Polygraph Requirement Violates Registrant’s 5th Amendment Rights – update 1/28/17

In September of 2015 SOSEN printed an article about parole and probation /blog/2015/09/01/probation-and-parole-the-real-story.html. Within that article the author pointed out some of the myths that parole and probation (PNP) and sometimes even the court uses to increase the loss of civil liberties beyond their constitutionally legal boundaries. It pointed out problems probation and even the courts have when placing restrictions on a person’s civil liberties.  Restrictions placed on a person that are conditions of PNP have to be related to the crime that has put the person under the control of the judicial system. While the court can adopt terms and conditions of probation recommended to it by an administrative agency of government the said agency must show proof, not mere conjecture, for the need of a requirement. The court cannot delegate it’s power to fix terms and conditions of probation. ( Whitehead v. United States, 155 F2d 460 (CA6 Tenn 1946). Now another needed court decision has been placed in action by a Federal Court. It has been a long-standing rule that polygraph’s may not be used within the court system. Now the courts have pointed out that parole and probation in conjunction with treatment providers have been stepping outside their legal and constitutional boundaries once again. This decision should place all parole and probation officers on notice that there will be lawsuits and possibly criminal charges. If they continue these type of unconstitutional practices.

Posted by fac-admin on May 10, 2016 in Articles
http://floridaactioncommittee.org/ca-polygraph-requirement-violates-registrants-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.

SOURCE
You can also read the decision here: http://floridaactioncommittee.org/wp-content/uploads/2016/05/Polygraphs-violate-5th-Amendment.pdf


Utah

http://fox13now.com/2016/11/27/sex-offender-doesnt-have-to-reveal-sexual-history-utah-supreme-court-rules/

SALT LAKE CITY — A convicted sex offender does not have to reveal his complete sexual history as a condition of his parole, the Utah Supreme Court has ruled.
Brendt Thomas Bennett sued the Utah Department of Corrections after his parole was revoked when he was ordered to disclose his sexual history — including any uncharged sex crimes — as a part of sex offender treatment. The Utah Supreme Court said in a ruling released Saturday night that it violates his Fifth Amendment constitutional right against self-incrimination.
“We hold that a threat to revoke a defendant’s parole constitutes compulsion for purposes of the Fifth Amendment,” Utah Supreme Court Chief Justice Matthew Durrant wrote.

Bennett was paroled from the Utah State Prison in 2007 into the Bonneville Community Correctional Center, with an order that he complete sex offender treatment there. As part of the program, the court said in its ruling, Bennett was ordered to make a disclosure of his sexual history to a therapist and in a polygraph exam.
“Mr. Bennett invoked his Fifth Amendment right against self-incrimination and, though he answered some of the questions in a general way, he refused to provide more specific answers. He claims that the ‘treatment team pointedly demanded answers to questions that would require me to incriminate myself,’” Chief Justice Durrant wrote.
“Bennett’s refusal to discuss it apparently led to his parole being revoked and his return to prison.” A lower court ruled against Bennett, who appealed to the state’s top court. The Utah Supreme Court sided with Bennett, and also chastised lower courts for not providing him with a lawyer as he fought the parole revocation.


In its ruling, the Utah Supreme Court said it was not rejecting the “valid and important rehabilitative purposes of sex offender treatment programs.”
“Although the State argues that our decision today will undermine the purposes and effectiveness of sex offender treatment programs, a compelling state interest does not outweigh an individual‘s Fifth Amendment rights,” Chief Justice Durrant wrote. “The ruling does not overturn Bennett’s conviction, but sends his parole issue back to a lower court to be decided”.

