Lead Opinion
delivered the Opinion of the Court.
1 In this original proceeding, the People challenge the district court's order denying the probation department's complaint to revoke Bryan Roberson's sex offender intensive supervision probation ("SOISP"), As pertinent here, the People sought to revoke Roberson's probation because he, among other things, allegedly failed to participate actively in a sex offender evaluation and treatment program. The alleged failure was based on Roberson's post-trial refusal to answer a -polygraph examiner's questions regarding Roberson's use or viewing of child pornography while on probation and sexual fantasies that he had had involving minors. Roberson refused to answer these questions based on the advice of counsel and on his fear that his answers could be used against him in future criminal proceedings, given that the direct appeal of his conviction remained pending at that time.
T2 The district court denied the People's revocation complaint, concluding that "to require Roberson to answer sexual oriented [sic] questions, under the cireamstances, violates his Fifth Amendment rights, and his probation cannot be revoked on those grounds."
18 We agree with the district court that on the facts presented here, Roberson's privilege against self-incrimination precluded the court from revoking Roberson's probation based on his refusal to answer the polygraph examiner's question regarding his use or viewing of child pornography while he was on probation. On the record before us, however, we are unable to determine whether the court correctly found that Roberson's privilege against self-incrimination precluded the court from revoking Roberson's probation
T4 Accordingly, we make absolute the order to show cause and remand this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.
I. Facts and Procedufal History
[5 Roberson's nine-year-old niece spent the evening at Roberson's house. The next day, she reported to her mother that during the evening, Roberson had rubbed her "pee-pee." Based on these allegations, Roberson was charged with sexual assault on a child by one in a position of trust, sexual assault on a child, and sexual assault (victim under 15),
T6 At trial, Roberson defended against the charges by presenting evidence that he had a sleep sex disorder that would cause him to initiate sexual contact while he was sleepmg He testified that he never would have consciously assaulted his niece and that he had no memory of the alleged incident. The jury ultimately found Roberson guilty as charged.
T7 Thereafter, the probation departmеnt prepared a presentence investigation report. In this report, the department recommended that Roberson be placed on SOISP. The terms of the recommended SOISP included requirements that:
. (8) [Roberson] enter, attend and successfully participate in offense specific treatment with [a Sex Offender Management Board ("SOMB")] approved - sex offender treatment provider, as di'rected by his probation officer; [and]
(4) he submit to an index offense, sexual history disclosures, and routine maintenance polygraphs as deemed appropriate by the community supervisions tearm{[.]
18 At the subsequent sentencing hearing, the prosecutor asked the court to adopt the probation departiment's recommendations. The prosecutor observed, however, that very few people with Roberson's level of denial succeed 'on SOISP, and the prosecutor predicted that "there would be a reckoning" when Roberson would either admit what he did or face "far more severe consequences than [SOISP1."
9 At this point, the court interrupted and stated that it appeared that to be successful, "there has to be an acknowledgment." The prosecutor responded that "Acknowledgement does not have to come now but it will have to come very soon.
[ 10 Roberson's counsel then made his sentencing argument, after which Roberson addressed the court. In the course of his statement, Roberson proclaimed his innocence and asserted prosecutorial misconduct during his trial. The court then reminded Roberson what the prosecutor had said and explained that the prosecutor was prepared to go along with the probation department's SOISP recommendation but that, the prosecutor was concerned, based on Roberson's mental attitude, as to whether Roberson would follow the intensive supervision probation and acknowledge what had happened. The court added, "I'm just giving you a warning."
S11 Roberson replied that he understood and would "cooperaté and do what is necessary to be successful during this probation, during this intensive probation." The court then sentenced Roberson to SOISP for ten years to life under the pertinent terms recommended by the probation department.
§12 Thereafter, Roberson appealed his judgment and sentence to the Colorado Court of Appeals, see People v. Roberson, No. 11CA11,
{13 Based on their discussions with Roberson, Roberson's treatment providers placed him in a "modified sort of an appeal group," which allowed him to continue treatment without having to discuss his offense or anything related to it. This process was interrupted, however, when in the course of a
T14 As a result of Roberson's refusal to answer, he was unable to meet the SOMB guidelines for successful compliance in sex offender treatment and was discharged from his treatment program. The probatiоn department then filed a complaint to revoke Roberson's SOISP. -
T15 In a written order, the district court denied the revocation complaint. The court began by noting what it viewed as "three controlling factors in this case": (1) Roberson had asserted his Fifth Amendment right against selfinerimination, and his fear of self-incrimination. was reasonable in light of the prosecutor's admission that on retrial, he would use available CRE 404(b) evidence; (2) Roberson's case was on appeal, and he had testified at trial (thus presenting a risk of perjury charges); and (8) Roberson had not been granted use immunity or provided with other assurances about the use of information that he provided during treatment.
