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.
Related
Polygraph Requirement Violates Registrant’s 5th Amendment Rights
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YES! My husband and I have had to shell out money for these bogus exams TWICE in the last six months because my husband keeps “failing” despite the fact that he has not violated the terms of his probation. The polygrapher admitted that he might be experiencing a “fight or flight” response to questions that were about “sexual thoughts,” that the question itself might make my husband uncomfortable as every thought he has–sexual or not–could be possibly criminalized. Still, he was told he may have to take the test a THIRD time. My question is: Why? With a few months left on his probation, what, exactly, is the point? According to his court-mandate therapist, nothing in the polygraph could be used against him in court (to revoke probation or to bring new charges against him), but that doesn’t seem accurate according to what you said about California.
Polygraph? Not scientific. Static-99R? Not scientific. ABEL? Not scientific. What do these things have in common? They are all endorsed, despite their inaccuracy, by the California Sex Offender Management Board (CASOMB).
^^ You forgot Risk Assessment… Not scientific :)… all of it is OPINION’s which are like…well never mind…;)
Not only are the polygraph exams compulsory – the registered citizen is required to pay for them out of his/her own pocket. And let me tell you, they’re not cheap.
Robin: I think (in CA) that is ONLY the case with PROBATION… as for Parole the state pays. Same goes for IF your on probation you have to pay your restitution or a jail violation… state doesnt do anything… I BELIEVE the reason is: Probation is run by the COPS and COUNTY and they want it to cost them NOTHING …so they can violate you, also make you pay for your therapy… remember probation… ran by the county sheriff, and jails are ran by the same fools, same with the “county” courts and judges etc etc.. see the ponzi scheme ? I dont think (someone correct me if im wrong)… I dont think on CA PAROLE anyone has ever gotten charged (or can) for a poly.
“Required”? Oh yes: we were coerced into giving up our our rights by threats of a violation if we did not sign the waiver. I, as many, declared next to our signatures that “we were forced against our wills to signed here” then initialed it.
Janice, can you please put a voters guide up to help us now if any one is on our side is up for re-election?
Update on my husband’s polygraph nightmare: One of the PRE-TEST questions asked if he had had any contact with minors. He mentioned that, on ONE occasion, two kids came up to him when he was walking our dog and asked if they could pet the dog. He told them that the dog didn’t like to be touched by strangers, so the kids moved on. On ONE OTHER occasion when he was walking the dog (Mind you, he’s been walking the dog three times a day for the last nine months), a kid asked him for directions. He gave them to her, and she moved on. NOW his probation officer’s supervisor has decided that another condition must be added to the list—that he cannot walk the dog alone. We tried to challenge this by taking it up with his P.O., the P.O.’s supervisor, and then the P.O.’s supervisor’s supervisor, but to no avail. The law has given these people unlimited power to abuse their authority whenever they wish. Anyway, we consulted a lawyer, and when this is over (I believe we’re down to 80-something days now), we will file a report with the watch commander. It won’t do anything for my husband or me, but maybe, just maybe it will help someone else in the future. This abuse needs to stop.
I had to do this. I was scared cause when they strap you in, everything and I mean everything is running through your head. From the time you were a kid to now. But I focused on what I had to answer. Luckily I passed.
Now am I saying should we take it? Not even in the slightest. The problem is, as you said, violates our 5th amendment. And to top it off, the damn thing is expensive. You have to pay to put yourself in this 50/50 prison time or face the time without even paying.
And I get the treatment. There are people that are considered SVP’s. But there are people that don’t even rank in the harmful. If anything, they’re harmless. They’ve made a huge mistake in their lives and I can bet if you looked out on the street, you’d never guess who was one.
I wish I wish I WISH they’d really look at this setup. And I mean really look. It’s just nonsense and hoop jumping to stay in the lines in the eyes of the law.
