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 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see of the case of William Leonard ("Appeals court allows polygraph evidence, in limited way," Mar. 8), whose probation was revoked because he failed 5 polygraphs during mandatory treatment.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.' "
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