NY- Court Finds Offenders Can Be Subject to Voice Analysis to Detect Lies

10-8-2009 New York:

Sex offenders can be required to submit to computerized voice stress analysis as part of their post-release supervision to determine if they are telling the truth, a federal court has ruled.

Northern District of New York Chief Judge Norman A. Mordue ruled that the technique is analogous to polygraph examinations, which have been accepted by the 2nd U.S. Circuit Court of Appeals as a way to monitor the activities of those under post-release supervision.

The 2nd Circuit in United States v. Johnson, 446 F.2d 272 (2006), held that polygraphs were not unreliable, that they could be validly related to the post-release supervision of an offender and that they did not deprive a defendant of his rights under the Fifth Amendment. The same qualities apply to the voice analysis devices, Judge Mordue determined.

Judge Mordue, ruling from Syracuse, N.Y., in Gjurovich v. United States, 5:01-cr-215, conceded that federal authorities have acknowledged that a "number of sources" have questioned whether computerized voice analysis is reliable.

"However, as noted by the 2nd Circuit in Johnson, when confronted with the same arguments about polygraph testing, the reliability of the technology and its admissibility as evidence 'does not bear much on the therapeutic value of the tool,'" Judge Mordue wrote. "Petitioner argues that the use of the CVSA [computerized voice stress analysis] is not reasonably related to the purposes of sentencing. The Court disagrees based on 'the nature and circumstances of the offense and the history and characteristics of the defendant.'"

Advocates of voice stress analysis technology say the devices can detect otherwise inaudible voice inflections in responses to questions that can indicate whether a speaker is being truthful.

Testimony before Judge Mordue indicated that some 1,800 law enforcement agencies in the United States have the devices available. Most have been manufactured by the National Institute of Truth Verification, or NITV, a Palm Beach, Fla.-based company that has been producing the devices since 1997.

Judge Mordue declined to revoke the terms of Ethan J. Gjurovich's supervised release from federal prison that the U.S. Probation Office sought following Gjurovich's completion of a five year, 10-month sentence for transporting child pornography and possessing child pornography in 2007.

The term also included a three-year period of supervised release.

The supervision period had required that Gjurovich submit to regular polygraph exams about his activities in the community. In August 2008, the Probation Office of the Northern District of New York sought to modify the terms of his supervision to add the requirement that he also submit to CVSA exams if asked.

Officials also requested that Gjurovich be required to participate in a treatment program for sexual disorders.

According to Judge Mordue's ruling, officials had become concerned about several aspects of Gjurovich's behavior, including the apparent tampering in April 2007 with software designed to monitor his online activities, his contact with another convicted sex offender and, in May 2007, his use of cocaine.

'CONTAINMENT APPROACH'

Gjurovich was sent back to a federal halfway house in 2008 because of his violations.

Probation Officer Edward Cardinal contended in an affidavit in the case before Judge Mordue that Gjurovich qualified for the "containment approach" used by federal officers to monitor sex offenders. That approach includes treatment, direct supervision and monitoring by parole officers and the use of "truth verification" instruments such as polygraphs.

Judge Mordue wrote that, according to Cardinal, officers believe there is a "dampening effect" involved when offenders are exposed to repeated polygraph exams. That can allow offenders to reduce their physiological reaction to the test and render it ineffective.

Cardinal argued that the computerized voice stress analysis, while not used solely to verify offenders' violations, can be effective as part of a "supervision strategy for further investigations and deterrence" of proscribed activities.

Paul Evangelista, the assistant federal public defender who represented Gjurovich, argued that the scientific evidence so far is "dubious" about the merits of voice testing. He said a U.S. Justice Department study on the voice analysis has shown that people may be more inclined to tell the truth because, knowing there is a machine evaluating their words, they may be exposed if they are lying.

"I think what the court accepted is the idea that if you tell someone it could work, then it encourages them to tell the truth," Evangelista said Wednesday. "We have the lie-detecting dog. If you don't tell the truth, he's going to bite you."

Evangelista said in his research of the case that he could not find another federal court that has ruled on the value of imposing a computerized voice stress analysis requirement on a parolee.

Assistant U.S. Attorney Thomas Spina Jr. argued on behalf of the prosecutor. Spina did not return a call for comment Wednesday. ..Source.. by Joel Stashenko, New York Law Journal