Convicted Sex Offender Can Be Required to Submit to Computerized Voice Stress Analysis To Detect Lying
Gjurovich v. U.S., Slip Copy, 2009 WL 3232139 (N.D.N.Y. 2009) involved a petitioner who pled guilty to a two count indictment charging him with transporting child pornography in violation of 18 U.S.C. 2252A(a)(1) and possession of child pornography in violation of 18 U.S.C. 2252(a)(5)(B). In October 2001, petitioner was sentenced by this Court to seventy (70) months incarceration on Count One and (60) months incarceration on Count Two to run concurrently followed by three (3) years of supervised release. Petitioner did not appeal his conviction or sentence. The United States Probation Office filed a petition for modification of the conditions or terms of his supervised release to require him to submit to computerized voice stress analysis (CVSA), in addition to regular polygraph examinations, as a further special condition of his release in the community. The petitioner objected to the Probation Office's request, and his motion to dismiss the petition for modification of the terms of his supervised release was denied. The Probation Office filed the petition based upon uncontroverted facts evidencing petitioners noncompliance with the terms of his supervised release since his term commenced on December 7, 2006, as follows: On February 20, 2007, petitioner failed to report for drug testing. He was reprimanded and the frequency of his reporting was increased. In April 2007, it was discovered that he may have been tampering with the computer monitoring software utilized to monitor his on-line computer activities. This information resulted in a search of his residence where it was discovered that petitioner had been communicating via e-mail with a federal prisoner who was a convicted sex offender. In May 2007, petitioner used cocaine in violation of his conditions for release. The Court ordered petitioner to reside in a halfway house for six months. While residing at the Horizon Center, petitioner was found in possession of a magazine depicting sexually stimulating images. As a result of this violation, the Court extended petitioner's stay in the halfway house by one month. Petitioner also failed to report for a drug test on September 4, 2008 CVSA technology is used by approximately 1800 law enforcement agencies in the United States according to the leading manufacturer of the devices. The CVSA is an instrument that utilizes the voice to measure physiological changes in brain-stress activity. When an individual is not being truthful, the autonomic nervous system causes an inaudible change in voice frequency. Micro tremors are tiny frequency modulations in the human voice. The CVSA detects, measures, quantifies, and graphically displays the discrete changes in these frequencies. The picture of a response captured by the CVSA demonstrates the changes in FM frequency that occur in the voice of an individual under stress. Responses are then analyzed to determine whether an individual is being deceptive. The CVSA generally takes about 45 minutes wherein the examinee answers yes or no to a series of questions posed to them by a certified examiner. The examinee answers the questions with a microphone attached to his or her lapel. According to the Probation Office, CVSA is the most recent supervision tool being utilized for truth verification and is consistent with the containment approach, which has been clearly identified as the most effective method of maintaining and monitoring sex offenders in the community. William Endler, Director of Law Enforcement and Training for NITV, submitted an affidavit in the case in which he avers that one of the reasons for the growing use and success of CVSA is that there are no known countermeasures to defeat examinations. The federal statute which guides district courts in the matter of modifying or revoking terms or conditions of supervised release is 18 U.S.C. 3583(e). Pursuant to 18 U.S.C. 3583(d), a court may order, as a further condition of supervised release, any condition set forth as a discretionary condition of probation in section 3563(b) and any other condition it considers to be appropriate. The Second Circuit has long held that polygraph testing may be imposed properly as a special condition of supervised release without violating Fifth Amendment principles. According to the U.S. Probation Officer Edward Cardinal, in addition to the polygraph, the CVSA examination provides information which enables the Probation Office, in conjunction with treatment providers, to determine compliance with conditions of release and to deter further criminal conduct for the protection of the community. Cardinal also states that the goals of the containment approach cannot be met by the polygraph alone. According to Cardinal, sex offenders subjected to multiple polygraphs over a period of time may experience what is known as a dampening effect, when familiarity of the polygraph reduces the physiological reaction to stress and renders the instrument ineffective. According to Officer Cardinal, the results of a CVSA examination alone are not used for violation reports or legal actions, but as a supervision strategy for further investigations and deterrence. The Court rejected the petitioners questioning of the reliability and effectiveness of CVSA technology as a reason not to require him to submit to the same. The Court, analogizing to a case involving the reliability of polygraph examinations, noted that although the government conceded the existence of a number of sources question the soundness of CVSA testing, the reliability of the technology and its admissibility as evidence does not bear much on the therapeutic value of the tool. The Court disagreed with petitioners argument that the use of the CVSA is not reasonably related to the purposes of sentencing based on the nature and circumstances of the offense and the history and characteristics of the defendant.