California Court Finds Unconstitutional Probation Condition Requiring Sex Offender to Waive Privilege against Self-Incrimination; PsychotherapistPatient Privilege Waiver Narrowed

People v. Friday, 225 Cal.App.4th 8, 170 Cal.Rptr.3d 38 (March 27, 2014)

Under California law, Penal Code § 1203.067, any person placed on probation for a registerable sex offense must waive his Fifth Amendment right against self-incrimination and submit to regular polygraph examinations, and must also waive his psychotherapist-patient privilege. The California Court of Appeals of the Sixth Appellate District held on March 27, 2014 that this statutory requirement that an offender waive his Fifth Amendment privilege against self-incrimination is overly broad and all-inclusive, and is therefore unconstitutional. The Court also held that the requirement that the offender waive the psychotherapist-patient privilege is only valid insofar as necessary to enable communication between the probation officer and psychotherapist as to the offender’s progress in treatment and his risk assessment scores.

Jeffrey David Allen Friday pled no contest to possession of child pornography that he had downloaded to his computer in August 2012. Information revealed that he had been downloading pornography since he was 14 or 15 years old and was 19 at the time of the offense with which he was charged. Because there was “no identifiable victim,” his level of risk as a future offender was not assessed. He had no prior convictions.

As part of a plea agreement, Friday agreed to spend six months in jail without early release. The trial court suspended imposition of the sentence and imposed a three-year term of probation, including six months in jail and mandatory participation in a sex offender management program as a condition of probation. The court required Friday to comply with the following probation conditions: (1) to waive any privilege against self-incrimination and participate in polygraph examinations, which must be part of the sex offender management program; (2) to waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer; (3) not to purchase or possess any pornographic or sexually explicit material as it relates to minors, as defined by the probation officer; (4) not to possess or use any data encryption technique program; and (5) not to frequent, be employed by, or engage in any business where pornographic materials are openly exhibited. Both the conditions requiring waiver of the privilege against self-incrimination and the psychotherapist-patient privilege are required under California law.

Friday appealed the conditions of probation arguing that the requirement that he waive his privilege against self-incrimination and the psychotherapist-patient privilege were overbroad and therefore in violation of his constitutional rights. He also challenged as overbroad the condition requiring him to participate in polygraph examinations. He further challenged as vague and lacking a requirement of scienter or knowledge of the conditions prohibiting purchase or possession of pornography, possession or use of data encryption, and frequenting businesses where pornography is exhibited. The Appellate Court agreed with most of his arguments.

The Appellate Court first reviewed the requirements of the California law, Penal Code § 1203.067, that were enacted in 2010 to amend the Sex Offender Punishment, Control, and Containment Act of 2006. The amendments mandate that any person placed on formal probation for any offense requiring registration as a sex offender after July 1, 2012 successfully complete a sex offender management program. Subdivision (b)(3) requires the offender to waive his privilege against self-incrimination and participate in polygraph examinations as part of the program. Subdivision (b)(4) requires the offender to waive any psychotherapist-patient privilege to enable the sex offender management professional to communicate with the supervising probation officer. Specifically, the sex offender management professional must communicate with the probation officer at least once a month about the offender’s progress in the program and dynamic risk assessment issues and share pertinent information with the certified polygraph examiner as required. The professional must also administer the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms, the “SARATSO dynamic tool” and the “SARATSO future violence tool,” and provide these scores to the probation officer. The probation officer must in turn provide the scores to the Department of Justice which makes the scores accessible to law enforcement on its website.

The statute also requires the California Sex Offender Management Board to publish certification requirements for sex offender management programs and professionals. All certified programs must implement a “Containment Model” of treatment, the goal of which is “community and victim safety.” In direct contradiction of the statute, the certification standards state that “invocation of the Fifth Amendment right not to incriminate oneself during a sexual history polygraph cannot legally result in revocation.” Also, polygraphs must be used to enhance the assessment process and to help monitor the sex offender’s deviant fantasies and external behaviors, including access to potential victims.

