Forced Polygraph of Sex Offender Unconstitutional

(CN) — The federal government cannot force a convicted sex offender facing "authentic danger of self-incrimination" to take a polygraph test on past sex crimes, the 10th Circuit ruled Tuesday.

Brian Von Behren was convicted in 2005 for distribution of child pornography and sentenced to 121 months in prison and three years of supervised release.

A probation office in 2014 petitioned to modify Von Behren's release, and required him to participate in and successfully complete a sex offender treatment program.

The modification also required Von Behren to take a lie detector test about past sexual crimes, and program administrators were bound to report any sexual crimes revealed by the test.

The new conditions were necessary for Von Behren to be accepted into a program that complied with standards mandated by the Colorado Sex Offender Management Board.

Created in 1992, the board is the Centennial State's authority for the assessment, evaluation, treatment and behavioral monitoring of adult sex offenders.

Von Behren claimed that the polygraph violated his Fifth Amendment right against self-incrimination.

A trial court rejected that argument, and held the exam's four sexual-history questions did not pose a danger of incrimination in a "constitutional sense," according to the 10th Circuit's opinion written by Circuit Judge Stephanie Seymour.

The questions included: "After the age of 18, did you engage in sexual activity with anyone under the age of 15?" "Have you had sexual contact with a family member or relative?" "Have you ever physically forced or threatened anyone to engage in sexual contact with you?" "Have you ever had sexual contact with someone who was physically asleep or unconscious?"

Von Behren refused to answer the questions. He faced expulsion from the program and the potential revocation of his parole.

A trial court then denied his request to stay proceedings pending appeal. The 10th Circuit ultimately granted an emergency stay of the polygraph test while Von Behren was in the examiner's parking lot, Seymour noted in the opinion.

On Tuesday, the appeals court reversed the trial court's order of the polygraph test on Fifth Amendment grounds.

"In this case, the district court held that the mandatory questions, along with each of their follow-up questions, do not present a real and appreciable risk of incrimination," Seymour wrote. "It was convinced that the questions would only produce general answers and would not require Mr. Von Behren to specify the time or location of any incident, the identity of any victims, or the names of other people involved, concluding that the four 'questions present at worst, "an extraordinary and barely possible contingency" of incrimination and prosecution.'"

"We disagree," Seymour continued.

According to the 25-page ruling, the trial court found Von Behren's polygraph examiner did not act as a criminal investigator but rather as a medical professional tasked to gather information for treatment.

The 10th Circuit countered that Von Behren's answers to the mandatory questions and confession to past crimes could potentially be used against him at trial.

"We conclude that Mr. Von Behren faces at least some authentic danger of self-incrimination by answering three of the four mandatory questions in the sexual-history polygraph," Seymour wrote for the three-judge panel.

Von Behren was assigned to SOMB-certified treatment provider RSA, or Redirecting Sexual Aggression.

The 10th Circuit added that the Fifth Amendment is triggered when a statement provides a "lead" or "link in the chain of evidence needed to prosecute" the speaker.

Von Behren's affirmative answers to the polygraph questions "would do just that," Seymour wrote.

"If there were presently an investigation looking into the commission of a sex crime, and if Mr. Von Behren were a suspect, an affirmative answer to these questions would allow the police to focus the investigation on him," she continued. "Moreover, investigators would certainly look at Mr. Von Behren differently if they were made aware that he had physically forced someone to engage in sexual relations with him."

Federal public defender Virginia Grady, on behalf of Von Behren's attorney John Carlson, declined comment on Wednesday.

Circuit Judges Mary Beck Briscoe and Carlos Lucero joined in Seymour's opinion.

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