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Polygraph Requirement Violates Registrant’s 5th Amendment Rights

The 10th Circuit Court of Appeals issued a decision today stating that a registrant’s Fifth Amendment right to remain silent was violated when the government sought to return him to prison because he refused to answer questions regarding his sexual history during a polygraph exam. 
The questions the registrant refused to answer are (1) after the age of 18, did you engage in sexual activity with anyone under the age of 15, (2) have you had sexual contact with a family member or relative, (3) have you ever physically forced or threatened anyone to engage in sexual conduct with you and (4) have you ever had sexual contact with someone who was physically asleep or unconscious?
The court noted that the registrant’s affirmative answer to any one of these questions could have been interpreted as a confession of illegal conduct.  The court also noted that the government’s threat to revoke the registrant’s probation for properly invoking his Fifth Amendment privilege is the type of compulsion the government may not impose.  The court further noted that an individual is compelled “as soon as the government threatens him with a substantial penalty”. 
In the case, the registrant was required to successfully complete a sex offender treatment program mandated by the Colorado Sex Offender Management Board.  The registrant was required to sign an agreement that included a requirement to take a sexual history polygraph and allowed his treatment provider to report any sexual crimes discovered during the polygraph exam to appropriate authorities.
When the registrant refused to answer sexual history questions during his polygraph exam, the treatment provider expelled him from the mandatory treatment program.  This expulsion, in turn, subjected the registrant to potential revocation of his supervised release and a prison sentence.
In its decision, the court noted that the terms of the sex offender treatment agreement were non-negotiable.  The court also noted that its decision was based in part upon the registrant affirmatively asserted his Fifth Amendment right to remain silent during his polygraph exam.
As a result of this decision, the registrant is not required to answer questions regarding his sexual history during a polygraph exam.

Decision

Media Articles

Colorado sex offender’s lie detector court win could have big impact

Forced Polygraph of Sex Offender Unconstitutional

Join the discussion

  1. Janice Bellucci

    The 10th Circuit Court of Appeals has ruled wisely that a registrant does not have to answer questions regarding his sexual history. By doing so, they have recognized that registrants have civil rights that must be protected. Thank you, 10th Circuit Court of Appeals!

    • Fedup

      What does this mean for future polygraph exams? What does it mean for California? Do they automatically stop?

      • WiseCounsel

        Offenders in various jurisdictions will have to challenge the requirement siting this as the textbook case along with:

        United States v. Lawrence Antelope (9th Circuit, Jan. 27, 2005),
        U.S. v. Bahr (No. 12-30218)
        People v. Guatney (06CA0704)
        People v. Roberson (Colorado Supreme Court, May 16,2016)
        Dansby v. Texas (NO. PD-0149-14)

        These are some favorable court rulings your attorney can use to bolster your case. It should be open and shut.

  2. Chris F

    How will this affect those that have already been sent back to prison, possibly years ago?

    I know in Texas I’ve heard of this happening. I hope their lawyers see this.

  3. Lake County

    Janice can you please state how/when you think this will effect California, if at all. After doing a Google search, it seems this issue has been decided before. It appears that case law states that an offender cannot be compelled by threat of incarceration to take a lie detector test after you have invoked your 5th amendment rights. You may get violated by probation for not taking the polygraph, but you will face a judge upon the violation and your attorney will then show case law that states you have the right to not incriminate yourself. You only have this protection if you state you invoke your 5th amendment rights. If you take the test without objection, then anything you say may be used against you. Below are some opinions I found:

    http://blogs.findlaw.com/ninth_circuit/2013/09/mandatory-sex-offender-lie-detector-tests-implicate-5th-amendment.html

    https://penncriminaldefense.wordpress.com/2012/07/03/polygraphs-sex-offender-probation-5th-amendment-supreme-court-statements-crimes/

    • Janice Bellucci

      We are conducting research regarding state and federal court decisions in CA and the 9th Circuit Court of Appeals that are relevant to the requirement to take polygraph exams, in general, and to answer questions regarding one’s sexual history, in particular. We will post that information on the website once we have completed our research.

      • Chris F

        Janice, in Texas I see this:

        https://www.prisonlegalnews.org/news/2014/sep/12/texas-unconstitutional-revoke-probation-due-refusal-self-incriminate-during-polygraph-or-therapy/

        It appears that he was still sent back to prison because his original attorney didn’t bring up an objection at sentencing that he wanted to invoke the 5th.

