                        RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION


                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5435-10T2
                                                 A-1459-11T2
                                                 A-2138-11T3
                                                 A-3256-11T2
                                                 A-1385-15T2

J.B.,

     Appellant,
                                            APPROVED FOR PUBLICATION
v.
                                                January 21, 2016

NEW JERSEY STATE PAROLE BOARD,                 APPELLATE DIVISION

     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.

NEW JERSEY STATE PAROLE BOARD,

     Respondent.
_____________________________________

R.L.1,

     Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

     Respondent.
_____________________________________

         Argued October 29, 2013 - Referred to the
         Law Division pursuant to Rule 2:5-5(b)
         November 26, 2013
         Reargued September 16, 2015 - Decided January 21, 2016

         Before    Judges   Sabatino,    Accurso,   and
         O'Connor.

         On appeal from the New Jersey State Parole
         Board.

         Michael C. Woyce argued        the cause for
         appellants L.A., W.M. and      R.L.2 (Murphy &


1
  By consent of counsel for the parties and intervenor, a
separate appeal by R.L. raising similar issues was consolidated
with the present appeals in December 2015, and all parties
agreed to rely as to R.L. on their briefs and oral arguments
they had previously presented.
2
  At oral argument in October 2013 and again in September 2015,
counsel represented that the issues relating to J.B. and B.M.,
                                                    (continued)


                                 2                        A-5435-10T2
            Woyce, attorneys; Joseph S. Murphy, Jesse D.
            Stovin, and Mr. Woyce, on the briefs).

            Daniel M. Vannella, Deputy Attorney General,
            argued the cause for respondent (John J.
            Hoffman, Acting Attorney General, attorney;
            Melissa   H.   Raksa,    Assistant   Attorney
            General, of counsel and on the brief; Mr.
            Vannella   and  Christopher    C.  Josephson,
            Deputy Attorney General, on the briefs).

            Fletcher C. Duddy, Deputy Public Defender,
            argued the cause for Intervenor New Jersey
            Public Defender (Joseph E. Krakora, Public
            Defender, attorney; Mr. Duddy and Stefan J.
            Erwin, Assistant Deputy Public Defender, on
            the brief).

    The opinion of the Court was delivered by

SABATINO, P.J.A.D.

    This matter returning to our court involves a challenge to

the practices of the New Jersey State Parole Board ("Parole

Board") in administering polygraph examinations.            Pursuant to

statutory      and   regulatory   authority,       the    Parole      Board

periodically     administers   such   polygraphs     to   released       sex

offenders who are subject to either parole supervision for life

("PSL") or its statutory predecessor, community supervision for

life ("CSL"), N.J.S.A. 2C:43-6.4.




(continued)
are no longer in dispute and that the appeals are proceeding
solely as to L.A., W.M., and R.L.




                                  3                                A-5435-10T2
       Appellants,     all     of   whom       are   represented         by     the       same

counsel,     are   individuals      who    have      been   convicted          of     sexual

offenses, have completed their respective prison terms, and are

now being monitored by the Parole Board as part of the terms of

their PSL or CSL.         Appellants contend that the Parole Board's

practices     of     requiring      them       and    other       similarly-situated

offenders3 subject to PSL or CSL to submit to polygraphs, and the

manner in which it uses those polygraph results, violate their

constitutional       rights.        They      also   contend          that    the     Parole

Board's practices in this regard are arbitrary and capricious

and should be invalidated on that basis as well.

       For reasons that follow, we uphold the validity of the

Parole Board's polygraph program, subject to certain important

conditions and modifications.                 In particular, we disallow the

Parole Board from using the machine-generated technical results

of    such   exams   as   evidence       to    justify      a    curtailment          of    an

offender's     activities.          We     also      rule       the    Parole       Board's

regulations and practices to protect the offenders' privileges

against self-incrimination should be enhanced.

       Appellants'     polygraph      challenges         were         included       in     an

earlier phase of these consolidated appeals that also included

appellants'        separate     claim         that    the       Parole        Board        had

3
    Appellants have not sought class certification.



                                           4                                        A-5435-10T2
unconstitutionally restricted their access to social media and

other websites on the Internet.

      In    November       2013,        this    court      issued    an    opinion      that

partially adjudicated the issues presented.                         J.B. v. N.J. State

Parole Bd., Nos. A-5435-10, A-1459-11, A-2138-11, A-2448-11, A-

3256-11 (App. Div. Nov. 26, 2013) ("J.B. I").                         In the published

portion    of    that      opinion      in     J.B.   I,   we   rejected      appellants'

facial challenge to the Internet access restrictions, without

prejudice       to   the    ability       of    individual      offenders      to    pursue

"as-applied" challenges to such restrictions in the future.                               See

J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 344-46 (App.

Div. 2013), certif. denied sub nom., B.M. v. N.J. State Parole

Bd., 217 N.J. 296 (2014).

      In the unpublished portion of our November 2013 opinion, we

declined to resolve appellants' challenges to the Parole Board's

use of polygraph examinations. We did so because the factual

record     at   that     time     was    inadequate        to   evaluate     whether      the

Parole     Board's       practices        violate       appellants'        constitutional

rights or are arbitrary and capricious.                      J.B. I, supra, slip op.

at 28-50.        Given the record's shortcomings and the exceptional

circumstances of this case, we referred the polygraph issues to

the   trial      court      for    evidentiary          hearings     and    fact-finding

pursuant to Rule 2:5-5(b).               Id. at 48-50.




                                                5                                   A-5435-10T2
       As part of the referral for fact-finding, we directed the

trial court to "explore the existence and strength of what the

[Parole Board] asserts are the therapeutic, rehabilitative, and

risk     management     benefits          of     polygraph        examinations         as

administered to released sex offenders."                    Id. at 47.          We also

requested the trial court to indicate, to the extent possible,

any    recommendations        it    may   have    concerning       how    the    Parole

Board's existing procedures "might be altered to (1) enhance any

proven therapeutic, rehabilitative or risk management benefits

of the polygraph testing; or (2) achieve those benefits in a

manner that might be less intrusive of appellants' individual

rights."    Id. at 49-50.

       Following discovery and the exchange of expert reports, the

evidentiary hearings were conducted in the fall of 2014 over the

course of six intermittent dates.                   With our permission, the

State    Office    of   the    Public     Defender,        which   had    previously

commented on the Parole Board's polygraph regulations when they

were adopted, intervened in the proceedings and presented its

own     expert    proofs.          Multiple      experts    and    fact    witnesses

testified at these hearings.              The trial court also considered a

plethora of exhibits and written studies on the subject.

       On January 12, 2015, the trial court issued lengthy written

findings of fact.        In its conclusions, the court found what it




                                           6                                    A-5435-10T2
termed     a    "reasonable             basis"    for       the        Parole    Board        to    use

polygraph       testing          in    the     supervision         and        treatment       of    sex

offenders       on        PSL    or     CSL.          However,         consistent          with     the

constraints          of    our        referral    and       Rule        2:5-5(b),       the        court

confined       its    decision          to   factual        findings,          and    it    did     not

address the constitutionality or legal validity of the polygraph

testing program.

     Appellants            subsequently          filed      exceptions          to    the     court's

factual        findings,         and     also     renewed         their        legal       arguments

supporting their challenge.                     The Public Defender likewise filed

exceptions and also advanced its own legal arguments, urging

that we invalidate the polygraph testing program.                                      The Parole

Board    filed       a     written       response          and    the     legal       issues       were

reargued before this court, this time with the participation of

the Public Defender.

     Having now considered these issues with the benefit of the

court's    detailed             fact-finding,         we    reach       several       conclusions,

which    are     amplified            more   fully     in    this       opinion.           First,    we

reject     appellants'             categorical          attempt          to     invalidate          all

polygraph testing conducted by the Parole Board.                                     We find ample

support in the record for the trial court's finding that such

testing can assist parole officers and treatment professionals

in   making      better-informed               decisions          as     to     supervision         and




                                                  7                                          A-5435-10T2
treatment.     However, in recognition of our judiciary's long-

standing concerns about the inaccuracy of the machine-generated

results   produced     by   polygraph    testing,       we   conclude   that     the

Parole Board may not utilize such "technical" results in any

evidential   manner    to   support     imposing    sanctions     or    increased

restrictions on the monitored individuals.                   This proviso does

not, however, preclude the Parole Board from making evidential

use of the substance of any admissions or other statements made

by the offenders at a polygraph session, as distinguished from

the machine-generated technical results.

     Second, we hold that the Parole Board must                    enhance its

regulations and practices to safeguard an offender's right to

invoke his constitutional privilege against self-incrimination

in   responding   to    any    questions       posed     before   or    during     a

polygraph examination session.              We reject, however, appellants'

specific claim that the polygraph sessions comprise a form of

custodial    interrogation      that    require        the   administration       of

Miranda4 warnings.




4
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).




                                        8                                A-5435-10T2
                                        I.

      The following background derived from both the extensive

factual record and the overall regulatory scheme informs our

analysis of the constitutional and legal issues.5

             The Court's Long-standing Aversion           to   the
             Evidential Use of Polygraphs

      For    decades,   our   courts    have   declared   machine-generated

polygraph results to be unreliable proof that must be excluded

as   evidence,    unless   there   is    a   mutual   stipulation    from   the

parties agreeing to admit such proof.            See, e.g., 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).             As part of that unbroken line

of precedent, our State Supreme Court explained in McDavitt in

1972 that "[t]o date . . . lie detector testing has not yet

attained scientific acceptance as a reliable and accurate means

of ascertaining truth or deception."             McDavitt, supra, 62 N.J.

at 44.      In 2006, the Court reiterated the polygraph's scientific

unreliability and inaccuracy in Domicz, observing that "[i]n the

more than thirty years since McDavitt, serious questions about

5
  Much of this background repeats, at times verbatim, the
unpublished portion of our November 2013 opinion in J.B. I, as
corrected or amplified by additional information that emerged at
the trial court proceedings.      To the extent there is any
variation with our prior opinion, the details in our present
opinion supersede our earlier discussion.



                                        9                             A-5435-10T2
the reliability of polygraph evidence remain."                               Domicz, supra,

188 N.J. at 313.

      In   2009      in    A.O.,    the    Court    repeated         these       well-settled

principles, holding that polygraph evidence generated after a

stipulation         entered    into       between    the       State       and    a     criminal

suspect    —    without       the   involvement          of    the     suspect's        defense

counsel — is inadmissible at trial.                       A.O., supra, 198 N.J. at

90.   Among other things, the Court in A.O. referred again to the

abundant    scientific         literature         that    raises       doubts         about    the

reliability and accuracy of polygraph results.                               Id. at 83-84;

see also United States v. Scheffer, 523 U.S. 303, 309-12, 118 S.

Ct. 1261, 1265-66, 140 L. Ed. 2d 413, 419-21 (1998).                                  As of the

time of the Court's 2009 opinion in A.O., twenty-eight states

had banned the admission of polygraph evidence outright.                                     A.O.,

supra, 198 N.J. at 84.                The Court noted that "[v]irtually all

the other states" that have considered the issue "limit the

admission      of    polygraph      evidence       to    cases       where       both   parties

stipulate      to    its   use."       Id.    at    85.        As    the     Court      in    A.O.

unambiguously        declared,      "[t]his       Court       has    not    sanctioned        and

does not now entertain the admission of polygraph results."                                    Id.

at 86.




