J.B./l.A./b.M./w.M./r.L. v. New Jersey State Parole Board(077235) (Statewide)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

J.B./L.A./B.M./W.M./R.L. v. New Jersey State Parole Board (A-81/82/83-15) (077235)

Argued January 17, 2017 -- Decided May 8, 2017

FERNANDEZ-VINA, J., writing for a unanimous Court.

Petitioners L.A., R.L., and W.M. (parolees) challenge the constitutionality of the practices of the New
Jersey State Parole Board (Parole Board) in administering polygraph examinations to sex offenders serving either
parole supervision for life (PSL) or community supervision for life (CSL) sentences.

The parolees’ circumstances are substantially the same. All have been convicted of a sexual offense, have
completed their respective prison terms, and are now being monitored by the Parole Board as offenders subject to
either PSL or its statutory predecessor, CSL. As part of the Parole Board’s monitoring, the parolees were each
required to submit to a polygraph examination to monitor compliance with the conditions of parole.

After the Parole Board notified the parolees that they were subject to polygraph examination, the parolees
each objected. The Parole Board rejected each of the parolees’ administrative appeals. The individual parolees
appealed the Parole Board’s decisions. Because the record contained insufficient evidence to assess the purported
therapeutic and rehabilitative value of polygraph examinations, the Appellate Division referred that issue to the trial
court for supplemental proceedings.

Following an evidentiary hearing at which several expert witnesses testified, the trial court ultimately found
that there is enough support in the record to conclude that there is a reasonable basis for using polygraph testing in
the supervision of sex offenders serving PSL and CSL sentences in the community. Although it recognized the
controversy concerning polygraph examination accuracy, the trial court explained that the Parole Board exercises
care in incorporating exam results into decision-making and never uses the results as the exclusive basis to justify a
modification of parole. Further, the trial court found expert testimony indicating that polygraph examinations are a
valuable tool in the therapeutic treatment of sex offenders to be particularly compelling.

The Appellate Division thereafter upheld the Parole Board’s use of polygraph testing, subject to certain
restrictions. 444 N.J. Super. 115, 123 (App. Div. 2016). Although it dismissed the parolees’ constitutional
concerns, the Appellate Division required the Parole Board to “enhance its regulations and practices to safeguard an
offender’s right to invoke his constitutional privilege against self-incrimination.” Id. at 123. Specifically, the
Appellate Division explained that the Parole Board should “spell out more clearly what uses of the polygraph testing
are allowed and disallowed” consistent with the limitations on machine-generated test results mandated in the
opinion. Id. at 161-62. The Appellate Division allowed six months for the Parole Board to adopt updated policies
formally, through rule-making. Id. at 162. The Parole Board, in turn, adopted regulatory amendments that took
effect on December 5, 2016.

The Court granted the parolees’ petition for certification. 226 N.J. 213 (2016); 226 N.J. 214 (2016).

HELD: The Court affirms but modifies the Appellate Division’s opinion. The Court upholds the Parole Board’s use of
polygraph testing with the same limitations as the Appellate Division, but adds that the Parole Board’s regulations must
be further supplemented to buttress the parolees’ Fifth Amendment right against self-incrimination.

1. N.J.S.A. 30:4-123.88 provides that “[t]he State Parole Board . . . may administer . . . polygraph examinations in
order to obtain information necessary for risk management and treatment and to reduce the offender’s denial
mechanisms,” and that “[t]he results of the polygraph examination shall not be used as evidence in court to prove a
violation of the special sentence of [CSL or PSL] or condition of discharge has occurred.” Non-compliance with the
requirements of the monitoring program is a third-degree crime. N.J.S.A. 30:4-123.94. (pp 12-13)
2. The Parole Board adopted regulations to implement the polygraph testing authorized by the Act. An offender’s
assigned parole officer may recommend administration of a polygraph examination. N.J.A.C. 10A:72-3.4(a). If a
supervisor decides it is appropriate to administer a polygraph examination, then an offender receives notice at least
thirty days before a scheduled examination. N.J.A.C. 10A:72-3.5(a). (pp 13-16)

3. Included with the notification is a disclosure form, which must detail the scope of the examination, the
consequences of failure to cooperate with the examination, the consequences of voluntarily providing identifying
information of any previously unreported victims or crimes, and an explanation of how authorities may utilize
information learned during the examination. N.J.A.C. 10A:72-3.5(b); 10A:72-3.6(b). The polygraph examination
process consists of three parts: a pre-examination interview, the polygraph examination itself, and a post-
examination interview. N.J.A.C. 10A:72-3.7(a). (pp 16-17)

4. Effective December 2016, the regulations provide that the results of any portion of the polygraph examination
“may be used for therapeutic treatment purposes.” N.J.A.C. 10A:72-3.6(b)(6); 10A:72-3.9(c). However, the
machine-generated results of the polygraph examination “shall not be relied on or cited as evidence to support the
filing of criminal charges or to justify the imposition or modification of sanctions,” N.J.A.C. 10A:72-3.6(b)(7);
10A:72-3.9(d), or “used as evidence in court to prove that a violation of the special sentence of community or parole
supervision for life or condition of discharge has occurred.” N.J.A.C. 10A:72-3.6(b)(9); 10A:72-3.9(f). (pp. 17-18)

