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COURT OF APPEALS
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2011i MAY 20 Aid 10: 55
IN THE COURT OF APPEALS OF THE STATE OF WASH
DIVISION II
STATE OF WASHINGTON, No. 44637 -5 -II
Petitioner,
v.
DWIGHT A. FINCH, PUBLISHED OPINION
Respondent.
WORSWICK, C. J. — In this interlocutory appeal, which is linked with State v. A. W., No.
45337 -1 - II (Wash. May 20, 2014), the superior court ordered a juvenile to submit to polygraph
2 3
testing.' A.W., a minor, pleaded guilty to first degree child molestation and received a special
4
sex offender disposition alternative ( SSODA). During treatment, A.W. disclosed that Dwight
Finch had sexually assaulted him. The State charged Finch with first degree child rape and first
degree child molestation, and the superior court, over the State' s objection, ordered A.W. to
submit to the polygraph test that the parties dispute on appeal. we granted discretionary
interlocutory review of that decision, Finch moved to intervene in A.W.' s juvenile disposition.
Finch requested the juvenile court to order A.W. to take the disputed polygraph test to determine
1
This case concerns the superior court' s order. State v. A. W. concerns the juvenile court' s order.
2 We use initials to protect A.W.' s privacy. General Order 2011 - 1 of Division II, In Re: The Use
Of Initials Or Pseudonyms For Child Witnesses In Sex Crime Cases, ( Wash. Ct. App.), available
at http: / www.courts. wa.gov /
/ appellate trial_courts /.
3 A.W. was 12 to 13 years old at the time of his offense.
4
RCW 13. 40. 162.
No. 44637 -5 -II
the truthfulness of his allegations against Finch, either by granting Finch' s motion to intervene,
or on its own motion in the interest of justice. The juvenile court entered an order requiring
A.W. to submit to the disputed polygraph test.
In this case, the State appeals the superior court order requiring A.W. to submit to the
polygraph test ordered for the purposes of ascertaining the truthfulness of A.W.' s allegations
against Finch. Additionally, the State asks us to remand this case to a different judge. Because
the superior court exceeded its authority by ordering the disputed polygraph test, we hold that the
superior court abused its discretion, and we reverse the polygraph order. To maintain the
appearance of fairness, we remand this case to a different judge.
FACTS
A. State v. A. W, with Finch as Intervenor
A.W. pleaded guilty to first degree child molestation. The juvenile court imposed a
SSODA that imposed conditions including:
1.][ O] bey all ... laws.
2.] Participate in weekly treatment.
3.] Treatment compliance could be monitored every 6 months through a
polygraph, if available.
CP ( A.W.) at 18, 22. The juvenile court modified the polygraph test condition from the
boilerplate language, which had stated, " Treatment compliance shall be monitored every 6
months through a polygraph." CP ( A. W.) at 22.
No. 44637 -5 - II
While undergoing court ordered sex offender treatment, A.W. told his therapist that Finch
committed sex acts against him. 5 A.W.' s therapist informed the State about A.W.' s disclosure,
and the State charged Finch with first degree child rape6 and first degree child molestation.
B. State v. Finch
After being charged, Finch submitted to a polygraph test. The polygraph examiner
concluded that Finch was truthful when he denied A.W.' s allegations. Finch then moved the
superior court to use the juvenile court' s authority over A.W.' s SSODA in State v. A. W. to
require A.W. to submit to polygraph testing, the purpose of which would be to ask A.W. about
8
his allegations against Finch. The State opposed Finch' s motion.
The superior court could not clearly remember why it had modified the SSODA' s
polygraph test provision from the boilerplate language. Because of this, and because the superior
court wanted to know why A.W.' s therapist decided against giving A.W. regular polygraph tests,
the superior court ordered A.W.' s therapist to appear in State v. Finch and show cause as to why
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he had not given A.W. regular polygraph tests. CP ( Finch) at 33. In response to the superior
court' s question, A.W.' s therapist provided the following explanation as to why he did not give
regular polygraph tests to A.W.:
5 Finch was previously convicted of two sex offenses against a female child.
6
RCW 9A.44. 073.
7
RCW 9A.44. 083.
8
The same judge presided over State v. Finch and State v. A. W.
9
A.W. did not appear at this proceeding.
No. 44637 -5 -II
Polygraph tests are] considered coercive for use in adolescents because of their
developmental stages, because of their personality formation, because of the
conditions of beneficence and nonmaleficence, which are [ sic] either they must
show benefit and [ sic] they must show no harm.
Verbatim Report of Proceedings ( VRP) ( Finch) (Nov. 7, 2012) at 7.
C] hildren believe that [ the polygraph tests are] detecting lies when they' re really
not. What polygraphs really detect is physiological responses, but they' re called
lie detectors, and so the children automatically think they' re detecting lies, which
is the coercive part.
