, your recipe for grits sounds gross . . .

while I appreciate what you are bringing to the thread, I respectfully disagree. If there is one thing CC usually brings, it is good recipies.

[Yonivore]

Fuck off, Skippy. Jack McCoy isn't a real person.
:tu :lmao

[vy65]

Again, wholly irrelevant. For one, I have no idea where you're getting this because you didn't give a link. For two, it's not in the TCCA or Court of Appeal's decisions. For three, no one has ever said anything about the fact that an expert can rely on evidence that would otherwise not be admissible at trial in coming to their conclusions.

You didn't say it, because you didn't know it until I told you. If you can't find your own link, try this one. http://www.leagle.com/xmlResult.aspx...URR&SizeDisp=7
And, yes, it's a fact. And you just proved my point. And the state's.

So it's not from any of the opinions in this case. And you're still not getting the key problem here.


Remember when you thought there were reasons for the revocation other than the failed polygraph test? And I had to quote the record -- where the expert said his sole basis for his conclusions were the 5 polygraphs.

Stop with the straw man shit. I never said that. I said that there are often things involved with a case that never make it to the court proceedings. In these kinds of cases, the psychiatrist/psychologist often has reason to believe that the guy is still staking children that either won't hold up in court, or that a judge suppresses. Read State v Nesbitt - another revocation hearing, where a polygraph was also brought up. I may send you a private message explaining the REAL reason they wanted the guy locked up. That reason never showed up in the court proceedings. Don't be a naive child.

Except that in this case, the sole and only basis for the expert's opinion was a polygraph test.

Lol phantom justifications. Hopefully the central committee doesn't find out you're in the know, comrade.


The whole dispute here is about whether an expert can bootstrap in otherwise inadmissible evidence into trial, a hearing, whatever, by "relying" (in fact, solely relying) on said inadmissible evidence. I'm still waiting to hear a reason why this boot-strapping would be good. So far, you've just complained that child molesters are evil.

The whole issue here is whether an expert witness in an administrative hearing must be disqualified because he/she used a polygraph. You sound like you've watched too much Law And Order. (BTW - you already admitted above that an expert in an administrative hearing can rely on evidence that would otherwise be inadmissable. What do you think that means?

That means that an expert may use polygraph results, in connection with other forms of evidence, in arriving at his conclusions. It does not mean that he may solely rely on polygraphs in an attempt to bootstrap inadmissible evidence into a proceeding. The state's attorney admitted as much when they said that polygraph evidence - standing alone - would be inadmissible to the hearing. Why is this so hard for you to understand?

Lol prostitutes.

[CosmicCowboy]

Did you like..uhhh...fail a polygraph at a bassmasters tournament? You really have a hard on for them...:lol

[vy65]

Congratulations.

I thoroughly enjoy political discourse but that is no longer what this place is about. It's all about your snarky little gang trying to irritate and snipe like a gang of juvenile delinquents and then slapping yourselves on the back about how witty you are all the while running and hiding from real discourse behind whining claims of "straw men" and stupid demands for links to links to links that get posted.

I recognize that every political forum has its idiots or just bumfucking crazy people like Boutons, but when the seemingly sane people get caught up in this crap as well it's really depressing and this place has turned into a total waste of time.

Chump? You win Charlie Sheen...You get the award for pompously thinking you are really putting it to people while just coming off as a snarky little bitch that wants to aggravate people...congratulations...you succeeded...You used to be better than that and occasionally brought substantive takes...what happened?

The rest of you? Winehole?...you seem like a smart guy but again the desire to impress your gang with your witty snitty insults drowns out the quality you used to bring to the forum...

Clambake? Whatever happened to just talking politics and bouncing differing opinions off each other?...are you just trying to impress Chump and the rest of the little gang?

I could go on...there are a lot of other quality posters that have jumped on the snark bandwagon plus the hanger on third stringers that it's just no fun in here anymore. There are a lot of you guys I'm sure I would like in person and I actually think you guys would like me too, but I'm done.

