WILLIAM THOMAS LEONARD, Appellant v. THE STATE OF TEXAS (Dissenting)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0551-10
WILLIAM THOMAS LEONARD, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
TARRANT COUNTY
Cochran, J., filed a dissenting opinion in which Price, Womack, and Johnson, JJ., joined.

I respectfully dissent. This was, as the Eastland Court of Appeals aptly stated, "trial by polygraph." (1)

I.

At the revocation hearing, Mr. Strain, appellant's psychotherapist, repeatedly testified that the sole reason that he discharged appellant from his treatment program was because appellant had "failed" five polygraph exams. (2) Mr. Strain said that these polygraph tests did not address the offense for which he was on probation, but rather "community safety" while on probation. (3) He testified that 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. (4) When defense counsel asked if "this is the rare situation where this [failing five polygraphs] is literally the reason and the only reason to dismiss" a probationer, Mr. Strain answered, "It's the only time that I can recall that that's happened, yes."

There was no testimony about: who administered these polygraph exams; (5) that person's qualifications, experience, or level of expertise; what the precise questions were; what appellant's answers were; how the test was conducted; how the test was scored; what type of polygraph test was administered; how the polygraph operator distinguished a "deceptive" answer from a "truthful" one; or anything else concerning the science of polygraphy or the reliability of these particular polygraph tests.

Appellant's probation officer testified that appellant had served four and a half years of his five-year probation term. During that time, he kept his appointments with his probation officer and paid his required costs and fines--except for several months when he was unemployed.

In response to appellant's repeated objections to the use of polygraph results in revoking his probation, the trial judge explained,

The Court fully understands the general inadmissibility of polygraphs; however, the Court feels that there is a distinction between admitting polygraphs outright to show that someone did or did not tell the truth and using them--considering them as the basis of an expert opinion as to whether someone poses a danger and a risk to this community, which is the Court's understanding of what the policy consideration at issue in this case is, is secret keeping and whether it can and should be allowed. Particularly in light of the fact that, as Mr. Strain testified, this Defendant has been engaged in secret keeping and the polygraph has actually discovered that in the past. (6) . . .

And the Court is very concerned that if polygraphs cannot be considered as a tool by the expert who receives them to be able to monitor someone on sex offender probation in this community, then we'll be losing a valuable tool to monitor someone's honesty, which is the crux of allowing people to continue on-continue in the community on sex offender probation when they obviously have shown that they are a danger to children in the past.

The trial judge then revoked appellant's deferred-adjudication community supervision based upon his unsuccessful discharge from Mr. Strain's treatment program.

The bottom line is that appellant's probation was revoked because Mr. Strain said appellant "failed" five polygraph tests--tests about which we know absolutely nothing, including their accuracy or scientific reliability.

II.

Texas courts have long held that evidence of polygraph testing and test results are inadmissible "for all purposes" in this state, (7) including probation revocation hearings. (8) This is because many scientists question the accuracy and scientific reliability of such tests. The United States Supreme Court has upheld a per se ban on the admission of polygraph tests in military courts-martial proceedings because of this scientific debate and uncertainty. (9) At least one other state supreme court has held that, even in sex-offender-treatment scenarios, polygraph testing and test results are inadmissible in probation-revocation cases, (10) although some other state courts have allowed the use of polygraph test results as one factor in a trial court's decision to revoke probation. (11)

The 2011-2012 edition of Professor Faigman's Modern Scientific Evidence (12) devotes over 150 pages to the legal and scientific debate concerning the forensic use of polygraph tests and the scientific reliability of such testing. The treatise includes the Executive Summary of the 2003 Report of the National Academy of Science on the Scientific Evidence for the Polygraph. (13)