                                             10                                         A-5435-10T2
            The   Legislature's  Authorization  to   the
            Parole Board to Administer Polygraphs for
            "Treatment" and "Risk Management" of PSL/CSL
            Sex Offenders

      Despite        this    long-standing              precedent         treating

non-stipulated polygraph results as inadmissible in our courts,

the   Legislature      adopted   the        following    provision        in   2005

authorizing polygraph testing of offenders who are subject to

PSL or CSL.     This statute is part of a larger set of provisions

addressing the post-release supervision of persons convicted of

certain     sexual   offenses.     In       pertinent     part,     the    statute

provides:

            The 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,
            imposed pursuant to section 2 of P.L. 1994,
            c. 130 ([N.J.S.A.] 2C:43-6.4), 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 that 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 (emphasis added).]




                                       11                                  A-5435-10T2
     As   part   of    this   polygraph   initiative   and   the   related

provisions allowing electronic monitoring and other restrictions

of sex offenders on PSL or CSL, the Legislature articulated the

following    general    purposes    to    improve,   with    the   aid    of

technology, the post release monitoring of sex offenders:6

            a.   Offenders  who   commit   serious  and
            violent sex crimes have demonstrated high
            recidivism rates and, according to some
            studies, are four to five times more likely
            to commit a new sex offense than those
            without such prior convictions, thereby
            posing an unacceptable level of risk to the
            community.

            b.   Intensive supervision       of serious and
            violent sex offenders is a        crucial element
            in both the rehabilitation       of the released
            inmate and the safety of         the surrounding
            community.

            c.   Technological solutions currently exist
            to    provide   improved   supervision   and
            behavioral    control   of   sex   offenders
            following their release.

            d.   These   solutions  also   provide   law
            enforcement and correctional professionals
            with new tools for electronic correlation of
            the constantly updated geographic location
            of supervised sex offenders following their
            release with the geographic location of

6
  Contemporaneous with the passage of N.J.S.A. 30:4-123.88, the
Legislature issued these findings and declarations that were
applicable to the subchapter.   L. 2005, c. 189, § 2.     A later
amendment   in   2007  recodified   those   same   findings   and
declarations to its current form, N.J.S.A. 30:4-123.90. L.
2007, c. 128, § 8.




                                    12                             A-5435-10T2
             reported crimes, to possibly link released
             offenders to crimes or to exclude them from
             ongoing criminal investigations.

             e.   Continuous 24 hours per day, seven days
             per week, monitoring is a valuable and
             reasonable requirement for those offenders
             who are determined to be a high risk to
             reoffend,   were  previously   committed   as
             sexually violent predators and conditionally
             discharged, or received or are serving a
             special sentence of community or parole
             supervision for life.   A program to monitor
             these sex offenders should be established.

             [L. 2007, c. 128 (emphasis added); see also
             N.J.S.A. 30:4-123.90.]

             The Parole Board's Development of Polygraph
             Testing Procedures and Regulations

     The Parole Board then undertook to develop procedures and

regulations to implement the polygraph testing the Legislature

authorized     in   N.J.S.A.   30:4-123.88.   See   N.J.A.C.   10A:71-

6.11(b)(21); N.J.A.C. 10A:72-3.1 to -3.10.          Those regulations

and procedures are at the heart of the legal challenges advanced

here by appellants and the intervenor Public Defender.

     In objection to the Parole Board's initial set of proposed

polygraph regulations, the Public Defender's Office questioned

the reliability and utility of the device.          That comment from

the Public Defender was summarized by the Parole Board in the

New Jersey Register:

             The   section   requiring  convicted   sex
             offenders to submit to an annual polygraph



                                    13                         A-5435-10T2
             examination at their expense is both unfair
             and an extremely unreliable tool. The fact
             that the section (N.J.A.C. 10A:71-6.13(b))
             provides for a polygrapher specially trained
             in the use of the polygraph for monitoring
             of    sex    offenders    highlights    this
             proposition.   If the polygraph examination
             was   a   reliable   tool  for   determining
             deception, any qualified polygrapher would
             be equally capable of determining deception,
             whether the issue was taking money from a
             bank or continued interest in deviant sex.
             The commenter viewed the proposed new rule
             as just another step to make the lives of
             sex offenders in this State unbearable with
             no public benefit.

             [40 N.J.R. 3726(b) (emphasis added).]

In   response    to   that   comment,   the   Board   rested   upon   the

Legislature's own findings:

             New rule N.J.A.C. 10A:71-6.13 (Polygraph
             examinations) codified N.J.S.A. 30:4-123.88,
             [a statute] which was enacted effective
             August 11, 2005. As the language of the new
             rule is the same as the statutory language,
             the State Parole Board elected to adopt
             N.J.A.C. 10A:71-6.13 as proposed.

          [Ibid.]

     Because certain provisions in the proposed regulations, as

initially drafted, seemed to incorrectly mandate that the Parole

Board administer polygraph examinations on an annual basis to

all sex offenders, the Parole Board subsequently issued a rule

amendment.      Consistent with N.J.S.A. 30:4-123.88, the amendment

clarified the discretionary nature of its polygraph testing to




                                   14                           A-5435-10T2
make it plain that the testing is not a universal or annual

requirement.        N.J.A.C. 10A:71-6.11(b)(21).

     Subsequently, one of the appellants in this case, B.M.,

filed an appeal challenging the validity of the Parole Board's

practices in administering such polygraphs.                   In ruling on that

appeal    in   2010,    we   did   not     address      the   merits   of    B.M.'s

constitutional arguments.          Instead, we directed the Parole Board

to undertake additional formal rulemaking to codify its internal

practices      in    accordance    with        the   rulemaking   principles       of

Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984).

B.M. v. N.J. State Parole Bd., No. A-2599-09 (App. Div. June 30,

2010) (slip op. at 6-8).

     Consequently, in January 2011, the Parole Board proposed

additional polygraph regulations, in an effort to address the

need for rulemaking identified in our 2010 opinion.                      43 N.J.R.

121(a).     The bulk of those rule amendments, which were adopted

in July 2011, are now set forth in N.J.A.C. 10A:72-3.1 to -3.10.7

     During the public comment process concerning these proposed

clarifying rules, the Public Defender as well as a group of

individual      offenders     (none       of     whom   are    parties      to    the


7
  The proposal also sought to amend N.J.A.C. 10A:71-6.11(b)(21)
to clarify that an Assistant District Parole Supervisor or a
Supervising Parole Officer may also direct an offender to submit
to a polygraph examination.



                                          15                                A-5435-10T2
consolidated    appeals   presently         before    this    court)     submitted

objections to the Parole Board.              The objectors criticized the

proposed new provisions on a variety of constitutional and legal

grounds, all of which are now before us in the current appeals.

As the Parole Board summarized those objections:

            The comments submitted by the group of
            offenders related to their concern that
            polygraph examinations have been found to be
            unreliable; that based on a process found to
            be unreliable an offender may be subject to
            a course of action that would result in the
            loss of liberty; that an offender would be
            forced to give up his right to remain
            silent; and that as parole is part of the
            criminal process an offender's submission
            for a polygraph examination would violate
            his right to be represented by counsel.

            [43 N.J.R. 3087(a) (emphasis added).]

     The Parole Board rejected all of the objectors' claims of

unconstitutionality in its published response.                   Ibid.        Except

for certain revisions to the notice requirements in N.J.A.C.

10A:72-3.5,    the   Parole    Board    adopted        the    newest     rules      in

otherwise     substantively-unchanged          form     on    July     27,      2011,

effective   November   21,    2011.         Ibid.;    see    generally    N.J.A.C.

10A:72-3.1 to -3.10.         These newer regulations implemented the

more general authorization set forth in N.J.A.C. 10A:71-6.13.

That regulation, in turn, tracks the enabling statute, N.J.S.A.

30:4-123.88, almost verbatim, and reads:




                                       16                                    A-5435-10T2
             (a) . . . [T]he Board, on at least an
             annual   basis,   may  administer to   all
             offenders serving a special sentence of
             community or parole supervision for life,
             imposed pursuant to N.J.S.A. 2C:43-6.4,
             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 pursuant to N.J.S.A. 30:4-27.36
             has occurred.

             [N.J.A.C. 10A:71-6.13 (emphasis added).]

     The Three Types of Polygraph Examinations Authorized by the
                             Regulations

       The   Parole   Board's    regulations   describe      three    kinds    of

polygraphs:       (1)     an   "instant    offense    examination,"     (2)     a

"periodic maintenance examination," and (3) a "sexual history

examination."         N.J.A.C.   10A:72-3.3(a)       to   (c).   An    instant

offense examination is proper when "either an offender denies

guilt regarding the commitment offense or an offender's version

of    the    commitment    offense   differs     significantly       from     the




                                      17                               A-5435-10T2
official version of the commitment offense as noted in the pre-

sentence report."       N.J.A.C. 10A:72-3.3(a).

      By comparison, a periodic maintenance examination, which

appears to be much broader in scope, may be administered when it

is needed "to verify 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).

      Lastly, the regulations note that the third kind of test, a

sexual   history     examination8     may     be     administered         "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).

      The decision as to whether any of these kinds of polygraphs

should be administered to a particular offender serving a PSL or

CSL   sentence     is   initially      considered          by    the    individual's

assigned parole officer.        The parole officer is to be guided by

the following standards set forth in the regulations:

            The assigned parole officer shall review the
            offender's case with an Assistant District
            Supervisor, District Parole Supervisor, or
            Supervising Parole Officer for consideration
            of a polygraph examination, if the assigned

8
  The record before us indicates that the Parole Board has yet to
administer a "sexual history examination" to any offender on PSL
or CSL.



                                       18                                       A-5435-10T2
             parole 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.
             In addition, the reviewing supervisor must
             determine that there is a need to obtain and
             verify information regarding an offender's
             behaviors and sexual interests.

             [N.J.A.C. 10A:72-3.4(a) (emphasis added).]

The ultimate decision to administer a polygraph must be made by

a    supervisor.        N.J.A.C.   10A:72-3.4(b).   If    a   polygraph    is

ordered, the offenders are to be supplied with thirty days'

advance notice of the procedure, N.J.A.C. 10A:72-3.5, and are

presented with a disclosure form detailing the terms of the

polygraph, N.J.A.C. 10A:73-3.6(a), including notification that

"the results"9 of the examination "shall not be used as evidence

in court to prove that a violation of the [terms of PSL or CSL]

or    condition    of    discharge   has   occurred,"    N.J.A.C.   10A:72-

3.6(b)(6).     Failure to submit to a polygraph, absent good cause,

is now a third-degree crime, as a result of a change in the law

in 2013.    N.J.S.A. 2C:43-6.4(d).




9
  See our discussion, infra in Part III, concerning the meaning
of the term "results" and the implications of that definition.



                                      19                            A-5435-10T2
       The    polygraph         session       consists      of     a   pre-examination

interview,      the       examination        itself,       and    a    post-examination

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

interview, the examiner must review the test results with the

offender, advise him or her of "any significant, deceptive or

inconclusive response[s,]" and provide him or her with a chance

"to    explain        or       resolve       any     significant,        deceptive       or

inconclusive        response[s]."            N.J.A.C.      10A:72-3.7(h)(2).            The

examiner is to immediately notify a supervisor or a supervisor's

designee      of     "any      significant         findings,      conclusions      and/or

admissions      made        during     the    polygraph         examination     process."

N.J.A.C. 10A:72-3.8(a).                The supervisor or designee, in turn,

must   review       the    individual's       case    "with      the   assigned    parole

officer      and/or       treatment      provider     to    determine     a   course     of

action."      N.J.A.C. 10A:72-3.9(a).

       Notably, "any voluntary admission(s) made by the offender

regarding unreported victim(s) or crime(s)" must be immediately

reported to the appropriate law enforcement agencies.                           N.J.A.C.

