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I'm a sex offender in riverside CA on probation. My PO has ask me to take a pollygrah. If I fail it can i be in violated?

Indio, CA |

I did one year in state prison. They did not put me on parole, they put me in a new program from the state. So I'm on county probation. On April well be one year since I been out. I have not gotten any violations , so I believe that on April 2013 my probation is done after a year. But my PO wants me to do this pollygrah and I'm afraid to fall it and get a violation. Can they use the results of the pollygrah against me? Not that I've done anything wrong. But I really don't trust the pollygrah and I believe they just want to use it against me.. I hope to here from someone I'm really stressing out. Thank You very much....!

Attorney Answers 3

  1. Polygraphs are not reliable and are not admissible in standard criminal trials. That said, I have heard of instances (like yours) where they are administered to sex offenders. As with any law enforcement encounter, anything you say can and will be used against you. So if you say you're attracted to ______ during the polygraph exam, that can be used against. However the read out, your biological responses, and any interpretation of "the results" should not be admitted at a probation revocation. However you need to get an attorney to fight this at the outset if you remain concerned about this process. An attorney can challenge this use of a polygraph as a term and condition of your probation, arguing that it is not reasonably related to your offense is not reliable. A judge may or may not agree, I'm not sure if this standard procedure in your county. Hire a local criminal attorney to guide you through this process.

  2. Starting in July 2012, California registered sex offenders on parole or probation are required to participate in sex offender management programs. (Pen. Code, § 290.09.) The legislation which was passed last year as part of Chelsea’s Law (A.B. 1844) codified a system called the Containment Model, which requires collaboration and communication within a team composed of the sex offender treatment provider, parole or probation officer, and polygraph examiner. The California Sex Offender Management Board (CASOMB) adopted state certification standards for treatment providers and polygraph examiners. (Pen. Code, § 9003.)

    Registered Sex offenders in these programs are required as a condition of probation or parole to participate in polygraph examinations and they must waive any right not to participate. (Pen. Code, §§ 1203.067, subd. (b)(3); 3008, subd. (d)(3).)1 This does not mean that offenders must agree to waive the right to invoke the Fifth Amendment when asked questions which might incriminate them on offenses other than the one for which they are on supervision. In fact, the intent was to require mandatory participation in polygraph examinations (no right to invoke the Fifth Amendment as a reason to refuse to participate in the polygraph examination), but to preserve the right to invoke the Fifth Amendment to particular questions during the examination which might incriminate the person on a new criminal offense which occurred prior to the conviction on the current offense for which the person is on probation or parole. If an offender invokes the Fifth Amendment and refuses to answer a question about the current supervision period, however, that is grounds for revocation. It is also grounds for revocation if the offender admits prior to, during or after the polygraph that he committed a new crime since the supervision period started, or violated the terms and conditions of probation or parole.

    The Ninth Circuit (the federal appellate jurisdiction that includes California) has held that polygraph testing as a condition of supervised release does not infringe on a defendant’s 5th Amendment right because defendants retain such rights during polygraph examinations. (U.S. v. Daniel (9th Cir. 2008) 541 F.3d 915, 925; U.S. v. Cope (9th Cir. 2008) 527 F.3d 944.) Other courts have noted that polygraph examinations do not violate the Fifth Amendment if the offender is not subject to prosecution for a new crime, versus revocation for a probation violation on the current offense when the polygraph exam reveals a violation of the conditions of probation, which is permissible. (U.S. v. Locke (5th Cir. 2007) 482 F.3d 764.) A probationer may not refuse to answer questions just because his answer would disclose a violation of probation. (Id. at 767; see U.S. v. Johnson (2d Cir. 2006) 446 F.3d 272.)

    (Please note: This is an excerpt of an article on the general issue of CASOMB standards. My clipping file does not include the source info.)

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

  3. I agree with my fellow lawyers. A polygraph is not admissible in court proceedings, but it is permitted under new rules in CA to aid PO investigating potential parole violations.

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