This Executive Summary addresses the basic science of the polygraph and concludes that, after "almost a century of research in scientific psychology and physiology," there is little basis to think that a polygraph has "extremely high accuracy." (14) "Although psychological states often associated with deception (e.g., fear of being judged deceptive) do tend to affect the physiological responses that the polygraph measures, these same states can arise in the absence of deception." (15) Additionally, other factors, such as anxiety about being polygraphed, may also affect physiological responses and mimic deceptive responses. (16) That is, polygraphs can generate "false positives"-- the physiological response picked up by the polygraph indicates deception, but the subject is being entirely truthful. "Such phenomena make polygraph testing intrinsically susceptible to producing erroneous results." (17) One concern noted by the National Research Council, one that is especially pertinent to sex offenders ordered to take and pass polygraph examinations, is that "there is evidence suggesting that truthful members of socially stigmatized groups and truthful examinees who are believed to be guilty or believed to have a high likelihood of being guilty may show emotional and physiological responses in polygraph situations that mimic responses that are expected of deceptive individuals." (18)

In 2001, the National Research Council was asked to write its report on the validity and reliability of polygraph examinations in contemplation of using them for national security personnel screening. (19) The Council reviewed 57 polygraph controlled-research studies concerning specific incidences--mainly mock crimes. (20) The Report concluded that those "mock-crime" research studies indicated that "polygraph tests can discriminate lying from truth telling at rates well above chance, though well below perfection." (21) But because these studies all dealt with "specific incidents" instead of the more ambiguous and open-ended questions involved in employee screening, (22) the Report concluded that polygraph testing "yields an unacceptable choice" for security screening, with "too many loyal employees falsely judged deceptive and too many major security threats left undetected." (23) Therefore, the accuracy of polygraph testing "in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies." (24)

The Council noted that polygraph testing is likely to have some utility, but "that utility derives from the examinee's beliefs about the procedure's validity, which are distinct from actual validity or accuracy." (25) That is, just as police have long known, a person's belief that the polygraph will reveal certain information makes that person more likely to admit certain facts or "confess" to a crime regardless of the actual administration of the test itself. (26)

In addition to its discussion of the admissibility of polygraph examinations, Modern Scientific Evidence contains two lengthy scientific articles--one making the case in favor of polygraph tests and the other arguing against such testing. Each 50-page article is written by noted scientists, who, as experts in the field, fully lay out the scientific basis for their conflicting conclusions concerning the use of and admission of polygraph tests under certain specified conditions and using certain specified methods. (27) Indeed, this is the type of scientific information and expert debate that might one day be heard in a Texas trial court "gatekeeping hearing" concerning the admissibility of polygraph results in a particular case, given by a specific polygraph operator, under specific circumstances.

 

III.

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.

The State also argues that because polygraph examinations may be a reasonable condition of probation (a question that is not before us), the result of failing those polygraphs must, ipso facto, be sufficient to revoke a person's probation. Otherwise the probation condition is rendered a "nullity." Other courts have addressed this very question and stated that such polygraph testing, in a sex-offender treatment program, may have beneficial purposes even though the results are inadmissible and may not be used to revoke probation. (42) Just as police officers routinely use and rely upon polygraphs in the investigation of crime, even though the results of those polygraphs are inadmissible in court, so treatment providers may use polygraph testing as an investigative tool and a spur to induce truth telling by the sex offender. In United States v. York, (43) for example, the sex offender complained that polygraph testing should not be part of his probation conditions because the results of any such testing are inadmissible in any future court proceeding. (44) The First Circuit rejected that reasoning, noting that,

the United States does not deny that polygraph technology is of doubtful reliability, but it asserts that the polygraph is nevertheless a useful tool for policing defendants' compliance with conditions of supervised release. Regardless of the device's actual ability to detect lies, the government suggests, the polygraph provides an incentive for York to pursue his treatment program honestly because he may believe that if he lies about his progress, the polygraph will expose him. (45)

 

The First Circuit also noted that the trial judge, anticipating York's objections, had already entered an order stating, "[n]o violation proceedings will arise based solely on [the] defendant's failure to 'pass' the polygraph." (46)

Similarly, the fact that the results of polygraph tests given by police officers cannot be admitted in any court proceeding does not mean that police officers consider them a "nullity" and useless to their profession. As Professor Faigman and his colleagues note,

Given all of the controversy that exists surrounding polygraph testing, why is it that law enforcement and national security agencies make extensive use of polygraph tests? The answer to this question lies with the fact that they have been found to have considerable utility because of the admissions that some subjects make under the stress of these procedures.