10A:72-3.9(b).         The costs of the examination must be paid for by

the offender.         N.J.A.C. 10A:72-3.10(a).

       These testing procedures, as they are deployed in practice,

were    described         in   extensive       detail      by    the   Parole     Board's

witnesses      at     the      trial    court's      evidentiary       hearing.         The



                                              20                                  A-5435-10T2
testimony reflects that to some extent, the Parole Board has

altered its actual practices over time, even as the present

litigation has been pending.             The trial court accepted as expert

witnesses all of the testifying witnesses who were designated as

such by the parties and the Public Defender.

       The Parole Board's Factual and Expert Proofs

       Raymond Nelson

       The Parole Board's chief factual and expert witness at the

hearing was Raymond Nelson.               Nelson is employed by a company

that manufactures polygraph equipment used by the Parole Board.

He holds a master's degree in psychology,                    and has extensive

experience in both psychotherapy and statistical research.                          For

more than a dozen years, Nelson has counseled both perpetrators

and    victims    of    sexual     abuse.        Consistent       with    guidelines

promulgated      by    the    American      Polygraph     Association       ("APA"),

Nelson trains other examiners who administer polygraphs to sex

offenders.       Such tests are also known as Post Conviction Sex

Offender Testing ("PCSOT").

       Nelson    explained       that    polygraph      testing    operates     on    a

premise   that     certain     human     physiological      responses      correlate

with   deception       or   truth-telling.        The    polygraph       machine    has

electrodermal,        cardiac,     and   respiration      sensors        designed    to

measure    those       responses    as     the   subject     answers       questions



                                          21                                 A-5435-10T2
carefully formulated and arranged by the examiner.                              Appropriate

questions, depending on the nature of the test and the subjects

of inquiry, are ordinarily prepared prior to the exam session.

The actual wording of the exam questions is finalized during the

pre-test interview.

       The Parole Board uses an examination technique validated by

a   2011   APA    "meta-analysis."               As    part    of   that      technique,     an

examiner    intersperses        "target"          (or       relevant)    questions       among

"control" questions and "neutral" questions.                            The examiner then

evaluates        any    differences         in        the     subject's       physiological

response to those stimuli to gauge the probability that he or

she is engaging in deception.                     According to Nelson, subjects

with     stronger      responses       to    relevant          questions       tend    to    be

deceptive,       while    those    with          stronger       responses       to    control

questions tend to be telling the truth.

       The polygraph machinery the Parole Board uses is equipped

with somatic sensors, most commonly attached to the subject's

chair.     The sensors are designed to detect movement in any large

muscle group in the body, for example, by identifying changes in

distribution of weight on the chair.                         According to Nelson, the

equipment    can       thus   detect    whether         a     subject    is    deliberately

engaged in muscle tension or other known "countermeasures" to

affect the results of the test.                   The examinations typically last



                                             22                                       A-5435-10T2
an hour and a half, with most of that time devoted to the pre-

test interview.

      Nelson stated that polygraph testing had been used in the

post-conviction context for decades and that nearly all states

now used PCSOT in some manner.                       Nelson noted that some testing

was   performed     for    diagnostic        purposes,          such       as      the    "instant

offense" polygraphs authorized by N.J.A.C. 10A:72-3.3(a).

      Other   testing      is    primarily           used     for    screening           purposes,

such as the "maintenance" polygraphs authorized under N.J.A.C.

10A:72-3.3(b), as to which appellants here have most strenuously

objected.     The     purpose         of    such       maintenance         testing,        Nelson

explained,    is    threefold:             (1)        to    increase       the       information

available     for     treatment            and        supervision          by        encouraging

disclosure;    (2)        to    act    as        a    deterrent          to        violation     by

encouraging compliance with the conditions of supervision; and

(3) to aid those responsible for the offender's treatment and

supervision in discriminating truth from deception.

      Nelson cited research showing that the accuracy of PCSOT

polygraphs ranged from a median of 89% for diagnostic tests to a

median   of    85%     for       screening            tests     such          as     maintenance

polygraphs,    which       are    more      complicated             to    administer.             He

estimated the lower bound for accuracy of diagnostic tests at

83% and for screening polygraphs at 77%.                                 Although polygraph



                                             23                                           A-5435-10T2
reliability    is    not    perfect,   Nelson    contended      that    polygraph

results nonetheless performed far better than chance predictions

of truthfulness.           He also claimed that the          testing promoted

better-informed decision-making by officials who are responsible

for offender treatment and supervision.

     Dr. Bosley

     The Parole Board also presented testimony from Dr. Jackson

Bosley,    a   licensed       psychologist      engaged    in    sex     offender

treatment.     Dr. Bosley developed and now runs the Parole Board's

treatment program for indigent sex offenders.              He explained that

his program adopted a collaborative approach, in which treatment

professionals share information with parole officers.                   According

to   Dr.   Bosley,     such     collaboration      fosters      more     informed

decision-making       about      treatment      and   monitoring.              The

collaboration       thereby    promotes      rehabilitation       and     reduces

recidivism among supervised parolees.

     Dr.   Bosley     noted    that    the   therapeutic     process     for   sex

offenders is typically an initially uncomfortable one.                   This is

so because offenders participate in treatment only by mandate,

and tend to view the clinician as an enemy tasked with probing

the shameful behavior which led to the offender's conviction.

Dr. Bosley estimated that, as a consequence, about half of sex

offenders deny outright their offenses early in treatment, while



                                        24                               A-5435-10T2
the other half usually remain silent.              The psychologist opined

that an offender's overcoming denial and accepting culpability

for his instant offenses is a crucial step in that individual's

process.      Administering polygraphs aids that acceptance process,

Dr. Bosley explained, because such tests encourage offenders to

become    more    forthcoming    with   themselves      and    their   treatment

professionals, thus fostering rehabilitation.

        Dr. Bosley recounted that often the mere scheduling of a

polygraph      examination      motivates     offenders       to   become      more

forthcoming and ultimately to accept responsibility for their

behavior.        He asserted this phenomenon creates a therapeutic

benefit that is not directly dependent on the accuracy of the

testing itself.           He opined that some offenders would likely

never    accept    that    responsibility     without    being     subjected     to

polygraph testing.

        Captain Tallard

        The   Parole   Board   also   presented    testimony       from   Captain

Steven Tallard, a supervising parole officer who has been deeply

involved in the design and implementation of its PCSOT policies.

By the time of Tallard's testimony in September 2014, the Parole

Board had conducted a total of 1766 examinations pursuant to

those     policies,    including      594    "instant    offense"      and     1172

"maintenance" exams.         Sexual history examinations had never been



                                        25                                A-5435-10T2
conducted, and there were no plans to begin administering any as

of the time of the hearing.

       In the course of discussing the requirements for testing

set forth in the Parole Board's policies, Tallard confirmed that

maintenance    exams     were   not     meant      to   be   used     to    obtain

identifying information of new crimes or unreported victims.                      He

added that no offender currently under criminal investigation or

whose case remained on appeal could be ordered to comply with a

polygraph test. Instead, he asserted that the goal of such an

exam   was   only   to   confirm   or      eliminate     a   parole    officer's

concerns as to whether the examinee had been complying with the

conditions of his or her supervision. Thus, the Parole Board's

policies require that an offender only be subject to the exam on

a reasonable belief by the parole officer that the offender has

been non-compliant.      Tallard noted that an offender may leave an

examination, but may be subject to adverse consequences to his

or   her   conditions    of   supervision     as    a   result   of   such     non-

compliance.

       Tallard asserted that the Parole Board's decisions as to

conditions of supervision have never been based exclusively on

the technical results of an exam, but on a totality of the

circumstances, including any basis for the exam referral.                          To

the extent a published study conducted by Heather Carbone in



                                      26                                   A-5435-10T2
2009 suggested to the contrary, i.e., that the Parole Board may

have made supervision decisions solely on the basis of technical

exam    results    in    the    past,    Tallard        believed    her    report       was

inaccurate.        He asserted that Carbone's survey failed to make

clear what she meant by the term exam result, implying that

Carbone's       percentage      figure   included        more   than     the   machine-

generated results.

       Sergeants Andresen and Cavanaugh

       Sergeant     Ryan       Andresen,    an        assistant     district       parole

supervisor and a certified polygraph examiner, further explained

the agency's actual practices.              Andresen has conducted about 150

polygraph exams.         He noted that the polygraph techniques used by

the    Parole    Board's     examiners      have      evolved     over    time.       Some

"comparison"       questions       during       the     procedure      have    changed.

Andresen asserted, however, that all techniques used have been

validated by the APA.              He also noted that each examiner is

required to submit two exam reports per year for peer review.

       Sergeant Kimberly Cavanaugh, a certified polygrapher who

also has likewise administered about 150 examinations for the

Parole    Board,        provided    similar        testimony.            Cavanaugh        is

responsible for reviewing every request within the agency for

offender examinations.           She acknowledged that in the early years

of the Parole Board's program, maintenance examinations could be



                                           27                                     A-5435-10T2
performed at a parole officer's request, merely as a "general

compliance check."       According to Cavanaugh, once the regulations

and policies were changed, exam requests could no longer be

approved without a reasonable suspicion of the offender's non-

compliance with his conditions of release.

       Cavanaugh   explained      that,     prior     to      administering         the

polygraph, an examiner reviews information from the examinee's

case   history,    including     the   pre-sentence         report    as     well    as

treatment and supervision notes.               The examiner does this to

prepare for the interview and design the exam.                       The resultant

exam questions, she cautioned, are meant only to explore the

examinee's behavior in complying with conditions of supervision,

and are not fashioned to uncover specific information about new

criminal    activity.         Cavanaugh     agreed    with     Tallard     that     an

examinee is free to leave during an exam, but his refusal to

take   a   polygraph    or    non-cooperation        during    the    test    could,

although need not, lead to a parole violation.

       Appellants' and Intervenor's Proofs

       The expert and other witnesses who testified for appellants

and the Public Defender countered these alleged positive aspects

of the polygraph program.         On the whole, they levied substantial

criticisms    about     the    reliability     of     the     polygraph      testing




                                       28                                    A-5435-10T2
results, as well as the fairness and consistency of the Parole

Board's practices.

        Dr. Iacono

        The chief opposing witness was Dr. William G. Iacono, a

prominent polygraph critic, who is an expert in physiology and

who has studied the scientific validity of polygraph testing.

Dr. Iacono holds a doctoral degree in clinical psychology and

psychophysiology.         He   has        conducted      psychophysiological

research, including studies focused on the validity of polygraph

testing, for more than forty years.                He has published about

twenty-five papers over the course of that career, and his work

has been cited by our own Supreme Court and the Supreme Court of

the United States.

        Dr. Iacono explained that polygraph machines were designed

simply to record physiological responses during the course of an

exam.     The device shows changes in activity such as heart and

respiratory rates and blood pressure, but does not explain why

such    changes   occurred.    According     to    Dr.   Iacono,    no    unique

physiological activity is inherently indicative of deception.

Hence,     different   individuals    can     be      expected     to    produce

different patterns of such activity while lying.                 As Dr. Iacono

explained, the machines, which merely record those patterns, do

not actually "detect lies."



                                     29                                  A-5435-10T2
        Dr.    Iacono       substantially       criticized         the    Parole      Board's

polygraph methodology.                He noted that the agency's examiners

have used control questions presumed to elicit a lie, so that

the physiological response to those probable-lie questions can

serve    as     a    frame     of   reference       (i.e.,     as    a    "control")       for

responses to the relevant questions.                      The assumption underlying

this methodology is that an honest subject will deny a relevant

question       with    no    significant       reaction,       but       have   a    stronger

reaction when lying in response to the control question.                                      A

dishonest subject, on the other hand, would be expected to have

a   stronger        reaction    when    lying       in   response        to   the    relevant

question       than   to     the    control.        The   questions           are   typically

repeated in varying order so as to produce a response pattern

that an examiner analyzes to gauge the subject's truthfulness.

