Earlier this week, in United States v. Von Behren, the Tenth Circuit Court of Appeals held that requiring that a person on supervised release answer questions on a sexual history polygraph that are designed to elicit admissions of criminal conduct violates the Fifth Amendment’s privilege against self-incrimination. You can read a copy of the opinion here. Thank you to the folks at the Sentencing Resource Counsel for forwarding the opinion and congratulations to Assistant Federal Defender John T. Carlson who won the case before the Tenth Circuit.
This issue presents itself in many SDNY and EDNY cases, perhaps most frequently in possession of child pornography cases. If your client is sentenced to a term of supervised release that contains a special condition regarding compliance with a sexual history polygraph, make sure you advise your client to assert his Fifth Amendment right, to do so in writing to his probation officer as well as the polygraph examiner (if he gets that far), and to call you immediately. He should ask for the immediate reappointment of counsel. In any sex offender case, you should prepare your client for the risk that treatment will involve attempts by probation or a treatment provider to obtain admissions of additional criminal conduct and remind your client to always ask for counsel and otherwise remain silent when these issues arise.