. . .

There is no doubt that being told that one has "failed the polygraph" or "seems to be having difficulty with certain questions" is a powerful inducement to confessions or damaging admissions, especially among unsophisticated suspects. Since even innocent suspects have been known to confess in this situation, unsubstantiated confessions pursuant to polygraph testing should be treated with great caution. Examiners often tell suspects that anything they feel guilty about may produce an adverse outcome and, in this way, damaging admissions are often elicited that do not specifically acknowledge guilt in the matter under investigation.

. . .

The polygraph can also be a useful aid to criminal investigation. Should a suspect exhibit an unusual emotional and physiological response to questions that would not be expected to disturb him if his story is a true one, investigators can be led to look for evidence in new directions. It must be emphasized, however, that the utility of the polygraph in criminal investigation or interrogation does not imply nor depend on the accuracy of the procedure. (47)

 

In sum, sex-offender treatment providers may find the use of polygraph testing a useful adjunct to their treatment programs, regardless of the inadmissibility of such tests in court and regardless of whether such tests could form the basis for discharge from a treatment program or for the revocation of a probation.

For all of the above reasons, I most respectfully dissent. We should not permit or condone "trial by polygraph" or "revocation by polygraph," especially when there was not a scintilla of evidence introduced at this revocation hearing concerning the general scientific reliability of polygraph testing or its scientific reliability in this particular case.

Filed: March 7, 2012

Publish

1. Leonard v. State, 315 S.W.3d 578, 581 (Tex. App.--Eastland 2010).

2. Mr. Strain testified,

•"I discharged him because he had failed five polygraphs." •"When he came to me, he had failed three community safety polygraphs. Right after starting treatment, he cleared a community safety polygraph in April of 2007." •"Three of the polygraphs questioned him if he had had sexual contact with children, if he had done a sex crime or if he had isolated children. The last two polygraphs that he failed asked only if he had had sexual contact with children or done a sex crime." •"Primarily, my reason for feeling he wasn't honest has to do with polygraphs, not completely on the results of the polygraphs. There have been times that Mr. Leonard has kept secrets and not been completely honest about things, and those have come out in polygraphs which is not part of the results of the polygraphs, but I know there have been times that he's kept secrets and they come out later under polygraphs. Other than that, I don't have any other reason or basis to believe he hasn't been honest."

3. Mr. Strain testified that he uses polygraphs to determine "if a person's complying with their treatment contract and with the conditions of probation." He stated,

Mr. Leonard has never taken a polygraph of his offense. He was admitting his offense. He had not completed the goal of admitting a hundred percent, because usually that involves us comparing what he said to his offense report. We hadn't done that process, but he had never taken a polygraph over his offense.

4. When questioned by the trial judge about whether Mr. Strain had ever discharged a probationer solely on the basis of failing polygraph exams, Mr. Strain responded,

I don't believe there's ever been a case where a person has failed this many polygraphs that I haven't discharged. There just hasn't been another case where they failed this many polygraphs where there hasn't been another violation.

. . .

This is the only case where there hasn't been other concerns that I had besides the polygraphs. In the other cases, in addition to having failed the polygraphs, there were other--other concerns that I had.

5. The trial judge noted that Mr. Strain does not administer polygraph tests and is not a polygraph operator.

6. First, it appears that the reverse is true. Mr. Strain testified that because appellant failed the polygraphs, he concluded that appellant must be keeping secrets.

