Supervision Polygraphs – you can’t be compelled to incriminate yourself.
A recent federal court decision in United States v. McDonald, (Dist. N. Mex, January 6, 2016) delivers an important reminder to people on probation or supervised release: you do not lose your Fifth Amendment rights just because you are in sex offense treatment or required to take polygraph exams!
The court upheld the general requirement that Mr. McDonald participate in treatment and submit to polygraph testing, but it also clearly recognized how dangerous and confusing these situations can be for people under supervision. The judge acknowledged that the law is difficult to navigate, the stakes are high, and the line between what must be answered and what can be refused is often unclear.
The court reaffirmed that polygraph questions are testimonial and can be incriminating even when they seem general. If an answer could provide a “lead or link” to a new criminal charge, it is protected by the Fifth Amendment. While a person can be required to attend treatment and participate in polygraphs, the government cannot threaten revocation, punishment, or sanctions to force someone to answer self-incriminating questions. Doing so would be unconstitutional compulsion. In plain terms, supervision does not give the government the right to extract confessions or violate the 5th Amendment.
The court explained that people must affirmatively invoke their Fifth Amendment rights. Polygraph exams and treatment sessions are not custodial interrogations, so the protection is not automatic and you don’t need to be read your Miranda rights. If a question risks exposing uncharged criminal conduct, the individual must clearly state that they are invoking their right against self-incrimination. The court encouraged people to err on the side of asserting their rights, recognizing that most are navigating these situations without legal counsel.
So, in summary, you can be required to show up and participate in treatment and the polygraph, but you cannot be forced to incriminate yourself. And if you are uncomfortable or unsure about an answer, you can pause and speak with your attorney. Supervision is not a waiver of the Constitution.
Discover more from Florida Action Committee (FAC)
Subscribe to get the latest posts sent to your email.
To show how ridiculous a polygraph is, a member of my family took them several times, and failed as part of the hiring process with a letter agency. They let the family member retake it several times, each time a failed response somewhere. They told the family member, to take some time and sort out whatever issues they might have, and come back and try again. The family member eventually did just that, and passed. They are currently working with the letter agency.
This rule against compelled self incrimination while on supervision has been binding precedent in the 10th Circuit–which includes New Mexico–since the decision in U.S. v. Von Behren in 2016. The decision can make for wonderful persuasive precedent in the other circuits.
Link to von Behren case.
https://law.justia.com/cases/federal/appellate-courts/ca10/15-1033/15-1033-2016-05-10.html
“Indeed, given the constitutional stature of the Fifth Amendment, courts should strive to construe conditions of supervised release to avoid Fifth Amendment problems where possible.”
Am I nuts, or would simply barring polygraph use be the fastest and most effective means of avoiding the 5th Amendment problem? And wouldn’t the already well-documented inaccuracy by the mental health industry and numerous legal precedents provide more than sufficient reason to bar their use, even absent the 5th Amendment question?
That quote also overlooks that the entire, if unspoken, point of requiring polygraphs in the first place is specifically to circumvent the 5th Amendment.
Very logical and well said @Dustin
But they won’t get rid of it because its a money thing