5. In Minnesota v. Murphy, 465 U.S. 420 (1984), the United State Supreme Court considered whether a statement
made by a probationer to a probation officer without prior Miranda warnings could be admissible in a subsequent
criminal proceeding. The Supreme Court found that it is permissible for a State to require a probationer to appear
and discuss matters that affect his probationary status. However, the Supreme Court went on to explain that “[t]he
result may be different if the questions put to the probationer . . . call for answers that would incriminate him in a
pending or later criminal prosecution,” or “if the State, either expressly or by implication, asserts that invocation of
the [Fifth Amendment] privilege would lead to revocation of probation.” Ibid. In such a case, “the probationer’s
answers would be deemed compelled and inadmissible in a criminal prosecution.” Ibid. (pp 19-21)

6. The Parole Board’s revised polygraph regulations substantially adhere to those principles, and the polygraph
examination is not a custodial interrogation. The Court rejects the parolees’ claim that they have a right to the
presence of counsel during a polygraph examination and upholds the use of information obtained from pre- and
post-examination interviews to support the filing of criminal charges or the imposition of sanctions. The Court is
not convinced that the current regulations fully inform parolees of the scope of their right to remain silent during the
polygraph examination process, however. (pp 21-24)

7. Parolees are advised “[t]hat the valid exercise of the right to remain silent does not constitute failure to fully
participate and/or cooperate with the examination,” but there is no explanation of what constitutes a “valid” exercise
of that right. N.J.A.C. 10A:72-3.6(b)(5) (emphasis added). Because “failure to fully participate and cooperate with
the examination” constitutes a third-degree crime, N.J.S.A. 30:4-123.94, the current disclosures create a situation in
which the parolees’ right to remain silent is impermissibly encumbered by pressure to avoid additional criminal
charges for failing to cooperate. See Murphy, supra, 465 U.S. at 435. The Court therefore instructs the Parole
Board to clarify that an offender validly invokes the right to remain silent pursuant to N.J.A.C. 10A:72-3.6(b)(5),
without consequence, if the answer to any question asked throughout any portion of the examination process as
defined in N.J.A.C. 10A:72-3.7(a) could form the basis of an independent criminal investigation. (pp. 24-26)

8. The State has a significant interest in ensuring adherence to the restrictive conditions imposed pursuant to PSL
and CSL to protect the public from recidivism by defendants convicted of serious sexual offenses that outweighs the
parolees’ limited right to privacy. Addressing the parolees’ challenge to the Parole Board regulations as arbitrary
and capricious, the Court concludes that the parolees have not shown that it should set aside the Parole Board’s
regulatory scheme. (pp. 26-31)

The judgment of the Appellate Division is AFFIRMED as MODIFIED. The Court instructs the Parole
Board to issue revised regulations consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON,
and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-81/82/83 September Term 2015
077235

J.B.,

Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

Respondent.
_______________________
L.A.,

Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

Respondent.
_______________________
B.M.,

Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

Respondent.
_______________________
W.M.,

Appellant,

v.

1
NEW JERSEY STATE PAROLE
BOARD,

Respondent.
_______________________
R.L.,

Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

Respondent.

Argued January 17, 2017 – Decided May 8, 2017

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 444 N.J. Super. 115 (App. Div.
2016).

Michael C. Woyce argued the cause for
appellants L.A., W.M., and R.L. (Murphy &
Woyce, attorneys).

Daniel M. Vannella, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General of New Jersey,
attorney; Lisa A. Puglisi, Assistant
Attorney General, of counsel; Mr. Vannella
and Christopher C. Josephson, Deputy
Attorney General, on the letter briefs).

Fletcher C. Duddy, Deputy Public Defender,
argued the cause for intervenor New Jersey
Office of the Public Defender (Joseph E.
Krakora, Public Defender, attorney).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

2
 Petitioners L.A., R.L., and W.M. (parolees) challenge the

constitutionality of the practices of the New Jersey State

Parole Board (Parole Board) in administering polygraph

examinations to sex offenders serving either parole supervision

for life (PSL) or community supervision for life (CSL) sentences

pursuant to N.J.S.A. 2C:43-6.4.

The parolees are all convicted sex offenders who have been

released into the community subject to monitoring by the Parole

Board. For substantially similar reasons, they object to the

administration of periodic polygraph examinations, which are

required under the terms of their parole. The parolees raise

constitutional claims based on the Fifth Amendment privilege

against self-incrimination, the Sixth Amendment right to

counsel, and constitutional privacy interests. They also

contend that the Parole Board’s regulations are arbitrary and

capricious.

The Appellate Division upheld the Parole Board’s use of

polygraph examinations but directed the Parole Board to adopt

revised regulations to explain more clearly that the machine-

generated test results cannot be used as evidence to support

independent criminal charges or to impose additional sanctions.

For the reasons set forth in this opinion, we affirm but

modify the Appellate Division’s opinion. We uphold the Parole

Board’s use of polygraph testing with the same limitations as

3
the Appellate Division, but add that the Parole Board’s

regulations must be further supplemented to buttress the

parolees’ Fifth Amendment right against self-incrimination.

I.

A.

The parolees’ circumstances are substantially the same.

All have been convicted of a sexual offense, have completed

their respective prison terms, and are now being monitored by

the Parole Board as offenders subject to either PSL or its

statutory predecessor, CSL. See N.J.S.A. 2C:43-6.4. As part of

the Parole Board’s monitoring, the parolees were each required

to submit to a polygraph examination to monitor compliance with

the conditions of parole.

After the Parole Board notified the parolees that they were

subject to polygraph examination, the parolees each objected to

polygraph testing. In their administrative appeals, the

parolees raised constitutional claims and generally contended

that the Parole Board’s regulations were arbitrary and

capricious.