My polygraph was a week ago I passed all of mine that is 6 out of 6. But this last one was a question about using the internet without authorization. I use email at work and our management system and that is it. This is even written by a third party. So now what do I do? Expect a ride to my house like other guys have said because they missed a question? Also the polygraph admittedly by the APA is 50 – 85% accurate, but no one takes that into consideration. It’s about the money just like debtors jail. We’re still doing it to 2016 Karma times have not changed that much since the Middle Ages. And how many courrs how many jurisdictions need to play into this before there’s a ruling? He threatened me with having to pay but haven’t done so yet. I’ve recovered my life about 65%. I’m putting away money for retirement so not a burden on society or living in the bushes. Enough with this please support Janice!!
As I recall in the State of CA in the title 15 for people under CDCR/Parole it says the STATE pays for the mandatory poly. I know someone in so cal that is on parole/290 and they DO NOT PAY, they have threats all the time “if they fail they will have to pay” I have a 2013 title 15, I may just check it 😉
This will be my 1st year in this crappy state (CA) that I have to register and am NOT on parole. I will tell you if the Sheriff’s department comes to my house they will have a surprise coming.. a CAMERA in their face, me telling them off and to get out of here, Ill tell them to READ the 290.015 LAW as I have and to get LOST Ill also have a witness with me, once I register and show my residence document with address, that this is harassment, im NOT talking to them, Ill call their stupidvisor, and also file a complaint with any and all agencies I can. Them coming to your door when you are NOT on parole is plain evil and NOT covered in 290.015 as part of registering, as my address has ALREADY been verified. Or even I wont answer the door as I DO NOT HAVE TO. If I do prolly will tell em I DONT TALK TO COPS/ANSWER ?’s and unless they have a warrant get lost.
When I was on probation, i was required to take these polygraphs once a year. For starters, there is a HUGE difference between polygraphers looking to see if you are being truthful and ones that have made a living, typically working for the Feds, by trying to trip people up. I had that guy for my first couple and finally my PO had me go to another honest, one. Yes, there is such a creature out there, but I suspect that they are one step below unicorns on the rarity scale. :-D. She actually bothered to ask me if I had any issue that might impact the polygraph, I told her that I had significant anxiety issues even before my arrest that were worse, so she did a baseline test. Unadjusted, the machine said I was lying when I said that My name was Joe, we were in Largo, FL and that I was currently sitting in a chair. She said that the anxiety, plus my tendency to over examine/overthink the question to make ABSOLUTELY sure of my answer were the likely culprits. She made her adjustments and I passed the next 3 polygraphs with flying colors. The only good news is that the law said that the state could not use anything discover during the polygraph exam in court to violate or prosecute you. Unusual considering it was Florida.
First off, the polygraph is snake oil. Junk science at its peak.
If you would like to learn more about the polygraph, and turn some of that knowledge to your advantage, check out:
Antipolygraph.org
Back in 2004, when I was forced into “therapy” and it take a polygraph while on probation, the polygraph examiner had you sign a statement that you were there of your own free will, that you’re not on any mind-altering medication and there was one or two other Provisions I can’t remember.
I initially refused to sign because I was not there of my own free will.
I was there obeying the terms and conditions of my probation enhance the order of the court to do so.
Also, being depressed out of my mind re the whole situation, I was on antidepressants and anti-anxiety medication.
So I told her I’m not going to sign this waiver comma but I am presenting myself for the polygraph exam. But she would not examine me without my signature on that waiver form. And reported me as being “uncooperative”.
So finally, under threat of being jailef by my probation officer, I signed the thing.
I answered every question truthfully. But when the results was given to my “therapist”, a former County probation officer who turned PhD and sunk his claws into the sex abuse interest industry racket, he said I failed two questions and therefore I feel the whole polygraph and so that was a black mark against me so on so forth.
He would never tell me what questions it was that I, supposedly, failed. But when I ask them who it was that set the standard as to what failure meant he finally admitted in so many other words that was arbitrarily and he set the standard.