I'm sure there will be high fives all around and victory declarations and snarky comments about me slinking off with my butthurt so knock yourselves out...that's what this place has become...and quite honestly I don't need the aggravation and refuse to waste any more time in here...

Maybe we can even get Kori to change the name of the forum to something more appropriate like the Charlie Sheen Winners Club...enjoy the forum you have ruined...

[GSH]

Lol prostitutes.

Look - I'm not going to argue the law with you anymore. Frankly, you're starting to bore me, and I hate that. I think you're probably a student, and you don't know how much you don't know. You're wrong, and the court just said so. Take it up with them when you graduate.

One thing I will mention, for the rest of the people reading this. Texas didn't just do something Draconian with their laws. The same thing is common practice around the country. Hell, Oregon is a liberal paradise, and even there they revoke probation for sex offenders who fail polygraphs. (That's right, Skippy, Oregon.) Don't try to pretend that Texas is some judicial backwater, because of this ruling.

[Blake]

Look - I'm not going to argue the law with you anymore. Frankly, you're starting to bore me, and I hate that. I think you're probably a student, and you don't know how much you don't know. You're wrong, and the court just said so. Take it up with them when you graduate.

One thing I will mention, for the rest of the people reading this. Texas didn't just do something Draconian with their laws. The same thing is common practice around the country. Hell, Oregon is a liberal paradise, and even there they revoke probation for sex offenders who fail polygraphs. (That's right, Skippy, Oregon.) Don't try to pretend that Texas is some judicial backwater, because of this ruling.

Judge Cochran isn't a student.

Fascinating that you aren't belittling her for how she obviously doesn't know how much she doesn't know.

[FuzzyLumpkins]

The judge. Don't see why who the gatekeeper is has any relevance though.



Except that is exactly what happened. It formed the sole basis for the experts opinion - an opinion which was the trial court's sole basis for revoking probation. The guy was "tried by polygraph." This is the transcript the Court of Appeals quoted:



Your understanding of the facts is wholly inconsistent with the record.




That's wrong - the Robinson factors require an expert's methodology to be reliable and his testimony be relevant. I'd hardly call personal impressions of someone reliable scientific evidence. Wouldn't you?

And it would be the judge's gate-keeping function to exclude said testimony if the expert's scientific opinion was based solely on how the defendant "seemed to him."

Wow, I am now disturbed.

[GSH]

Judge Cochran isn't a student.

Fascinating that you aren't belittling her for how she obviously doesn't know how much she doesn't know.

No, because Judge Cochran didn't argue some of the riduculous points that vy65 did. Cochran's dissent was primarily the "slippery slope" argument. (Funny how so many liberals reject that out of hand, except when they agree with the position.) It's not a bad argument. When I first read that the witness said that he based his position solely on the failed polygraphs, that was my first thought as well. I am often suspicious of slippery slopes.

Slippery slope arguments get shot down very often, when they do not have the weight of law behind them. This one didn't. Cochran has a point, and she is right to worry about the use of laws being extended to trials. She was just wrong on the law this time.

A lot of people have been conditioned to believe that any time a defense lawyer loses, there must be some kind of malfeasance on the part of the government. They're just as bad as the tinfol-hat people on the right.

[GSH]

Congratulations.

I thoroughly enjoy political discourse but that is no longer what this place is about. It's all about your snarky little gang trying to irritate and snipe like a gang of juvenile delinquents and then slapping yourselves on the back about how witty you are all the while running and hiding from real discourse behind whining claims of "straw men" and stupid demands for links to links to links that get posted.

I recognize that every political forum has its idiots or just bumfucking crazy people like Boutons, but when the seemingly sane people get caught up in this crap as well it's really depressing and this place has turned into a total waste of time.

Chump? You win Charlie Sheen...You get the award for pompously thinking you are really putting it to people while just coming off as a snarky little bitch that wants to aggravate people...congratulations...you succeeded...You used to be better than that and occasionally brought substantive takes...what happened?

