Supervision Polygraphs – you can’t be compelled to incriminate yourself.
A recent federal court decision in United States v. McDonald, (Dist. N. Mex, January 6, 2016) delivers an important reminder to people on probation or supervised release: you do not lose your Fifth Amendment rights just because you are in sex offense treatment or required to take polygraph exams!
The court upheld the general requirement that Mr. McDonald participate in treatment and submit to polygraph testing, but it also clearly recognized how dangerous and confusing these situations can be for people under supervision. The judge acknowledged that the law is difficult to navigate, the stakes are high, and the line between what must be answered and what can be refused is often unclear.
The court reaffirmed that polygraph questions are testimonial and can be incriminating even when they seem general. If an answer could provide a “lead or link” to a new criminal charge, it is protected by the Fifth Amendment. While a person can be required to attend treatment and participate in polygraphs, the government cannot threaten revocation, punishment, or sanctions to force someone to answer self-incriminating questions. Doing so would be unconstitutional compulsion. In plain terms, supervision does not give the government the right to extract confessions or violate the 5th Amendment.
The court explained that people must affirmatively invoke their Fifth Amendment rights. Polygraph exams and treatment sessions are not custodial interrogations, so the protection is not automatic and you don’t need to be read your Miranda rights. If a question risks exposing uncharged criminal conduct, the individual must clearly state that they are invoking their right against self-incrimination. The court encouraged people to err on the side of asserting their rights, recognizing that most are navigating these situations without legal counsel.
So, in summary, you can be required to show up and participate in treatment and the polygraph, but you cannot be forced to incriminate yourself. And if you are uncomfortable or unsure about an answer, you can pause and speak with your attorney. Supervision is not a waiver of the Constitution.
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Press one for English Judge ..
Fact: All polygraph examinations (“lie detector tests”) inherently constitute a form of potential self-incrimination because they are designed to elicit truthful responses from the subject through physiological monitoring, and the subject cannot avoid providing evidence against themselves simply by submitting to the test.
Therefore, under a proper understanding of the Fifth Amendment’s protection against compelled self-incrimination, no court or government entity should ever be permitted to compel, force, or condition any person to submit to a polygraph examination against their will.
The very name “lie detector test” reveals its purpose: it seeks to detect deception, meaning the test exists precisely to obtain potentially incriminating truthful information from the person being examined. Allowing compulsion of such a procedure contradicts the core meaning of the Fifth Amendment. Should be a very simple decision if the courts weren’t doing mental gymnastics trying to keep as many illegal tortures in place while under the presence of pretending to observe the law .
For most former sex offenders, it is not torture. You mostly just listen to the polygraph questions and respond “yes” or “no” to each.
Yeah its a cash scam.
Who is paying who and how much?
you really miss the point Jacob. It doesn’t matter if someone is a convicted s3x offender, murderer,arsonist, or just an average joe school bus driver ..Forced forms of Yes or No questions under a machine monitoring “truthfulness” are guilty or not guilty questions which one only asks to solicit confessions or in lay terms to determine guilt or lack of..(That’s self incrimination) That is exactly what the 5th protects against if the government followed the law they force the people to abide by. Don’t forget what you allow to others one day will be used against you..
It is mental torture for the system is not fair to those who are forced to participate in it by those who want to see failure where a smiley face in their record shows they did good with a system that is a farce to start with.
@ obvious answers:
Your response appears based on the assumption that polygraph examinations are, in fact, “lie detectors.” Nothing can be further from the truth. It’s been shown time and again that they are far from it, and it has long been recommended by virtually every reputable mental health organization that they not be used for investigations or treatment.
The primary premise of the so-called science of polygraphs – that the body will involuntarily react in measurable ways when lying – is belied by the fact that there is absolutely nothing in science or medicine that holds that the biometric reactions measured by polygraphs must match or be within a certain range under identical circumstances. Additionally, a person’s reaction to any given circumstance is as individual as a fingerprint, so comparisons to other individuals or averages of control groups is basically useless.
