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                                                                                                   2011i MAY 20       Aid 10: 55

      IN THE COURT OF APPEALS OF THE STATE OF WASH

                                                  DIVISION II

STATE OF WASHINGTON,                                                            No. 44637 -5 -II


                                        Petitioner,


         v.



DWIGHT A. FINCH,                                                            PUBLISHED OPINION


                                        Respondent.


          WORSWICK, C. J. —           In this interlocutory appeal, which is linked with State v. A. W., No.

45337 -1 - II (Wash.    May   20, 2014), the superior court ordered a juvenile to submit to polygraph

                  2              3
testing.' A.W.,       a minor,       pleaded guilty to first degree child molestation and received a special
                                                           4
sex offender    disposition   alternative ( SSODA).            During treatment, A.W. disclosed that Dwight

Finch had sexually assaulted him. The State charged Finch with first degree child rape and first
degree child molestation, and the superior court, over the State' s objection, ordered A.W. to

submit    to the polygraph test that the       parties   dispute on   appeal.      we granted discretionary

interlocutory review of that decision, Finch moved to intervene in A.W.' s juvenile disposition.

Finch requested the juvenile court to order A.W. to take the disputed polygraph test to determine

1
    This case concerns the superior court' s order. State v. A. W. concerns the juvenile court' s order.

2 We use initials to protect A.W.' s privacy. General Order 2011 - 1 of Division II, In Re: The Use
Of Initials Or Pseudonyms For Child Witnesses In Sex                  Crime Cases, ( Wash. Ct.   App.),   available

at http: / www.courts. wa.gov /
           /                  appellate trial_courts /.


3 A.W. was 12 to 13 years old at the time of his offense.

4
    RCW 13. 40. 162.
No. 44637 -5 -II



the truthfulness of his allegations against Finch, either by granting Finch' s motion to intervene,

or on its own motion in the interest of justice. The juvenile court entered an order requiring

A.W. to submit to the disputed polygraph test.


       In this case, the State appeals the superior court order requiring A.W. to submit to the

polygraph test ordered for the purposes of ascertaining the truthfulness of A.W.' s allegations

against Finch. Additionally, the State asks us to remand this case to a different judge. Because

the superior court exceeded its authority by ordering the disputed polygraph test, we hold that the

superior court abused its discretion, and we reverse the polygraph order. To maintain the

appearance of fairness, we remand this case to a different judge.

                                                                FACTS


A.       State v. A. W, with Finch as Intervenor


         A.W. pleaded guilty to first degree child molestation. The juvenile court imposed a

SSODA that imposed conditions including:

          1.][     O] bey   all ...   laws.
          2.]     Participate in weekly treatment.
          3.]     Treatment compliance could be monitored every 6 months through a
         polygraph, if available.


CP ( A.W.)       at 18, 22. The juvenile court modified the polygraph test condition from the

boilerplate language,        which    had     stated, "   Treatment compliance shall be monitored every 6

months   through     a polygraph."       CP ( A. W.)       at   22.
No. 44637 -5 - II




          While undergoing court ordered sex offender treatment, A.W. told his therapist that Finch

committed sex acts against        him. 5   A.W.' s therapist informed the State about A.W.' s disclosure,

and   the State   charged   Finch   with   first degree   child   rape6 and first degree child molestation.


B.        State v. Finch


          After being charged, Finch submitted to a polygraph test. The polygraph examiner

concluded that Finch was truthful when he denied A.W.' s allegations. Finch then moved the


superior court to use the juvenile court' s authority over A.W.' s SSODA in State v. A. W. to

require A.W. to submit to polygraph testing, the purpose of which would be to ask A.W. about
                                     8
his   allegations against   Finch.       The State opposed Finch' s motion.