The rest of you? Winehole?...you seem like a smart guy but again the desire to impress your gang with your witty snitty insults drowns out the quality you used to bring to the forum...

Clambake? Whatever happened to just talking politics and bouncing differing opinions off each other?...are you just trying to impress Chump and the rest of the little gang?

I could go on...there are a lot of other quality posters that have jumped on the snark bandwagon plus the hanger on third stringers that it's just no fun in here anymore. There are a lot of you guys I'm sure I would like in person and I actually think you guys would like me too, but I'm done.

I'm sure there will be high fives all around and victory declarations and snarky comments about me slinking off with my butthurt so knock yourselves out...that's what this place has become...and quite honestly I don't need the aggravation and refuse to waste any more time in here...

Maybe we can even get Kori to change the name of the forum to something more appropriate like the Charlie Sheen Winners Club...enjoy the forum you have ruined...

So what you really want is a good old-fashioned left-handed circle jerk. As long as everyone is stroking in the same direction, you like the interaction. Sorry I made you go all emo and shit.

BTW - am I a third-stringer, bandwagoner, or a snarky little bitch in this scenario?

[vy65]

So what you really want is a good old-fashioned left-handed circle jerk. As long as everyone is stroking in the same direction, you like the interaction. Sorry I made you go all emo and shit.

BTW - am I a third-stringer, bandwagoner, or a snarky little bitch in this scenario?

lol

[vy65]

No, because Judge Cochran didn't argue some of the riduculous points that vy65 did.

huh?

In this case, the State presented nothing concerning the scientific reliability of polygraph testing as a general proposition, nor did it provide any information concerning the particular polygraph tests in this case. We do not know who administered these five tests that appellant purportedly "failed," what the specific questions were, (28) or how and why the operator determined that appellant had "failed" the tests.

The State argues that it did not really introduce the polygraph test results as substantive evidence, just as the basis for Mr. Strain's expert opinion and his decision to discharge appellant from the treatment program. But Mr. Strain discharged appellant from the treatment program based solely upon the polygraph results. He repeatedly stated that he had no other reason. The "fact" that appellant "failed" the polygraph tests was the sole basis of his expert opinion and decision. And those tests were not shown to have any scientific reliability or validity.

Although an expert may base his opinion, at least in part, on otherwise inadmissible evidence, it must nonetheless be reliable inadmissible evidence. Rule 705(c) explicitly requires the trial judge to exclude an expert opinion "[i]f the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion[.]" (29) The purpose of that provision is to ensure that the expert's opinion is adequately based on reliable sources before he gives that opinion. (30) Here, the sole "fact" that the expert relied on was polygraph testing, and if that testing was scientifically unreliable the expert cannot give his opinion. (31) Appellant exhaustively explained that problem to the trial judge. (32) The trial judge responded that the polygraph evidence was "not being used as evidence, It is the basis for [Mr. Swain's] decision for discharge, as I understand where we're going." Yes, the results of unspecified polygraph tests by an unnamed polygraph operator asking unknown questions under unclear circumstances formed the sole basis for Mr. Swain's opinion, his resulting discharge of appellant from the treatment program, and appellant's subsequent probation revocation. These results, standing by themselves, are not scientifically reliable facts or sufficient data to support Mr. Swain's opinion under Rule 705. (33) Defense counsel specifically asked for a Daubert hearing; he should have received one.

It is possible that the State could have called sufficient experts discussing the scientific reliability of both the general principles and methods of polygraphy and the specific implementation of those principles in the five polygraphs that appellant "failed" to support the underlying facts and data for Mr. Swain's opinion. But it did not do so. It is the State, as the proponent of the expert's opinion, that must show, by clear and convincing evidence, that the facts and data underlying the expert's opinion are sufficiently reliable to form the basis for his opinion. (34)

The State asserts that this is just a motion to revoke probation hearing before a judge and therefore the normal rules of scientific reliability and Rules 702-705 do not apply. The Texas Rules of Evidence do, however, generally apply at a hearing to revoke probation, (35) and no court should admit or consider scientifically unreliable evidence. (36)