Second, a little scrutiny from one subjected to an “exam” about general procedures and specific individual “examiner” preferences all but shatters the supposed science. Specifically, if the science were true, why would the subject need to be “prepared” for the “exam” via pre-interview? Why does it only “work” with yes-or-no questions? Why would questions need to be asked multiple times? Why would there only be a variance in response to a repeated question if the same answer were untrue? If directed to provide a false answer for a “base line”, why would it read as a lie when following instructions? Polygraphists’ replies to those questions are often comical.
The simple truth is that a polygraph “examination”, regardless of use, is nothing more than an interrogation structured to arrive at a predetermined result. Virtually all courts recognize the fallacy of polygraphs, and many won’t allow them into evidence at all (as a polygraphist cannot provide evidence, only opinion).
Polygraph “failures” aren’t even the direct justification for parole or probation revocations. Most often, the subject will be dismissed from his ordered “treatment” program for “failing” a polygraph, and THAT will be the basis for revocation. Ironically, the polygraph “failure” will only receive a passing mention in the revocation hearing, while exaggerating purported non-participation. It’s common among courts and supervisors in order to avoid answering the constitutional question if “passing” polygraphs are a court requirement or a “treatment” one, as well as the logical question of why they are ordered by either (despite legal precedents for the courts, or against the recommendations of industry policymakers for “treatment” providers) in the first place.
No, I am assuming nothing. It doesn’t matter if the governments magic voodoo box works or not. The intent is what matters. The only purpose the government has in strapping you to it’s magic voodoo box is to convince you to self incriminate. The 5th Amendment protects against compelled self-incrimination. A mandatory polygraph, even though highly inaccurate and flawed, is still an attempt to compel self-incriminating responses or confessions. Its unreliability strengthens—rather than weakens—the argument that it violates the 5th Amendment. Polygraphs are used as fishing expeditions to elicit admissions that can later be used to support charges, and you can believe agencies do not and will not give suspects the benefit of the doubt when results indicate deception.. Is it accurate=nope.. Is it legal = nope …. Does whether it’s accurate or not change the legality?= nope .. forced and compelled self incrimination is still forced and compelled incrimination and it is according to the 5th amendment illegal.
Since when does anything have to be legal or constitutional when we’re talking about those who are persons forced to register?
Remember, they are burning witches, and roaming through the countryside with pitchforks and torches, not being all picky about following the law!
These people don’t follow the law! They twist it like a pretzel!
That strikes me as an unusually dramatic way to characterize most probation officers and polygraph examiners!
But it is an accurate way to describe those who use the farcical science of such alleged esteemed methods especially those who don’t understand the science that @Dustin accurately describes. There are those who salivate at the opp to use it in efforts to trip someone in hopes to find a crime which will reward them with a pat on the head and a doggy treat. Yes, there are those on that side of the table who sadistically enjoy it.
I am speaking of all those who support this illegal scheme of harrassment – the entire cadre of those who would subvert the supposedly – guaranteed constitutional rights of others in the name of sexual abuse hysteria.
Let probation BE probation or let them not grant it in the first place!
Let us oppose a secondary system of laws! —–>Do they impose polygraphs on those who are released on probation for arson or armed robbery?
The laws fly out the windows! The equal protections evaporate!
Do I sound hysterical? Why might THAT be?
People think these machines are only used in probation/parole situations or in criminal investigations (love those scenes in movies/tv because they’re laughable). They are not.
The USG loves to use them in employment applications as well where high level clearances must be granted behind black doors for positions. It is not about just yes or no, but reading the data responses to see if the person strapped in is trustworthy to hold the clearance for the job at hand. They don’t get the opp to take the Fifth, but have to answer straight forward and wait for the data to be read. Fortunately, there are character references that go with these efforts where as one on probation or parole, sadly, don’t get them when they probably should. Honest people can pass them and honest people can fail them all. DIshonest people can pass them and dishonest people can fail them. There are reasons why these are not admissible in courts. Human physiology is a finicky thing and it can respond to being set up for failure with the right questions asked in the right way. The only thing missing is the cellar like room, the single low watt light bulb on a wire hanging low over the table, Bubba in the corner, and the protector chain smoking with cig smoke filling the air.