The Parole Board rejected each of the parolees’

administrative appeals. In dismissing the parolees’ Fifth

Amendment claims, the Parole Board reasoned that polygraph tests

do not require parolees to provide identifying information about

any unreported victims or to incriminate themselves. Regarding

4
the parolees’ Sixth Amendment claims, the Parole Board concluded

that the right to counsel does not attach to a polygraph

examination because it is a routine interview where the officer

is merely determining the level of compliance with the terms of

parole.

The Parole Board also concluded that administration of

polygraph examinations was not contrary to the parolees’ right

to privacy because polygraph examinations are necessary for risk

management and treatment and because examination results are not

disclosed to the public. Finally, the Parole Board determined

that sufficient credible evidence supported its polygraph

regulations.

B.

The individual parolees appealed the Parole Board’s

decisions, and the Appellate Division addressed the appeals in a

consolidated opinion. J.B. v. N.J. State Parole Bd., 433 N.J.

Super. 327 (App. Div. 2013) (JB I), certif. denied, 217 N.J. 296

(2014). Because the record contained insufficient evidence to

assess the purported therapeutic and rehabilitative value of

polygraph examinations, the Appellate Division referred that

issue to the trial court for supplemental proceedings pursuant

to Rule 2:5-5(b).1 Id. at 330-31; see also J.B. v. N.J. State

1 The parolees also challenged the Parole Board’s restrictions on
their access to social media or other comparable websites on the
5
Parole Bd., 444 N.J. Super. 115, 121-22 (App. Div. 2016) (JB

II).

Following an evidentiary hearing at which several expert

witnesses testified about the use of polygraph examinations for

sex offenders on parole, Assignment Judge Mary C. Jacobson

issued detailed findings of fact. JB II, supra, 444 N.J. Super.

at 122. After meticulously discussing the proofs presented by

both sides, the trial court ultimately found that “there is

enough support in the record for this court to conclude that

there is a reasonable basis for using polygraph testing in the

supervision of sex offenders serving PSL and CSL sentences in

the community.” Id. at 142 (emphasis omitted).

The trial court based its conclusion on testimony from

Parole Board officers as to the procedures governing the use of

polygraph examinations, as well as expert testimony regarding

the therapeutic value of such examinations. Although it

recognized the controversy concerning polygraph examination

accuracy, the trial court explained that the Parole Board

exercises care in incorporating exam results into decision-

making and never uses the results as the exclusive basis to

justify a modification of parole. Id. at 143-44. Further, the

Internet. The Appellate Division upheld the Parole Board’s
Internet access restrictions. JB I, supra, 433 N.J. Super. at
330. Because we denied the parolees’ petition for
certification, that issue is not before us in this appeal.
6
trial court found expert testimony indicating that polygraph

examinations are a valuable tool in the therapeutic treatment of

sex offenders to be particularly compelling. Id. at 145.

The Appellate Division thereafter upheld the Parole Board’s

use of polygraph testing, subject to certain restrictions. Id.

at 123. Based on the trial court’s factual findings, the

Appellate Division recognized that polygraph testing “can assist

parole officers and treatment professionals in making better-

informed decisions as to supervision and treatment.” Ibid.

Acknowledging longstanding concerns about the inaccuracy of

polygraph test results, the Appellate Division prohibited the

Parole Board from using the “machine-generated technical

results” as evidence to support the imposition of sanctions on

parolees. Ibid.; see State v. A.O., 198 N.J. 69, 83-84 (2009);

State v. Domicz, 188 N.J. 285, 312-13 (2006); State v. McDavitt,

62 N.J. 36, 43-44 (1972); State v. Driver, 38 N.J. 255, 261

(1962). The Appellate Division determined, however, that the

Parole Board could continue to utilize “the substance of any

admissions or other statements made by the offenders at a

polygraph session” as the basis for additional sanctions on

parolees. JB II, supra, 444 N.J. Super. at 123.

The Appellate Division rejected the parolees’ contention

that the polygraph sessions are a form of custodial

7
interrogation requiring the administration of Miranda2 warnings

and the appointment of counsel. Id. at 160-61. Further, the

Appellate Division noted the trial court’s finding that

polygraph examiners are instructed to provide Miranda warnings

if “a parolee makes a spontaneous incriminating statement during

the course of the polygraph examination.” Id. at 160. With

regard to the right to counsel, the Appellate Division reasoned

that “the presence of counsel is likely to diminish the positive

potential therapeutic benefits of the polygraph testing” and

would “inject adversarial elements into the procedure.” Id. at

161. The Appellate Division also rejected the parolees’ claim

that polygraph tests violate their right to privacy, observing

that “[t]he offender on PSL or CSL must reveal his activities

and plans to his parole officer as a matter of course during his

monitoring.” Id. at 151 n.13.

Although it dismissed the parolees’ constitutional

concerns, the Appellate Division required the Parole Board to

“enhance its regulations and practices to safeguard an

offender’s right to invoke his constitutional privilege against

self-incrimination.” Id. at 123. Specifically, the Appellate

Division explained that the Parole Board should “spell out more

clearly what uses of the polygraph testing are allowed and

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
8
disallowed” consistent with the limitations on machine-generated

test results mandated in the opinion. Id. at 161-62. The

Appellate Division allowed six months for the Parole Board to

adopt updated policies formally, through rule-making. Id. at

162. The Parole Board, in turn, adopted regulatory amendments

that took effect on December 5, 2016. See 48 N.J.R. 769(a) (May

16, 2016); 48 N.J.R. 2612(b) (Dec. 5, 2016).

We granted the parolees’ petition for certification. 226

N.J. 213 (2016); 226 N.J. 214 (2016).

II.

A.

