Polygraph Requirement Violates Registrant’s 5th Amendment Rights

In September of 2015 SOSEN printed an article about parole and probation http://sosen.org/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 if they continue these type of unconstitutional practices.

Posted by fac-admin on May 10, 2016 in Articles

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.

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

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 http://sosen.org/blog/2016/04/19/all-government-officials-can-be-sued-for-actions-outside-their-authority.html

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