IMO, the person should take the Fifth every time all the time, request an atty, and ditch the machine.
T, you said polygraphs are not admissible in courts.
But you also said people need to protect themselves from them under the Fifth (and Sixth) Amendment.
I’m not sure both those things can be true at the same time.
Correct, polygraph test results where polygraph questions were answered with resulting polygraph data are not admissible.
@Jacob- if you read my comment earlier on in this thread, I did nothing that anyone else would ever be considered “wrong”; however, I was nervous and admitted in the pre-interview that I bought condoms at an adult book store during a pre-interview. Now, since the entirety of the test is not admissible in court, my P.O. kept me in my 15-minute weekly appointment for over an hour, asking me different ways to get me to ‘admit’ to the violation to her, until I cracked and was immediately hauled off for two weeks until a judge saw it was petty and reinstated me.
Buying condoms being a violation is one of the stupidest things I’ve heard. They are great party favors while encouraging safe sex, which maybe the PO needed to have for stress relief.
The violation was BEING in an Adult Book Store. They considered it falsifying my driving record even though it was in the same plaza as another stop I was making. They also considered it a Violation by being exposed to pornography. That was how they violated me. The question was had I seen ANY pornography in the last 6 months, and I panicked, and said I may have when I walked in to buy condoms because it was everywhere.
Ah, I see…the place of purchase was the violation, not the purchase itself.
Walking from one store to another in the same plaza which shares the same parking lot is not falsifying your driving record, but is a walking travel restriction when one cannot walk from one store to the next in the same plaza using the same parking lot. If I get a haircut in the same plaza as the grocery store along with the hardware store in the same plaza, which I visit from the same parking spot (and is my reality), that is standard normal business operating thinking by someone in society. They cannot restrict you with a walking restriction when it comes to doing business in the same vicinity and should be admonished by the court when they attempt to do so…that is the lesson for all here.
What is pornography anyway? Art? Showing different ways to get pregnant? The exhibit of sexual gratification by others for others to see? What it is to one is not the same for another. The courts (especially SCOTUS) have long said they will know pornography when they see it.
In the end, glad to hear the judge tossed it with admonishment for the PO and you could walk away, but not without being inconvenienced for the time being. This situation is rife with challenges people need to think of to make the life of the PO just as difficult as they want to make for others. The system is full of jerks like this.
Pssst….moderator…it is Jan 5 2026 for the case above, not 2016.
Specific case link: https://app.midpage.ai/document/united-states-v-mcdonald-1000464097375?refG=true
I’d imagine other links will be available shortly.
United States versus Edward Scheffer
1.) https://www.oyez.org/cases/1997/96-1133
2.) https://supreme.justia.com/cases/federal/us/523/303/
3.) https://www.law.cornell.edu/supct/html/96-1133.ZO.html
4.) https://www.law.cornell.edu/supct/html/96-1133.ZS.html
5.) https://scholarship.stu.edu/stlr/vol10/iss3/11/
The way that they angle it, the polygraph is being done at the behest of the treatment provider. If you refuse to answer any questions or fail a test, they can just boot you out of treatment and then that violates your probation. You would have to go to jail and fight the violation charge from there. Even if the judge just reinstates you, look at all you’ve potentially gone through.
I ran into serious problems with the treatment provider using unethical polygraphers who would fail clients on purpose in order to get follow up testing fees for more money. I finally hired my own, and the treatment provider refused to accept the results. I changed over to my own private certified treatment provider and was graduated completely out of the program in a very short time. Now I don’t have to worry about any of that foolishness.
Very interesting. I didn’t know you could do that!
