« Smart-on-crime sentencing reforms about to become law in Alaska | Main | "How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on 'mens rea' reform. Here's a middle ground." »

May 17, 2016

Two notable new Colorado Supreme Court rulings concerning sex offender treatment and Fifth Amendment protections

A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment.  Here are links to the opinions and the summary that appears at the start:

People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):

This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.

The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment.  In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):

The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation.  On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination.  Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.

May 17, 2016 at 09:41 AM | Permalink

Comments

I am tier 1, and a few months back, my probation officer tried to violate me for invoking my fifth amendment right when I refused to answer, as she called them, 'standard masterbatory questions" during a session with a polygrapher. I paid a lawyer $2500 bucks who made it 'go away', but I've thought about it, and I did not even have to shell out that cash! Let me start out by saying that I went to the Amazon book site and found a title (geared for the polygraph industry) that essentially says that the 'key to a "successful" polygraph test is the "pre-test interview". Well I reviewed my "Supervised Release Order" and found that I am only required to submit to a "polygraph examination", not a 'pre-polygraph interview'. Now a "polygraph" is a machine, not the person asking the questions, right? That person should only be asking relevant questions to guard against recidivism; not going on a reckless fishing expedition! So the next time the polygrapher shoved a consent form in my face, I simply crossed out all words which would permit an "INTERVIEW". Also, harking back to when my "PO" tried to violate me, the entire time, I had been threatening to file a State Complaint, against the Polygrapher, for "HARASSMENT", in communicating the obnoxious, stereotyping questions to me in the first place! My lawyer saved everyone's face, but My Advice now is: Check your State's criminal code to find the law(s) against making annoying communications to another person; and for God's sake, don't consent to a "PRE-Polygraph (test) Interview"!

Posted by: intheknow | Oct 25, 2016 5:24:07 PM

PS: There was a new Colorado decision about so-called "sex offenders" and the polygraph that came out Oct. 22, 2016.

Posted by: intheknow | Oct 25, 2016 7:06:06 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB