Calif: polygraph admissibility/legality

[Virginian]

My brother was convicted in Calif of fondling a 13-year-old girl, did some time in jail, is now out on probation for about a year. He got permission to move to Virginia to be nearer family, and probation was transferred here. As a condition of probation he has to take sex offender therapy. He was required, as part of this therapy, to take a polygraph test---they said if he didn't he'd get kicked out of therapy, which would be a violation of his probation, and he'd of course go back to jail. He really does want to get better, and they said it was important for them to know the full extent of his aberrations so he could be treated. So, he took the test. I am not sure what releases he signed but I know he agreed that the results would be shared only with his therapist and his probation officer. In the polygraph session, he admitted to touching another 13-year-old prior to the other crime (ostensibly while she was sleeping, and she didn't wake up)----and while he did not name the girl, he apparently gave enough info for them to figure out her identity. Now the PO and therapist are saying that they have to report this information to the authorities and he may be charged with the crime in California, where it occurred (could be a while before we find out if he will be charged, as there will have to be an investigation I guess). He is not sure if they were taping the session in any way. Questions: Was it legal for them to force him to take the polygraph? (No rights against self-incrimination?) Will the results be admissible in court? If their goal is for him to get better in therapy, how can he be honest with them if they are then going to use the information against him? Will the fact that he's in intensive therapy for this behavior, and hasn't repeated the offense since getting out of jail, mitigate in his favor? Is there doctor/client privilege here? If the child was asleep, how can she testify? And what if she makes up stuff? My brother probably will need a good attorney, but I don't even know if he should get one in Virginia (where the polygraph was given) or in California! (Any idea what the fees might be for a case like this?) I know there are a lot of questions----advice please?

 

[lawrat]

I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

This is actually psychotherapist - client privilege. It is actually quite liberal and if there is evidence/admission of a crime, there is authority by the psychotherapist to divulge the information.

Who uses Polygraph Examinations?
The three segments of society that use the polygraph include law enforcement agencies, the legal community, and the private sector.
They are further described as follows:
Law Enforcement Agencies - Federal Law Enforcement Agencies, State Law Enforcement Agencies, and Local Law Enforcement Agencies such as Police and Sheriff's Departments.
Legal Community - U.S. Attorney Offices, District Attorney Offices, Public Defender Offices, Defense Attorneys, Parole & Probation Departments.
Private Sector - Companies and Corporations under the restrictions and limitations of the Employee Polygraph Protection Act of 1988 (EPPA). Private citizens in matters not involving the legal or criminal justice system. Attorneys in civil litigation.


Admissibility:
The simple fact is that both the plaintiff and the defendant have to agree to having the results of the test be admissible, prior to the examination being conducted.

Since the results of the test are going to hurt one party and help the other, the likelihood that both parties will agree to admissibility before knowing how it will affect their case, is minimal. Because of this, results of Polygraph testing are rarely admitted as evidence.



Now there may be a specific rule about getting counseling and using that against the person: the best bet, get a criminal defense attorney (speak to one) where the polygraph was taken. That person will then do all applicable choice of law research to see if the substantive rules apply in California court.