All of this rests on the assumption that honest and dishonest

individuals         will    likely     yield    predictably         different        reaction

patterns to control questions.

        Dr. Iacono disagreed with this assumption.                        He noted that a

subject who answers a control question truthfully might then

react strongly only to a relevant question, falsely registering

apparent deception.                Dr. Iacono testified that he knew of no

theoretical         explanation      for   the      assumption       that       a   deceptive

subject       would   respond       more   strongly       to   a    relevant        question.



                                               30                                    A-5435-10T2
Because    control     questions     often      carry    a    different   level      of

accusation than relevant ones, he pointed out that a discrepancy

in response between the two queries could be attributable to a

poor pairing of questions, rather than to the subject's honesty.

According to Dr. Iacono, a relevant question can be relevant for

an honest examinee just as it is for a dishonest one, because he

would recognize it as a question on which his "fate hangs."                         The

truthful subject may then exhibit a strong reaction to the false

accusation      in   that    question,      but   due    only     to   fear   of    the

consequences of failing the test.

     Dr. Iacono further expressed concerns with what he termed

examiner bias.         He noted that for instant offense exams, for

example,     the     examiner     begins    with    an       assumption   that      the

examinee   is      guilty,   an   assumption       which     then   influences      the

formulation of test questions and compromises the integrity of

the whole testing process.

     To be sure, Dr. Iacono acknowledged that examiners do tend

to be ethical and conscientious, and he agreed that a skilled

examiner      can      minimize      subjectivity            in     designing       and

administering the test and analyzing the results.                       Even so, he

concluded that some unconscious bias by the examiner will always

remain.      Compounding the problem, Dr. Iacono                    added, is that

polygraph examiners seldom have any opportunity to learn when



                                           31                                 A-5435-10T2
they have erred.      He faulted the Parole Board for not having

implemented routine quality control measures, such as blind peer

reviews of examiners.

     Dr.     Iacono    underscored        recent   research   addressing

"contamination bias," a concept that had been illustrated by a

segment on the television show "60 Minutes."         In that situation,

a number of polygraph firms were assigned four individuals to

test, identifying one among the four who was suspected of being

guilty.     All four persons were actually innocent, but, in every

case, the polygraph firm deemed the identified "suspect" to be

deceptive.

     Dr. Iacono also discussed research as to the accuracy of

exams administered by the Royal Canadian Mounted Police in the

1980s.     The research showed that the polygraph results carried a

strong bias against innocent persons, with an accuracy level for

those individuals of only 57%, just slightly better than a 50/50

chance.     Dr. Iacono also stated that previous laboratory studies

had revealed that dishonest individuals can confound the exam

results with certain known countermeasures.

     Based on his research, Dr. Iacono opined that the claims of

accuracy by polygraph practitioners are exaggerated in general

and for maintenance exams in particular.             He did acknowledge

that polygraph testing can provide some "therapeutic benefit" to



                                     32                         A-5435-10T2
certain   individuals,        including     if    testing    encouraged        them       to

overcome denial of their offenses.                 He doubted, however, that

testing would carry such a benefit "across the board."

     Dr. Iacono admitted that the Parole Board's expert, Dr.

Bosley, was in a better position than he was to evaluate the

impact    of    testing    on      the     psychological        treatment          of    the

offenders      the   Parole     Board    monitors.          However,     Dr.         Iacono

cautioned that, if testing continues to be used, the technical

results of the tests should never be dispositive of a parole

supervision     decision      in    isolation,      but     considered        with       all

available relevant information in light of the fallibility of

the device.

     Dr. Atkins

     Appellants also presented Dr. Elliot Atkins, an expert in

psychology with a focus on the assessment and treatment of sex

offenders.       Dr.   Atkins      holds    a    master's    degree      in    clinical

psychology and a doctorate in school psychology.                    He is licensed

to practice psychology in New Jersey and Pennsylvania.                              He has

extensive experience in clinical treatment of both victims and

perpetrators of sexual abuse.

     Dr. Atkins testified that most sex offenders suffer from a

"lifetime      condition."          Consequently,         the    goals        of        their

treatment (most often cognitive-behavioral therapy) are twofold:



                                           33                                      A-5435-10T2
(1) to help them understand the circumstances that led to their

offenses, and (2) to develop skills for managing their behavior

to prevent recidivism so that they can safely be reintegrated

into the community.          The success of treatment in that regard,

Dr.   Atkins     explained,          depends     on     the     development     of     a

"therapeutic alliance," built on trust and respect between the

patient and therapist.           The establishment of such a relationship

fosters a "feeling of safety[,]" which permits the patient to be

honest in treatment.            This helps assure that the patient will

achieve meaningful therapeutic progress, thus reducing his or

her risk of recidivism.

      Dr. Atkins opined that the "containment" approach used by

the   Parole     Board,    in    which      clinicians        and   parole   officers

collaborate, damages the therapeutic relationship by destroying

the   confidentiality           on    which      that     relationship        depends.

According   to    Dr.     Atkins,     the    added     requirement     of    polygraph

testing only serves to weaken the relationship.                      He agreed that

an offender's overcoming of denial for his initial offense is

important to progress in treatment.                   He did not agree, however,

that an acknowledgment of guilt had any established impact on

the risk of recidivism, or that forcing an offender to admit

guilt through a polygraph examination would be more beneficial




                                            34                                A-5435-10T2
than working through denial in therapy without resort to such

technology.

        Indeed, Dr. Atkins testified that overcoming denial only

through the use of a polygraph might threaten the therapeutic

alliance     critical        to     successful         treatment,          and     have     a

destabilizing effect on examinees.                     Dr. Atkins stated that he

would only use a polygraph examination on a voluntary basis, and

where    a   client    believed         the    test       would    prove    his    or     her

innocence.

        Parole Officer Hritz

        The court also heard the testimony of Ann Hritz, a parole

officer who supervises offenders serving PSL and CSL terms.                               She

is responsible for monitoring their compliance with conditions

of parole.     Hritz recounted the case history of one of her CSL

supervisees,     D.R.         D.R.      had        reached      the    third     phase     of

supervision     when    he        was   referred          for     an   instant     offense

examination.     D.R. continued to deny his guilt and consequently

failed the exam.        He was then returned to the first phase of

supervision, which required him to attend further counseling to

address his denial.

        Dennis Radabaugh's Deposition

        Appellants    also   relied       upon      the    deposition      testimony       of

Dennis    Radabaugh,    which       the   trial       court       considered      with    the



                                              35                                   A-5435-10T2
parties' consent, due to his failing health10 and his consequent

inability to testify in court.                     Radabaugh was a police officer

who    became      a    clinical   social        worker     providing      psychotherapy

mainly      to    sex    offenders,      first      at    the   Adult     Diagnostic      and

Treatment Center and then in private practice.                             Radabaugh was

critical of the Parole Board's "containment" approach in matters

of treatment and risk management.                    He asserted that the use of

polygraph testing in connection with that approach was coercive

and traumatic.            Radabaugh opined that polygraphs generally do

not    yield      benefits   for   treatment         and,       specifically,      have    no

beneficial effect on sex offenders' risk of recidivism.

       The Trial Court's Findings

       At   the     outset   of    its    written         conclusions      analyzing      the

pertinent        facts    presented      at    the       hearing,   the    trial    court11

acknowledged "the controversy that surrounds polygraph testing

generally[.]"12


10
     Radabaugh has since died.
11
  The panel expresses its deep appreciation to the trial court
for undertaking the evidentiary hearing and issuing its lengthy
findings of fact pursuant to our referral under Rule 2:5-5(b).
12
   In a lengthy footnote within the unpublished portion of our
opinion in J.B. I., we identified much of the competing
literature on the subject. As we noted:

                 Several published            articles       reflect this
                 scientific   or              academic        disagreement
                                                                         (continued)


                                              36                                   A-5435-10T2
(continued)
          regarding the rehabilitative or therapeutic
          value of polygraph examinations. See, e.g.,
          Gershon Ben-Shakhar, The Case Against the
          Use of Polygraph Examinations to Monitor
          Post-Conviction Sex Offenders, 13 Legal &
          Criminological Psycho. 191 (2008) (exploring
          major polygraph techniques and applications
          for    sex   offenders,        warning     of   the
          unreliability of one of the most common
          polygraph techniques, and concluding that
          such application may lead to an increase,
          rather    than    decrease,        in    rates   of
          recidivism); Ewout H. Meijer et al., Sex
          Offender Management Using the Polygraph: A
          Critical Review, 13 Int'l J.L. & Psychiatry
          423, 428 (2008) ("[T]here is no evidence
          supporting the accuracy of the [Control
          Question Test, a commonly-used polygraph
          testing method for sex offenders,] in PCSOT
          [post-conviction      sex    offender     polygraph
          testing]."); Douglas C. Maloney, Comment,
          Lies,   Damn    Lies,     and     Polygraphs:   The
          Problematic     Role       of      Polygraphs    in
          Postconviction     Sex      Offender      Treatment
          (PCSOT), 84 Temp. L. Rev.               903 (2012)
          (discussing the disputed reliability of
          polygraph testing for sex offenders, but
          noting, perhaps, its appropriateness for
          therapeutic purposes).        But see Don Grubin,
          The Case for Polygraph Testing of Sex
          Offenders,    13     Legal      &    Criminological
          Pyschol. 177, 187 (2008) ("The evidence
          suggests that, whatever the pros and cons of
          polygraph use in other settings, [post-
          conviction sex offender polygraph testing]
          can make a valuable contribution to sex
          offender treatment and management."); Jill
          S.    Levenson,     Sex     Offender      Polygraph
          Examination:      An      Evidence-Based       Case
          Management Tool for Social Workers, 6 J.
          Evidence-Based Soc. Work 261, 369 (2009)
          ("[P]olygraph examination has emerged as a
          useful tool in encouraging the disclosure of
                                                            (continued)


                                  37                          A-5435-10T2
(continued)
          past sexual crimes . . . . [T]he accuracy of
          polygraph examination of sex offenders is
          unclear. On the other hand, a growing body
          of evidence supports the value of polygraph
          examination as a clinical tool in eliciting
          information for assessment . . . and
          monitoring purposes."); Lars Madsen, Shaun
          Parsons, & Don Grubin, A Preliminary Study
          of the Contribution of Periodic Polygraph
          Testing to the Treatment and Supervision of
          Sex Offenders, 15 J. Forensic Psychiatry &
          Psychol., 682, 682 (2004) (summarizing that
          "polygraph testing had an impact on the
          level of seriousness of the risk behaviours
          engaged in by sex offenders, but this only
          occurred   after  experience   of  the   test
          itself"); Daniel T. Wilcox & Daniel E.
          Sosnowski, Polygraph Examination of British
          Sexual Offenders: A Pilot Study on Sexual
          History Disclosure Testing, 11 J. Sexual
          Aggression 3, 3 (2005) ("This application of
          the polygraph has shown merit as a means of
          obtaining additional information about past
          sexual offending behaviours. . . . This
          suggested    that    collaboration    amongst
          treatment,    supervision    and    polygraph
          professionals could help to contain sexual
          offending behavior more effectively, to
          improve and enhance public protection.");
          Theresa A. Gannon et al., The Evaluation of
          the Mandatory Polygraph Pilot (Univ. of
          Kent, Ministry of Justice Research Series,
          2012) (observing an increased likelihood
          that sex offender case managers would rely
          on polygraph results to take preventative
          measures to protect the public from harm,
          and also that polygraph testing continued to
          elicit   clinically-significant   disclosures
          from sex offenders).

