People v. Roberson, 2016 CO 36

Bryan Roberson was convicted of sexual offenses; sentenced to sex offender intensive supervision probation (SOISP) with conditions including participation in treatment and polygraph disclosures.
While his direct appeal was pending, counsel advised Roberson not to discuss offense-related matters; he informed probation and treatment providers and was placed in a modified "appeal group" treatment.
During a polygraph exam Roberson was asked about (1) use/viewing of child pornography while on probation and (2) sexual fantasies involving minors in the prior six months; he refused both questions invoking the Fifth Amendment.
Refusal led to his discharge from treatment and the probation department filed a complaint to revoke SOISP for failure to actively participate.
The district court denied revocation, finding compulsion and a reasonable fear of self-incrimination; the People petitioned this Court, which affirmed in part and remanded for further findings.

Issue	Plaintiff's Argument (People)	Defendant's Argument (Roberson)	Held
Whether answers about post-trial use/viewing of child pornography were protected by the Fifth Amendment	People: Questions were proper supervision conditions; refusal is ground for revocation	Roberson: Answering could incriminate him (new crime); privilege protects refusal	Court: Held privilege protected Roberson from revocation on this question
Whether answers about post-trial sexual fantasies (prior six months) were protected	People: Similar supervisory interest; not necessarily incriminating	Roberson: May be incriminating; asserted privilege	Court: Unclear on record; remanded for district court to make specific findings whether fear of incrimination was reasonable
Whether requiring answers or threatening revocation constitutes unconstitutional compulsion	People: Revocation after process is not automatic punishment; not unconstitutional	Roberson: Threat of revocation creates classic penalty situation, compelling testimony	Court: Found the circumstances here amounted to unconstitutional compulsion when questions were incriminating
Whether Roberson must wait until government actually uses statements at trial to invoke Fifth Amendment	People: Privilege ripens only when statements are used at trial	Roberson: May invoke privilege preemptively to avoid compelled testimony	Court: Rejected People; Roberson need not wait — may invoke privilege before any trial use

Minnesota v. Murphy, 465 U.S. 420 (1984) (probationer retains Fifth Amendment rights; analysis of when probation conditions may compel testimony)
Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment applied to states via Fourteenth Amendment)
Lefkowitz v. Turley, 414 U.S. 70 (1973) (privilege extends to other proceedings where answers might incriminate in future criminal prosecutions)
Ohio v. Reiner, 532 U.S. 17 (2001) (privilege covers answers that furnish a link in chain of evidence)
McKune v. Lile, 536 U.S. 24 (2002) (plurality) (analysis of compulsion and penalties for refusing sex-offender treatment disclosures)
Chavez v. Martinez, 538 U.S. 760 (2003) (plurality) (discussion of ripeness and use of compelled statements; plurality cautioned but does not overrule pre-use invocation principles)