        Does that mean that if you don’t object to a polygraph and state the desire to invoke your 5th amendment rights at your original trial when conditions of probation are set, that you can’t invoke it later once you see what the sex history polygraph will ask?

      • Katharine

        Tenth circuit, not Ninth, but new this week on this very subject. The court ruled for the registrant.

        http://www.ca10.uscourts.gov/opinions/15/15-1033.pdf

        • Lake County

          Wow, that was a great find Katharine. This defendant had a really good Public Defender. Well this was very good reading. I think that this decision is very important for all of us and will confirm rulings that were made in prior lower court cases. I don’t think anyone at this point should volunteer to take one of these tests. Don’t expect Janice to give us legal advise on this. This is an issue you should speak with an attorney that would represent you.

      • WiseCounsel

        Janice,

        Look at United States v. Lawrence Antelope (9th Circuit, Jan. 27, 2005). That’s THE textbook case out of the 9th Circuit.

        I’m going to have issues of my own here in the 6th Circuit. I think I’ll get a favorable ruling considering the scathing defeat Michigan suffered in attempting to retroactively apply restrictions that violate the doctrine of ex post facto. That court really hit the core issues head-on.

      • Pseudo Psychology

        I remember that not too long ago, when I was on parole, Sharper Future was using the polygraph to questionably pry information from its “clients.” The polygraph examiner was particularly demeaning, and so were the “clinicians” — who relayed the idea that the polygraph was “infallible.” Most people believed the polygraph scam, and I personally saw quite a few people violated and/or admonished by their parole officer for their polygraph confessions.

        The polygraph results were also openly discussed with other people, both in the group “treatment” setting… as well as in the so-called “containment meetings.” Despite what Sharper Future guaranteed in their contracts, there was absolutely no confidentiality. The whole Sharper Future thing was a big sham.

  4. Karla D.

    My husband went through all of this starting around 2001 when Ca. rolled out the polygraph tests in Orange County, Ca. He never evoked his 5th Amendment rights… but, he simply didn’t reveal anything that he didn’t want to. He forced himself to stay calm, and consciously kept his blood pressure down. When the questions became too specific, he simply lied and just kept going. Nothing ever came up, and he got better at it as time went by. He considered his P.O.s and the sex therapists to just be government fools to be endured until the end of his supervision. He now feels the same way about his annual RSO registration. Tell them what they want to hear, and shine them on. No, that does mean he wants to re-offend.. Not hardly.. He just so hates his privacy being violated and the absolute uselessness of even being on the registry at all. Don’t live in fear of them.. But they would love it if you did..

    • American Detained in America

      Karla, I completely understand his sentiment. However, he should be aware that withholding information or providing false information can be used against him should they ever decide to look into it.

  5. LS

    Hi Karla. I somehow felt just a little better today after reading about how your husband deals with his annual RSO registration. I rarely feel better about anything, so I do thank you for that.

  6. anon # 213046232-23820202-327

    I cant elaborate much right now unfortunately…. but I can tell you ive LIED on MANY of these witch hunt polygraph’s and they ARE BEAT-ABLE…. as one said above… stay CALM, maintain regular breathing, dont let a SINGLE question ‘bother’ you, your heart wont miss a beat, DONT get nervous (just think to yourself/…. “Its just some MORON Practicing JUNK SCIENCE” (After all that is what it is…) Never been proven, after all would you take a Pill I made up in my toilet if I told you it would cure cancer ? with no scientific proof ? well a polygraph is the SAME, it ISNT a LIE DETECTOR, that machine simply does NOT EXIST. Remember the ‘poly’ examiner alone has a FAKE job, most are EX Investigators… there is a REASON WHY… probably FIRED (haha). Most they can do if you fail is ramp up pressure on you/harass you more, but ADMIT to something and get yourself a CASE or a violation, since a polygraph isnt admissible (I speak from CALI)…. Also “LYING” on a poly and you have a RESPONSE, they will say DI (Deception indicated) Claiming YOU LIED and they DETECTED IT… it DOESNT Mean anything that you will SHOW A SIGN or BECOME A REPEAT Offender. The most they will assume is you LIED or are NOT following some condition…. remember while your taking it… “JUNK SCIENCE” cause that is WHAT IT IS…DONT tense up or REACT to a single question… remember if YOU ARE NOT following conditions and you LIE BE CALM… trust me ive lied and I know MANY others that have (Cause they told me so) and they also PASSED… Im not saying BREAK CONDITIONS but if yu have BE CALM… as I read in the ruling or whatever… tehy CANT SAY you arent co-operating (if you invoke the 5th) but they will TRY to say you arent doing the treatment program, again they CANT as a polygraph is a CONDITION (or law in CA) and they are HOLDING the TREAT of JAIL over your head if your refuse, its all to them about the intimidation.. and of course causing you STRESS/DURESS of the threat of jail… kinda like BLACKMAIL… stay cool calm & dont react !