VRP ( Finch) ( Nov. 7, 2012) at 9. A.W.' s therapist also explained:
All these cases — all these decisions are made on a case -by -case basis, and [ A.W.]
falls into a category of youth that we would call — that he has sexual behavioral
problems, and because of his developmental maturity, what the literature suggests
is that there can be harm when you coerce a person that age.
VRP ( Finch) ( Nov. 7, 2012) at 9.
The superior court entered an order in State v. Finch requiring A.W. to take the polygraph
test. The State requested discretionary interlocutory review in State v. Finch. We stayed the
superior court' s order, and granted discretionary interlocutory review because the superior court
committed " probable error that substantially alters the status quo." Ruling Granting Review,
State v. Finch, No. 44637 -5 - II, at 1 ( Wash. Ct. App. May 16, 2013); see RAP 2. 3( b)( 2).
C. Finch' s Intervention in State v. A. W.
After we stayed and granted discretionary review of the superior court' s order in State v.
Finch, Finch moved to intervene in State v. A. W. , asking the juvenile court for another order
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No. 44637 -5 -II
requiring A.W. to take the same polygraph test as was ordered in State v. Finch. 10 Finch' s
motion to intervene alleged that by accusing Finch of sex crimes, A.W. committed the crime of
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false reporting, and, thus, violated the SSODA condition requiring A.W. to " obey all ... laws."
CP ( A.W.) at 18. In his motion, Finch requested to intervene in State v. A. W " for [ the] very
12
the already CP ( A.W.)
asking] the Court to
limited purpose [ of require ordered polygraph. " at
35 -36. Finch asked the juvenile court to either grant Finch' s motion to order A.W. to take the
polygraph test, or order the polygraph test on its own motion in the interest ofjustice.
The juvenile court set a hearing on Finch' s motion to intervene. A.W.' s counsel
appeared at the hearing and joined the State in opposing the motion. The State filed a declaration
stating its refusal to stipulate to the admission of any polygraph tests in State v. Finch. The State
also requested sanctions against Finch' s trial counsel.
At the hearing, the juvenile court stated that it recalled why it had modified the polygraph
test provision of A.W.' s SSODA from the boilerplate language:
I deferred to the treatment provider' s ... discretion, and yet at that time I didn' t
know that the treatment provider . . . said, " I never give polygraphs. I' ll never
give them" ... [ t] o a juvenile. So then I thought, well, if I had known that at the
time, then I might have not just signed off onit.... It would just be nice for the
10 Finch filed his motion to intervene in the form of a " complaint" against A.W. for A.W.' s
alleged SSODA violation. CP ( A. W.) at 35. But Finch' s motion was actually a motion to
intervene in State v. A. W. Finch also filed a " motion to compel polygraph to review alleged
violation of SSODA sentence," in which he also moved to intervene in State v. A. W. CP ( A.W.)
at 38.
11 RCW 9A. 84.040.
12
It is unclear whether Finch meant that the polygraph was ( 1) already ordered in State v. Finch
or (2) already ordered as part of the SSODA. Finch argued both below.
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No. 44637 -5 -II
Court to know those kind [ sic] of things rather than sign an order that that line
really has no effect when you say " could."
CP ( A. W.) at 260 -61.
The juvenile court entered a second order requiring A.W. to take the polygraph test. This
order specified that a portion of the polygraph test would ask A.W. about his allegations against
Finch, and directed the polygraph test' s results to be sent to the juvenile court for in camera
review. The State and A.W. requested discretionary interlocutory review of this order. We
accepted review and stayed the order in State v. A. W. pending further order of this court.13
Ruling Staying Order, State v. A. W., No. 45337 -1 - II (Wash. Ct. App. Sept. 12, 2013); Ruling
Accelerating Review, State v. A. W, No. 45337 -1 - II (Wash. Ct. App. Nov. 7, 2013).
ANALYSIS
I. AUTHORITY To GRANT FINCH' S DISCOVERY REQUEST UNDER A.W.' s SSODA
Finch argues that the Superior court had authority to order A.W. to take a polygraph test
in this case under A.W' s SSODA. The State argues that A.W.' s SSODA did not authorize the
superior court to order the polygraph test. Without determining the authority of the superior
court here to order compliance in a separate juvenile case, we agree that A.W.' s SSODA did not
authorize the superior court to order a polygraph test.
A.W.' s SSODA states, " Treatment compliance could be monitored every 6 months
through a polygraph, if available." CP ( A. W.) at 22. This language limits the scope of potential
polygraph tests to questions confirming A.W' s compliance with treatment.
13
The Washington State Department of Commerce filed an amicus brief in this case.