         [J.B. I, supra, slip op. at 45-46 n.15.]




                               38                         A-5435-10T2
     Illustrative       of   that    general    controversy,   as    the      trial

court noted, "the record in this case contains strong expert

opinions on both sides as to the use and accuracy of polygraph

testing    for   sex   offenders."       The    court   observed    that     it   is

"undisputed" that "everyone agrees it is an area where more

research would be beneficial."                Even so, the court found the

factual record here sufficient to address the contentions we had

referred for findings.

     Having sifted through the proofs, the court offered this

ultimate conclusion:

                 The court finds that the Parole Board's
            current policies and practices regarding
            PCSOT polygraph testing for sex offenders
            represent   a    reasonable   choice   among
            competing alternatives for supervision of
            sex offenders.   While clearly not free from
            controversy or valid criticism, both as to
            theory and practice, 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 CSL and PSL sentences in
            the community.

            [(Emphasis added).]

     The    court      provided     several    detailed   reasons     for      this

assessment.      First, it addressed the persistent concerns about

the scientific inaccuracy of polygraphs:

                 Firstly, while Raymond Nelson relied on
            polygraph accuracy estimates of between 81%
            and 91% found in a review of polygraph
            research conducted by the National Research


                                        39                                 A-5435-10T2
           Council of the National Academy of Sciences,
           these findings came with many caveats that
           included a conclusion by the Council that
           the estimates were likely overstated. . . .
           The study did find, however, that specific
           incident polygraph testing of examinees
           untrained in countermeasures designed to
           skew the test can discriminate lying from
           truth-telling at rates well above chance,
           though   well   below   perfection.      Nelson
           reached    a    similar    conclusion    in    a
           statistical review of polygraph research he
           conducted with others for the American
           Polygraph Association in 2010-2011. . . .
           Notably,   neither    the   National   Research
           Council study nor the more recent APA study
           focused on PCSOT testing, but dealt more
           generally with polygraph reliability across
           many    contexts.         Studies    addressing
           polygraphs used in sex offender treatment
           programs, however, have confirmed similar
           results. See, e.g., [Don] Grubin et al., A
           Prospective    Study    of    the   Impact    of
           Polygraphy on High-Risk Behaviors in Adult
           Sex Offenders[,] 16 Sexual Abuse: A Journal
           of Research and Treatment 3 (July 2004),
           . . .;   [Ron]    K[o]kish,    et   al,    Post-
           conviction      Sex      Offender     Polygraph
           Examination: Client-Reported Perceptions of
           Utility and Accuracy[,] 17 Sexual Abuse: A
           Journal of Research and Treatment 2 (April
           2005). . . .     The court is persuaded that
           the National Academy of Sciences report,
           augmented by the conclusions in the recent
           APA meta-analysis and the PCSOT studies by
           Grubin and K[ok]ish, provide sufficient
           support to conclude that [PCSOT] polygraph
           testing is accurate enough to be used by the
           Parole Board for parole supervision and risk
           management.

      Next, the court explained why, despite the criticisms of

Dr.   Iacono   and   others,   current   assessments   of   the   polygraph

regard it as a useful aid to parole supervision:



                                    40                             A-5435-10T2
                 Of critical importance to the court in
            this regard is that the instant offense
            exams and maintenance exams based on a
            reasonable belief that particular parole
            conditions have been violated are both
            specific issue exams that come within the
            broad context of the studies conducted by
            the National Academy and APA.       While Dr.
            Iacono testified that polygraph testing has
            been largely rejected by the scientific
            community,   the   National    Academy   study
            refutes that argument, although it is clear
            from that report and the APA study that the
            modern approach to polygraphy views the
            testing more as an aid to decision-making
            based on information produced in the test
            rather than as an infallible measure of
            lying.   Also, the National Academy study in
            particular   reviewed   the   same   kind   of
            criticisms of polygraph accuracy raised by
            Dr. Iacono, but ultimately still confirmed
            high levels of reliability for the testing,
            assuming that the exams were based on
            specific   issues   and   involved   examinees
            untrained in countermeasures.        Moreover,
            while asserting that there is no theoretical
            explanation    for   assuming    a   deceptive
            individual would respond more strongly to a
            relevant question, [Dr.] Iacono grudgingly
            admitted that such an assumption was "not
            preposterous" and that testing could have
            some value when applied to sex offenders in
            treatment.

            [(Emphasis added).]

       The court did find that the accuracy rates of 71% to over

90%,   as   set   forth   in    the    National   Academy   and   APA   studies,

"likely" overestimated the device's reliability.                  However, the

court found that the fallibility of test results did not warrant

a   total   elimination        of     polygraph   testing   in    sex   offender




                                          41                            A-5435-10T2
monitoring and, instead, found "sufficient support in the record

for the Parole Board's use of [PCSOT] polygraph testing."       It

noted:

         Even Dr. Iacono, with his harsh critique of
         the science undergirding polygraphs, could
         not state unequivocally that the Parole
         Board should stop performing instant offense
         exams.    While the court acknowledges the
         validity of many of the concerns raised by
         Dr. Iacono, and reflected in an article he
         relied on by Ben-Shak[ha]r (The case against
         the use of polygraph examinations to monitor
         post-conviction sex offenders, Legal and
         Criminal Psychology (2008) . . . ), the
         court finds that their concerns do not
         require banning use of the exams altogether,
         but rather suggest that the Parole Board
         should use care in incorporating polygraph
         results in decision-making regarding the
         supervision and risk management of sex
         offenders. The National Academy report, for
         example, fully considered Ben-Shak[ha]r's
         opinions, which mirror the ones expressed by
         Dr. Iacono in his testimony, and found them
         unpersuasive   as   a    challenge  to   the
         conclusions reached by the Academy.

         [(Emphasis added).]

    The court commented favorably on the more recent changes

made by the Parole Board to limit its reliance on technical

polygraph results:

              While   [Dr.]   Iacono   opposed   using
         technical polygraph results alone to make
         parole decisions, the Parole Board does not
         use results in that fashion anymore.       In
         fact, although the Carbone report . . .
         regarding the Parole Board Program found
         that   parole   status    changed   following
         administration of polygraphs 42% of the



                               42                        A-5435-10T2
           time, Parole Board officials explained why
           they thought that figure was unreliable even
           in 2009 and certainly would not be true
           today.    They asserted unequivocally that
           polygraph results are not now used alone to
           make decisions, but are considered as part
           of a totality of the circumstances approach
           to decision-making.     In addition, while Dr.
           Iacono   also    emphasized   the   ability   of
           examinees to intentionally affect polygraph
           results, he had not reviewed the measures
           employed by the Parole Board to defeat such
           efforts.      Those measures include using
           modern machines with specially designed
           sensors to detect even slight movements that
           could   skew    test   results    and   examiner
           training to combat examinee manipulation.
           Employment of those measures cannot defeat
           all efforts by test takers to produce false
           results,   but    did   somewhat   blunt   [Dr.]
           Iacono's criticism regarding countermeasures
           employed   by    examiners    to   affect   test
           results.

           [(Emphasis added).]

    The court found especially persuasive the expert testimony

of Dr. Bosley explaining how the Parole Board has been using

"instant   offense"   polygraphs   effectively   in   the   treatment   of

sexual offenders:

                Perhaps even more compelling support
           for continuing PCSOT polygraph testing by
           the Parole Board came from Dr. Bosley, who
           supervises a large treatment program for New
           Jersey   sex    offenders  living    in   the
           community.   He leads one therapy group of
           sex    offenders    and   supervises    other
           clinicians who work in the program.     He is
           highly supportive of the use of polygraph
           instant offense exams because he has seen
           their efficacy in assisting sex offenders
           overcome denial of responsibility for their



                                   43                            A-5435-10T2
         sex crimes.     He believes that overcoming
         denial is a critical component for most 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.        Although
         there was little research support in the
         record to prove that instant offense exams
         reduce sex offender recidivism, the court
         finds that successful therapy does lead to
         reducing recidivism and that administration
         of instant offense exams can be a useful
         tool   for   therapists   working   with   sex
         offenders.   This conclusion is supported by
         the Practice Guidelines for the Assessment,
         Treatment, and Management of Male Adult
         Sexual Abusers (2014), published by the
         Association for the Treatment of Sexual
         Abusers ("ATSA"), which acknowledges that
         polygraph testing can be beneficial in sex
         offender treatment even though reliability
         and    validity    questions    exist    about
         polygraphs generally. . . . ATSA includes
         the utilization of polygraph testing as an
         acceptable   mechanism   to  employ   in   sex
         offender management, but does not endorse it
         over other methods.      Moreover, there was
         evidence in the record that approximately
         70%   of    community-based    sex    offender
         treatment programs for adults utilize some
         form of polygraph testing.

         [(Emphasis added).]

The court added:

              The court was struck by Dr. Bosley's
         endorsement of the instant offense exam even
         if polygraph accuracy was questionable.
         That   view   has   been    characterized  as
         utilitarian   because    it    considers  the
         positive impact a polygraph program can have
         on sex offender treatment regardless of
         testing reliability. [Dr.] Bosley mentioned
         that even the threat of having to take a



                               44                         A-5435-10T2
         polygraph can stimulate admissions relating
         to the instant offense that help sex
         offenders attain therapeutic goals. Captain
         Tallard testified, for example, that 200 sex
         offenders admitted their instant offenses
         after the PCSOT program was initiated in New
         Jersey, allowing those offenders to progress
         in treatment without having to submit to a
         polygraph   exam.      Moreover,    there   was
         testimony of disclosures being made in the
         interview portions of polygraph testing that
         were   not    reliant    on    the    technical
         physiological results of the exam.        [Dr.]
         Bosley also noted the positive impact in
         group therapy sessions of an offender's
         discussing having taken a polygraph exam.
         He testified that the impact of such
         discussions often allowed the examinee to be
         more honest with himself and encouraged
         other group members to embrace similar
         attitudes.   That conclusion also was echoed
         in the Carbone report . . . , which found
         that administering a polygraph to one member
         of a therapy group produces a "vicarious"
         effect   among   other   group    members   and
         encourages honesty with parole officers and
         treatment providers.

         [(Emphasis added).]

    The court recognized, but ultimately found non-dispositive,

appellants' criticism of the Parole Board's past manner of using

maintenance polygraphs as "fishing expeditions":

              While the record shows greater support
         for the accuracy of instant offense exams
         than maintenance polygraphs, the Parole
         Board modified its policies in 2012 and
         effectively did away with broad screening
         exams akin to fishing expeditions that
         apparently had been conducted in the early
         days of the program. Such general inquiries
         into a parolee's behavior in the community
         were the least accurate type of PCSOT



                               45                          A-5435-10T2
polygraph exam performed by the Parole
Board, and such tests elicited the harshest
attack from Dr. Iacono. One of the reasons
for   [Dr.]   Iacono's    criticism    was   the
difficulty    in     formulating     appropriate
control questions when there was no proof or
reasonable suspicion that a parolee had
engaged in a particular dangerous behavior
or parole violation.        General screening
tests untethered to specific incidents were
also found to be unreliable in the National
Academy study. . . . Testing in such a
manner is no longer conducted by the Parole
Board, however, because N.J.A.C. 10A:72-3.4
now requires that a parole officer have "a
reasonable belief that an offender is non-
compliant     with     a    condition(s)      of
supervision," and that such an assertion be
reviewed and confirmed by a supervisor
before a maintenance polygraph will be
scheduled.    So maintenance polygraphs are
now supported by some evidence to connect a
parolee to dangerous behaviors and are not
as vulnerable to attack on the basis of
accuracy as randomly assigned exams with no
basis to suspect that the parolee is
engaging in dangerous behaviors. Since test
questions for maintenance exams can now be
designed   to   examine   the    occurrence   of
specific behaviors or incidents, and Board
examiners     use      question      formulation
techniques validated in the 2010-2011 APA
study, the court finds that such targeted
maintenance exams are sufficiently reliable
to allow the Parole Board to use them,
largely based on the analyses done by the
National Research Council and Nelson's work
for the APA.       Such exams, while not as
reliable as instant offense testing, are
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. Even Dr. Atkins acknowledged
as much in his testimony, reserving his
highest criticism for the instant offense



                      46                           A-5435-10T2
         exams because of his belief that they
         undermined the therapeutic relationship.