The Court then reviewed the language of the Fifth Amendment and its jurisprudence. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Under Minnesota v. Murphy, 465 U.S. 420 (1984), the Fifth Amendment right may be asserted in any proceeding, civil or criminal or judicial, investigatory or adjudicatory, and protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or lead to other evidence that could be so used. The Fifth Amendment does not, however, provide an absolute right to remain silent. Under “use and derivative use immunity,” a witness may be compelled to testify provided the state does not use the testimony or any use derived from it in a criminal prosecution against the witness.

The Court then found that the probation condition in this case required Friday to waive any privilege against self-incrimination and forgo any claim of immunity from prosecution. The Court found that the waiver included any claim of immunity Friday might have from prosecution for any past acts, whether sexual offenses or otherwise, that might be revealed through treatment or polygraph examination, and not just those related to the offense for which he was convicted. Although the Court recognized that convicted felons lose some of those constitutional rights that law-abiding citizens enjoy, Murphy held that the privilege against self-incrimination applies to both prisoners and probationers.

The Court also recognized that the state may require probationers to answer questions as a condition of probation provided the statements are not used against the probationer in a criminal prosecution. The Court stated that the requirement that the offender waive his right to self-incrimination undoubtedly furthers the public safety when it allows a sex offender who admits to ongoing dangerous offenses that would otherwise go unreported, but the Court found that the scope of the waiver goes too far in this case because it would allow the prosecution of an offender for any offense. The Court found that the state could accomplish the same goal by requiring the offender to answer questions truthfully without requiring a waiver of the privilege. If necessary, immunity could then be given the offender.

The Court also pointed out that a secondary purpose of the program was treatment and rehabilitation of the offender. By encouraging the offender to reveal and discuss mental dysfunctions, but compelling him to disclose incriminating information that could be used against him in subsequent prosecutions would discourage honesty and openness between the offender and his therapist and therefore thwart the purpose of the program. The Court also declined to limit the parameters of the waiver, finding that the statutory language was plain on its face and it had no authority to so limit it other than to hold it unconstitutional.

The Court also found that parameters of the polygraph examinations were overly broad and no limits were placed on the questions that could be asked. Under California case law, the Court found that conditions of probation are invalid when they have (1) no relationship to the crime for which the offender was convicted, (2) relate to conduct which is not in itself criminal, and (3) require or forbid conduct not reasonably related to future criminality. The Court held that the questions that could be posed during polygraph examinations must reasonably relate to the offender’s successful completion of the sex offender management program; the crime for which the offender was convicted; or to criminal behavior, whether past or future.

The Court then reviewed the arguments related to waiver of the psychotherapist-patient privilege, finding that the privilege falls within the zone of privacy first recognized by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1983). In this case, the statutory language states that the purpose of the waiver is to enable communication between the sex offender management professional and the supervising probation officer. The Court held that it would narrowly construe the requirement that the offender waive the privilege only as necessary to allow the sex offender management professional to communicate with the probation officer and provide the SARATSO scores. The Court also permitted the probation officer to communicate the scores to the Department of Justice to make them available to law enforcement. But beyond those communications, the information would remain confidential and could not be provided to third parties or used to prosecute the offender.

Finally, the Court also agreed with the defendant that the requirements of scienter, or knowledge that the conditions of probation would be violated, must be added to the conditions. The Court found that the offender could inadvertently or unknowingly come into possession of pornographic materials, obtain encryption programs that are readily available, or enter into an establishment that openly displays pornographic materials. The Court determined that the term “frequent” was also imprecise. The Court therefore modified the remaining terms to require that the offender not knowingly purchase or possess pornographic material, not knowingly utilize encryption techniques, and not knowingly enter into an establishment that openly displays pornographic material.

Found in DMHL Volume 33 Issue 2