Present: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ., 

and Carrico and Russell, S.JJ. 

JAMES TURNER OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 082122 November 5, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This appeal presents a question concerning the 

admissibility of polygraph test results in evidence at a 

probation revocation proceeding. 

Facts and Proceedings

 In 2005 James A. Turner was convicted of possession of 

child pornography in the Circuit Court of Fairfax County. He 

was sentenced to five years incarceration with three years 

suspended, conditioned upon supervised probation and “Sex 

Offender Evaluation and Treatment.” In 2006 Turner’s 

probation officer requested and received permission from the 

circuit court to “utilize polygraph testing in conjunction 

with sex offender treatment in this case.”1 

 In 2007 Turner’s probation officer reported to the court 

that Turner had been discharged from the sex offender 

treatment program for “failure to adhere to the attendance 

 1

 The probation officer’s letter to the court explained 

that the court had instructed his office to obtain court 

approval for such testing on a case-by-case basis and that 

Turner had been referred to a program that uses such testing 
policy” and “lack of progress.” The officer’s report also 

stated that Turner’s polygraph results had been described by 

his case manager at the treatment program as “deception 

indicated . . . . attempted to control his breathing” during 

testing. 

 Turner was brought before the court on a bench warrant. 

At a revocation hearing, he admitted missing four appointments 

at the sex offender treatment program although he had had kept 

ten other appointments. The Commonwealth presented no 

evidence and relied only on the probation officer’s report. 

In argument, the Commonwealth stated: “The one thing I would 

really like to draw the court’s attention to is the fact that 

he was deceptive, according to the probation violation –.” 

Defense counsel promptly objected on the ground that the 

report that Turner had been deceptive was based solely on a 

polygraph test result that was “being admitted into evidence 

at this hearing.” The court overruled the objection.2

 The court revoked the suspension of the remaining three 

years of Turner’s sentence, stating “I am not willing to 

subject the community to the dangers of your further conduct.” 

The court entered an order reciting that although the 

 

“for evaluation and monitoring purposes in conjunction with 

therapy.” 

2

 We reject the Commonwealth’s contention on appeal that 

Turner’s objection was procedurally defaulted. 

2
sentencing guidelines recommended “Probation/No incarceration” 

in the circumstances of the case, the court’s stated reason 

for departing from the guidelines was: “I conclude [that the 

defendant] is a danger to children in the community [and] is 

not amenable to treatment.” The Court of Appeals denied 

Turner’s petition for appeal, finding no abuse of discretion 

in the circuit court’s decision to revoke his suspended 

sentence. We awarded Turner an appeal. 

Analysis

 A sentencing court is vested with wide discretion in 

probation revocation proceedings and “formal procedures and 

rules of evidence are not employed.” Gagnon v. Scarpelli, 411 

U.S. 778, 789 (1973). Hearsay evidence has been held 

admissible in federal probation and parole revocation 

proceedings where the evidence is “demonstrably reliable.” 

United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 

1982). In Dickens v. Commonwealth, 52 Va. App. 412, 422-23, 

663 S.E.2d 548, 553 (2008), our Court of Appeals reached a 

similar conclusion in the context of the reliability of 

official records. 

 Nevertheless, the Court of Appeals, in White v. 

Commonwealth, 41 Va. App. 191, 194, 583 S.E.2d 771, 773 

(2003), specifically held that polygraph examination results 

were inadmissible in probation revocation proceedings, citing 

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a “long line of cases, spanning almost thirty years, [in which 

this Court has] made clear that polygraph examinations are so 

thoroughly unreliable as to be of no proper evidentiary use 

whether they favor the accused, implicate the accused, or are 

agreed to by both parties. The point of these cases is that 

the lie-detector or polygraph has an aura of authority while 

being wholly unreliable.” Id. at 194, 583 S.E.2d at 772 

(quoting Robinson v. Commonwealth, 231 Va. 142, 156, 341 

S.E.2d 159, 167 (1986)) (citations omitted). In Robinson, we 

expressed “our continuing concern over the use of polygraph 

exams in any court proceeding in Virginia.” Robinson, 231 Va. 

at 156, 341 S.E.2d at 167. 

