State Supreme Court's polygraph hypocrisy | MAES

The reporting of the pay-for-silence scandal that rocked the Colorado Supreme Court in 2021 revealed the highest court and its administration was plagued by “dysfunction, toxic environment and (a) climate of fear" as reported by a legislator who was a member of the Interim Committee on Judicial Discipline investigating the fiasco.

As a result of the inquiry by the Interim Committee on Judicial Discipline, the Supreme Court has apparently decided to examine its internal workings including its participation in complaints of judicial misconduct involving its own members. This is a positive step forward and one which should inspire quiet introspection by the Supreme Court in other areas as well. One such area is polygraph examinations commonly known as lie detector tests.

In 1981, the Colorado Supreme Court decided the results of polygraph examinations are per se inadmissible in criminal court for any reason because they are scientifically unreliable. The ruling has been extended to civil matters as well. The Court did “not believe that the physiological and psychological bases for the polygraph examination have been sufficiently established to assure the validity and reliability of test results.” The Court added “nor are we persuaded that sufficient standards for qualification of polygraph examiners exist to ensure competent examination procedures and accurate interpretation of the polygram.”

The plain meaning of unreliable is untrustworthy.

With that background it is incumbent on the Colorado Supreme Court to provide a comprehensive explanation to the taxpaying public why it has and continues to expend millions of dollars on polygraphs for the supervision of convicted sex offenders who are on probation. As an aside, the Department of Corrections also uses them for inmates under its supervision.

I am unaware of any other crime for which polygraphs are used to monitor probationers. Could it be the Court believes sex offenders are an unsympathetic lot unworthy of equal protection under the law?

In addition to being irresponsible stewards of public money, the Court’s willful disregard for its own ruling has provided polygraphers with a lucrative cottage industry. There are polygraphers who have financially benefited from this practice by serving on the Colorado Sex Offender Management Board (SOMB) which is involved in setting the standards for sex offenders including polygraphs. Whenever a sex offender is “believed” to have “failed” a polygraph the individual is required to undergo another paid polygraph which goes into the pockets of the polygraphers. The vast majority of the funding for polygraphs is provided by the taxpayers. Keep in mind the results are unreliable.

Respect for and adherence to the Rule of Law is a foundational prerequisite for a free democratic society. The Colorado Supreme Court should be the leading advocate in espousing this principle. Instead, the Court, while it appears to give lip service to the law it established concerning polygraphs, fails to comport with the spirit of the law.

The Supreme Court should immediately discontinue funding for polygraphs which are essentially junk science. In the interest of transparency, this concern has been raised on numerous occasions with the Colorado Supreme Court to no avail.

Dennis Maes served 24 years as a 10th Judicial District judge in Pueblo and was chief judge for 17 of those years. He previously served as director of Pueblo County Legal Services, Inc.; as a public defender and as an attorney in private practice.