         [(Emphasis added).]

    The court also found significant the Parole Board's change

of its practices to avoid relying on polygraph results alone as

a basis for altering an offender's conditions of supervision:

         [T]he Parole Board officials who testified
         made it clear that the program as currently
         administered    does    not    use    technical
         polygraph results from maintenance exams
         alone to change parole conditions for sex
         offenders, as [Dr.] Iacono assumed was a
         common practice based on his review of the
         Carbone report.     That 2009 study reviewed
         information from the early days of the
         Parole Board program and reported that
         polygraph results led to changes in parole
         supervision for 42% of the sex offenders who
         took the exams. . . . [Dr.] Iacono was
         highly   critical    of   using    questionable
         results alone to alter conditions of parole.
         Nelson    also    strongly     conveyed    that
         maintenance polygraph results should only be
         used as one of many factors in making parole
         supervision decisions—a position consistent
         with the ATSA practice guidelines, which
         note that, "When the polygraph is utilized,
         findings    are   to    be    interpreted    in
         conjunction with other relevant information
         to inform decision-making." . . .

              Although the court is not convinced
         that such a policy [of limited relevance]
         was carefully followed in the early days of
         the Parole Board's PCSOT program, and may
         not have been followed in individual cases
         in recent years, the court does conclude
         that the current program is based upon that
         approach.     Since   that  approach   is   a
         reasonable one when coupled with the testing
         requirements   now  contained   in   N.J.A.C.



                               47                          A-5435-10T2
         10A:72-3.4,   the   court   finds   sufficient
         support in the record for the continued used
         of maintenance polygraphs by the Parole
         Board. While some of the recorded polygraph
         exams played during the trial revealed less
         than optimal practices, continued PCSOT
         examiner training apparently has led to
         changes in the administration of maintenance
         polygraphs by the Parole Board and how the
         results are utilized. Nelson testified, for
         example, that interviews should not be
         interrogations.   Yet some excerpts of exams
         in the record showed examiner conduct that
         was very adversarial in nature.       Sergeant
         Cavanaugh   testified,    however,    that    a
         different, less accusatory approach is now
         being utilized. The court finds that, while
         somewhat   disconcerting,    deviations    from
         reasonable policies in individual cases
         simply are insufficient to compromise the
         overall policy choices made by the Parole
         Board about using maintenance polygraphs for
         parole supervision of sex offenders serving
         PSL and CSL sentences in the community.

         [(Emphasis added).]

    Lastly,   the   court   addressed   the   so-called   "containment

model" of treatment utilized by the Parole Board with the input

of the polygraph results:

              Although not directly part of the
         issues referred to this court for review,
         the record also reveals strong differences
         of opinion about the containment model of
         treatment and parole supervision adopted by
         the Parole Board.      This approach to sex
         offender parole supervision is endorsed by
         ATSA,   which    sees    clearly   delineated
         collaboration between parole officers and
         treatment   professionals   as   a means   to
         promote "successful public safety and client
         outcomes." . . . The criticism of this kind
         of program voiced by Dr. Atkins and Dennis



                                 48                           A-5435-10T2
          Radabaugh    focused   on   the   absence  of
          confidentiality     between   therapist   and
          offender in a collaborative approach and the
          damage to the therapeutic alliance that
          could    be    caused   by   such    lack  of
          confidentiality. Dr. Bosley noted, however,
          that the scope of the collaboration is made
          clear to participants when they enter the
          program.    In his view, the positive aspects
          of collaboration to the offender and the
          community far outweigh any negatives.

               The record shows that collaboration is
          an appropriate and reasonable approach to
          the parole supervision of sex offenders.
          While not the only way to structure a
          treatment and supervision program, and while
          not free of controversy, the court did not
          find the expert critique of the approach
          sufficient to undermine the Parole Board's
          policy choice in this complicated area of
          parole supervision, especially when Dr.
          Bosley provided such strong support for the
          design of the program and the approach is
          sanctioned by ATSA.

          [(Emphasis added).]

                                II.

    We now consider appellants' legal arguments, joined by the

Public Defender, in light of these findings of the trial court

and the applicable law.

    Appellants contend that the Parole Board's use of polygraph

testing — particularly maintenance examinations — violates their

constitutional rights of privacy, freedom of thought, and due

process under the First, Ninth, and Fourteenth Amendments.    They

further   argue   that    the    polygraph   testing   procedures




                                49                        A-5435-10T2
unconstitutionally impinge upon their Fifth Amendment privilege

against self-incrimination and their Sixth Amendment right to

counsel.     Appellants also invoke cognate protections under the

New   Jersey   Constitution.           Apart    from        these       constitutional

arguments,     appellants       also     contend,           as      a     matter       of

administrative law, that the Parole Board's polygraph program

must be set aside as arbitrary, capricious, and unreasonable.

      As this court previously elaborated in J.B. I, supra, 433

N.J. Super. at 336-39, a discussion which we incorporate by

reference here, parolees and sex offenders such as appellants

who are under post-release PSL or CSL supervision have limited

constitutional protection from governmental oversight of their

activities in society.

      The    United    States    Supreme       Court    has         constitutionally

permitted    parolees     to    be   "subjected        to    'conditions         [that]

restrict    their     activities     substantially          beyond       the   ordinary

restrictions imposed by law on an individual citizen.'"                         Id. at

337 (alteration in original) (quoting Morrissey v. Brewer, 408

U.S. 471, 478, 92 S. Ct. 2593, 2598, 33 L. Ed. 2d 484, 492

(1972)).     Because of their recognized special proclivity toward

recidivism, sexual offenders on post-release oversight under PSL

or CSL can be constitutionally restricted in their activities by

the   Parole    Board,     so   long     as    they     receive          due    process




                                       50                                      A-5435-10T2
protections such as notice and an opportunity to object to those

restrictions and provided that the Parole Board does not engage

in   "arbitrary    government      action."      Id.    at    336,     338   (citing

Jamqochian v. N.J. State Parole Bd., 196 N.J. 222, 237-38, 241-

42 (2008)).

       In essence, persons such as appellants on PSL or CSL have

less constitutional freedoms than other civilians.                     Even so, the

government must treat them with fairness and not in an arbitrary

or unreasonable manner.

       Aside    from   these   constitutional     standards,         we   also     must

apply     the    well-established         criteria      for     the       review    of

administrative agency actions.            In general, an agency's decision

will be sustained "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) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556,

562 (1963)); see also Aqua Beach Condo. Ass'n v. Dep't of Cmty.

Affairs, 186 N.J. 5, 15-16 (2006).             "The burden of demonstrating

that     the    agency's       action    was    arbitrary,       capricious         or

unreasonable       rests       upon     the     [party]       challenging          the

administrative action."          In re Arenas, 385 N.J. Super. 440, 443-

44 (App. Div.), certif. denied, 188 N.J. 219 (2006); McGowan v.

N.J.    State   Parole   Bd.,    347    N.J.   Super.    544,    563      (App.    Div.




                                         51                                  A-5435-10T2
2002); Barone v. Dep't of Human Servs., Div. of Med. & Health

Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107

N.J. 355 (1987).

      We now apply these principles in the next two parts of this

opinion.       First, we address in Part III appellants' general

challenges     to     the    Parole    Board's       use     of   polygraph    testing.

Second, in Part IV we consider their discrete claims under the

Fifth and Sixth Amendment relating to self-incrimination and the

right to counsel.

                                         III.

      An important predicate to our legal analysis in this Part

is specifying exactly what the polygraph test "results" are and

how   the    Parole    Board    uses     them.        Conceptually,      a    polygraph

session might produce two very distinct kinds of "results."

      First, an individual who is examined can make statements

before, during, or after being strapped to the machine, either

in response to queries from the examiner, or through unprompted

assertions.      Those statements might convey information about the

individual's     past       conduct,    his       present    circumstances,     or   his

future      plans.      In     this    sense,       substantive      assertions       can

"result" from the polygraph process.                        Indeed, as some of the

witnesses      indicated       and     the    trial     court      found,     the    mere

scheduling of a polygraph session at times will provoke a sex




                                             52                                A-5435-10T2
offender who is on PSL or CSL to make revelations, or speak

about certain topics more candidly, than might occur if the

offender were taking part in a routine interview with a parole

officer.

      The second kind of conceivable "result" from a polygraph

encompasses       the     machine-generated            data    or     report    of     the

examiner,        measuring        whether        the    subject's          physiological

responses are indicative of deception, or truthfulness, or are

inconclusive.           This machine-generated "result" is not in the

form of an assertion by the individual with substantive content.

Instead, it is a technical response.

      As    we    noted    in     N.J.S.A.       30:4-123.88,        the     Legislature

instructed       that    "[t]he    results       of    the    polygraph      examination

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

of   the   special       sentence    of     [PSL       or    CSL]   or     condition    of

discharge has occurred." (Emphasis added).                          See also N.J.A.C.

10A:72-3.9(c) (repeating this identical proviso in the polygraph

regulations).       We consider the term "results" in this passage to

refer to the machine-generated technical data produced from an

administered polygraph, rather than any substantive assertions

that the individual made during the session.                         That is the most

logical interpretation of the phrase.                        See Saccone v. Bd. of

Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014)




                                            53                                  A-5435-10T2
(reiterating the well-settled proposition that "[t]he language

of [a] statute must be construed in accordance with its ordinary

and common-sense meaning"); see also State ex rel. K.O., 217

N.J. 83, 94 (2014).

     Parolees    and    offenders     on     PSL   or    CSL    oversight         have   a

general   duty   to    cooperate      with    their      parole       officers,       and

provide   them   with    honest      information         in    response      to     their

questioning.     Those substantive responses commonly are used by

parole    officers      to   make     day-to-day         decisions          about     the

individual's     conditions     of    release,      even       when    no    polygraph

device is used during the interview.

     Admissions of wrongful conduct that the individual being

interviewed makes to the officer can be used as evidence in a

parole    revocation     hearing.       If    the       statement     comprises          an

admission of a criminal offense, it may be used as evidence in a

criminal prosecution.        Subject to the constraints we express in

Part IV of this opinion for the protection of the offender's

privilege      against       self-incrimination,               we      discern           no

constitutional    or    legal   prohibition        against      the    Parole       Board

using such substantive assertions to make decisions concerning

the individual's status.13


13
  We also do not regard the disclosures to the parole officer or
parole authorities as an improper invasion of the offender's
                                                     (continued)


                                       54                                      A-5435-10T2
       The Legislature plainly contemplated that its restriction

on the use of polygraph "results" in N.J.S.A. 30:4-123.88 refers

to    the   device's,    machine-generated             data,    and       the    technical

analysis of that data.              Given that common-sense understanding,

we turn to the next phrase of the statute, i.e., prohibiting

such "results" from being "used as evidence in court to prove

that   a    violation    of    [the       offender's    PSL     or       CSL    status]   or

condition     of   discharge        has    occurred."          N.J.S.A.        30:4-123.88

(emphasis added).