Second, and more importantly, there is nothing illegal or improper about "secret keeping" as a general proposition. And there is nothing in appellant's probation conditions that forbids him from "keeping secrets." To the extent that a probation condition would compel a probationer to admit to additional crimes, he may claim his Fifth Amendment right against self-incrimination. See Chapman v. State, 115 S.W.3d 1, 5-6 (Tex. Crim. App. 2003) (stating that a probationer retains a right against self-incrimination concerning statements that would incriminate him for some other crime, but holding that the right is not self-executing so it must be asserted). As we explained in Chapman,

 

A criminal defendant does not lose this constitutional protection merely because he has been convicted of a crime. "'[T]he privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.'" A person who has been convicted of a crime, is in prison or on probation still has a right against self-incrimination concerning statements that would incriminate him for some other offense.

Id. (footnotes omitted). We quoted the State's Brief in Chapman, acknowledging that a probationer could not be revoked for refusing to answer questions that might incriminate him for some crime other than the one for which he was on probation:

The State could not constitutionally carry out a threat to, and could not legally, revoke probation for refusing to answer questions calling for information that would incriminate the Appellant in separate criminal proceedings. He was not, and could not be, required to jeopardize his conditional liberty by remaining silent, a legitimate exercise of the Fifth Amendment privilege.
Thus, the fact that appellant was on probation for a criminal sexual offense did not itself diminish his Fifth Amendment privilege against self-incrimination.

Id. at 6 (quoting State's Brief).

7. Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990).

8. See Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007). ("Neither the results of a polygraph test nor the 'fact' of failing a polygraph test are admissible in a Texas criminal proceeding.").

9. United States v. Scheffer, 523 U.S. 303, 309-10 (1998) (discussing the scientific community's polarized views on the reliability of polygraph testing and procedures).

10. See Turner v. Commonwealth, 685 S.E.2d 665, 666-68 (Va. 2009) (defendant's probation was improperly revoked based, in part, on his discharge from sex-offender treatment program for "deception" during a polygraph test; rejecting the government's argument that evidence of polygraph testing should be admitted under the more "relaxed" standards of proof in probation revocation proceedings; supreme court adhered to its view that polygraph tests "are so unreliable that the considerations requiring their exclusion have ripened into rules of law" and continued its ban on admitting such evidence in probation-revocation hearings).

11. See Commonwealth v. A.R., 990 A.2d 1, 6 (Pa. Super. 2010) (results of a "therapeutic polygraph examination" could be admitted in a probation revocation hearing "with certain caveats" as "supportive proof" of "the underlying violation, i.e., a sexual offender's lack of amenability to treatment, so long as the results of that examination are not the sole basis for the revocation petition; they do not reveal uncharged criminal conduct on the part of the defendant; and they are not used for purposes of the investigation of criminal conduct."); State v. Travis, 867 P.2d 234, 237 (Idaho 1994) (upholding the trial court's "limited" consideration of a polygraph test result that indicated "things may not seem as they are"; noting that trial court "did not rely exclusively on the polygraph results," but focused on probationer's resistance to supervision and uncooperativeness).

12. 5 David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony §§ 40.1-40.119 (2011-2012) ("Faigman").

13. The entire National Research Council book, The Polygraph and Lie Detection (National Academies Press 2003), is available from the National Academies of Science and is also available online at http://www.nap.edu/openbook.php?isbn=0309084369.

14. Faigman, supra note 12 at 336-37 (quoting the NRC Executive Summary).

15. Id. at 337.

16. Id.

17. Id.

18. Id.

19. Id. at 335.

20. Id. at 337. The Executive Report noted that the reliability and accuracy of polygraph results are much higher for "event-specific investigations"-such as a crime-than they are for employee screening. Id. at 336. That difference is partially attributable to the specificity of the questions asked ("Did you see the victim on Monday?") versus more ambiguous and open-ended questions that leave the definitions of words and criteria unspecified ("Did you ever reveal classified information to an unauthorized person" or "Did you ever have sexual contact with a child in the past four years?"). With questions of the latter type, "[b]oth examinee and examiner may have difficulty knowing whether an answer to such a question is truthful unless there are clear and consistent criteria that specify what activities justify a 'yes' answer. Examinees may believe they are lying when providing factually truthful responses, or vice-versa." Id.