          The superior court could not clearly remember why it had modified the SSODA' s

polygraph test provision from the boilerplate language. Because of this, and because the superior

court wanted to know why A.W.' s therapist decided against giving A.W. regular polygraph tests,

the superior court ordered A.W.' s therapist to appear in State v. Finch and show cause as to why

                                                             9
he had    not   given   A.W.   regular polygraph    tests.       CP ( Finch)   at   33. In response to the superior


court' s question, A.W.' s therapist provided the following explanation as to why he did not give

regular polygraph tests to A.W.:




5 Finch was previously convicted of two sex offenses against a female child.
6
     RCW 9A.44. 073.

7
     RCW 9A.44. 083.

8
     The same judge presided over State v. Finch and State v. A. W.

9
     A.W. did   not appear at   this proceeding.
No. 44637 -5 -II



             Polygraph tests are] considered coercive for use in adolescents because of their
         developmental stages, because of their personality formation, because of the
         conditions of beneficence and nonmaleficence, which are [ sic] either they must
         show benefit and [ sic] they must show no harm.

Verbatim Report        of   Proceedings ( VRP) ( Finch) (Nov. 7, 2012) at 7.


             C] hildren believe that [ the polygraph tests are] detecting lies when they' re really
         not.  What polygraphs really detect is physiological responses, but they' re called
         lie detectors, and so the children automatically think they' re detecting lies, which
         is the coercive part.


VRP ( Finch) ( Nov. 7, 2012) at 9. A.W.' s therapist also explained:


         All these     cases —   all these decisions are made on a case -by -case basis, and [ A.W.]
         falls into    a   category    of youth    that   we would call —      that he has sexual behavioral
         problems, and because of his developmental maturity, what the literature suggests
             is that there can be harm when you coerce a person that age.

VRP ( Finch) ( Nov. 7, 2012) at 9.


             The superior court entered an order in State v. Finch requiring A.W. to take the polygraph

test. The State requested discretionary interlocutory review in State v. Finch. We stayed the

superior court' s order, and granted discretionary interlocutory review because the superior court

committed " probable          error   that substantially   alters   the   status quo."   Ruling Granting Review,

State   v.   Finch, No. 44637 -5 - II,    at   1 ( Wash. Ct.   App. May      16, 2013); see RAP 2. 3( b)( 2).


C.           Finch' s Intervention in State v. A. W.


             After we stayed and granted discretionary review of the superior court' s order in State v.

Finch, Finch moved to intervene in State v. A. W. , asking the juvenile court for another order




                                                                4
No. 44637 -5 -II




requiring A.W. to take the same polygraph test as was ordered in State v. Finch. 10 Finch' s
motion to intervene alleged that by accusing Finch of sex crimes, A.W. committed the crime of
                    11
false reporting,         and,   thus,    violated     the SSODA          condition    requiring A.W. to " obey      all ...   laws."


CP ( A.W.)    at   18. In his     motion,       Finch    requested       to intervene in State   v.   A. W "   for [ the] very
                                                                                                           12
                                                                        the already                                CP ( A.W.)
                              asking] the Court to
limited   purpose [ of                                      require                    ordered polygraph. "                      at




35 -36. Finch asked the juvenile court to either grant Finch' s motion to order A.W. to take the

polygraph test, or order the polygraph test on its own motion in the interest ofjustice.

          The juvenile court set a hearing on Finch' s motion to intervene. A.W.' s counsel

appeared at the hearing and joined the State in opposing the motion. The State filed a declaration

stating its refusal to stipulate to the admission of any polygraph tests in State v. Finch. The State
also requested sanctions against Finch' s trial counsel.


           At the hearing, the juvenile court stated that it recalled why it had modified the polygraph

test provision of A.W.' s SSODA from the boilerplate language:

           I deferred to the treatment               provider' s ...         discretion, and yet at that time I didn' t
           know that the treatment              provider . . .          said, "   I never give polygraphs. I' ll never
           give   them" ... [     t] o   a   juvenile.      So then I thought, well, if I had known that at the
           time, then     I   might   have     not   just   signed off onit.... It would just be nice for the




 10 Finch filed his motion to intervene in the form of a " complaint" against A.W. for A.W.' s
 alleged   SSODA         violation.      CP ( A. W.)        at   35.   But Finch' s motion was actually a motion to
 intervene in State v. A. W. Finch also filed a " motion to compel polygraph to review alleged
 violation of      SSODA        sentence,"      in which he also moved to intervene in State v. A. W. CP ( A.W.)
 at 38.