It’s just like if you’re eligible to go for a Certificate of Rehabilitation. Mine was originally denied in Orange County so I’m going through the appeals court process at this time.
But during the arguments at the original hearing the deputy district attorney said there is a very high standard for sex offenders to meet to get the Certificate of Rehabilitation.
Well that is complete and utter BS. There is no high standard. There is no low standard. There is only THE standard that is outlined by the law.
Petitioners in these matters should not be subject to arbitrary whims from the bench to have their petition granted or not.
In my case the judge said he didn’t think enough time had passed. Well it had been ten years and a few months since the conviction and 12 and a half years since the actual offense.
And the legislation, and that’s the clear legislative intent, is that you have to wait 10 years. That total 10 years is longer than you have to wait for a COR from murder conviction.
Another thing that Deputy district attorney said was that there was a high rate of recidivism for sex offenders.
Again not true. If you’re talking about sex related offenses. The only ones less higher than sex offenders is murders.
But yet the Orange County District Attorney’s office is allowed to stop this nonsense in open court and nobody does anything about it. My public deffender did not even address those issues.
In fact he even tried to talk me out of appealing the decision.
In Orange County if you are going for a COR apparently they give you the least experienced person in these matters to handle your case under their new Leaf program. When it comes to these matters an attorney is not an attorney is an attorney.
And if you’re seeking a COR in Orange County you’re better off hiring a private attorney, if you can at all afford it. Because the Orange County Public Defender’s Office it’s practically incompetent when it comes to it
I am not a sex offender. But I do know what probation is about. No matter how white bread normal you are. No matter how “neatly” and non mean messy your crimes was committed. Not even taking into mind how perfect your record is from your time in jail. And especially no matter how low and humble you act to the probation officers. No matter how you grovel and keep your eyes on the floor showing them they are the alpha’s and you are nothing…they still know everything about you from your pre-sentencing report. Everyone knows your good family supported you, you had the best attorney or you have an incredible pre-prison resume, talents and contacts that they could never dream of ever achieving in their lifetime. Perhaps even in prison, while normal sex offenders are targeted somehow you were not. So as with sex offenders who manage to make it through prison making friends, not getting beat up and killed, your probation officer, counselor and others who were going to be in charge of you on the outside already didn’t like you, because of the fact that you didn’t get your “punishment” from the other inmates. Or didn’t like what was described about you in your pre-sentencing report. And as they start to work with you they find out you won’t just be reliant on them, but your family especially maybe your wife, stood by you and are helping you lead a normal life on the outside, it’s about control. They will control you as long as they can, anyway they can. And the more normal a life you seem to be making for yourself, the more knives they want to stick into your armor. Because you are supposedly the worst kind of criminal. You supposedly should not clinically be able to have a normal life with out everything the state provides them to oversee for you. Yet no matter what they tell you to do, you do it, humbly and go back to building your new life. So they put extras in your way. Extra visits to their office, extra drug test and enough costly poly graphs that maybe they’ll break your bank. After all they went to college to be better than the people in there “Charge” and those people can’t ever be allowed to think they are better than their probation officers or anyone else who is supposedly needed to help you the ex prisoner to run their life on the straight and narrow. So the more you have your life together and the less anything they ask you to do phases you because you have a life to get back to when you let them have their latest fun. Well it drives them crazy! They want to be in control of you. Your always supposed to have a worse life than them but you don’t. You’ve moved onward and upward and there life hasn’t! So they keep trying to control you and you keep giving them what they want and going back to your new life and building upward and onward! It’s the only way to beet them. Don’t play their games. Play by their rules, than just leave and each time make yourself do one thing more to make you’re life better. Apply for a higher job. Make yourself introduce yourself to just one more possible connection. Ask one more person out. Whatever it is, just try one more life bettering thing (no matter how hard) every time you leave from them doing one more humiliating thing, trying to beat you down. Force yourself to do one more thing to bring your life up!