Categories & Search

Second Circuit: In Truth, A Polygraph Test Supervised Release Condition Can’t Be Added After Sentencing

In United States v. Washington, the Second Circuit (Cabranes and Pooler Circuit Judges, and Oetken, J., by designation) examined a discrepancy between the terms of sentence that the District Court pronounced at the sentencing hearing and the terms of the sentence that the District Court actually entered in its written judgment.

For Brian Washington, whose sentence for failure to register as a sex offender included a term of supervised release, the Probation Office recommended that, in addition to the usual mandatory and standard conditions, the District Court impose several special conditions for the term of his supervised release.  One such special condition required Washington to participate in a sex-offender program which included submission to polygraph testing.  Washington’s counsel had reviewed this special condition with him before sentencing, and Washington did not object to it.  During the sentencing hearing, the District Court gave an abbreviated description of the sex-offender special condition with which Washington had to comply. In particular, the District Court omitted any reference to polygraph testing as part of the sex-offender treatment condition.  However, the written judgment issued by the District Court included the full description of the special condition, which imposed a duty on Washington to submit to polygraph testing.

Reviewing de novo the discrepancy between the spoken and written terms of Washington’s sentence, the Second Circuit concluded that the written judgment’s additional language requiring submission to polygraph testing was an “impermissible modification” of the spoken sentence.  The Second Circuit reasoned that polygraph testing is burdensome to Washington and is not a necessary or invariable part of sex-offender treatment.  The Second Circuit thus remanded the case to the District Court with an instruction to exclude the submission to polygraph testing from Washington’s sentence.

The rule of law applied here may seem like a technicality, but it is important that the sentence be pronounced in open court.  For one thing, this allows a defendant to make a contemporaneous objection.  For another, it better fulfills the requirement that our judicial proceedings be open to the public.  It also seems from reading the decision here as if the Court was dubious as to whether this condition is actually useful.  The Court observed that the condition can require self-incrimination and that some district court judges never allow polygraph testing.  Many professionals view lie detector tests as a “junk science,” with the American Psychological Association stating that “[m]ost psychologists agree that there is little evidence that polygraph tests can accurately detect lies.”[1]  Perhaps it is just as well that the Court rejected this condition on procedural grounds.

-By Julia Stepanova and Harry Sandick


[1] American Psychological Association, “The Truth About Lie Detectors (aka Polygraph Tests),” (last visited September 20, 2018).