Turner v. Com.

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.

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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

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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

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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

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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.

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 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.

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