 11 RCW 9A. 84.040.

 12
      It is unclear whether Finch meant that the polygraph was ( 1) already ordered in State v. Finch
 or (2) already ordered as part of the SSODA. Finch argued both below.

                                                                         5
No. 44637 -5 -II



          Court to know those kind [ sic] of things rather than sign an order that that line
          really has no effect when you say " could."

CP ( A. W.) at 260 -61.


          The juvenile court entered a second order requiring A.W. to take the polygraph test. This

order specified that a portion of the polygraph test would ask A.W. about his allegations against

Finch, and directed the polygraph test' s results to be sent to the juvenile court for in camera

review. The State and A.W. requested discretionary interlocutory review of this order. We

accepted review and stayed the order in State v. A. W. pending further order of this court.13

Ruling Staying        Order, State   v.   A. W., No. 45337 -1 - II (Wash. Ct.   App.   Sept. 12, 2013);   Ruling

Accelerating Review, State v. A. W, No. 45337 -1 - II (Wash. Ct. App. Nov. 7, 2013).

                                                      ANALYSIS


           I. AUTHORITY To GRANT FINCH' S DISCOVERY REQUEST UNDER A.W.' s SSODA

          Finch argues that the Superior court had authority to order A.W. to take a polygraph test

in this case under A.W' s SSODA. The State argues that A.W.' s SSODA did not authorize the

superior court to order the polygraph test. Without determining the authority of the superior

court here to order compliance in a separate juvenile case, we agree that A.W.' s SSODA did not

authorize the superior court to order a polygraph test.


          A.W.'   s   SSODA   states, "    Treatment compliance could be monitored every 6 months

through    a polygraph,     if available."     CP ( A. W.) at 22. This language limits the scope of potential


polygraph tests to questions confirming A.W' s compliance with treatment.




 13
      The Washington State Department of Commerce filed an amicus brief in this case.



                                                             6
No. 44637 -5 - II



          Here, A.W.' s therapist explained that he did not give polygraph tests to A.W. because

  polygraph tests are] considered coercive for use in adolescents because of their developmental

stages ... [    T] he children automatically think they' re detecting lies, which is the coercive part."

See VRP ( Finch) ( Nov. 7, 2012)             at    7, 9. A.W.' s therapist    also said, "[   A] 11 these decisions are


                                  basis,           A.W.] falls into                             that   we would call —that
made on a case -     by -case              and [                      a   category   of youth




he has sexual behavioral problems, and because of his developmental maturity, what the

literature     suggests   is that there    can     be harm   when you coerce a person         that   age."   VRP ( Finch)


 Nov. 7, 2012) at 9. Thus, polygraph tests were not conducive to A.W.' s therapy.

          Ordering A.W. to take the polygraph test was designed not to ensure compliance with

treatment, but rather to ensure the truthfulness of A.W.' s allegations against Finch. Thus,


ordering A.W. to take the polygraph test exceeded the scope of A.W.' s SSODA because it did
not pertain to ensuring A.W.' s treatment compliance.

                 II. AUTHORITY To GRANT FINCH' S DISCOVERY REQUEST UNDER CRR 4. 7

          The State argues that the superior court exceeded its authority by granting Finch' s request

to order A.W. to take the disputed polygraph test. We agree.

          The superior court did not identify its authority for granting Finch' s polygraph request.

Nor could any party at oral argument give us authority for the superior court' s decision. Because

Finch' s request was a motion to compel third party discovery, we analyze the superior court' s

order under CrR 4. 7.