The parolees argue that the Parole Board’s polygraph

program violates their constitutional right to privacy. In

support of this claim, the parolees cite the highly intimate

pre-interview questions routinely posed to parolees on such

topics as their sexual relationships, masturbation habits, and

sexual fantasies.

The parolees also assert that polygraph examinations

constitute custodial interrogations because parolees must attend

the examination or else risk criminal sanction, because failure

to attend or cooperate is a third-degree crime. Moreover, the

parolees point out that once the examination has begun, a

parolee cannot leave the room.

9
 Because the polygraph examinations constitute custodial

interrogations, the parolees claim that a polygraph examiner

must administer Miranda warnings at the beginning of a polygraph

examination and that a parolee is entitled to have counsel

present during an examination. The parolees also argue that the

Parole Board’s polygraph regulations implicate their Fifth

Amendment privilege against self-incrimination. Citing N.J.A.C.

10A:72-3.6(b)(5), which allows a parolee to make a valid Fifth

Amendment objection to a question without consequence, the

parolees assert that a layperson cannot know what constitutes a

valid objection, especially without a lawyer present.

B.

The Parole Board maintains that the parolees’

constitutional claims lack merit because the Appellate Division

properly prohibited the evidential use of technical, machine-

generated polygraph results for altering the terms of parole.

The Parole Board adds that it amended its regulations consistent

with the Appellate Division’s directive to explain more clearly

the proper evidential uses of polygraph examination results,

thus providing an additional safeguard to the constitutional

rights of parolees.

The Parole Board argues that parolees have a diminished

right to privacy and must reveal their activities regularly to

parole officers to remain in compliance with the terms of their

10
parole. Because the questions posed during routine polygraph

examinations do not delve deeper than what parolees must already

disclose pursuant to their parole conditions, the Parole Board

maintains the examination process does not violate parolees’

right to privacy.

Finally, the Parole Board concurs with the Appellate

Division’s conclusion that polygraph examinations are not the

equivalent of custodial interrogations. Accordingly, the Parole

Board insists that Miranda warnings are not necessary in this

setting and that parolees are not entitled to have counsel

present. Citing its regulations, the Parole Board points out

that parolees specifically do not have to divulge identifying

information of any unreported victims or crimes. N.J.A.C.

10A:72-3.7(d). Therefore, the Parole Board argues, the

regulations do not implicate parolees’ Fifth Amendment privilege

against self-incrimination.

C.

Intervenor Office of the Public Defender (Public Defender)

endorses the Appellate Division’s decision that the Parole Board

cannot use the machine-generated technical results of polygraph

exams as evidence to support parole modifications. The Public

Defender further urges that the Parole Board’s regulations be

modified to bolster the parolees’ right against self-

incrimination. Highlighting questions that, it contends, could

11
lead to incriminating responses, the Public Defender argues that

the regulations should make clear that parolees have a right to

assert their Fifth Amendment privilege against any answer that

could be a “link in the chain of evidence needed to prosecute”

an independent crime.

III.

We begin by reviewing the statutory and regulatory

framework that governs the administration of polygraph tests to

sex offenders serving PSL or CSL sentences, including the Parole

Board’s December 2016 amendments.

A.

For decades, we have considered polygraph results to be

unreliable as a “means of ascertaining truth or deception.”

McDavitt, supra, 62 N.J. at 44; see also Domicz, supra, 188 N.J.

at 312 (noting the “lack of scientific consensus concerning the

reliability of polygraph evidence”); Driver, supra, 38 N.J. at

261 (rejecting the admissibility of polygraph tests due to their

unreliability). Accordingly, “[a]s a general rule, polygraph

results are not admissible in evidence in New Jersey.” A.O.,

supra, 198 N.J. at 83. We created a narrow exception to this

rule to allow for the admission of polygraph evidence only if

the parties both agree to allow such evidence in a stipulation

that is “clear, unequivocal and complete, freely entered into

with full knowledge of the right to refuse the test and the

12
consequences involved in taking it.” McDavitt, supra, 62 N.J.

at 46.

Despite our long-standing skepticism about the accuracy of

polygraph examinations, the Legislature passed the Sex Offender

Monitoring Pilot Project Act (Pilot Project Act) in 2005,

N.J.S.A. 30:4-123.80 to -123.88, which authorized the use of

polygraph testing of sex offenders subject to PSL or CSL. When

most of the Pilot Project Act was repealed in 2007 and replaced

with the Sex Offender Monitoring Act, N.J.S.A. 30:4-123.89 to -

123.99, the polygraph provision was left in place. That statute

provides that

[t]he State Parole Board, on at least an
annual basis, may administer to all offenders
serving a special sentence of community or
parole supervision for life . . . polygraph
examinations in order to obtain information
necessary for risk management and treatment
and to reduce the offender’s denial
mechanisms. A polygraph examination shall be
conducted by a polygrapher trained
specifically in the use of the polygraph for
the monitoring of sex offenders, where
available, and shall be paid for by the
offender. The results of the polygraph
examination shall not be used as evidence in
court to prove a violation of the special
sentence of community or parole supervision
for life or condition of discharge has
occurred.

[N.J.S.A. 30:4-123.88.]

Non-compliance with the requirements of the monitoring program

is a third-degree crime. N.J.S.A. 30:4-123.94.

13
 B.

The Parole Board adopted regulations to implement the

polygraph testing authorized by the Act.3 See N.J.A.C. 10A:71-

6.11(b)(22); 10A:71-6.13; 10A:72-3.1 to -3.10. The Parole

Board’s regulation outlining the polygraph program closely

tracks the enabling statute:

(a) Pursuant to N.J.S.A. 30:4-123.88, the
Board, on at least an annual basis, may
administer to all offenders serving a special
sentence of community or parole supervision
for life . . . polygraph examinations in order
to obtain information necessary for risk
management and treatment and to reduce the
offender’s denial mechanisms.