21. Id. at 338.

22. Id.

23. Id. at 340.

24. Id.

25. Id. at 340-41.

26. Id. at 341. The NRC had thought "long and hard about how to advise government agencies on whether or how to use information from polygraph testing, a diagnostic screening test" that has "serious limitations." It noted that, "[I]n medicine, imperfect diagnostic tests are often used for screening," but, in medicine, "either the test is far more accurate than polygraph testing appears to be, or there is a more accurate . . . follow-up test that can be used when the screening test gives a positive result. Such a follow-up test does not exist for the polygraph." Thus, the Report concluded, "if polygraph testing is to be used at all," it should be used only "as triggers for detailed follow-up investigation, not as a basis for personnel action." Id.

27. Id. at 344-448.

28. Mr. Strain testified that the tests dealt with whether appellant "had had sexual contact with children, if he had done a sex crime or if he had isolated children." But as the National Research Council explained, there is a world of difference between a specifically targeted and unambiguous question, such as "Did you touch Jane Doe's breast on Monday?" versus an ambiguous and open-ended question, such as "Have you had sexual contact with children?" or "Have you committed a sex crime?" Or "Have you isolated children?" Such global and unfocused questions almost demand the response, "What do you mean? Can you be more specific? Who? Where? When? What exactly are you asking?"

29. Tex. R. Evid. 705(c).

30. See Vela v. State, 209 S.W.3d 128, 133 (Tex. Crim. App. 2006). In Vela, we stated,

Texas Rule of Evidence 705(c) governs the reliability of expert testimony and states that "[i]f the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible." "[R]eliability depends upon whether the evidence has its basis in sound scientific methodology. This demands a certain technical showing." And that showing gives a trial judge the opportunity to "weed out testimony pertaining to so-called 'junk science.' " Thus, just because "'junk science' or otherwise inadequately tested scientific theories might be shown to relate to the facts of a case," it will not always have a sufficiently reliable basis.

Id. (footnotes omitted); see generally 2 Steven Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 705.2, at 71 (2d ed. 1993) ("Goode") (noting that Rule 705(c) "gives counsel a chance to make timely objection to the admissibility of the [expert's] opinion on the ground that it lacks a sufficient basis. Criminal Rule 705(c) explicitly provides that the court should not admit the testimony of an expert who lacks a sufficient basis for his opinion"); see also 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 365, at 732 (2d ed. 1994) (trial courts should require a showing of the adequacy of the expert's underlying facts and data "when the calling party offers expert testimony that draws on learning and theories at the frontiers of scientific understanding and the helpfulness criterion carries a scientific validity standard").

31. See Vela, 209 S.W.3d at 134 ("And even if the traditional Kelly reliability factors do not perfectly apply to particular testimony, the proponent is not excused from proving its reliability. . . . In some cases, the reliability of scientific knowledge will be at issue; in others, 'the relevant reliability concerns may focus upon personal knowledge or experience.' But the proponent must establish some foundation for the reliability of an expert's opinion. 'Experience alone may provide a sufficient basis for an expert's testimony in some cases, but it cannot do so in every case.'"); see id. at 136 (Cochran, J., concurring) (emphasizing "that when an expert offers an opinion which is so outside the general mainstream of a particular scientific field as to be extraordinary, the proponent of that expertise must provide a greater-than-usual foundation for its reliability."); see generally Goode, supra note 30 (3d ed. 2011), § 702.6 at 55 ("One clear lesson of the first ten years under the Daubert/Robinson/Kelly regime is that no bright-line rule exists by which to foretell the admissibility of a particular expert's testimony. Each expert--indeed each opinion--must be judged on its own merits. At its most basic level, the search for reliability hinges on the three elements now codified in Federal Rule 702. First, is the testimony based upon sufficient facts or data? "Second, is the testimony the product of reliable principles and methods?" And third, has the witness applied the principles and methods reliably to the facts of the case?").