With this decision the treatment provider who reports information to parole officers, or removes people from their programs because they stand for their constitutional rights could be charged with a violation of federal law USC title 18 section 241-245 “conspiracy against rights” denial of a person’s constitutional rights on any grounds outside of the courtroom, (even the judiciary branch has constitutional restraints the punishments that they deal out). With this decision it may be that it opens the door for anyone who has been expelled from treatment and had their probation or parole violated. Because of that may have grounds to sue the treatment provider and the PO’s, and even bring criminal charges against them under title 18, remember they do not have qualified immunity if they violate constitutional standards /blog/2016/04/19/all-government-officials-can-be-sued-for-actions-outside-their-authority.html

NOTE:There is one more issue here and that is the fact that polygrapher’s and treatment providers are forcing people to sign documents waiving their Fifth Amendment rights as well as other constitutional rights including the right to sue even if the polygrapher or the treatment provider does something unconstitutional to the participant. These unconstitutional waivers must be signed in order to stay in treatment and take the polygraph, Otherwise the they are open to violating a persons parole or probation. This practice is in violation of Doctrine of unconstitutional-conditions and possibly the doctrine of Abuse of Rights.

Texas

What happens when you have an attorney that challenges the use of the polygraph. When the therapist uses it for the sexual history , and you submit that to the Texas Department of criminal Justice when there is a possibility of a person being thrown out of therapy for taking the Fifth Amendment . See attached for the Texas Department of criminal Justice’s response. 5th Amendment polygraph

GEORGIA

this person decided to be proactive and actually challenged the need for the polygraph in advance of taking it interestingly it’s basically saying that if a person is thrown out of treatment because of refusing to do the polygraph them the PO has a responsibility to find the other treatment. this would follow because only certain treatment providers are accepted by the PO’s

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
NEWNAN DIVISION

UNITED STATES OF AMERICA,
v.
LAURA __________,
Defendant.

CRIMINAL ACTION NO.
3: 1O-CR-001-R WS

ORDER
An issue has arisen regarding a requirement that Defendant submit to a
specific incident polygraph as part of her treatment at Highland Institute.
Defendant has objected to the polygraph out of concern that she may be asked
about incidents outside the conduct about which she has pled guilty. She
wishes to protect her right not to incriminate herself. However, the Highland
Institute has indicated that she may not continue her treatment, which is a
condition of her supervision, if she does not submit to the polygraph.
The Court finds that it would be improper to order Defendant to
incriminate herself as a part of her treatment. The undersigned recognizes that
this may compromise the treatment plan for Defendant. However, the
constitutional rights of the Defendant take priority in this circumstance.

Case 3:10-cr-00001-RWS-GGB Document 65 Filed 11/17/16 Page 1 of 2
A072A
(Rev.8/82)
Therefore, Defendant is not required to answer questions in a polygraph
examination concerning incidents about which she has not pied guilty. If this
ruling disqualifies her from treatment at the Highland Institute, then an
alternative treatment program will need to be found or the case will need to be brought back before the Court for further consideration.

SO ORDERED this 171″day of November, 2016.

UNITED STATES DISTRICT JUDGE

Doctrine of Unconstitutional Conditions Law & Legal Definition
Doctrine of unconstitutional-conditions is a rule of constitutional law that bars a government from imposing a condition on the grant of a benefit requiring the waiver of a constitutional right. The government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutional ly protected right.
It also refers to the rule that government cannot force a defendant to choose between two constitutional ly protected rights.

Abuse of Rights Law & Legal Definition
The doctrine of Abuse of Rights, found in various guises in Civil Law jurisdictions, refers to the concept that the malicious or antisocial exercise of otherwise legitimate rights can give rise to civil liability. In general terms, the doctrine of abuse of rights provides that ‘fault’ in the delictual sense. It may be imposed upon a party who has exercised a right in a manner that has caused injury to another. At least one of four conditions is required to invoke the doctrine: (1) the predominant motive for exercising the right is to cause harm; (2) no serious or legitimate motive exists for exercising the right; (3) the exercise of the right is against moral rules, good faith, or elementary fairness; or (4) the right is exercised for a purpose other than that for which it was granted.

15 comments for “Polygraph Requirement Violates Registrant’s 5th Amendment Rights – update 1/28/17

  1. KayT
    February 24, 2017 at 10:23 am

    It would seem that the parole officers and the courts are simply badgering people, just forcing them to take polygraphs as a rule of thumb, or as a way to poke at a person with a sharp stick. Intimidation and harassment.