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No. 44637 -5 - II
Here, A.W.' s therapist explained that he did not give polygraph tests to A.W. because
polygraph tests are] considered coercive for use in adolescents because of their developmental
stages ... [ T] he children automatically think they' re detecting lies, which is the coercive part."
See VRP ( Finch) ( Nov. 7, 2012) at 7, 9. A.W.' s therapist also said, "[ A] 11 these decisions are
basis, A.W.] falls into that we would call —that
made on a case - by -case and [ a category of youth
he has sexual behavioral problems, and because of his developmental maturity, what the
literature suggests is that there can be harm when you coerce a person that age." VRP ( Finch)
Nov. 7, 2012) at 9. Thus, polygraph tests were not conducive to A.W.' s therapy.
Ordering A.W. to take the polygraph test was designed not to ensure compliance with
treatment, but rather to ensure the truthfulness of A.W.' s allegations against Finch. Thus,
ordering A.W. to take the polygraph test exceeded the scope of A.W.' s SSODA because it did
not pertain to ensuring A.W.' s treatment compliance.
II. AUTHORITY To GRANT FINCH' S DISCOVERY REQUEST UNDER CRR 4. 7
The State argues that the superior court exceeded its authority by granting Finch' s request
to order A.W. to take the disputed polygraph test. We agree.
The superior court did not identify its authority for granting Finch' s polygraph request.
Nor could any party at oral argument give us authority for the superior court' s decision. Because
Finch' s request was a motion to compel third party discovery, we analyze the superior court' s
order under CrR 4. 7.
We will not disturb a superior court' s discovery decision under CrR 4. 7 absent an abuse
of discretion. State v. Garcia- Salgado, 170 Wn.2d 176, 183, 240 P. 3d 153 ( 2010). A superior
court abuses its discretion if its decision is manifestly unreasonable or exercised on untenable
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No. 44637 -5 -II
grounds or for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 638 ( 2003). A
decision is exercised for untenable reasons if the facts do not meet the requirements of the
applicable legal standard. State v. Dye, 178 Wn.2d 541, 548, 309 P. 3d 1192 ( 2013).
CrR 4. 7 governs a superior court' s discovery orders. CrR 4. 7( d) allows a superior court
to subpoena a third party to provide material or information, if it "would be discoverable if in the
knowledge, possession or control of the prosecuting attorney." CrR 4. 7 lists specific items that
the prosecuting attorney must provide in discovery. When the defendant requests an unlisted
item, CrR 4. 7( e)( 1) states:
Upon a showing ofmateriality to the preparation of the defense, and if the request
is reasonable, the court in its discretion may require disclosure to the defendant of
the relevant material and information not [ listed].
Emphasis added.) A showing of materiality to the preparation of the defense requires the
defendant to provide some factual basis making it reasonably likely that the requested evidence
would give rise to information material to the defense. State v. Blackwell, 120 Wn.2d 822, 828,
830, 845 P. 2d 1017 ( 1993). A superior court abuses its discretion by ordering discretionary
discovery without the defendant providing this factual basis. See Blackwell, 120 Wn.2d at 828,
830.
We hold that the superior court abused its discretion by granting Finch' s request to order
A.W. to take the disputed polygraph test because Finch did not provide some factual basis
making it reasonably likely that the disputed polygraph test results would give rise to information
material to the defense. We base our decision on three grounds.
First, the polygraph test results would be inadmissible in Finch' s trial. Polygraph tests
are inadmissible at trial unless both the State and the defendant stipulate to its admission, and the
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No. 44637 -5 -II
State will not stipulate to the 'admission of the disputed polygraph test results here. State v.
Thomas, 150 Wn.2d 821, 860, 83 P. 3d 970 ( 2004).
Second, the charges against Finch would not be dismissed, even if A.W. were to fail the
disputed polygraph test. Such a result would not move the State to dismiss the charges against
Finch. Furthermore, such a result would not allow the superior court to dismiss the charges on
Finch' s motion because a disputed issue of material fact would remain as to the polygraph test' s
reliability. CrR 8. 3 ( stating that a superior court cannot dismiss a case on a defendant' s motion
unless there are no material disputed facts); see Thomas, 150 Wn.2d at 860 -61 ( stating that
polygraph tests are unreliable).