32. Defense counsel repeatedly objected to any mention of the polygraph results directly or as the basis for Mr. Strain's opinion or actions because those results are not admissible in Texas courts. "[I]t's strictly not allowed under Texas case law, and that there is not going to be an attempt to bring evidence in regarding polygraph-any aspect of polygraph evidence." The trial judge responded, "And while I understand the polygraph itself, the results may not be admissible to prove that a person is or is not telling the truth, I think the fact that someone is taking their polygraphs and their results could be the basis of an expert's opinion." Defense counsel kept repeating that polygraph testing is not admissible for any purpose in Texas courts, and that would include as the basis of an expert's opinion. Defense counsel based his running objection to any mention of polygraphs on Romero v. State, Tennard v. State, and "under Landrum and Hernandez." Defense counsel's objections were again overruled, but he was granted a running objection to any mention of the polygraphs. A few questions later, when Mr. Strain made it clear that the sole basis for discharging appellant from the treatment program was the polygraph testing, defense counsel tried again:

Your Honor, I--as indicated previously, it was my understanding, possibly erroneous understanding, from the prosecution that we were not going to talk about polygraphs at all. And I believe I informed the Court it was my understanding there was going to be no need for a Daubert hearing, a 702 hearing, with regards to the science of this situation, so that is what I operated on. Obviously, I need to allege a 702 objection and ask for a hearing with regard to the scientific evidence of what the witness is testifying and what the--what the State is offering.

The trial judge overruled appellant's objection, although correctly noting the defense position: "Now, what you're challenging is that this witness can't rely on polygraphs to make any decisions regarding this man's probation and his treatment?" Defense counsel responded, "Your Honor, well, I'm-I am objecting to- the therapist uses what he thinks he needs to in his therapy. That's his prerogative. I'm just objecting to the introduction of that use into evidence when it has to do with polygraph evidence as found by the common law of Texas." The judge responded:

Can't consider it as the basis of an expert's opinion, should I say, as opposed to considering it directly, which is what my understanding was that we were talking about yesterday in talking about the inadmissibility of the polygraph itself for the matters asserted in the polygraph as opposed to polygraph and everything else, as you know, under the sun is admissible. Even if it's inadmissible, it's admissible in an expert's opinion.

33. See supra notes 30 & 31; see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex. 2007) ("Expert testimony is unreliable if it is based on unreliable data"); Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) ("If an expert relies upon unreliable foundational data, any opinion drawn from that data is likewise unreliable"); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997) ("If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion is likewise unreliable.").

34. Layton v. State. 280 S.W.3d 235, 241 (Tex. Crim. App. 2009) ("The proponent of the scientific evidence bears the burden of proving to the trial court, by clear and convincing evidence, that the evidence is sufficiently relevant and reliable to assist the jury in determining a fact in issue."); see also Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) ("For expert testimony to be admissible under this rule, the party offering the scientific expert testimony must demonstrate, by clear and convincing evidence, that such testimony 'is sufficiently reliable and relevant to help the jury in reaching accurate results.' In other words, the proponent must prove two prongs: (1) the testimony is based on a reliable scientific foundation, and (2) it is relevant to the issues in the case.") (internal citation omitted).

35. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) ("A probation revocation proceeding is neither a criminal nor a civil trial, but rather an administrative hearing. Yet the Rules of Criminal Evidence are generally applicable to a revocation hearing. Tex. R. Crim. Evid. 1101(d)(2).") (citation omitted).

