N.J.S. 30:4-123.88 is the statute that authorizes the New Jersey State Parole Board to administer polygraph examinations to persons subject to Community Supervision for Life, or Parole Supervision for Life (CSL or PSL). That statute provides:
The New Jersey Department of Corrections has adopted various regulations that implement N.J.S. 30:4-123.88. These regulations begin at N.J.A.C. 10A:72-3.1. Under these regulations, three types of polygraph examinations are administered. These are the “instant offense” examination; the “periodic maintenence” examination; and the “sexual history” examination.
Selection of which persons under supervision are to be subjected to the polygraph examination is supposed to not be arbitrary. N.J.A.C. 10A:72-3.3 allows consideration of the examination when the assigned parole officer determines that the person under supervision has denied guilt or disputed significant details of the “official version” of the crime; or uncertainty concerning compliance with the conditions of supervision; or to seek information concerning the person's sexual interests and behavior. (How perverted is that?) One brake on this process is that before the polygraph examination can be ordered, the assigned parole office must obtain authorization from a reviewing supervisor. The person under supervision is entitled to thirty days advance notice. The notice must specify the date, time, and place of the examination.
N.J.A.C. 10A:72-3.7 specifies the actual procedure for administration of the examination. The examination proceeds in three steps. These steps consist of a taped or recorded pre-examination interview, the polygraph examination itself, and a post-examination interview. The person being supervised is not entitled to have an attorney or a personal representative present.
In the pre-examination interview, the polygraph examiner gives the person being supervised a “disclosure form” to sign. If the person being supervised refuses to sign the form, the polygraph examiner notes that refusal, and the stated reason, on the form. In the post-examination interview, the examiner advises the person being supervised of any perceived deceptions, and invites an opportunity to explain them.
As mentioned above, N.J.S. 30:4-123.88 precludes use of the polygraph examination results as evidence to establish violation of conditions of release, or of parole supervision for life, or of community supervision for life. The person being supervised may invoke their right to remain silent in refusing to divulge identifying information concerning previously unreported victims. They may similarly invoke their right to remain silent in response to any question the answer to which would support an independent criminal investigation.
N.J.S. 30:4-123.88 does not preclude use of information the person being supervised provides in the pre-examination interview, or the post-examination interview. In fact, N.J.A.C. 10A:72-3.9(e) specifically allows results of the pre- or post examination interview to be used as evidence in the filing of new criminal charges, or imposition of sanctions, including new special conditions. For these reasons, the wisest course of action at this post-examination interview will often be to decline any invitation to explain any perceived perceptions. As once presented in a Chinese fortune cookie, “The greatest enemy of the throat is the tongue.” Differently put, “Even a fish would not get caught if he kept his mouth shut.”
The person being supervised walks a very difficult tightrope in responding to New Jersey State Parole Board polygraph questions, or in asserting their constitutional right to not incriminate themself. J.B. v. Parole Board, 229 N.J. 21 (2017), is a Supreme Court of New Jersey case that explores in great depth the constitutionality of the polygraph interview, and the interviewee's rights and obligations.
Allan Marain is a New Jersey Megan's Law lawyer. He has been representing persons charged with sex crimes since long before Megan's Law was ever adopted. He is available to provide guidance to persons under supervision who are notified of a scheduled polygraph examination. Call him!