On Behalf of | Jul 3, 2012 | Firm News |

Is meeting with your sex offender probation officer to a polygraph test, thereby requiring you to answer many unrelated sexual history questions, a violation of your Pennsylvaniand United States 5th Amendment Right against self-incrimination? YES. You must affirmatively assert your 5th Amendment rights at that meeting with your probation officer if you do not want to answer questions that will incriminate you in any other crime.You must affirmatively say “I refuse to answer the questions for fear of incriminating myself.” In Pennsylvania, if you do not claim a 5th Amendment protection, you will have to answer the questions and the answers can be used against you. Commwealth vs. Knoble, 42 A.3d 976; 2012 Pa. LEXIS 665(May 12, 2012).This the huge problem for sex offender probationers. What do you say during a polygraph exam if you chose to answer the questions? Will your incriminating answers or lies be used against you? YES. Can you refuse to answer questions? YES. Can that refusal be used against you? NO.The question in Knoble is”[w]hether the Superior Court erred in concluding a probationer did not need to affirmatively invoke his Fifth Amendment right against self-incrimination for an unrelated offense, regardless of whether the information will be used in subsequent criminal proceedings, and that the incriminating nature of the questions precluded their use in a subsequent prosecution.” Commonwealth v. Knoble, 605 Pa. 256, 988 A.2d 1288 (Pa. 2010) (per curiam).In Knoble, the Defendant argues he was compelled to answer the polygraph questions within the meaning of the Fifth Amendment, because his probation would be revoked if he did not pass the polygraph, and his failure to raise the 5th Amendment privilege should be excused due to his belief he would be returned to prison if he did not fully participate. Essentially, Knoble argues his situation falls within an exception to the general rule requiring a witness to affirmatively raise his Fifth Amendment privilege, such that the protection against self-incrimination is automatically in place, and therefore, he did not have to affirmatively state he was invoking his 5th Amendment rights.The PA Supreme Court clearly understood Knoble’s argument that his probation would have been revoked if he raised his Fifth Amendment privilege, either in challenging the terms of his probation or during the polygraph examination itself. Nonetheless, the court stated: “In fact, the option of challenging the terms was clearly open and available to him. Furthermore, if his probation was revoked, his probation violation would result in a hearing, at which point he could argue the probation condition was unreasonable, the violation was excusable, and the need for confinement did not outweigh governing probation policies. See 42 Pa.C.S. § 9771 (revocation of probation order requires hearing and proof of violation). In short, the probation condition did not require Knoble to choose between incriminating himself and jeopardizing his liberty. Therefore, the privilege was not self-executing, and Knoble’s failure to raise his Fifth Amendment protection cannot be excused.”The court rejected Knoble’s argument that because the information obtained from the examination need not be used against him in order for the polygraph to be considered unconstitutional, as the information sought could lead to the disclosure of facts that would establish guilt or provide an essential link by which guilt could be established. Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 303 (Pa. 2005) (Fifth Amendment privilege applies not only to disclosure of facts which would alone establish guilt, but to any fact which may provide essential evidentiary link by which guilt could be established.)The Knoble Court relied up the United States Supreme Court case of Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) as an example of how the US Supreme Court addressed the issue of Fifth Amendment application to probationers. The facts are very similar. “As part of his probation, Murphy was required to participate in a sex offender treatment program, report to his probation officer as required, and be completely honest with the officer in all matters. At some point, the probation officer was advised that during the course of treatment, Murphy admitted to a previous rape and murder. The officer set up a meeting with Murphy, and Murphy admitted to the previous rape and murder. The officer informed Murphy she had a duty to inform the authorities of the conduct; Murphy was eventually arrested and charged with first degree murder.” Id., at 422-25.The US Supreme Court granted certiorari to consider whether “a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding.” The Court noted the Fifth Amendment privilege speaks to compulsion and does not preclude voluntary testimony regarding incriminatory matters; therefore, if a speaker desires the privilege’s protection, he must claim it, or his statement will not be considered “compelled” within the meaning of the Constitution. Id., at 427 (citing United States v. Monia, 317 U.S. 424, 427, 63 S. Ct. 409, 87 L. Ed. 376 (1943)). The Court believed the general requirement to appear and truthfully answer questions did not convert otherwise voluntary statements into compelled ones unless one is required to answer over a valid claim of privilege. Id. Thus, if a speaker is confronted with questions the government should reasonably expect to elicit incriminating evidence, he must generally assert the privilege rather th answer the question if he wishes to avoid self-incrimination. Id., at 429.The Court noted, while there are well-defined exceptions to this general rule, the exceptions involve some “identifiable factor” which effectively denies the witness the option to admit, deny, or refuse to answer. The Court found no such factor present, and specifically found Murphy’s meeting with his probation officer did not amount to a custodial interrogation requiring Miranda warnings. Id., at 429-30; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thus, as Murphy did not assert his privilege, the probation officer’s testimony regarding the incriminating statements was admissible. Murphy, at 440.This the same rule of law in the Commonwealth of Pennsylvania.