(b) A polygraph examination shall be conducted
by a polygrapher trained specifically in the
use of the polygraph for monitoring of sex
offenders, where available, and shall be paid
for by the offender.

(c) The results of the polygraph examination
shall not be used as evidence in court to prove
that a violation of the special sentence of
community or parole supervision for life or
condition of discharge . . . has occurred.

[N.J.A.C. 10A:71-6.13.]

Under the polygraph program, the Parole Board administers

three types of polygraphs. The Parole Board conducts an instant

offense examination if a parolee denies guilt or gives a version

3 In response to a court challenge brought by B.M., one of the
parolees in this matter, the Parole Board adopted additional
regulations codifying the internal practices governing the
administration of polygraph examinations.
14
of the offense that “differs significantly from the official

version of the commitment offense as noted in the pre-sentence

report.” N.J.A.C. 10A:72-3.3(a). Second, a periodic

maintenance examination “verif[ies] the activities, behavior and

truthfulness of an offender as related to compliance with the

conditions of supervision.” N.J.A.C. 10A:72-3.3(b). Finally,

the Parole Board may administer a sexual history examination “to

obtain comprehensive information regarding an offender’s sexual

interests and behaviors in order to identify the offender’s

predilections and to assist in case planning and treatment

objectives.” N.J.A.C. 10A:72-3.3(c).

An offender’s assigned parole officer initially determines

whether to administer a polygraph examination. The parole

officer may recommend administration of a polygraph examination

if the officer “has a reasonable belief that an offender is non-

compliant with a condition(s) of supervision; if an offender

denies guilt regarding the commitment offense; or if an

offender’s treatment provider believes that the administration

of a polygraph examination would assist in the treatment or

supervision of the offender.” N.J.A.C. 10A:72-3.4(a). A

supervisor must ultimately determine whether to administer a

polygraph examination. N.J.A.C. 10A:72-3.4(b).

If a supervisor decides it is appropriate to administer a

polygraph examination, then an offender receives notice at least

15
thirty days before a scheduled examination. N.J.A.C. 10A:72-

3.5(a). Included with the notification is a disclosure form,

which must detail the scope of the examination, the consequences

of failure to cooperate with the examination, the consequences

of voluntarily providing identifying information of any

previously unreported victims or crimes, and an explanation of

how authorities may utilize information learned during the

examination. N.J.A.C. 10A:72-3.5(b); 10A:72-3.6(b). The form

must also state that the offender has the “right to remain

silent as it relates to divulging identifying information of

any unreported victim(s) or crime(s),” N.J.A.C. 10A:72-

3.6(b)(4), and “[t]hat the valid exercise of the right to remain

silent does not constitute failure to fully participate and/or

cooperate with the examination,” N.J.A.C. 10A:72-3.6(b)(5).

The polygraph examination process consists of three parts:

a pre-examination interview, the polygraph examination itself,

and a post-examination interview. N.J.A.C. 10A:72-3.7(a).

During the pre-examination interview, the polygraph

examiner discusses in detail the subject matter of the

examination with the offender and determines whether a periodic

maintenance examination or an instant offense examination is

appropriate. N.J.A.C. 10A:72-3.7(f)(5) to -(6). The examiner

also provides the offender with the disclosure form, ensures

that the offender understands it, and requests that the offender

16
sign the form. N.J.A.C. 10A:72-3.7(f)(1) to -(2). If the

offender refuses to sign the disclosure form or “indicate[s]

that he or she does not understand the nature and purpose of the

polygraph examination,” the examiner consults with a supervisor

to determine whether the examination should continue and notes

“the basis for the offender’s refusal to sign the disclosure

form.” N.J.A.C. 10A:72-3.7(f)(2)-(3).

After the polygraph examination itself, the examiner must

“review the test results with the offender, advise the offender

of any significant, deceptive or inconclusive response to a

polygraph examination question and provide the offender the

opportunity to explain or resolve” those responses. N.J.A.C.

10A:72-3.7(h)(2). An interpreter may attend the polygraph

examination “if deemed necessary by the polygraph examiner,” but

offenders are not entitled to have an attorney present during

any portion of the examination process. N.J.A.C. 72-3.7(e).

C.

Consistent with the Appellate Division’s opinion in JB II,

the Parole Board amended the regulations effective December 2016

to explain with more specificity how the Parole Board may use

the information obtained during the examination process. The

regulations currently provide that the results of any portion of

the polygraph examination “may be used for therapeutic treatment

purposes.” N.J.A.C. 10A:72-3.6(b)(6); 10A:72-3.9(c).

17
 Unlike responses provided in the pre- or post-examination

phases of the process, however, the machine-generated results of

the polygraph examination “shall not be relied on or cited as

evidence to support the filing of criminal charges or to justify

the imposition or modification of sanctions.” N.J.A.C. 10A:72-

3.6(b)(7); 10A:72-3.9(d). Further, the machine-generated

results “shall not be used as evidence in court to prove that a

violation of the special sentence of community or parole

supervision for life or condition of discharge has occurred.”

N.J.A.C. 10A:72-3.6(b)(9); 10A:72-3.9(f). While those results

cannot be used in court, “any voluntary admission(s) made by the

offender regarding unreported victim(s) or crime(s)” must be

reported to law enforcement. N.J.A.C. 10A:72-3.9(b).

IV.

