The following cases are a collection of all cases in Maine, Massachusetts and New Hampshire, as well as the First Circuit, which significantly reference penile plethysmography. I have also included select cases from other federal jurisdictions. The Harrington case seems to be the most widely cited case but it may well be that Harrington should be limited to its facts in light of Berthiaume (interestingly both cases involved the same psychologist who practices widely in my home jurisdiction). While I may post more about this later, the broad trend seems to be to prohibit the plethysmograph as direct evidence but to allow its use for sex offender treatment and to penalize those who refuse to have it administered.
Most of the below cases are hyperlinked to Casemaker which is a membership/paid service. If anyone has links to free case reports I will gladly substitute them. I am also asking for continued patience with some formatting issues that string out cites and quotes over several lines. If anyone has any suggestions I am in your debt. Likewise I would be interested in recieving any Motions or Orders related to this topic for linking to this post. While these tests are treated skeptically by the courts my sense is that we will see more of these cases as ever more intense and onerous treatment requirements are imposed. One case below cited a two studies to the effect that between 15-25 percent of all sex offender treatment programs use these devices and that the use of the plethysmograph is a widely accepted tool for treatment.
MAINE
As to the trial court's exclusion of the penile plethysmograph test, Naylor's own expert testified that the test offers only "probabilities and similarities to pedophilic profiles," and other experts testified that these tests are of questionable reliability even in establishing a correct pedophilic or non-pedophilic profile for the individual undergoing evaluation. In the absence of any proof that this evidence was scientifically reliable or could be of benefit to the trier of fact, we find no error in the court's decision not to admit it. M.R.Evid. 702, 104(a) . . ..
MASSACHUSETTS
· Commonwealth v. Rosenberg, 410 Mass. 347 (1990)
· Gerard READY, petitioner, 63 Mass. App. Ct.171
· Sorb Case No. 12925 v. Sex Offender Registry Board, 05-MBAR-689
NEW HAMPSHIRE
None Found
FEDERAL
· Harrington v. Almy, 977 F.2d 37 (1st Cir. 1992)
· Berthiaume v. Caron, 142 F.3d 12 (1st Cir 1998)
The more troublesome decision is the use of the penile plethysmograph, but here the main focus must be upon [the psychologist] rather than the other defendants. There may be procedures so bizarre that lay persons and lawyers could not conceivably stand behind a doctor or psychologist who proposed their use. But this hardly appears to be such a case. Indeed, we conclude that [the psychologist] himself has not engaged in a violation of clearly established law. It follows that the other defendants did not do so either.
· U.S.v. Dotson, 324 F.3d 256 (4th Cir. 2003)
Because we have already noted that the plethysmograph test is "useful for treatment of sex offenders," United States v. Powers, 59 F.3d 1460, 1471 (4th Cir. 1995), the district court clearly acted within its discretion in imposing this condition on Dotson's release. The test also meets the "reasonably related" requirement in that it is aimed at providing Dotson with treatment, fostering deterrence, and protecting the public. See Berthiaume v. Caron, 142 F.3d 12, 17 (1st Cir. 1998) (describing this usage of the plethysmograph as "an accepted tool" and "a standard practice" in the field of sex offender treatment); see also Walrath v. United States, 830 F.Supp. 444 (N.D.Ill.1993), aff'd, 35 F.3d 277 (7th Cir. 1994) (holding that the use of the plethysmograph for treatment as a condition of parole is valid).
· US v. Powers, 59 F.3d 1460 (4th Cir. 1995)
Powers has not provided, nor have we found, any decisions acknowledging the validity of the use of penile plethysmography other than in the treatment and monitoring of sex offenders. See, e.g., State v. Emery, 156 Vt. 364, 593 A.2d 77 (1991) (validity of penile plethysmography as part of offender's treatment); Walrath v. United States, 842 F.Supp. 299 (N.D.Ill.1993) (monitoring by penile plethysmograph as valid condition for parole), aff'd, 35 F.3d 277 (7th Cir.1994).
· U.S. v. Wilson, 172 F.3d 50 (6th Cir. 1998)
Moreover, although defendant points to several possible flaws in the CCS report and questions the scientific validity of polygraphs and plethysmographs, the standard under the Sentencing Guidelines is mere "probable accuracy." While the standards for accuracy in the scientific community and the test for the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Frye v. United States, 293 F. 1013 (D.C.Cir.1923), are stricter than this sentencing standard, none of the cases or studies cited by defendant suggests that polygraphs and plethysmographs fail the probable accuracy test. Accordingly, we are unable to say that the district court abused its discretion in admitting the polygraph and plethysmograph results.
· U.S. v. WEBER. 451 F.3d 552, 570 (Fed. 9th Cir. 2006)
As we have explained, however, the burden is on the government, not the defendant, to establish at the time of sentencing that plethysmograph testing is both reasonably necessary "to accomplish one or more of the factors listed in § 3583(d)(1)" and "involves no greater deprivation of liberty than is reasonably necessary."(fn21) Williams, 356 F.3d at 1057 (internal quotation marks omitted). On remand, if the government continues to seek submission to plethysmograph testing as a condition of supervised release, then it must meet its burden of justifying the requirement, and the district court must make on-the-record findings that it has done so.
