Present: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ.,
and Carrico and Russell, S.JJ.
JAMES TURNER OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 082122 November 5, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal presents a question concerning the
admissibility of polygraph test results in evidence at a
probation revocation proceeding.
Facts and Proceedings
In 2005 James A. Turner was convicted of possession of
child pornography in the Circuit Court of Fairfax County. He
was sentenced to five years incarceration with three years
suspended, conditioned upon supervised probation and “Sex
Offender Evaluation and Treatment.” In 2006 Turner’s
probation officer requested and received permission from the
circuit court to “utilize polygraph testing in conjunction
with sex offender treatment in this case.” 1
In 2007 Turner’s probation officer reported to the court
that Turner had been discharged from the sex offender
treatment program for “failure to adhere to the attendance
1
The probation officer’s letter to the court explained
that the court had instructed his office to obtain court
approval for such testing on a case-by-case basis and that
Turner had been referred to a program that uses such testing
policy” and “lack of progress.” The officer’s report also
stated that Turner’s polygraph results had been described by
his case manager at the treatment program as “deception
indicated . . . . attempted to control his breathing” during
testing.
Turner was brought before the court on a bench warrant.
At a revocation hearing, he admitted missing four appointments
at the sex offender treatment program although he had had kept
ten other appointments. The Commonwealth presented no
evidence and relied only on the probation officer’s report.
In argument, the Commonwealth stated: “The one thing I would
really like to draw the court’s attention to is the fact that
he was deceptive, according to the probation violation –.”
Defense counsel promptly objected on the ground that the
report that Turner had been deceptive was based solely on a
polygraph test result that was “being admitted into evidence
at this hearing.” The court overruled the objection. 2
The court revoked the suspension of the remaining three
years of Turner’s sentence, stating “I am not willing to
subject the community to the dangers of your further conduct.”
The court entered an order reciting that although the
“for evaluation and monitoring purposes in conjunction with
therapy.”
2
We reject the Commonwealth’s contention on appeal that
Turner’s objection was procedurally defaulted.
2
sentencing guidelines recommended “Probation/No incarceration”
in the circumstances of the case, the court’s stated reason
for departing from the guidelines was: “I conclude [that the
defendant] is a danger to children in the community [and] is
not amenable to treatment.” The Court of Appeals denied
Turner’s petition for appeal, finding no abuse of discretion
in the circuit court’s decision to revoke his suspended
sentence. We awarded Turner an appeal.
Analysis
A sentencing court is vested with wide discretion in
probation revocation proceedings and “formal procedures and
rules of evidence are not employed.” Gagnon v. Scarpelli, 411
U.S. 778, 789 (1973). Hearsay evidence has been held
admissible in federal probation and parole revocation
proceedings where the evidence is “demonstrably reliable.”
United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir.
1982). In Dickens v. Commonwealth, 52 Va. App. 412, 422-23,
663 S.E.2d 548, 553 (2008), our Court of Appeals reached a
similar conclusion in the context of the reliability of
official records.
Nevertheless, the Court of Appeals, in White v.
Commonwealth, 41 Va. App. 191, 194, 583 S.E.2d 771, 773
(2003), specifically held that polygraph examination results
were inadmissible in probation revocation proceedings, citing
3
a “long line of cases, spanning almost thirty years, [in which
this Court has] made clear that polygraph examinations are so
thoroughly unreliable as to be of no proper evidentiary use
whether they favor the accused, implicate the accused, or are
agreed to by both parties. The point of these cases is that
the lie-detector or polygraph has an aura of authority while
being wholly unreliable.” Id. at 194, 583 S.E.2d at 772
(quoting Robinson v. Commonwealth, 231 Va. 142, 156, 341
S.E.2d 159, 167 (1986)) (citations omitted). In Robinson, we
expressed “our continuing concern over the use of polygraph
exams in any court proceeding in Virginia.” Robinson, 231 Va.
at 156, 341 S.E.2d at 167.