    Today I read that there are speakers out there who are educated in the field of Forensic Psychiatry and Criminology. These people are being taught that if a person is subjected to polygraphs enough then eventually the truth comes out, they believe that a person has committed multiple uncovered crimes.

    One speaker said that because of the polygraphs “everyone eventually admits to crimes that they had never admitted to before” and then are put back where they belong, in prison.

    There were also conversations about “women with children who stay with these criminals”, there were no specifics written but one can imagine the general direction of the conversations.

  2. Seth
    February 26, 2017 at 8:54 pm

    Hey KayT, I would greatly appreciate it if you could set me in the right direction to identify any of the speakers whom you mentioned. I believe without doubt that this is happening. And I want to start identifying the people who spew such rubbish as fact only to collect payment for feeding the anti-intellectual people out there that we have to battle everyday. It is also evident that the vast majority of law enforcement believes in and encourages the dissemination of this crap. I think it is high time to start pushing back by bringing lawsuits against these people in both their professional AND personal capacities. Now I fully understand the chances of actually winning in court are slim to none. BUT… in their personal capacity they would have to pay for their own defense. So we hit them in their pocketbooks via their own attorney fees. Just a frustration driven thought…

  3. kayt
    February 27, 2017 at 7:53 pm

    I re-checked the information and unfortunately I didn’t have the right information, the master’s program in forensic psychology is a very different location than the speaker I first talked about. But, still – no one is naming names or locations and for very good reasons!

  4. In Search of Liberty
    February 28, 2017 at 7:47 am

    Tell the Country of Texas this and see what kind of reaction you get. Texas tells federal judges to go “F” themselves—and gets away with it too. Damndest thing I ever scene. Yes, TX polygraphs all RSOs on an annual basis—and at $200.00 a pop. In addition, the Parole Board will use the results against you in a revocation hearing. But to be fair, we (RSOs) started seeing a downward trend in violating people for failing a polygraph in the last, I would say, 7-8 years. But that, we have been told, is because the system gets clogged up with technical violators, which is what failing a polygraph is in TX, no new criminal charges, and prison officials prefer to save those prison beds for people with new more serious convictions. So today polygraphs in TX have become more of a nuisance for RSOs than anything else. A waste of your time and especially a waste of your money. Bottom line is, TX couldn’t care less about polygraphs violating RSO’s 5th Amendment Rights, they are going to require you to take them anyway. And if you file suit you can bet the parole board is going to retaliate; example, one day you have a real cool PO, one that lets you do your thing, doesn’t bother you, next thing you know, you’ve been re-assigned to an asshole PO is wants to stay in your business, e.g., calling you in for office visits every other day, coming by your house last at night to see if you are home, showing up at your job asking questions about you, wanting to see you pay stubs all the time, etc., etc., That’s the kind of crap TX pulls when you go to making what they call trouble. You are not dealing with honorable people (criminal justice personnel and legislators) down here in the Country of TX. That slogan that came out with about twenty years ago “Don’t Mess With Texas”, yeah, I’m telling you, they mean it!!!

    • Will Bassler
      February 28, 2017 at 9:35 am

      As new information comes to our attention, we will try to inform the public, as is the case of two new sections added to the article one from Georgia and one from Texas.

  5. Kay T
    February 28, 2017 at 1:31 pm

    http://jaapl.org/ (The Journal of the American Psychiatry and the Law online)
    Search: Polygraphs

    A lot of information about polygraphs in this web site. Not just about polygraphs, reasons for and myths and realities plus self incrimination, but also about laws that govern, and etc. Much of it was on sex offender issues.
    >>>Evaluations of postconviction sex offender testing (PCSOT) programs consistently describe fuller and more accurate information about offenders’ histories and increased disclosure regarding previous victims, types of offenses, age of onset of sexually deviant behavior, continued masturbation to deviant fantasies, and engagement in so called high-risk behavior. There is also evidence to show that it can act as a deterrent to reoffending.15,29–32 Sex offenders have tried unsuccessfully to challenge the principles and practice of PCSOT on several occasions. The Supreme Court has stated that it is “a sensible approach allowing prison administrators to provide to those repeat sex offenders who need treatment the incentive to seek it…;. [It does not] amount to compelled self-incrimination.”33<<>>>For reasons that are unclear, but are worthy of further research, the polygraph appears to facilitate disclosure during the testing session. It is possible that polygraphy provides a face-saving mechanism for reporting information that has been withheld or that individuals may disclose because of a perceived need to explain a deceptive result. In our studies with sex offenders, we found that polygraph testing increased the likelihood of the disclosure of relevant information by a factor of 14, with over 40 percent of the disclosures rated as being of medium (i.e., indicative of increased risk.)<<<<< http://jaapl.org/content/38/4/446

