The Fifth Amendment is alive and well for registrants in Colorado due to a decision this week by the 10th Circuit Court of Appeals. In that decision, the Court ruled that registrants could not be forced to incriminate themselves by answering questions about their sexual history during a polygraph exam.
In Colorado, registrants on supervised release were required to participate in polygraph exams and to sign an agreement and which allowed their answers to be shared with law enforcement. In making its decision, the Court noted that the terms of the written agreement signed by the registrant had not been negotiated and in fact were coerced because if he did not sign the agreement, he would be sent to prison.
The Court noted in its decision that the source for the terms of the agreement was the Colorado Sex Offender Management Board. That board certifies treatment providers who, in order to remain certified, are required to obtain registrants’ signatures on written agreements the terms of which are not negotiable.
The 10th Circuit Court of Appeals made a wise and historic decision this week. And we are heartened that the Court protected the civil rights of registrants under their jurisdiction.
The question now is whether that wisdom will be applied outside the 10th Circuit.
California has a similar system as compared to Colorado. That is, the California Sex Offender Management Board certifies treatment providers and in order for them to remain certified, they are required to obtain registrants’ signatures on written agreements that have terms which are not negotiated with registrants.
The fact is that in California, registrants must sign three agreements – one each for sexual history polygraphs, maintenance polygraphs and instant offense polygraphs – or face a prison sentence. In just one of those agreements, there is language stating that information provided by a registrant during a polygraph exam can be used in a subsequent criminal prosecution, revocation of probation/parole, reported to Child Protective Services and/or used to determine if the individual is a sexually violent predator. There is similar language in the remaining two agreements.
There is a lack of clarity in California regarding the use of polygraphs in the treatment of registrants. On the one hand, state courts have determined that polygraph exams are and will remain permissible conditions of supervised release. The same courts have also determined that registrants may be asked questions regarding one’s offense, compliance with conditions of release and questions reasonably related to completing a sex offender treatment program.
In addition, both state and federal courts have determined that the Fifth Amendment limits the government’s ability to use incriminating statements that are “compelled” to be disclosed during a required polygraph exam in a subsequent prosecution of a new crime. Further, the courts have determined that government can require registrants to answer incriminating questions but only if the government grants immunity and agrees not to use those statements in a subsequent prosecution.
The gaping hole in California is what happens when the government does not provide immunity to the registrant. Can the government in those circumstances force registrants to waive their Fifth Amendment rights and answer questions that reveal incriminating information?
The answer to that question may in fact be different depending upon whether a registrant is on federal probation or state probation/parole. Two recent 9th Circuit Court of Appeals decisions, which apply directly to those on federal probation, recognize a registrant’s Fifth Amendment right not to incriminate himself provided that the registrant has asserted that right.
A California state law, however, provides a different answer for those on state probation or parole. That law, California Penal Code Section 1203.067(b)(3), requires registrants to waive their Fifth Amendment rights in order to participate in the state’s sex offender management program.
How can that be? How can a state law require anyone to voluntarily relinquish their constitutional rights!
Fortunately, this state law is currently being challenged and the California Supreme Court has agreed to consider four cases on that topic. In three of those cases, lower state courts decided that this state law violates the Constitution.
Until the California Supreme Court renders its decision, the California Sex Offender Management Board and the treatment providers it certifies should discontinue the use of polygraph exams for registrants on state parole and/or probation.
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