We now consider the parolees’ constitutional challenges to

the Parole Board’s use of polygraph testing. The parolees argue

that because polygraph testing constitutes custodial

interrogation, it impermissibly impinges upon their Fifth

Amendment privilege against self-incrimination and their Sixth

Amendment right to counsel. The parolees also object to the use

of polygraph testing as a violation of their constitutional

right to privacy and due process under the First, Ninth, and

Fourteenth Amendments. The parolees invoke similar protections

under the New Jersey Constitution.

18
 Whether the Parole Board’s use of polygraph testing

intrudes upon the parolees’ asserted constitutional rights is a

legal question. Accordingly, we conduct a de novo review.

State v. Pomianek, 221 N.J. 66, 80 (2015).

A.

We first turn to the parolees’ claim that polygraph

examinations amount to custodial interrogations. The parolees

assert that the Parole Board’s polygraph program implicates

their constitutionally protected right against self-

incrimination and their right to counsel.

1.

In deciding whether the polygraph examinations are

tantamount to custodial interrogations, we are guided primarily

by the United States Supreme Court’s opinion in Minnesota v.

Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984).

In Murphy, the Supreme Court considered whether a statement made

by a probationer to a probation officer without prior Miranda

warnings could be admissible in a subsequent criminal

proceeding. Id. at 425, 104 S. Ct. at 1141, 79 L. Ed. 2d at

418.

At the outset of its reasoning in Murphy, the Supreme Court

made clear that “[a] defendant does not lose [Fifth Amendment]

protection by reason of his conviction of a crime.” Id. at 426,

104 S. Ct. at 1141, 79 L. Ed. 2d at 418. Therefore,

19
“notwithstanding that a defendant is imprisoned or on probation

at the time he makes incriminating statements, if those

statements are compelled they are inadmissible in a subsequent

trial for a crime other than that for which he has been

convicted.” Id. at 426, 104 S. Ct. at 1141-42, 79 L. Ed. 2d at

418.

In explaining the scope of the constitutional protections,

the Supreme Court emphasized that “[t]he [Fifth] Amendment

speaks of compulsion.” Id. at 427, 104 S. Ct. at 1142, 79 L.

Ed. 2d at 419 (alteration in original) (quoting United States v.

Monia, 317 U.S. 424, 427, 63 S. Ct. 409, 410, 87 L. Ed. 376, 380

(1943)). After examining the differences between a routine

parole interview and a custodial interrogation, the Supreme

Court found that a parolee is not “‘in custody’ for purposes of

receiving Miranda protection since there [is] no ‘formal arrest

or restraint on freedom of movement’ of the degree associated

with a formal arrest.” Id. at 430, 104 S. Ct. at 1144, 79 L.

Ed. 2d at 421 (quoting California v. Beheler, 463 U.S. 1121,

1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279 (1983)).

Accordingly, it is permissible for a State to “require a

probationer to appear and discuss matters that affect his

probationary status; such a requirement, without more, does not

give rise to a self-executing privilege.” Id. at 435, 104 S.

Ct. at 1146, 79 L. Ed. 2d at 424; see also State v. Davis, 67

20
N.J. 222, 226 (1975) (stating Miranda is “not applicable to

routine parole interview between parole officer and parolee”),

cert. denied, 425 U.S. 943, 96 S. Ct. 1684, 48 L. Ed. 2d 187

(1976).

However, the Supreme Court went on to explain that “[t]he

result may be different if the questions put to the probationer

. . . call for answers that would incriminate him in a pending

or later criminal prosecution.” Murphy, supra, 465 U.S. at 435,

104 S. Ct. at 1146, 79 L. Ed. 2d at 424. The Supreme Court

found that it would be particularly problematic “if the State,

either expressly or by implication, asserts that invocation of

the [Fifth Amendment] privilege would lead to revocation of

probation” because that would create “the classic penalty

situation.” Ibid. In such a case, “the probationer’s answers

would be deemed compelled and inadmissible in a criminal

prosecution.” Id. at 435, 104 S. Ct. at 1146, 79 L. Ed. 2d at

424-25.

For the reasons discussed below, we find that the Parole

Board’s revised polygraph regulations substantially adhere to

those principles. We agree that the polygraph examination is

not a custodial interrogation requiring the administration of

Miranda warnings prior to the start of the examination. While

the parolees here are “subject to a number of restrictive

conditions governing various aspects of [their] li[ves],” they

21
are not formally arrested prior to the start of the polygraph

examination and their freedom of movement is not restricted to

“the degree associated with a formal arrest.” Id. at 430, 104

S. Ct. at 1144, 79 L. Ed. 2d at 421. Indeed, the testimony

before the trial court indicated that the Parole Board attempts

to avoid having the polygraph sessions resemble a formal

interrogation to further the therapeutic value of the

examination. JB II, supra, 444 N.J. Super. at 161. Although

the examiner attaches parolees to a machine for the polygraph

examination, parolees are not restrained with the same degree of

physical restraint as a person who has been placed under arrest.

Moreover, unlike a suspect who has been formally arrested,

parolees do not face immediate detention for refusing to

cooperate.

Given the narrow set of circumstances in which a Miranda

warning must be given, we affirm the Appellate Division’s

conclusion that the polygraph examination is not a custodial

interrogation. Because we conclude that a polygraph examination

is not a custodial interrogation, we also reject the parolees’

claim that they have a right to the presence of counsel during a

polygraph examination. See A.O., supra, 198 N.J. at 81 (“[A]n

accused’s Sixth Amendment right to counsel does not attach until

‘adversary judicial proceedings have been initiated against

him.’” (quoting Rothgery v. Gillespie County, 554 U.S. 191, 214,

22
128 S. Ct. 2578, 2593, 171 L. Ed. 2d 366, 384 (2008) (Alito, J.,

concurring))). Therefore, we uphold the use of information

obtained from pre- and post-examination interviews to support

the filing of criminal charges or the imposition of sanctions.