We addressed a similar issue in Hernandez v. State, (37) concerning the admissibility of expert testimony concerning the results of an "ADx analyzer" in a probation-revocation hearing. In that case, unlike the present one, the test operator appeared at the hearing and testified, so at least the defense could question him about his experience, qualifications, and the general scientific basis for the testing procedure. (38) Nonetheless, we held that the State had failed to offer any evidence at the revocation hearing of the scientific reliability of the ADx analyzer and that the trial judge therefore abused his discretion in admitting testimony concerning the test. (39) The fact that the trial judge had previously relied on such "ADx analyzer" testimony from this same witness was insufficient to show that the testing procedure was a reliable methodology for determining whether a person has traces of marijuana in his body. (40) The trial judge could not revoke the defendant's probation for purportedly using marijuana based upon the expert's testimony concerning a test that the State failed to show was scientifically reliable. (41)

The same is true in this case. But here the State asserts that the scientific reliability of evidence may be even one step further removed. It argues that, "[w]hile polygraph results are inadmissible, it was permissible for Mr. Strain to utilize them as a basis to form an opinion that Appellant should be discharged from the sex offender program." That logic leads down a very steep and slippery slope-not only "revocation by polygraph" but also "revocation by an expert's reliance on unreliable science." Applying that logic to Hernandez, the probation officer could have testified that Hernandez had failed an "ADx analyzer" test and therefore his probation should be revoked, obviating the need for any evidence of any reliability of any scientific testing or any testimony from the actual tester, simply because a probation officer would reasonably rely on these tests. That logic would also allow a trial judge to revoke a person's probation based upon the expert testimony of a police officer who testified that police officers reasonably rely on polygraph tests and that the officer charged the probationer with a new crime based on a failed polygraph concerning that new crime.

[FuzzyLumpkins]

So what you really want is a good old-fashioned left-handed circle jerk. As long as everyone is stroking in the same direction, you like the interaction. Sorry I made you go all emo and shit.

BTW - am I a third-stringer, bandwagoner, or a snarky little bitch in this scenario?

You think vy is leftist?

How about you acknowledge his transcript from the case he posted and quit extending your same arguments regardless of it.

[GSH]

You think vy is leftist?

How about you acknowledge his transcript from the case he posted and quit extending your same arguments regardless of it.

Sorry... should I have said right-handed circle-jerk? I've dealt with him. His argument is totally non-sequitir. Nobody suggests that polygraphs are reliable enough to use in a trial. But this wasn't a trial. I have no interest in arguing with something that is beside the point. (And for the record, dumb shit, he posted that after my comment. Maybe you believe that you are psychic... I don't.)

If you have anyting of value, bring it up.

But you never do.

[FuzzyLumpkins]

Sorry... should I have said right-handed circle-jerk? I've dealt with him. His argument is totally non-sequitir. Nobody suggests that polygraphs are reliable enough to use in a trial. But this wasn't a trial. I have no interest in arguing with something that is beside the point. (And for the record, dumb shit, he posted that after my comment. Maybe you believe that you are psychic... I don't.)

If you have anyting of value, bring it up.

But you never do.

Hes passed the bar. Have you?

But you are suggesting that polygraphs are to be supported by the court in other court sponsored activites. Who do you think is the authority in the probation department?

[Blake]

Cochran's dissent was primarily the "slippery slope" argument. (Funny how so many liberals reject that out of hand, except when they agree with the position.) It's not a bad argument.

However slight it may be, the back pedal is duly noted.


Cochran has a point, and she is right to worry about the use of laws being extended to trials. She was just wrong on the law this time.

Judge: "this is a slippery slope"

Messageboard slappy: "this is not a slippery slope"

Rofl :tu

[vy65]

Sorry... should I have said right-handed circle-jerk? I've dealt with him. His argument is totally non-sequitir. Nobody suggests that polygraphs are reliable enough to use in a trial. But this wasn't a trial. I have no interest in arguing with something that is beside the point. (And for the record, dumb shit, he posted that after my comment. Maybe you believe that you are psychic... I don't.)