       Literally    construed,        this    clause    omits        a    wide    range   of

negative consequences that an individual might face from the

results of a polygraph, apart from a "violation" of the terms of

his    supervision      or    the    conditions    of     his        discharge.           The

statute's reference to "violations" of a special sentence or

conditions of discharge apparently does not cover prospective

adjustments that a parole officer might consider making to the


(continued)
privacy. The offender on PSL or CSL must reveal his activities
and plans to his parole officer as a matter of course during his
monitoring.   See Jamgochian, supra, 196 N.J. at 238.    We also
perceive a constitutional difference between the compelled
disclosure of a released sex offender's private information to a
supervising parole officer, rather than to the public at large
or to some other wide span of recipients.     Cf. Doe v. Poritz,
142 N.J. 1, 77-91 (1995) (addressing the more substantial
privacy interests implicated by the public disclosure of the
whereabouts of convicted sex offenders mandated by Megan's Law).




                                            55                                     A-5435-10T2
individual's        permitted       activities     if     he    has   "failed"        a

polygraph.        For example, nothing in the statute or the related

regulation appears to prevent the parole officer from imposing a

curfew, an out-of-state travel ban, a prohibition on going to

schools      or   other   specified     locations,       and    the   like,      after

considering the technical results of a polygraph examination.

      The statute poses further ambiguity by not clearly defining

the   term    "in   court"     when   instructing       that    polygraph    results

"shall not be used as evidence in court" for purposes of proving

a violation.        Ibid.      The term "court" surely encompasses the

trial divisions of the Superior Court and the federal courts.

We construe the term "court," however, to have an even wider

meaning, deeming it to also cover quasi-judicial administrative

hearings, as well as appeals that may be taken from the Parole

Board's agency decisions to this court and to the Supreme Court.

      At     oral   argument     on   this     appeal,    the    Deputy     Attorney

General representing the Parole Board acknowledged that the word

"court"      in   the   text   of   N.J.S.A.     30:4-123.88      does,     in   fact,

encompass appellate courts reviewing the Parole Board's final

agency decisions.         Hence, if, hypothetically, an offender on PSL

or CSL fails a polygraph examination and his parole officer then

decides      to   increase     restrictions      on     his    liberty,   appellate

review of that agency decision would occur in a "court," within




                                         56                                  A-5435-10T2
the meaning of N.J.S.A. 30:4-123.88.                           Of concern, however, is

that the statutory prohibition is limited to polygraph results

used to prove a "violation" of the individual's past conditions

of    release.        The   prohibition         literally            does    not   extend,     as

written, to decisions made to tighten future supervision of an

individual on PSL or CSL.

       We have no difficulty with the Parole Board using technical

polygraph results for what have been discussed in this record

and in research literature as purely "therapeutic" purposes in

the treatment of sex offenders.                     We specifically adopt the trial

court's     well-supported         findings         in    this       record    that    "instant

offense" polygraphs administered pursuant to                                N.J.A.C. 10A:72-

3.3(a) do provide a reasonable tool to the Parole Board in the

treatment of sex offenders who may continue to exhibit denial of

the   sexual     offenses       they     committed,            or    the    details    of    such

reflected in the pre-sentence report.                           Polygraph results, when

considered in this relatively benign fashion, appear to provide

at least some indicia that an offender who is in denial might,

for   example,        benefit     from   greater          or    a    different       method    of

psychological counseling.

       To   be   sure,      the    primary          focus       of    appellants       and    the

intervenor       in    this     case     has        not    been       on     instant    offense

polygraphs.           Rather,      their       main       target       has    been     periodic




                                               57                                      A-5435-10T2
maintenance      examinations      administered    under   N.J.A.C.    10A:72-

3.3(b) "to verify the activities, behavior and truthfulness of

an offender as related to compliance with the conditions of

supervision."      Appellants and the Public Defender argue that the

technical results produced from such maintenance polygraphs have

led the Parole Board arbitrarily to take adverse actions against

persons monitored on PSL or CSL, such as tightening limitations

on their prospective activities.

      In this regard, the challengers emphasize the data gathered

by Carbone, cited in the trial court's decision,14 finding that

offenders' parole status changed 42% of the time following a

polygraph examination.        The challengers urge that such decisions

predicated on, in full or in part, polygraph test results —

which our New Jersey court system continues to deem unreliable

and inadmissible — violates their constitutional rights and is

arbitrary, unreasonable, and capricious.

      The Parole Board responds that, as the trial court found,

it   has   revised   its    practices    in   recent   years   to   reduce   the

potential for misuse or overuse of polygraph results.                  For one

thing,     the   Parole    Board   has   enacted   a   regulation,    N.J.A.C.

14
  We also cited the Carbone study in the unpublished portion of
our earlier opinion.   J.B. I, supra, slip op. at 43 n.14.   We
need not decide whether the Parole Board's past citation to the
Carbone study on its website comprises an adoptive admission
under N.J.R.E. 803(b)(2).



                                         58                            A-5435-10T2
10A:72-3.4(a), that now requires a parole officer to have "a

reasonable       belief          that      an     offender         is   non-compliant          with       a

condition[] of supervision[,]" a belief reviewed and confirmed

by     a    supervisor,          before          a     maintenance         examination         can      be

administered.             In     addition,            the    Parole     Board        has   adopted        a

policy, apparently voluntarily, that it will not use adverse

polygraph results as the "sole" basis of decision-making.                                            Both

of these caveats were identified in the trial court's decision

as positive factors that help assure that the polygraph program

is administered in a fair manner.

       We    agree        that       the    "reasonable            belief"      prerequisite            for

scheduling           maintenance            polygraphs            and     the    Parole        Board's

self-imposed policy to require additional evidence separate from

a failed polygraph to take adverse action serve to ameliorate,

to some degree, the problems cited by appellants and the Public

Defender.            Yet,       we     must          not    lose    sight       of     this    State's

long-standing judicial aversion to polygraph evidence and our

persisting           institutional                concerns          about        the       scientific

inaccuracy and unreliability of the instruments.                                           See, e.g.,

A.O.,      supra,     198      N.J.        at    86.        Even    the    Parole       Board's         own

witnesses in this case agreed that the device's error rate, when

used       for   a    maintenance               exam,       has    been     estimated         by     some

researchers          to    be     as       high       as    29%.          Indeed,      there       is     a




                                                       59                                     A-5435-10T2
fundamental difference between the evidential use of a polygraph

to prove or dispute facts in a court where a person's rights are

adjudicated versus a therapeutic context.

       We also must be mindful that as an administrative agency,

the    Parole      Board    must       base       its        decisions    on   non-arbitrary

grounds.      When those agency decisions are challenged on appeal

in this court, the Parole Board must point to competent evidence

in the administrative record that supports its determination.

In reviewing such agency decisions, we "must survey the record

to    determine     whether          there       is    sufficient        credible    competent

evidence      in    the    record          to     support       the     agency['s]    .     .    .

conclusions."        Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587

(1988) (emphasis added) (overturning an agency's decision where

its determination was not adequately supported by such competent

evidence,       including            medical          test     results     that     were        not

sufficiently shown to be probative of the issues);                                   see also

Wojtkowiak v. N.J. Motor Vehicle Comm'n, 439 N.J. Super. 1, 20

(App. Div. 2015) (reiterating the need for "sufficient competent

proof" in administrative proceedings) (emphasis added).

       The    Parole       Board's           continued          reliance       on    technical

polygraph       results         as    an        acceptable       form     of   corroborating

evidence to support its decisions to increase restrictions on

persons      who   are     on    PSL       or    CSL    monitoring        clashes    with       our




                                                  60                                  A-5435-10T2
judiciary's15        systemic       aversion            to    the     evidential      use       of

polygraphs.          We    do    not,    for       example,         allow    prosecutors        to

present polygraph results not properly stipulated to at criminal

trials   as    "extra"       proof      of    a    defendant's        guilt.        See    A.O.,

supra, 198 N.J. at 90.               Nor do we ordinarily tolerate the non-

stipulated admission of polygraph evidence in civil litigation.

Cf. Senders v. CNA Insurance Cos., 212 N.J. Super. 518, 520 (Law

Div.   1986)       (recognizing         that       "almost      all    courts       that    have

considered         the    question"      of       the    admissibility         of   polygraph

evidence      in    civil       suits   "have          held   that     the    results      of    a




15
  We do not read Engel v. N.J. Dep't of Corrections, 270 N.J.
Super. 176, 179-81 (App. Div. 1994) (allowing certain polygraph
evidence in prison disciplinary matters) to the contrary.
Nothing in the court's opinion indicates that Engel argued that
the polygraph of the informant taken by the Department of
Corrections     ("DOC")     was    incompetent    evidence    or
unconstitutional.   Instead, he sought his own polygraph of the
informant pursuant to a DOC regulation, as defense proof that
could "level [the] playing field."      Id. at 180.    The panel
in Engel recognized the "degree of unreliability which continues
to attend polygraph testing," id. at 180-81, but simply
"accede[d] to it" in the context presented in light of the
controlling administrative regulation.    Id. at 181 n.3.    The
panel declined to endorse the use of polygraph evidence "beyond
the extent to which it is otherwise now admissible" under the
DOC regulation.   Ibid.   Moreover, there was no detailed record
in Engel with expert testimony, as there is here, exploring in
depth both the uses and pitfalls of polygraph testing.




                                                  61                                  A-5435-10T2
polygraph test or the refusal to take a polygraph test are not

admissible in evidence").16

       Polygraphs continue to be treated as incompetent evidence

in our courts of law.          Unless and until our Supreme Court says

otherwise, we do not countenance allowing polygraph results to

"tip   the   balance"    in    satisfying       the    applicable     standards       of

evidential proof.

       Our legal analysis — informed as it is by the thorough and

meticulous fact-finding of the trial court — ultimately hinges

here upon the critical distinction between using polygraphs as a

therapeutic tool to aid in the treatment of a sex offender in a

manner that does not curtail his liberties, as opposed to a

competent source of forensic proof in a court with rules of

evidence dedicated to the search for the truth.                       See N.J.R.E.

102    (identifying     the    ascertainment          of    the   truth   as     a   key

objective of the Rules of Evidence).              The line between these two

very    different       contexts    must         be        scrupulously    honored.

Otherwise,    juries     and     other        fact-finders        would   have       the




16
  Despite this almost universal exclusion, the Law Division in
Senders permitted the polygraph results of the insured in an
insurance coverage dispute to be admitted into evidence because
the subject of the test, i.e., the insured, volunteered to be
tested and tendered the results affirmatively to show that he
was not involved in the arson. Id. at 520-21.



                                         62                                    A-5435-10T2
prerogative to engage in random exercises such as coin-flipping

when the competent evidence in the record is in equipoise.

       This leads us to conclude, as a matter of law, that the

terms    of    the     statute   and   the   Parole     Board's     more     recent

practices reducing the evidential role of polygraph results do

not go far enough to assure appellants and other persons on PSL

and CSL that they will not have their liberties restricted or

taken away arbitrarily after "failing" a polygraph exam.                          In

stating that conclusion, we need not and do not find that the

statutory scheme or the Parole Board's regulations and policies

violate the Federal Due Process Clause or equivalent guarantees

under    the    New    Jersey    Constitution.         Instead,    we   rest     our

decision       in     this   regard    on    well-settled         principles      of

administrative law, which require agency decisions, when they

are challenged in court, to be based upon substantial credible

evidence that is legally competent.