See N.J.A.C. 10A:72-3.6(b)(8); 10A:72-3.9(e).

We also find that many of the December 2016 changes to the

regulatory framework successfully “spell out more clearly what

uses of the polygraph testing are allowed and disallowed” in

accordance with our long-standing skepticism of the reliability

of polygraph examination results. JB II, supra, 444 N.J. Super.

at 161-62; see A.O., supra, 198 N.J. at 83-84; Domicz, supra,

188 N.J. at 312-13; McDavitt, supra, 62 N.J. at 43-44; Driver,

supra, 38 N.J. at 261. The revised regulations require that the

pre-examination disclosure form explain that the Parole Board

can use the machine-generated results of the polygraph

examination for therapeutic treatment purposes only. N.J.A.C.

10A:72-3.6(b)(6), -(7), -(9). The Parole Board cannot use such

results to support independent criminal charges, to impose

sanctions, or as evidence that a parolee violated the terms of

PSL or CSL. Ibid. Moreover, parolees must understand that the

polygraph examiner will immediately report any voluntarily

provided information regarding unreported victims or crimes to

the appropriate law enforcement authorities for further

investigation. N.J.A.C. 10A:72-3.6(b)(3); 10A:72-3.9(b).

23
Together, these disclosures adequately inform a parolee how the

Parole Board may utilize information obtained during the

examination process so parolees can decide whether to exercise

their right to remain silent in response to a question posed

during the examination process. We are not convinced that the

Parole Board’s current regulations fully inform parolees of the

scope of their right to remain silent during the polygraph

examination process, however.

2.

Parolees are advised on the form “[t]hat the valid exercise

of the right to remain silent does not constitute failure to

fully participate and/or cooperate with the examination,” but

there is no explanation of what constitutes a “valid” exercise

of that right. N.J.A.C. 10A:72-3.6(b)(5) (emphasis added).

Because “failure to fully participate and cooperate with the

examination” constitutes a third-degree crime, N.J.S.A. 30:4-

123.94, absent clarification, the current disclosures create a

“classic penalty situation” in which the parolees’ Fifth

Amendment right to remain silent is impermissibly encumbered by

pressure to avoid additional criminal charges for failing to

cooperate. See Murphy, supra, 465 U.S. at 435, 104 S. Ct. at

1146, 79 L. Ed. 2d at 424.

We are particularly concerned that parolees may not

understand whether they may assert their Fifth Amendment

24
privilege in response to certain types of questions without

facing consequences. The regulations protect “[t]he offender’s

right to remain silent as it relates to divulging identifying

information of any unreported victim(s) or crime(s).” N.J.A.C.

10A:72-3.6(b)(4). Based on that instruction, it is not clear

whether it is “valid” to assert Fifth Amendment privilege in

response to a general question such as, “Have you had sexual

contact with anyone without their consent?” The answer would

not identify a particular victim or even offer any specific

details of a crime; yet, if a parolee answered in the

affirmative, the examiner would undoubtedly report the parolee’s

response to the appropriate authorities for further

investigation. See N.J.A.C. 10A:72-3.9(b).

We therefore instruct the Parole Board to clarify that an

offender validly invokes the right to remain silent pursuant to

N.J.A.C. 10A:72-3.6(b)(5), without consequence, if the answer to

any question asked throughout any portion of the examination

process as defined in N.J.A.C. 10A:72-3.7(a) could form the

basis of an independent criminal investigation. Consistent with

the United States Supreme Court’s holding in Murphy, supra, 465

U.S. at 435, 104 S. Ct. at 1146, 79 L. Ed. 2d at 424, this

clarification will ensure that parolees will not feel compelled

to respond to questions that could yield potentially

25
incriminating answers in order to avoid criminal sanctions for

failing to cooperate with the polygraph examination.

B.

Invoking Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct.

1678, 14 L. Ed. 2d 510 (1965), the parolees argue that the

polygraph examination violates the privacy protections

guaranteed by the First, Ninth, and Fourteenth Amendments. The

parolees object to invasive questions often posed during the

examination requiring an offender to disclose typical sexual

habits and fantasies and argue that these questions impinge upon

their right to freedom of thought. For the reasons discussed

below, we reject the notion that the disclosures required of

parolees subject to PSL or CSL are an improper invasion of

privacy.

In assessing this claim, we must balance “the governmental

interest in disclosure against the private interest in

confidentiality.” Doe v. Poritz, 142 N.J. 1, 78 (1995). We are

guided by a number of cases addressing the scope of appropriate

governmental intrusion into the lives of parolees.

The United States Supreme Court has recognized parole as an

“established variation on imprisonment” aimed at “help[ing]

individuals reintegrate into society as constructive individuals

as soon as they are able, without being confined for the full

term of the sentence imposed.” Morrissey v. Brewer, 408 U.S.

26
471, 477, 92 S. Ct. 2593, 2598, 33 L. Ed. 2d 484, 492 (1972).

Thus, it is constitutionally permissible to subject parolees to

“conditions [that] restrict their activities substantially

beyond the ordinary restrictions imposed by law on an individual

citizen.” Id. at 478, 92 S. Ct. at 2598, 33 L. Ed. 2d at 492.

For example, it is common that parolees be required to “seek

permission from their parole officers before engaging in

specified activities, such as changing employment or living

quarters, marrying, acquiring or operating a motor vehicle,

traveling outside the community, and incurring substantial

indebtedness.” Ibid.