The State asserts that this is just a motion to revoke probation hearing before a judge and therefore the normal rules of scientific reliability and Rules 702-705 do not apply. The Texas Rules of Evidence do, however, generally apply at a hearing to revoke probation, (35) and no court should admit or consider scientifically unreliable evidence. (36)

We addressed a similar issue in Hernandez v. State, (37) concerning the admissibility of expert testimony concerning the results of an "ADx analyzer" in a probation-revocation hearing. In that case, unlike the present one, the test operator appeared at the hearing and testified, so at least the defense could question him about his experience, qualifications, and the general scientific basis for the testing procedure. (38) Nonetheless, we held that the State had failed to offer any evidence at the revocation hearing of the scientific reliability of the ADx analyzer and that the trial judge therefore abused his discretion in admitting testimony concerning the test. (39) The fact that the trial judge had previously relied on such "ADx analyzer" testimony from this same witness was insufficient to show that the testing procedure was a reliable methodology for determining whether a person has traces of marijuana in his body. (40) The trial judge could not revoke the defendant's probation for purportedly using marijuana based upon the expert's testimony concerning a test that the State failed to show was scientifically reliable. (41)

The same is true in this case. But here the State asserts that the scientific reliability of evidence may be even one step further removed. It argues that, "[w]hile polygraph results are inadmissible, it was permissible for Mr. Strain to utilize them as a basis to form an opinion that Appellant should be discharged from the sex offender program." That logic leads down a very steep and slippery slope-not only "revocation by polygraph" but also "revocation by an expert's reliance on unreliable science." Applying that logic to Hernandez, the probation officer could have testified that Hernandez had failed an "ADx analyzer" test and therefore his probation should be revoked, obviating the need for any evidence of any reliability of any scientific testing or any testimony from the actual tester, simply because a probation officer would reasonably rely on these tests. That logic would also allow a trial judge to revoke a person's probation based upon the expert testimony of a police officer who testified that police officers reasonably rely on polygraph tests and that the officer charged the probationer with a new crime based on a failed polygraph concerning that new crime.

lol dealt with. Didn't know you're way of dealing with me was by not responding to caselaw that shows you're full of shit.

[vy65]

If polygraphs are unreliable (as you admit), why does a change in setting from trial to administrative hearing make them reliable and/or admissible?

[vy65]

I'd also not have any interest in arguing a point that was wrong and had been shown to me to be wrong.

[ChumpDumper]

It was an administrative hearing. Not a trial at all. Not used to determine guilt. (In this case, the guy admitted to "harming a child", so that he didn't have to face trial for raping a child.") So, no, not all the rules of evidence apply. It's far from a kangaroo court, but it's not as stringent as a trial.You guys are looking at it backwards.

The rules of evidence are used for trials and were applied for this hearing.

What is to stop these rules from being applied to any trial or hearing involving a polygraph?

[vy65]

^ That.

[LnGrrrR]

I know this question has been beaten to a pulp, but I have a different take on it.

GSH, what if the expert witness said the SOLE REASON he had for revoking the probation was because the defendant wore a blue shirt to his parole meeting? Would that be acceptable or not?

[LnGrrrR]

So what you really want is a good old-fashioned left-handed circle jerk. As long as everyone is stroking in the same direction, you like the interaction. Sorry I made you go all emo and shit.

BTW - am I a third-stringer, bandwagoner, or a snarky little bitch in this scenario?

That was an homage to another poster :lol

And very well timed, might I say.

[Blake]

I know this question has been beaten to a pulp, but I have a different take on it.

GSH, what if the expert witness said the SOLE REASON he had for revoking the probation was because the defendant wore a blue shirt to his parole meeting? Would that be acceptable or not?

I can't verify this, but I believe other experts in the field in Texas generally rely on the wearing of purple/gold shirts as grounds for discharge from treatment.