    So much information, I couldn't post more, but the web-site is full of information to those who have the time to read.

    • Will Bassler
      March 1, 2017 at 10:31 am

      KT first well let’s take a look at where this is coming from (American Psychiatry) this coming from a group that has as an extreme fiduciary interest in keeping the mythologies going. it is also coming from a group of pseudoscientists who constantly work off of theories that are not proven. One of those theories is that there is a high recidivism rate for people who have committed prior sex crimes. studies into the entire registry (people who have committed sex crimes) show that a very small percentage will reoffend less than 1% in any given year. this low percentage has been consistent since the 1960s before there was any treatment programs. We have seen this same group of people continue to use missinformation from studies that have been proven to be bogus and to use the same misdirection in their treatment programs to get the answers that the want. Too many times people in treatment have tried to tell the truth and been slammed for not parroting back what the treatment provider wants. See prior articles that have been posted on this website about the effectiveness of treatment. I’m sorry but from a scientific point of view a large percentage of people involved in this form of pseudoscience base their theories and ideas on their own adversarial alliance of bigotry and hatred, and their information should not be trusted at face value.

  6. Nicholas Maietta
    March 1, 2017 at 8:54 am

    In California, I was forced nearly monthly for 4.5 years to take polygraphs, at my expense during my time on probation.

    Does this set a precedent nationally, or just in the state? If so, i should be able to recover about $8,000 polygraph costs, plus another $1,200 in fuel, plus another undetermined amount for my time and the violations of my rights.

    You can post the response here, i’ll check back in a few days.

    • Will Bassler
      March 1, 2017 at 10:16 am

      the legal issue here is not being forced to take the polygraphs, it is the issue of being forced to give up your Fifth Amendment rights and to be forced to give up your ability to hold accountable polygrapher’s and treatment providers, because of being forced to sign waivers that are giving up constitutional rights.

      • Nicholas Maietta
        March 7, 2017 at 2:11 am

        Thank you for the clarification.

  7. Kay T
    March 1, 2017 at 11:13 pm

    Will_B, I don’t disagree with you! I was just posting what I found as in what people are being taught which is so far as I’m concerned absolutely overwhelming.

  8. Robert Curtis
    March 5, 2017 at 11:10 pm

    Read a wonderful book authored by a Phd. David T. Lykken called: A Tremor in the Blood (uses and abuses of the Lie Detector). Stuff I never imagined. I couldn’t understand why I kept failing that damn test while telling the true! after I read that book it made complete sense, it’s not a real test but a form of interrogation.

    • Sharon Smith
      March 8, 2017 at 8:28 pm

      Thanks Robert Curtis for sending the information – I will pass it on, there is a lot of concern about lie detector tests, people are terrified of them.

  9. caring
    April 15, 2017 at 8:35 am

    So, in reading this, polygraphs are permitted, however the fact that people are “forced” to give up their 5th amendment right or face being thrown out of therapy and violate probation should be grounds for a legitimate lawsuit for emotional distress and being forced to give up one’s rights under threat of being put back in jail. Is this fomenting we should pursue?

  10. Scott
    April 15, 2017 at 5:44 pm

    While i was in a treatment program that i still currently owe money to, I was subject to a polygraph mandated by the court and probation every 3 months which i paid for out of pocket. $100 each time and then went up to $200. payment was due the same day.

    I never believed in a polygraph as it is a man made machine. Man made machines are subject to errors and faults.

    now they have no program and they send people to jail anywhere from 15 to 50 years depending on the case.

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