MN: High Court Weighs Boundaries of Sex Offender Self-Incrimination
The following is an important lesson for anybody on probation:
A criminal case based on a sex offender’s statements in a treatment program highlights the state program’s murky line between therapeutic and investigative purposes.
The Minnesota Supreme Court heard arguments Tuesday in the case of a man who claims sex-offense confessions made to his probation officer as part of a court-mandated program are protected by the Fifth Amendment.
Adam McCoy’s appeal highlights a potential conflict between the state’s rehabilitation programs for sex offenders, their requirements of full disclosure and the constitutional rights of those offenders.
McCoy was charged in 2019 with two counts each of first-degree and second-degree criminal sexual conduct for the 2005 assault of his 2-year-old stepdaughter. A district court granted McCoy’s motion to suppress the statements that gave rise to the charges, which he made to his probation officer and a polygraph examiner during treatment mandated by a court as part of his probation for another sex offense.
The court ruled that the statements, in which McCoy detailed an assault of his stepdaughter along with other unidentified victims, were inadmissible because they violated his right against self-incrimination under the Fifth Amendment of the U.S. Constitution.
The case was dismissed, but prosecutors won a reversal in the Minnesota Court of Appeals, which found that because McCoy’s disclosures were not compelled because he did not assert his right against self-incrimination before filling out a detailed questionnaire and taking a polygraph test, and was informed that the examiner and probation officer were mandatory reporters.
I encourage everyone to read the 10th Circuit’s published decision in U.S. v Von Behren 15-1033, (10th Cir., 2016). Although this strictly applies only to the 10th Circuit, it is certainly persuasive in other circuits and–since it represented a U.S. constitutional right–in the states.
Veritas.
The feds pull this same tactic by using so called “therapists” to elicit incriminating statements in treamtment sessions that are subsequently confirmed by polygraph examiners. Notably, the therapists and polygraph examiners are folks who have employment contracts with the federal probation office. So, they are all colluding. If you refuse to answer questions, boom, a violation and a court date. Refuse a polygraph, boom, a violation and court date. Refuse to answer a probation officer’s questions, boom, you get a violation and a court date.
How is it that the law presumes sanity when crimes are committed, judges verify sanity at trials and plea hearings, “treatment” is mandatory in prison, and yet somehow the newly released inmate is somehow crazy enough to warrant more “treatment”?
How is it that courts can’t make waiving the 5th a probation condition, but can require “treatment” programs that cannot be completed without waiving the 5th?
How is it that courts recognize that polygraphs are inaccurate (to say the least), yet swear by them solely in cases regarding sex offenses?
And finally, how can interrogations – excuse me, interviews – such as the ones described here not compelled when no matter what the target said, he would be returned to confinement?
I’ve been searching for these answers for about 5 years now. If anyone has the slightest glimmer of a compelling answer to any of the above, please share it.
Dustin, it’s a rigged system. That’s why.
Excellent questions, Dustin. It’s also true, I believe, that one might incriminate him/herself by disclosing to the state details re: online messaging activity (site URL and user name), as those who are required to register are forced to do.
Yes, you definitely must be careful when joining these programs. I remember when I was on Supervised Release and ordered to go to the REACH program located in Davie Florida at the time. This was a horror house owned an operated by the most unethical and horrible person you can imagine, Dr. Lori Butts. She knew nothing about helping others and was always looking for things to tell the PO, so you can get violated. On top of that you would have to pay a fee for a workbook that basically forces you to admit to things you either never thought of nor did. And to make insult to injury this Dr. Butts would have interns posing as experts to try to analyze you. This was only part of the horrors’! So watch out for places that claim to want to help you.