       We therefore hold that the Parole Board may continue to use

"instant offense" and "maintenance" polygraph examinations for

therapeutic purposes in the treatment of sex offenders on PSL or

CSL.    The Parole Board may also use the substantive assertions

made    by    such    polygraphed   offenders    for    both   therapeutic       and

evidential purposes.         Consistent with our Supreme Court's long-

standing precedent treating non-stipulated polygraph results as




                                       63                                  A-5435-10T2
incompetent       evidence,      we    disallow,          however,     the        Parole     Board

from relying on technical polygraph results in any evidential

manner when making decisions to penalize PSL or CSL offenders or

to curtail their activities.

      That said, nothing in this opinion forecloses the Parole

Board from continuing to administer polygraphs for what have

been described as "risk management" or "containment" objectives,

provided that the technical results of polygraph exams are not

relied     on     or    cited    by       the     Parole      Board     in        justifying       a

curtailment of the subject's liberties.

      A   simple       example       will    help      illuminate      these        principles.

Suppose that an offender on PSL or CSL, as a condition of his

monitoring by his parole officer, is currently allowed to leave

the State of New Jersey only during weekdays and solely for

employment        purposes.           Suppose         that    the     Parole       Board      then

receives        information      from        a    third      party     that       she     thinks,

although she is not certain, that she recently saw the offender

on a Sunday attending a Phillies game at Citizens Bank Park in

Pennsylvania.          Assume that an appropriate supervisor considers

the   informant's           report   as     "reasonable        belief"       under      N.J.A.C.

10A:72-3.4(a)          to    bring     the       offender      in     for     a     maintenance

polygraph, to ascertain if he has not complied with his weekend

out-of-state       travel       ban.         Suppose         further    that        the    parole




                                                 64                                       A-5435-10T2
authorities decide that, if the allegation of the offender's

presence at the Sunday Phillies game is true, they will not

charge     him     with     a    violation        but   instead        will   tighten      his

existing travel restrictions.

      If the offender freely makes any statements, either during

the pre-interview, the polygraph session itself, or the post-

interview admitting that he was at the game in Pennsylvania on a

Sunday, the Parole Board may use such admissions as evidence to

support a decision to tighten the offender's travel limitations.

For instance, the Parole Board may disallow him from leaving the

State at any time except when specifically authorized by his

parole officer.

      By   contrast,        suppose        the    offender        in   this   hypothetical

denies being out of state at the Phillies game on a Sunday, and

when asked about that topic while on the polygraph he generates

a   reading      on   the       device    indicative         of   deception.         In    that

scenario, under the principles set forth in this opinion, the

Parole     Board      may   not     rely,    even       in    part,     on    the   machine-

generated     result.            The     Parole    Board      must     instead      rest   its

decision to increase the offender's restrictions solely on non-

polygraph evidence such as the informant's observations.

      In sum, we uphold the Parole Board's non-evidential use of

polygraphs in this distinctive PSL and CSL setting, subject to




                                             65                                      A-5435-10T2
the     conditions       we     have     expressed.             We     find       no      other

constitutional         impediments        to        the    Parole      Board's         use    of

polygraphs for these limited purposes.

                                              IV.

      We now turn to the discrete issues of self-incrimination

and the right to counsel.

      As    a     starting     point,     one       must     adhere    to       the    guiding

principles set forth long ago by the United States Supreme Court

in its seminal opinion on this subject in Minnesota v. Murphy,

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

Court recognized in Murphy that states may require a person who

is under the supervision of a parole or probation officer "to

appear      and    discuss          matters    that        affect     his       probationary

status[.]"        Id. at 435, 104 S. Ct. at 1146, 79 L. Ed. 2d at 424.

"[S]uch a requirement, without more, does not give rise to a

self-executing privilege [against self-incrimination]."                               Ibid.

      The    Court      further       held     in    Murphy     that       routine      parole

interviews        do    not         comprise        an     instance        of     "custodial

interrogation"         that    require       parole       officers    to    issue      Miranda

warnings.       Id. at 433, 104 S. Ct. at 1145, 70 L. Ed. 2d at 423.

As the Court noted, the probationer in that case, Murphy, "was

not physically restrained and could have left the office[.]"

Ibid.       Moreover,         his    "regular       meetings     with       his   probation




                                              66                                       A-5435-10T2
officer should have served to familiarize him with her and her

office and to insulate him from psychological intimidation that

might overbear his desire to claim the privilege [against self-

incrimination]."         Ibid.

       Significantly,         the   Court     in     Murphy   did    hold      that,     when

invoked     by    the     parolee       or     probationer,         he    does      have      a

constitutional         right    under    the      Fifth    Amendment      to    refuse       to

answer questions from his parole officer with responses that

could incriminate him.              Id. at 426, 104 S. Ct. at 1141, 79 L.

Ed. 2d at 418.           The Court expressly instructed that the Fifth

Amendment entitles a person "not to answer official questions

put to him in any other proceeding, civil or criminal, formal or

informal,     where     the    answers       might    incriminate        him   in    future

criminal proceedings."              Ibid. (emphasis added).                "A defendant

does    not      lose    this       protection        by   his      conviction         of    a

crime; . . .       if    those      statements       are    compelled[,]          they      are

inadmissible in a subsequent trial for a crime other than that

for which he has been convicted."                      Ibid.; see also State v.

Davis, 67 N.J. 222, 226 (1975) (similarly holding that parole

interviews       are    non-custodial         in     nature   and    do     not     require

Miranda warnings, despite the parolee's obligation to cooperate

and "fully and unreservedly in the parole experiment").




                                             67                                     A-5435-10T2
    The Parole Board has made a substantial effort to honor

these     Fifth    Amendment        precepts         by     adopting          a     regulation,

N.J.A.C. 10A:72-3.7(d), which requires a polygraph examiner to

"comply with the procedures of the Division of Parole regarding

an offender's right to remain silent as it relates to divulging

identifying        information          of     any        unreported          victim(s)          or

crime(s)."       Nonetheless, "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).                 Moreover,

as we have already noted, an offender's failure to submit to a

polygraph, absent good cause, may be prosecuted as a                                      third-

degree crime.       N.J.S.A. 2C:43-6.4(d).

    As     the     trial     court      found,       largely          based       upon   Captain

Tallard's    testimony       at    the       hearing,       if     "a    parolee         makes    a

spontaneous       incriminating         statement         during      the     course      of    the

polygraph    examination,         the    examiner         is     instructed         to   provide

Miranda    warnings     to    the       test    subject."              See    also       N.J.A.C.

10A:72-3.6 (detailing the required contents of the "disclosure

form" to be provided to the offender before he submits to the

examination).

    We      reject     appellants'           contention           that        the    polygraph

sessions conducted by the Parole Board are a form of custodial

interrogation that requires the examiner to administer Miranda




                                             68                                          A-5435-10T2
warnings at the outset of the session.                       Accord United States v.

Daniels, 541 F.3d 915, 926 (9th Cir. 2008) (concluding that the

polygraphs administered as a condition of supervised release are

not custodial interrogations), cert. denied, 566 U.S. 1111, 129

S.    Ct.   1600,   173    L.    Ed.     2d    687     (2009);       United     States     v.

Stoterau,    524    F.3d     988,   1004       (9th      Cir.    2008)    (same),     cert.

denied, 555 U.S. 1123, 129 S. Ct. 957, 173 L. Ed. 2d 153 (2009);

United States v. Lee, 315 F.3d 206, 212 (3d Cir.) (same), cert.

denied, 540 U.S. 858, 124 S. Ct. 160, 157 L. Ed. 2d 106 (2003).

The    individual      being    tested        is   not    handcuffed      or    shackled.

Although he is attached with straps to the machine while it is

measuring his responses to the examiner's questions, the subject

is not being confined with the same degree of physical restraint

as a person who has been placed under arrest. The subject can

face    later     consequences      if    he       chooses      to   leave     before     the

examination is completed but, unlike an arrestee at a police

station,     he   is   not     subject     to      immediate         confinement     if   he

refuses     to    cooperate.        The       tests,      including      the    interview

portion, typically do not last more than an hour and a half.

       As the record shows, the Parole Board strives to avoid

having the polygraph sessions conducted as interrogations.                                The

trial court specifically found that although some examinations

in the past did reflect overly adversarial examiner conduct, a




                                              69                                   A-5435-10T2
practice that the court termed "disconcerting," the Parole Board

presented credible testimony that "a different, less accusatory

approach is now being utilized."17

       On the whole, we conclude that the polygraph examinations,

as currently administered by the Parole Board, in light of the

trial   court's        findings,     are   not   the     equivalent     of   custodial

interrogation that requires Miranda warnings to be administered

at the beginning of the session or which authorize test subjects

to skip the scheduled testing appointments.

       We also reject appellants' argument that they are entitled

under the Sixth Amendment to have counsel present during the

polygraph    session.          The    presence      of    counsel      is    likely   to

diminish    the    positive        potential     therapeutic        benefits    of    the

polygraph testing and to inject adversarial elements into the

procedure.        We     decline     to    strike      down   the     Parole   Board's

regulation that disallows examinees from having an attorney or

other personal representation present.                    N.J.A.C. 10A:72-3.7(e).

That    said,     if    an   examiner      refuses      to    honor    an    examinee's

invocation of privilege in response to specific questions that

could be incriminatory, or is abusive during the session, the


17
   Nevertheless, we suggest that the Parole Board give serious
consideration to Dr. Iacono's testimony indicating that the use
of blind peer review can aid in achieving consistency among
examiners in the future.



                                           70                                  A-5435-10T2
subject may pursue appropriate redress against the Parole Board

on a case-by-case basis.

       Although the topic was not addressed either way in the

trial court's conclusions, we are persuaded that it would be

beneficial for the Parole Board to revise its disclosure and

exam procedure regulations in N.J.A.C. 10A:72-3.6 and -3.7 to

spell out more clearly what uses of the polygraph testing are

allowed and disallowed.             In particular, the limitations on the

non-evidential use of the machine-generated test results that we

have   mandated      in   this   opinion    should     be    made    known    to   test

subjects, so that they understand how the testing can and cannot

be used by the Parole Board.               These updated policies should be

adopted      formally     through     rule-making,      which       we   require    the

Parole Board to complete, with appropriate public notice and

comment, within six months of this opinion.                         See Metromedia,

supra, 97 N.J. at 331.

                                         V.

       The remaining arguments raised by appellants and the Public

Defender     seeking      to   invalidate     the     Parole    Board's      polygraph

testing program lack sufficient merit to be discussed in this

opinion.        R.    2:11-3(e)(1)(E).           Aside       from    the     important

conditions or limitations we have identified, appellants have

not    met   their     burden    to   set     aside    the     presumptively-valid




                                         71                                   A-5435-10T2
statutory and regulatory scheme.          N.J. Sports & Exposition Auth.

v. McCrane, 61 N.J. 1, 8, appeal dismissed sub nom., Borough of

E. Rutherford N.J. v. Sports & Exposition Auth., 409 U.S. 943,

S. Ct. 270, 34 L. Ed. 2d 215 (1972).                As with the Internet

access issues in J.B. I, we do not, however, foreclose future

as-applied    challenges   by     offenders   who   establish   that   these

requirements have not been met in their individual cases.               J.B.

I, supra, slip op. at 4.

     The Parole Board's policies and procedures for polygraph

testing that have been challenged in this case are consequently

affirmed in part, modified in part, and remanded to the Parole

Board for corrective action in a manner consistent with this

opinion.     The previously-imposed stay of the polygraph testing

of   appellants    is   lifted,    effective    ninety   days   from   this

opinion.     We do not retain jurisdiction.




                                     72                            A-5435-10T2