          We will not disturb a superior court' s discovery decision under CrR 4. 7 absent an abuse

 of   discretion. State     v.   Garcia- Salgado, 170 Wn.2d 176, 183, 240 P. 3d 153 ( 2010). A superior


 court abuses its discretion if its decision is manifestly unreasonable or exercised on untenable



                                                                 7
No. 44637 -5 -II




grounds or   for   untenable reasons.   State   v.   Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 638 ( 2003).    A


decision is exercised for untenable reasons if the facts do not meet the requirements of the

applicable legal standard. State v. Dye, 178 Wn.2d 541, 548, 309 P. 3d 1192 ( 2013).

        CrR 4. 7 governs a superior court' s discovery orders. CrR 4. 7( d) allows a superior court

to subpoena a third party to provide material or information, if it "would be discoverable if in the

knowledge,   possession or control of     the prosecuting attorney."      CrR 4. 7 lists specific items that


the prosecuting attorney must provide in discovery. When the defendant requests an unlisted

item, CrR 4. 7( e)( 1) states:


        Upon a showing ofmateriality to the preparation of the defense, and if the request
        is reasonable, the court in its discretion may require disclosure to the defendant of
        the relevant material and information not [ listed].


 Emphasis    added.)    A showing of materiality to the preparation of the defense requires the

defendant to provide some factual basis making it reasonably likely that the requested evidence

would give rise to information material to the defense. State v. Blackwell, 120 Wn.2d 822, 828,

830, 845 P. 2d 1017 ( 1993).     A superior court abuses its discretion by ordering discretionary

discovery without the defendant providing this factual basis. See Blackwell, 120 Wn.2d at 828,

830.


         We hold that the superior court abused its discretion by granting Finch' s request to order

A.W. to take the disputed polygraph test because Finch did not provide some factual basis

making it reasonably likely that the disputed polygraph test results would give rise to information
material to the defense. We base our decision on three grounds.

         First, the polygraph test results would be inadmissible in Finch' s trial. Polygraph tests

 are inadmissible at trial unless both the State and the defendant stipulate to its admission, and the



                                                           8
No. 44637 -5 -II



State will not stipulate to the 'admission of the disputed polygraph test results here. State v.

Thomas, 150 Wn.2d 821, 860, 83 P. 3d 970 ( 2004).

         Second, the charges against Finch would not be dismissed, even if A.W. were to fail the

disputed polygraph test. Such a result would not move the State to dismiss the charges against

Finch. Furthermore, such a result would not allow the superior court to dismiss the charges on

Finch' s motion because a disputed issue of material fact would remain as to the polygraph test' s


reliability. CrR 8. 3 ( stating that a superior court cannot dismiss a case on a defendant' s motion

unless   there are   no material   disputed facts); see Thomas, 150 Wn.2d at 860 -61 ( stating that


polygraph tests are unreliable).



         Third, the polygraph test results would provide Finch with only highly unreliable

information. Courts have consistently held polygraph tests to be unreliable. In re Det. of

Hawkins, 169 Wn.2d 796, 803, 238 P. 3d 1175 ( 2010); Thomas, 150 Wn. 2d                at    860 -61.    This


unreliability is exacerbated when the polygraph test is administered to a sex crime victim. Lacey

M. Sloan, Revictimization by Polygraph: The Practice ofPolygraphing Survivors ofSexual

Assault, 14 J. MED. & L. 255, 259 ( 1995). As explained in a recent article:


          The biggest problem with polygraph tests is that there are no known physiological
          responses that directly correspond with deception. An examinee' s physiological
          responses are often governed by whether the examinee believes the test is
          accurate, and from the atmosphere created by the examiner.        Furthermore,

          external    stimuli   may   cause   a   change   in   physiological   responses,    such      as   a


          surprising question or a noise outside the room. Likewise, stress, anxiety, and
         fear,  all controlled by the autonomic nervous system, cause changes in the

          physiological responses of an examinee.