36. See supra notes 30-31, 33; see also E.I. du Pont de Nemours & Co., Inc. v. Robinson,923 S.W.2d 549, 557 (Tex. 1995) ( "Scientific evidence which is not grounded 'in the methods and procedures of science' is no more than 'subjective belief or unsupported speculation.' Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702.") (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993), citing Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992)); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998).

37. 116 S.W.3d 26 (Tex. Crim. App. 2003).

38. Id. at 28.

39. Id. at 30.

40. Id.

41. Id. at 30-31.

42. Indeed, one of the cases that the State relies on, Cassamassima v. State, 657 So. 2d 906 (Fla. Ct. App. 1995), held exactly that. As the State aptly notes in its brief, polygraph testing may act as a "psychological deterrent." State's Brief at 23. In Cassimassima, the Florida court held that the probationer could be required "to take a polygraph at reasonable intervals and to respond to questions that concern non-criminal conduct so long as the results of the polygraph are not offered in evidence." Id. at 911. It noted,

This limitation [upon the admission of polygraph results] does not eliminate the utility of polygraphs, however. As the dissent in Hart observed:

A "false" answer may not be a basis to violate the offender's probation, but it certainly would offer a reasonable basis for the probation officer to enhance his supervision of the probationer and prevent further crimes. Or, perhaps, through investigation or more careful scrutiny, admissible evidence that the probationer has, in fact, violated the terms of his probation by perpetrating further sex crimes could be uncovered. In other words, failing the polygraph would simply alert the probation officer that the probationer needs attention. As a means of husbanding the system's badly overtaxed resources, this might help monitor the probationer.

Id. at 911 n. 9 (quoting Hart v. State, 633 So. 2d 1189, 1190 (Fla. Ct. App. 1994)).

43. 357 F.3d 14 (1st Cir. 2004).

44. Id. at 23.

45. Id. That court cited two other federal cases to the same effect: "See United States v. Taylor, 338 F.3d 1280, 1284 n. 2 (11th Cir. 2003) (polygraph testing is useful in promoting the treatment of sex offenders because "probationers fear that any false denials of violations will be detected"); see also United States v. Lee, 315 F.3d 206, 217 (3d Cir. 2003) (polygraph testing can be "beneficial in enhancing the supervision and treatment" of a sex offender)." Id. at 23. See also, United States v. Begay, 631 F.3d 1168, 1174-76 (10th Cir. 2011) ("Begay argues that polygraph testing is useless in his case because he knows that a failed polygraph will not cause revocation of his supervised release. . . . However, polygraph test results could be useful for other reasons. Polygraph testing could still encourage Begay to be truthful with his probation officer, and it could alert the USPO to potential problems which would prompt further supervisory inquiry."); United States v. Johnson, 446 F.3d 272, 277 (2d Cir. 2006) ("[T]he incremental tendency of polygraph testing to promote . . . candor furthers the objectives of sentencing by allowing for more careful scrutiny of offenders on supervised release."); cf. United States v. Metzener, 584 F.3d 928, 931 (10th Cir. 2009) (describing how defendant was confronted with a deceptive polygraph response and, as a result, admitted to violating the conditions of his treatment).

46. York, 357 F.3d at 23. The First Circuit explained, "Given this prophylaxis, the use of a polygraph to promote York's rehabilitation is not per se unreasonable." Id.

47. Faigman supra note 12, §§ 40:96-40:98, at 421-22. Professor Faigman notes that the FBI finds polygraph testing useful even though its validity is unproven. Despite the FBI's extensive use of such testing, the former chief of the FBI's polygraph unit stated in a 1995 affidavit that "[t]he United States Department of Justice and the FBI oppose any attempt to enter the results of polygraph examinations into evidence at trial because the polygraph technique has not reached a level of acceptance within the scientific community and there is no existing standard for training or conducting examinations under which all polygraph examiners must conform." Id., § 40:98 at 422-23.