Third, the polygraph test results would provide Finch with only highly unreliable
information. Courts have consistently held polygraph tests to be unreliable. In re Det. of
Hawkins, 169 Wn.2d 796, 803, 238 P. 3d 1175 ( 2010); Thomas, 150 Wn. 2d at 860 -61. This
unreliability is exacerbated when the polygraph test is administered to a sex crime victim. Lacey
M. Sloan, Revictimization by Polygraph: The Practice ofPolygraphing Survivors ofSexual
Assault, 14 J. MED. & L. 255, 259 ( 1995). As explained in a recent article:
The biggest problem with polygraph tests is that there are no known physiological
responses that directly correspond with deception. An examinee' s physiological
responses are often governed by whether the examinee believes the test is
accurate, and from the atmosphere created by the examiner. Furthermore,
external stimuli may cause a change in physiological responses, such as a
surprising question or a noise outside the room. Likewise, stress, anxiety, and
fear, all controlled by the autonomic nervous system, cause changes in the
physiological responses of an examinee.
Shelley Gupta, A Polygraph Test Wouldn' t Know the Truth if it Hit it with a Brick: Perpetuation
ofthe Normalization of Violence Against Women, 34 WOMEN' S RTS. L. REP. 282, 286 -87 ( 2013)
emphasis added) ( citing Leonard Saxe & Gershon Ben -Shakhar, Admissibility ofPolygraph
Tests The Daubert, 5 PSYCHOL. PUB. PoL' Y & L. 203,
Application of Scientific Standards Post -
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No. 44637 -5 -II
211 ( 1999) and Leonard Saxe, Detection ofDeception: Polygraph and Integrity Tests, 3
CURRENT DIRECTIONS IN PSYCHOL. SCI. 69, 70 -71 ( 1994)).
The negative emotions that accompany being a sex crime victim, such as stress, anxiety,
and fear, can further compromise the reliability of an already unreliable polygraph test by
distorting the results and creating false positives. See Sloan, 14 J. MED. & L. at 259. Thus, the
polygraph test of A.W., an alleged sex crime victim, would have highly unreliable results, and it
is not reasonably likely that such unreliable information would give rise to information material
to the defense.
We hold that Finch did not provide some factual basis making it reasonably likely that
the disputed polygraph test would give rise to information material to the defense because the
disputed polygraph test results would be inadmissible, would not lead to dismissal, and would be
highly unreliable. Thus, the superior court abused its discretion under CrR 4. 7 by granting
14
Finch' s discretionary discovery request to order A.W. to take the disputed polygraph test.
III. APPEARANCE OF FAIRNESS
Finally, the State argues that we should remand this case to a different judge under the
appearance of fairness doctrine. We agree.
A judicial proceeding satisfies the appearance of fairness doctrine if a reasonably prudent
and disinterested person would conclude that all parties obtained a fair, impartial, and neutral
State Bilal, 77 Wn. App. 720, 722, 893 P. 2d 674 ( 1995). We analyze whether a
hearing. v.
judge' s impartiality might reasonably be questioned under an objective test that assumes a
14 CrR 4. 7( e) allows the superior court to grant only reasonable discovery requests. Given
polygraph tests' unreliability when given to sex crime victims, we cannot currently conceive how
a defendant' s request that the alleged sex crime victim take a polygraph test could ever be
reasonable.
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No. 44637 -5 -II
reasonable person to know and understand all relevant facts. Sherman v. State, 128 Wn.2d 164,
205 -06, 905 P. 2d 355 ( 1995). The party must produce sufficient evidence demonstrating actual
or potential bias, such as personal or pecuniary interest on the part of the judge; mere speculation
is not enough. In re Pers. Restraint ofHaynes, 100 Wn. App. 366, 377 n.23, 996 P. 2d 637
2000).
Here, the judge apparently used his juvenile court authority over A.W.' s SSODA in State
v. A. W. to order a polygraph test to investigate A.W.' s allegations in State v. Finch. If State v.
Finch proceeds to trial, A.W. would have to appear to testify before this same judge who
improperly allowed Finch to intervene in A.W' s juvenile disposition, and who ordered A.W to
take a polygraph test without proper authority. A reasonably prudent and disinterested person
who knew these facts would conclude that the judge ordering A.W. to take a polygraph to
investigate the criminal case in which A.W. is the victim, in spite of a therapist' s testimony that
polygraph tests could be harmful to A.W., could not give all parties a fair, impartial, and neutral
hearing.
We hold that the judge' s dual role as judge for A.W.' s juvenile disposition and Finch' s
criminal case, the judge' s inability to separate these two roles, and the judge' s attempts to
investigate the truth of A.W.' s allegations in State v. Finch, combine such that a reasonably
prudent and disinterested person who knew these facts would question whether the judge could
act fairly in presiding over this case. Thus, we remand this case to a different judge to maintain
the appearance of fairness.
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No. 44637 -5 - II
We reverse the polygraph order because the superior court exceeded its authority by
granting Finch' s request to order A.W. to take the disputed polygraph test. We remand this case
to a different judge. In light of this conclusion, it is unnecessary for us to consider the State' s
remaining arguments.
We concur:
12