Shelley Gupta, A Polygraph Test Wouldn' t Know the Truth if it Hit it with a Brick: Perpetuation
ofthe Normalization of Violence Against Women, 34 WOMEN' S RTS. L. REP. 282, 286 -87 ( 2013)
 emphasis   added) ( citing Leonard Saxe & Gershon Ben -Shakhar, Admissibility ofPolygraph
 Tests The                                          Daubert, 5 PSYCHOL. PUB. PoL' Y & L. 203,
           Application of Scientific Standards Post -




                                                           9
No. 44637 -5 -II



211 ( 1999) and Leonard Saxe, Detection ofDeception: Polygraph and Integrity Tests, 3
CURRENT DIRECTIONS IN PSYCHOL. SCI. 69, 70 -71 ( 1994)).


       The negative emotions that accompany being a sex crime victim, such as stress, anxiety,

and fear, can further compromise the reliability of an already unreliable polygraph test by

distorting   the   results and   creating false   positives.      See Sloan, 14 J. MED. & L. at 259. Thus, the


polygraph test of A.W., an alleged sex crime victim, would have highly unreliable results, and it

is not reasonably likely that such unreliable information would give rise to information material

to the defense.


           We hold that Finch did not provide some factual basis making it reasonably likely that

the disputed polygraph test would give rise to information material to the defense because the

disputed polygraph test results would be inadmissible, would not lead to dismissal, and would be

highly unreliable. Thus, the superior court abused its discretion under CrR 4. 7 by granting
                                                                                                                 14
Finch' s   discretionary discovery        request   to   order   A.W. to take the disputed   polygraph   test.



                                           III. APPEARANCE OF FAIRNESS


           Finally, the State argues that we should remand this case to a different judge under the

appearance of fairness doctrine. We agree.


           A judicial proceeding satisfies the appearance of fairness doctrine if a reasonably prudent

and disinterested person would conclude that all parties obtained a fair, impartial, and neutral

             State        Bilal, 77 Wn.   App.   720, 722, 893 P. 2d 674 ( 1995).    We analyze whether a
hearing.             v.




judge' s impartiality might reasonably be questioned under an objective test that assumes a


14 CrR 4. 7( e) allows the superior court to grant only reasonable discovery requests. Given
polygraph tests' unreliability when given to sex crime victims, we cannot currently conceive how
 a defendant' s request that the alleged sex crime victim take a polygraph test could ever be
reasonable.




                                                                 10
No. 44637 -5 -II



reasonable person to know and understand all relevant facts. Sherman v. State, 128 Wn.2d 164,

205 -06, 905 P. 2d 355 ( 1995).   The party must produce sufficient evidence demonstrating actual

or potential bias, such as personal or pecuniary interest on the part of the judge; mere speculation

is not enough. In re Pers. Restraint ofHaynes, 100 Wn. App. 366, 377 n.23, 996 P. 2d 637

 2000).


          Here, the judge apparently used his juvenile court authority over A.W.' s SSODA in State

v. A. W. to order a polygraph test to investigate A.W.' s allegations in State v. Finch. If State v.

Finch proceeds to trial, A.W. would have to appear to testify before this same judge who

improperly allowed Finch to intervene in A.W' s juvenile disposition, and who ordered A.W to

take a polygraph test without proper authority. A reasonably prudent and disinterested person

who knew these facts would conclude that the judge ordering A.W. to take a polygraph to

investigate the criminal case in which A.W. is the victim, in spite of a therapist' s testimony that

polygraph tests could be harmful to A.W., could not give all parties a fair, impartial, and neutral

hearing.

          We hold that the judge' s dual role as judge for A.W.' s juvenile disposition and Finch' s

criminal case, the judge' s inability to separate these two roles, and the judge' s attempts to

investigate the truth of A.W.' s allegations in State v. Finch, combine such that a reasonably

prudent and disinterested person who knew these facts would question whether the judge could

act fairly in presiding over this case. Thus, we remand this case to a different judge to maintain
the appearance of fairness.




                                                    11
No. 44637 -5 - II




        We reverse the polygraph order because the superior court exceeded its authority by

granting Finch' s request to order A.W. to take the disputed polygraph test. We remand this case

to a different judge. In light of this conclusion, it is unnecessary for us to consider the State' s

remaining arguments.




We concur:




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