Can a Judge Condition Probation on a Fifth Amendment Waiver?
After all, a judge does have broad discretion to impose terms and conditions of probation as long as the condition is not “arbitrary, capricious or exceeds the bounds of reason under the circumstances.” People v. Jungers (2005) 127 Cal. App. 4th 698, 702. Other courts have addressed questionable probation conditions, with People v. Lent (1975) 15 Cal. 3d 481, at 486, setting forth the standard most often quoted, specifically: “a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) related to conduct which is not itself criminal, and (3) requires of forbids conduct which is not reasonably related to future criminality.”
The case of Michael Forney put these standards to the test. Mr. Forney was convicted in Sonoma County of certain sex offenses (unlawful oral copulation, Penal Code § 288a(b)(2), and unlawful sexual intercourse, Penal Code § 261.5(d)). At sentencing, he was placed on three years of formal probation. As a condition of probation, the judge ordered that Forney was required to waive his Fifth Amendment right against self-incrimination and submit to regular polygraph tests as part of a sex offender management program under Penal Code § 1203.067(b)(3).Why This Article Matters: A judge may not condition probation on defendant agreeing to waive his Fifth Amendment right against self-incrimination.
Forney challenged the validity of the Fifth Amendment waiver as required under § 1203.067(b)(3). He filed his appeal in the First Appellate District Court.
The appellate court began its ruling by noting that California Supreme Court had already accepted for review the validity of the sex offender management program’s Fifth Amendment waiver and polygraph requirement, a statutory requirement under § 1203.067(b)(3), but not ruled yet. In fact, there were four pending appeals challenging such probation conditions under § 1203.067(b)(3).
In Murphy, defendant was subject to a probation condition that he participate in a sex offender treatment program, report to the probation officer as directed, and be truthful with the probation officer “in all matters.” During his treatment program, defendant then admitted to a prior murder and rape. The admissions were then reported to the probation officer, who then met with defendant. Defendant then admitted the same crimes to the probation officer and she reported the offenses to the police. Defendant was subsequently charged with murder and rape. He then moved to suppress the statements.
The issue was whether defendant’s failure to invoke his right against self-incrimination was “excused” because the judge had ordered that, as a condition of probation, he be “truthful on all matters” with the probation officer. In other words, was he compelled to incriminate himself?
The U.S. Supreme Court explained that such a situation was a lose-lose for defendant. If he invoked the privilege, he would be punished and if he otherwise waived the privilege, as ordered, he would be prosecuted even more. It thus ruled that such a probation condition was improper and that probationers do retain their right against self-incrimination, which includes the right to remain silent, but if the state compels a probationer to answer potentially incriminating questions, the state must first assure that incriminating answers will not be used in a pending or new criminal proceeding.
For more information about probation condition issues, please click on the following articles:
- Court Rules That, In Drug Case, a Probation Condition Is Proper That Someone Not Associate with Others He Has Reason to Know Are Drug Users
- Are Lie Detector Tests a Valid Probation Condition for a Sex Offender?
- Orange County’s Standard Sex Offender Probation Conditions, Imposed in Hundreds of Cases Since 2003, Are Unconstitutional