Wednesday, August 26th, 2020

Reliability challenge to a new testing technique, “computerized voice stress analyzer,” to verify compliance with supervised release, is not ripe for review until supervision begins.

In United States v. Birkedahl, No. 19-2304 (2d Cir. Aug. 25, 2020), the Second Circuit (Sullivan, joined by Park and Nardini)) rejected a challenge to a special condition of supervised release requiring testing by “computerized voice stress analyzer (CVSA)” to verify the defendant’s compliance with conditions in a child pornography possession case. Birkedahl had contested the scientific reliability of this technique and asked for a hearing, which was denied. The Court of Appeals held that the challenge was not “ripe” for review because the technology was rapidly evolving and could advance in the year before it would be used in Birkedahl’s supervision. Since Birkedahl will not be harmed by the test until it is used to monitor his supervised release, the Court held that he may challenge it when his supervision begins and will not be disadvantaged by the Court’s foregoing review until that time.

The court also rejected as not ripe Birkedahl’s challenge to the condition that the probation officer may require him to inform others of the risk that he poses. Since this condition was contingent upon the court finding that he posed a risk, “a contingency that may never occur,” it was not ripe for review.

Finally, the Court rejected on the merits Birkedahl’s contention that the special condition requiring him to participate in sex offender treatment gave too much discretion to the probation officer is a supervisory role. The Court held that a statement by the district court that the probation officer only had supervisory authority over administrative details like the selection of a provider and scheduling made it a limited delegation that was lawful.

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