I absolutely concur and mentioned something similar in the post regarding courts Halloween decisions and was met with some rather ignorant replys (probably folk either not on the registry or so new to it they haven’t got to play the nut and shell justice game yet)..Its all Government and court Kabuki theater..All polygraphs required in sex offender supervision or treatment are compelled self-incrimination and therefore unconstitutional under the Fifth Amendment. They should never be forced.
The courts love to put on a little show: every few years they issue a stern-sounding opinion “protecting” your Fifth Amendment rights… while quietly approving a system that makes asserting those rights so brutally punitive that almost nobody can afford to exercise them.
Refuse the polygraph?
→ Immediate program failure
→ Revocation hearing
→ Prison (or loss of home/job/family/liberty)
→ Then, if you’re lucky and have endless money + time, maybe—years later—you win on appeal…
…only to be right back at square one, with the state cheerfully demanding the next polygraph.
It’s constitutional theater at its finest: the courts get to say “See? We protected your rights!” while the state gets to punish you for daring to claim them.
Nice work, Your Honors. Real subtle.
Sex offender polygraphs are not incriminating. They are normally administered to convicted sex offenders, most of whom do not re-offend anyway, so there’s nothing to be incriminated over.
Even those few who do re-offend can’t be prevented from lying to the examiner. And even then, a detected lie is not the same as evidence of guilt in a court of law.
Jacob, please brother consider re-reading your posts before making them publicly viewable? Oh,and bless your heart for that sunny take—let’s gently correct it with a touch of reality,if I may?
Sex offender polygraphs aren’t just harmless chit-chat sessions. They’re routinely required as a condition of probation or treatment, and failing one (or refusing to play along) frequently triggers real consequences—even if the chart itself isn’t courtroom “evidence” of a new crime.
Sure, most convicted offenders don’t reoffend (low recidivism rates, yay), but the system doesn’t wait for a new victim before acting. A “deception indicated” result often gets interpreted as failure to participate successfully in treatment or supervision. That alone is a classic probation violation in many places—leading to increased monitoring, yanked privileges, forced therapy upgrades, investigations, or straight-up revocation hearings where you can end up back inside. (Federal guidelines and state programs explicitly use them to gauge compliance, and non-compliance = trouble.)
And yeah, a detected lie isn’t automatic proof of guilt for a fresh offense in court… but it doesn’t have to be. The goal is catching rule-breaking early—like hiding risky behaviors or breaking contact restrictions—before it escalates. Probation officers and judges love that “tool” for keeping tabs, and failing one is basically a fast pass to more scrutiny or sanctions.
So, totally not incriminating at all… unless you count the very real risk of losing your freedom over a squiggly line on a chart. 😏 P.S. lets not even discuss the extra sneaky tricks someone determined to see you “revoked” can and often do use.
I was put on the rocket ship to “treatment” completion when I raised ethical complaints to every mental health organization that the provider held a membership, primarily their use of polygraphs and that completion was effectively determined by the PO versus the provider.
After I was released from “treatment”, the PO told me I was still required to polygraph twice a year. Prepared, I gave her a copy of the petition reviewing the requirement that I was going to submit to the court the next day (it was late afternoon). I got a text that night saying the requirement was pulled.
Nothing short of sledgehammer-induced hypnosis will convince me that the court didn’t want to address the issues raised in that petition. Or that at least one of the polygraph providers in the area didn’t have a hand in keeping it out of the system as well. I’m pretty certain that the entire polygraph industry is financially reliant on the current sex offender supervision practice.
I will never forget getting violated during probation because I admitted on a polygraph to buying condoms at an Adult Book Store. She couldn’t violate me based on the polygraph, however, she grilled me until I made the same, or at least similar enough admission to her, and had the come in and arrest me for a violation right there at my regular appointment. I kept asking how they were doing this when I thought I couldn’t be violated based on a polygraph, and she kept twisting it, saying she wasn’t, that she was violating based on my statements to her. I wish I would have known then what I know now- better to fail a polygraph than to fall into a trap.
The whole scheme is just unethical and downright evil!