  7. MK

    I’ve lied and passed, told the truth and failed. The polygraph is poppycock. We all know it’s just another tool to scare the living daylights out of you for another confession.

    Worse are the “mental health professionals” who rationalize it and see it as a useful tool. I’m sure to them phrenology, lobotomies, and electroshock wouldn’t necessarily be off the table as treatment modalities.

  8. ProvenU Wrong >23yrs

    Of course in violation of civil rights. Excellent ruling for all citizens. There is NO exemption..you seeing that..? There is No exemption to civil rights.
    Now…some idiots..no not you usak, but you’re close..:)
    In place of that sham detector. Bring back The Rack. ;). Surely truth from that. :/ Bring Back The Rack.

  9. Chen

    Polygraph deserves to be in the trash bin of junk pseudo science, along with Static 99R and ABEL testing.

  10. anon # 213046232-23820202-327

    Chen: Ill agree “Static 99” and also the RISK ASSESSMENT SCORE is all total BULLSHIT, its all someones “OPINION” creating DRAMA that someone “Might” re-offend.. its all to make the therapist (or whoever) (Which most are interns).. make them look good like they are doing their “job”..

    I believe also illegal will be a POLYGRAPH to get a offender to say and INCRIMINATE themselves if they are following their parole/probation conditions. Because it is also SELF INCRIMINATION that is you aren’t following a condition and you snitch on yourself… then JAIL… weather its sexual history and you could be prosecuted.. to a condition… incrimination is incrimination… in the end it will probably all come down to the same. All we need is a offender that is doing a ‘maintenance’ exam to say THE 5th and do a court case just like Von..whoever :)..

    • WiseCounsel

      Asking persons in Tennessee on Community Supervision for Life (TCA-39-13-524 thru 39-13-526) is a Fifth Amendment violation because C.S.L. begins after the full term of imprisonment or time on regular parole ends, which means a violation is NOT an automatic return to prison to complete the balance of a remaining prison sentence. A knowing violation of C.S.L. is a new criminal charge in and of itself. Violations that are not criminal acts in and of themselves (failure to participate in treatment and/or refusal to submit to polygraphs) are charged as Class A misdemeanors and are punishable by a fine of up to $2500 and 11 months 29 days’ confinement for each violation, which must be served consecutively.

      There are two types of polygraphs employed in Tennessee; the sexual history polygraph and the semi-annual maintenance polygraph, which is a fishing expedition to ferret out violations of the terms of supervision, the registry law, etc.

  11. Stephen

    If I recall A Supreme court ruled people could be given this test, but that the results couldn’t be used in a court. The results were suppose to be used just for therapy.

  12. Allen

    In 2012 Tennessee stopped giving polygraphs but in January the probation and parole board in 2016 said they were going to start them up again. I thought the court ruled in 2012 to stop so how can they just start doing it again.I have not heard that it was reversed? I’m not talking about for treatment.

  13. Shooter Falkner

    It’s interesting that the Courts are more interested in protecting the rights of individuals having already been convicted of a sexual offense rather than trying to keep the public safe by having these individuals adhere to answering questions in relation to their sexual activities! What happened to protecting the children from these individuals? Don’t get me wrong I feel liberty, rights, due process and fairness are important but we are talking about people that have already been convicted of a sexual offense seriousness enough to warrant polygraphs as a tool of community supervision. In Wisconsin if a sex offender is a registerant they are required to take a polygraph if prompted too. A person does have the right to choose to not take the test but with choices come consequences. We all have choices everyday and sometimes those choices can effect our lives in either a negative or positive way. We are forgetting about the essential need to protect the public/our children! Let’s not forget about that!!

    • @Shooter Falkner

      Stop drinking the Kool-aid about the voodoo science.

  14. LOST ALONE

    Has there been any update in California as to if it is a violation of consitutional rights to answer sexual history questions? Any news as regarding state and federal court decisions in California and the 9th Circuit Court of Appeals that are relevant to the requirement to take polygraph exams, in general, and to answer questions regarding one’s sexual history, in particular? Please let me know. Thanks!

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