 We continue to adhere to the views expressed in that 

“long line of cases.” See Billips v. Commonwealth, 274 Va. 

805, 808-09, 652 S.E.2d 99, 101 (2007) (“lie-detector” tests 

are so unreliable that the considerations requiring their 

exclusion have ripened into rules of law) (citing Spencer v. 

Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621 (1990)). 

 While conceding that polygraph test results are 

inadmissible in criminal trials, the Commonwealth argues that 

they should be admitted under the more “relaxed” standards of 

proof prevailing in probation proceedings. We do not agree. 

Polygraph test results fall far short of the “demonstrably 

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reliable” hearsay evidence that may be admitted under those 

“relaxed” standards. 

A trial court’s exercise of discretion to admit or 

exclude evidence will not [ordinarily] be overturned 

on appeal unless the court abused its discretion. 

However, a trial court has no discretion to admit 

clearly inadmissible evidence because admissibility 

of evidence depends not upon the discretion of the 

court but upon sound legal principles. 

Gray v. Rhoads, 268 Va. 81, 86, 597 S.E.2d 93, 96 (2004) 

(citations omitted) (emphasis added). 

 For those reasons, we hold that the circuit court erred 

in admitting the results of polygraph tests in Turner’s 

revocation proceeding and expressly approve the Court of 

Appeals’ decision in White. We do not, however, by this 

holding intend to impose any restrictions on the use of the 

polygraph as a tool in law enforcement or in the treatment, 

therapy, monitoring or evaluation of offenders, although those 

making use of such tests should be aware that the results will 

not be admissible in judicial proceedings. Any voluntary 

statements or admissions made by a person being tested remain 

admissible subject to the ordinary rules of evidence. Our 

holding is limited to the exclusion of the opinions of the 

polygraph operator or others purporting to offer expert 

opinion interpreting the test results. 

 The Commonwealth argues that any error in the circuit 

court’s admission of polygraph test results was harmless in 

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the present case because Turner admitted missing four 

appointments at the treatment program to which he had been 

assigned as a condition of his probation. Thus, the 

Commonwealth points out, the fact of Turner’s violation of the 

terms upon which his sentence was partially suspended is 

undisputed. For that reason, the Commonwealth contends, the 

circuit court had an adequate basis for its revocation 

decision independent of the polygraph results. White is 

therefore distinguishable, the Commonwealth argues, because 

there the trial court based its revocation decision on 

polygraph test results alone. 

 We agree that here the circuit court had additional 

evidence to support its revocation decision. We cannot, 

however, say that the error of receiving evidence of polygraph 

test results was harmless because we cannot ascertain from the 

record the extent, if any, to which the error may have 

contributed to the punishment imposed. The court had before 

it a spectrum of available penalties ranging from 

“Probation/No incarceration,” as recommended by the sentencing 

guidelines, to revocation of the entire period of suspension, 

the penalty the court decided upon. From the argument of 

counsel and the court’s remarks at the revocation hearing, it 

appears likely that the evidence erroneously admitted was at 

least a contributing factor in the court’s decision. 

6
 Because Turner does not dispute that he violated the 

terms of his probation in missing four appointments at his 

treatment program, he does not contend that the circuit court 

abused its discretion in revoking his suspended sentence.3

Rather, he contends that he is entitled to a new hearing on 

the issue of the penalty to be imposed for that violation, 

without consideration of the evidence erroneously admitted at 

his original revocation hearing. We agree. We have recently 

held such a disposition to be the appropriate remedy in a 

similar case. Whitehead v. Commonwealth, 278 Va. 105, ___, 

___ S.E.2d ___, ___ (2009) (remanded for new hearing after 

inadmissible evidence was received at revocation proceeding). 

Conclusion

 For the reasons stated, we will reverse the judgment 

appealed from and remand the case to the Court of Appeals with 

direction to remand the same to the circuit court for 

resentencing consistent with this opinion. 

Reversed and remanded.

 3

 On appeal, the Commonwealth and Turner agree that if 

this Court should hold the acceptance of polygraph test 

results to constitute reversible error, the appropriate remedy 

is a remand for resentencing only. 

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