Eleventh Circuit reminds us that what we say can be used against us.
We recently posted a video from a law professor and law enforcement officer reminding us of why it’s never a good thing to speak to the police without an attorney present. Remember the warning; what you say can and will be used against you.
The Eleventh Circuit Court of Appeals last week gave us that same warning when an individual is on probation. It talks about the “classic penalty situation”. A “damned if you do, damned if you don’t” scenario that arises when a person must choose between incriminating himself, on the one hand, or suffering government-threatened punishment for invoking his Fifth Amendment privilege to remain silent, on the other.
The petitioner in that case was on probation for a sexual offense. His probation officer came to search his home and came across a cellular device and long story short the guy wound up with new charges for what the PO found on that phone. The middle part of the story is where we learn our lesson… You see, the Petitioner was told that if he didn’t answer the PO’s questions truthfully he would be violating the terms of his probation, would be revoked and would go back to prison. On the other hand, if he did answer truthfully he’d go back to prison for what he was admitting to… a classic damned if you do, damned if you don’t situation.
The good folks at the 11th Circuit found that when someone is an a “classic penalty situation”, their 5th Amendment rights are self-executing and (as established by the Supreme Court) a defendant does not lose their Fifth Amendment privilege simply because they are imprisoned or on probation.
The case can be read here: http://media.ca11.uscourts.gov/opinions/pub/files/201713358.pdf
The lessons learned are: If you are not on probation, you do not need to speak to the police and even if you are on probation, you retain your 5th Amendment Rights to not say anything that might incriminate you! [Naturally, the primary lesson is to not do anything that could get you into trouble, but it’s critical to know your rights anyhow]
Bottom line: While on probation, your 5th amendment rights still apply, but you still go to jail or prison? WTF? How is that not unconstitutional?
Your probation is a contract you agreed to with the state. Part of that contract says you’ll abide by the terms and cooperate, and part says you won’t commit new crimes. In return you get to live at home and buy food at Walmart instead if the prison commissary.
If you’re committing a new crime then you don’t have to admit it to your PO (hooray constitution!) but you may be violating your contract some other way and get revoked.
The difference is if you admit to a new crime you go to prison for a new charge AND get revoked, so you double up on your sentence. Or you keep your mouth shut And get revoked and finish out the sentence you already agreed to.
“Your probation is a contract you agreed to with the state.” Only if you pled guilty to get a reduced sentence, C. A lot of people are on probation after incarceration and are forced to abide and obey. Please keep that in mind.
Excellent point, Bill. Also keep in mind that the probation terms given at sentencing often vary significantly from those imposed on release.
The point is you always have a 5th Amendment right to not admit to a NEW crime or a probation violation. But probation doesn’t necessarily need an admission to revoke you, and I guess if you’re out committing felonies while on probation (like the guy in the example) and get caught by your PO it’s better to take the violation and shut your mouth instead of admitting to a new crime… Because after all, a new crime is also a violation of your probation anyway so at least make them prove it. Or you know, stop making the rest of us look bad with your recidivism.
You always have a 5th amendment right not to self incriminate, and you always have the choice not to commit new crimes or violate the terms of your probation. Whatever you do, make the “right” choice shrug
C,
I’d buy you a beer if I could and you drank. You are ABSOLUTELY on point with your comments. Probation rules are fairly even, only changing dependent on your charge date. They’re all laid out pretty clearly when you start probation and if the officer doesn’t, you can always read your paperwork for yourself. When I started probation about 8 years ago I moaned & groaned about all the “control” they had over my life. Took me about 18 months but finally came to my senses and realized that if I set up my life around the conditions life became so much simpler. Has it left me with a whole list of stuff I couldn’t do and missed out on?… yup. I simply decided that being able to do them eventually was a hell of a lot better than missing out on everything because I was back in prison.
On the video what I found confusing was how is it legal that the prosecution or cops can lie all they want in questioning you with no penalties what so ever but if you tell a lie or just get the story off just a little bit you are toast with hell to pay.
Of coarse that was just one of the many hypocrisies of the system.
The read I gwt is that you may invoke the 5th when asked by the PO about a violation, but you must tell them if and when you commit one. Seema pretty oxymoronic, IMHO.
Too bad this case was not around when my Female PO Lied, Lied, Lied, and Lied on the Stand…She lied every time I had to see her monthly…All she did was Lie, create, and manufacture hatred towards me…Because she knew that I was making 5 times the income of hers, drove a Cadillac SUV…owned a nicer home and resided in a ‘richer’ neighborhood than her,,,During my original probation sentence, I was allowed to travel anywhere in the WORLD, WHICH I DID (pre-IML)-she HATED THAT FACT…she tried to rig ANY and all things against me WHILE, I never ever violated one mandate/stipulation during that time! But she created LIES all the TIME!
My attorney during my VOP hearing just ‘melted’ and did NOT have the balls to stand up for me (just took my $12K, in addition to the $95K they had already taken)….So you see, at the end of the day, the Probation officer can manipulate and say anything they want and get away with it along with most douche bag attorneys!…The real focal point should be the relationships of the PO’s with the Judges and Prosecutors
The only persons that I know/knew that always got preferential treatment during their probation where those persons required to register who served in the military…for some reason, these people always received respect, while the rest of us got railroaded….This is a FACT! I fully respect those that served OUR COUNTRY!
The issues in this case are near–if not dear– to my heart. Although the decision in this thread touches on many important topics, e.g. 2255 motions, inevitable discovery, I’ll only comment on the main issue of supervision and self incrimination.
I recommend reading the 10th Circuit’s 2016 decision in U.S. v Von Behren. This involved a refusal to answer certain questions during a sexual history polygraph that was a condition of his release. The Court agreed that answering the specific questions could implicate Von Beheren in a previously uncharged crime. It went further by holding that answering the questions could provide the government with “propensity evidence” which is allowed by federal rules in child molestation cases.
The upshot is that in the 10th Circuit a probationer can not refuse to take a polygraph, but can assert 5th Amendment rights for specific questions. The caveat is that this must be used judiciously and, to be very safe, explicitly. Be careful when invoking the right because they hate it when you do.
I once had a long “discussion” with my federal PO about this, and he decided there would be no sexual history polygraph. Call me a cynic, but that led me to think that perhaps these are used as fishing expeditions.
Veritas.