United States v. Von Behren, 822 F.3d 1139

Von Behren, serving supervised release after a child-pornography conviction, was required by the probation office to complete a SOMB‑approved sex‑offender treatment program (RSA) as a condition of release.
SOMB standards (state regulatory requirements) mandate sexual‑history polygraph testing; certified providers like RSA require signing a non‑negotiable treatment agreement making polygraphs mandatory and authorizing RSA to report any discovered sexual offenses to authorities.
RSA’s sexual‑history polygraph contained four mandatory questions about uncharged past sexual conduct (e.g., sex with someone under 15, use of force, sex with an unconscious person, sex with a family member); the agreement allowed refusal to one question but required completion overall to remain in treatment.
Von Behren objected on Fifth Amendment self‑incrimination grounds; the district court initially excluded questions requiring admissions of crimes but later, after seeing the specific questions, ordered him to take the polygraph, finding no real and appreciable risk of incrimination.
Von Behren refused to answer; RSA would expel him and the government threatened revocation/remand to prison if he did not complete sex‑offender treatment. On appeal the Tenth Circuit granted a stay and reviewed the Fifth Amendment claim de novo.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether answering RSA’s four mandatory sexual‑history polygraph questions presents a "real and appreciable" risk of self‑incrimination	Answers would tend to incriminate Von Behren, create leads for investigation, and could be used at trial (propensity evidence) — so privilege applies	Questions are general (no time/place/victim identity), remote risk of prosecution, examiner is a treatment provider not a law‑enforcement agent	Court held three of the four questions posed a real and appreciable risk of incrimination (Fifth Amendment triggered)
Whether the supervision scheme unconstitutionally compelled testimony by threatening revocation for noncompliance	Threat of termination from required treatment and of revocation/remand to prison constitutes substantial penalty that coerces waiver of the privilege	Government framed the consequence as termination from treatment (and related remand) for noncompletion of condition, not for asserting the Fifth Amendment	Court held the threat to revoke supervised release for invoking the privilege constituted unconstitutional compulsion; state cannot condition required treatment on statements usable in criminal proceedings

Minnesota v. Murphy, 465 U.S. 420 (1984) (probationer’s Fifth Amendment rights analyzed; threat to revoke probation for asserting privilege creates unconstitutional compulsion when implied or express)
Garrity v. New Jersey, 385 U.S. 493 (1967) (statements obtained under threat of job loss are compelled and inadmissible)
McKune v. Lile, 536 U.S. 24 (2002) (plurality/concurrence on prisoner polygraph program and what penalties constitute compulsion)
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004) (test for testimonial nature of communications under the Fifth Amendment)
Maness v. Meyers, 419 U.S. 449 (1975) (broad construction of the privilege and protection against producing evidence that may be used in prosecution)
United States v. Nance, 767 F.3d 1037 (10th Cir. 2014) (use of other‑acts propensity evidence in sexual offense prosecutions under Rules 413/414)
Zicarelli v. New Jersey Comm’n of Investigation, 406 U.S. 472 (1972) (answers that merely confirm known assumptions may present only speculative risk of incrimination)