With regard to sex offenders, we observe that the terms of

PSL and CSL are particularly restrictive. The relevant

regulations enumerate twenty-three separate restrictions imposed

upon parolees. N.J.A.C. 10A:71-6.11(b)(1) to -(23). Included

among those restrictions are a number of typical requirements

imposed upon parolees, such as receiving permission from a

parole officer to move, travel outside the state, or change

jobs. See N.J.A.C. 10A:71-6.11(b)(8), (9), (16). But the PSL

regulations also require parolees to comply with any imposed

curfew, refrain from contacting or participating in groups or

clubs that promote or encourage sexually-deviant behavior, and

abstain from accessing any social networking service or chat

room. N.J.A.C. 10A:71-6.11(b)(19), (20), (23).

27
 We have acknowledged that the State has a significant

interest in ensuring adherence to the restrictive conditions

imposed pursuant to PSL and CSL “to protect the public from

recidivism by defendants convicted of serious sexual offenses.”

Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 237-38 (2008)

(quoting Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181,

184 (App. Div.), certif. granted, 182 N.J. 140 (2004), appeal

dismissed, 187 N.J. 487 (2006)); see also JB I, supra, 433 N.J.

Super. at 336. Accordingly, an individual subject to PSL or CSL

does not possess the “full panoply of rights.” Jamgochian,

supra, 196 N.J. at 242. Nevertheless, we have held that “even

those who possess a conditional or limited freedom have a right

to protection from arbitrary government action.” Id. at 241-42.

In weighing the competing interests here, we find that the

State’s interest in ensuring that parolees adhere to the

conditions of their release pursuant to PSL and CSL outweighs

the parolees’ privacy interest in the information obtained

during a polygraph examination. We acknowledge that much of the

information disclosed by an offender during the polygraph

examination may be of a private nature. Only Parole Board

officers, however, are privy to that information. See Doe,

supra, 142 N.J. at 82 (recognizing more substantial privacy

interests implicated by public disclosure of sex offender’s

whereabouts). Furthermore, because the information gleaned from

28
polygraph examinations is used to monitor compliance with the

terms of parole and for therapeutic purposes, we view this

disclosure as justified by the efficacy of polygraphy as a tool

in the treatment of sex offenders.4 On this point, we find the

extensive factual findings issued by the trial court to be

persuasive.

Based on the testimony of several Parole Board officers and

expert witnesses, the trial court concluded that there is a

“reasonable basis” to utilize polygraphy in the supervision of

sex offenders serving PSL or CSL sentences. JB II, supra, 444

N.J. Super. at 142. The trial court found expert testimony

concerning the Parole Board’s use of instant offense polygraph

examinations to be particularly compelling. The testimony

indicated that such examinations are effective at helping “sex

offenders overcome denial of responsibility for their sex

crimes.” Id. at 145. In fact, experts suggested that “even the

threat of having to take a polygraph can stimulate

4 We base our holding on the utility of routine maintenance
examinations and instant offense examinations in the treatment
of sex offenders. See N.J.A.C. 10A:72-3.3 (defining three types
of polygraph examinations that may be administered by the Parole
Board). Parole Board officers testified before the trial court
that sexual history examinations are never given and that there
are no plans to administer such examinations in the future. JB
II, supra, 444 N.J. Super. at 134. Without evidence in the
record to support the use of sexual history examinations, we
cannot opine about the privacy implications of those types of
examinations.

29
admissions . . . that help sex offenders attain therapeutic

goals.” Ibid. (emphasis omitted). Overcoming denial is

critical to sex offender therapy “because it shows the

offender’s ability to accept responsibility for his actions and

enables the offender to move on to learning strategies to avoid

similar conduct in the future.” Ibid. Consequently, the trial

court found that the “administration of instant offense exams

can be a useful tool for therapists working with sex offenders.”

Ibid. (emphasis omitted).

Recognizing that the record contained “greater support for

the accuracy of instant offense exams than maintenance [exams],”

the trial court highlighted the fact that the Parole Board

“modified its policies in 2012 and effectively did away with

broad screening exams akin to fishing expeditions.” Id. at 146

(emphasis omitted). The trial court also noted that the results

of polygraph examinations are never used as the exclusive basis

upon which to justify a modification of parole and are instead

considered part of the “totality of the circumstances.” Id. at

134. Thus, the trial court concluded that maintenance exams are

“sufficiently reliable” and “likely to produce information that

would be useful to parole supervision and treatment teams in

making decisions regarding sex offenders in the community

serving PSL and CSL sentences.” Id. at 146 (emphasis omitted).

30
 We conclude that polygraph examinations further the State’s

interest in ensuring that parolees adhere to the conditions of

their PSL or CSL sentence and protect the community from

recidivism. We find that this interest outweighs the parolees’

limited right to privacy.

V.

Finally, we address the parolees’ challenge to the Parole

Board regulations as arbitrary and capricious. In general, we

will uphold an agency’s decision “unless there is a clear

showing that it is arbitrary, capricious, or unreasonable, or

that it lacks fair support in the record.” In re Herrmann, 192

N.J. 19, 27-28 (2007). Having already reviewed the extensive

factual findings of the trial court, we find sufficient evidence

in the record to support the Parole Board’s use of polygraph

examinations with the qualifications set forth above.

Therefore, we conclude that the parolees have not shown that we

should set aside the Parole Board’s regulatory scheme.

VI.

For the reasons set forth above, we affirm as modified the

judgment of the Appellate Division and instruct the Parole Board

to issue revised regulations consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s
opinion.

31