We continue to adhere to the views expressed in that
“long line of cases.” See Billips v. Commonwealth, 274 Va.
805, 808-09, 652 S.E.2d 99, 101 (2007) (“lie-detector” tests
are so unreliable that the considerations requiring their
exclusion have ripened into rules of law) (citing Spencer v.
Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621 (1990)).
While conceding that polygraph test results are
inadmissible in criminal trials, the Commonwealth argues that
they should be admitted under the more “relaxed” standards of
proof prevailing in probation proceedings. We do not agree.
Polygraph test results fall far short of the “demonstrably
4
reliable” hearsay evidence that may be admitted under those
“relaxed” standards.
A trial court’s exercise of discretion to admit or
exclude evidence will not [ordinarily] be overturned
on appeal unless the court abused its discretion.
However, a trial court has no discretion to admit
clearly inadmissible evidence because admissibility
of evidence depends not upon the discretion of the
court but upon sound legal principles.
Gray v. Rhoads, 268 Va. 81, 86, 597 S.E.2d 93, 96 (2004)
(citations omitted) (emphasis added).
For those reasons, we hold that the circuit court erred
in admitting the results of polygraph tests in Turner’s
revocation proceeding and expressly approve the Court of
Appeals’ decision in White. We do not, however, by this
holding intend to impose any restrictions on the use of the
polygraph as a tool in law enforcement or in the treatment,
therapy, monitoring or evaluation of offenders, although those
making use of such tests should be aware that the results will
not be admissible in judicial proceedings. Any voluntary
statements or admissions made by a person being tested remain
admissible subject to the ordinary rules of evidence. Our
holding is limited to the exclusion of the opinions of the
polygraph operator or others purporting to offer expert
opinion interpreting the test results.
The Commonwealth argues that any error in the circuit
court’s admission of polygraph test results was harmless in
5
the present case because Turner admitted missing four
appointments at the treatment program to which he had been
assigned as a condition of his probation. Thus, the
Commonwealth points out, the fact of Turner’s violation of the
terms upon which his sentence was partially suspended is
undisputed. For that reason, the Commonwealth contends, the
circuit court had an adequate basis for its revocation
decision independent of the polygraph results. White is
therefore distinguishable, the Commonwealth argues, because
there the trial court based its revocation decision on
polygraph test results alone.
We agree that here the circuit court had additional
evidence to support its revocation decision. We cannot,
however, say that the error of receiving evidence of polygraph
test results was harmless because we cannot ascertain from the
record the extent, if any, to which the error may have
contributed to the punishment imposed. The court had before
it a spectrum of available penalties ranging from
“Probation/No incarceration,” as recommended by the sentencing
guidelines, to revocation of the entire period of suspension,
the penalty the court decided upon. From the argument of
counsel and the court’s remarks at the revocation hearing, it
appears likely that the evidence erroneously admitted was at
least a contributing factor in the court’s decision.
6
Because Turner does not dispute that he violated the
terms of his probation in missing four appointments at his
treatment program, he does not contend that the circuit court
abused its discretion in revoking his suspended sentence. 3
Rather, he contends that he is entitled to a new hearing on
the issue of the penalty to be imposed for that violation,
without consideration of the evidence erroneously admitted at
his original revocation hearing. We agree. We have recently
held such a disposition to be the appropriate remedy in a
similar case. Whitehead v. Commonwealth, 278 Va. 105, ___,
___ S.E.2d ___, ___ (2009) (remanded for new hearing after
inadmissible evidence was received at revocation proceeding).
Conclusion
For the reasons stated, we will reverse the judgment
appealed from and remand the case to the Court of Appeals with
direction to remand the same to the circuit court for
resentencing consistent with this opinion.
Reversed and remanded.
3
On appeal, the Commonwealth and Turner agree that if
this Court should hold the acceptance of polygraph test
results to constitute reversible error, the appropriate remedy
is a remand for resentencing only.
7