Mandatory Sex Offender Lie Detector Tests Implicate 5th Amendment
Richard Bahr Jr. is a registered sex offender. As part of the terms of his release following a prison stint for third degree rape, he was required to adhere to "full disclosure" lie detector tests. Disclose he did, including admissions of sexual contact with minors while he was minor, as well as after reaching the age of majority. In another part of the program, he admitted in a workbook that he had sexually abused 18 children.
When he was later convicted of possession of child pornography, all of these admissions, as well as testimony from his mother regarding past sexual misconduct, was admitted.
Compulsory Lie Detector Admissions Violated the 5th Amendment
The Ninth Circuit quotes the straightforward standard of United States v. Antelope to determine whether the use of compulsory treatment disclosures violated Bahr's Fifth Amendment privilege against self-incrimination. To establish a violation, a person must show:
- "that the testimony desired by the government carried the risk of incrimination;" and
- "that the penalty he suffered amounted to compulsion."
To the Ninth Circuit, there was no doubt that this amounted to a violation. "We make clear now that the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional."
Though Bahr did not assert his right, the right is "self-executing" when the defendant "is penalized so as to foreclose a free choice." Here, Bahr was required, under threat of revocation of release and additional incarceration, to provide "full disclosure" during the polygraph tests. He was required to do so without a promise of immunity, and with specific acknowledgment from his parole officer that noncooperation would be reported to the district attorney.
For future cases, this leaves the state with two options: Make disclosure of past conduct non-mandatory or provide immunity for statements made during treatment. Obviously, with offenders like Bahr, neither is particularly appealing, but neither is the prospect of forcing offenders to incriminate themselves, by threat of prison, in the name of treatment.
As for Bahr himself, his case was remanded for resentencing, with no comment from the Ninth Circuit on whether his mother's testimony should be admissible. The district court initially relied upon the self-incriminating treatment admissions to justify admission of the mother's testimony.
Related Resources:
- United States v. Bahr (FindLaw's Caselaw)
- Coulda, Woulda: Minor Distinction Means Major Reversal (FindLaw's U.S. Ninth Circuit Blog)
- 9 Years After His Sentence Ended, Rapist May Get Release ... Or Not (FindLaw's U.S. Ninth Circuit Blog)