{16 In light of these factors, the court concluded that Roberson's Fifth Amendment right against self-inerimination protected him from answering potentially incriminating questions in his treatment program. The court based this conclusion on its belief that requiring Roberson either to answer incriminating questions or to assert his Fifth Amendment right against self-inerimination and risk having his probation revoked would impermissibly impose a substantial penalty on Roberson for asserting his privilege against self-incrimination. Accordingly, the court concluded that Roberson's probation could not be revoked based on his refusal to answer the questions at issue,
117 The People subsequently petitioned this court, pursuant to CAR. 21, for an order to show cause why the district court's order should not be reversed. We issued the requested order, received full briefing, and heard oral argument.
II. Original Jurisdiction
118 "Original relief pursuant to C.A.R,. 21 is an extraordinary remedy that is limited in purpose and availability." People v. Steen,
4 19 This case satisfies both of these criteria. First, we have not previously considered whether and under what circumstances an BOISP probationer's invocation of the privilege against self-incrimination in the course of treatment precludes a court from revoking the probationer's SOISP for failure to participate actively in treatment,. Second, the issue presented is an important one that implicates common SOISP conditions and impacts numerous convicted sex offenders who are undergoing treatment while their convictions are on appeal. |
III. Standard of Review
120 We review de novo the application of the Fifth Amendment to the undisputed facts in this case. See People v. Matheny,
IV. Analysis
121 The Fifth Amendment to the United States Constitution, which is applicable to the states through the Fourteenth Amendment, see Malloy v. Hogan, 378 U.S.
122 These rights, however, are not unlimited. "The Fifth Amendment prohibits only cоmpelled testimony that is incriminating." - Hiibel v. Sixth Judicial Dist. Court,
A. Incrimination
123 For Fifth Amendment purposes, the privilege against self-incrimination extends not only to answers that would themselves support a conviction but also to those that would furnish a link in the chain of evidence needed to prosecute the accused. Ohio v. Reiner,
€24 Here, for two reasons, we conclude that Roberson's answer to the polygraph examiner's question regarding his use or viewing of child pornography while he was on probation presented a possibility of prosecution that was more than fanciful.
125 First, at the time of the probation revocation hearing, Roberson's convictions were on appeal, Thus, any statements that Roberson made would have been available for use against him at a retrial, See People v. Villa,
€26 Second, Roberson's answer to tlie polygraph examiner's question as to whether he used or viewed child pornography while he was on probation could have established grounds for a new criminal charge of possession of child pornography. See United States v. Bеhren,
28 On the record before us, however, we are unable to determine whether Roberson's answer to the polygraph examiner's questlon regarding any sexual fantasies involving minors that Roberson might have had within the preceding six months would also have been incriminating within the meaning of the Fifth Amendment,
129 Whether a question poses a reasonable danger of incrimination involves a fact-intensive inquiry. See Rogers v. United States,
B. Compulsion
[ 30 We next address whether the circumstances in which the questions at issue were put to Roberson amounted to compulsion. See Hiibel,
1 31 The United States Supreme Court has indicated that testimony is compelled when the state threatens to inflict "potent sance-tions unless the constitutional privilege is surrendered." - Lefkowitz v. Cunningham,
T32 Not every penalty, however, constitutes compulsion within the meaning of the Fifth Amendment. See McKune v. Lile,
€ 33 The question presented here is whether threatening Roberson with the revocation of his probation based on the proper invocation of his Fifth Amendment rights amounted to compulsion.. In the cireumstances presented here, we conclude that it did.
134 The United States Supreme Court's decision in Murphy is instructive, In Murphy,
35 The Supreme Court ultimately rejected the defendant's argument. Id. at 484-39,
There is ... a substantial basis in our cases for concluding that if the. state, either expressly or by implication, asserts that invocation of the privilege [against self-inerimination] would lead to revocation of probation, it would 'have created the classic penalty situation, the failure to assert the privilegé would be excused, and the: probationer's answers | would be deémed compelled and inadmissible in a criminal prosecutlon
Id.
186 The question thus became whether the defendant's probation conditions merely required him to appear and testify about matters relevant to his probationary status," which would 'not hаve violated his Fifth Amendment rights, or whether the conditions went further and required the defendant to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent. Id. at 486, 104 8.Ct. 1186, On the facts before it, the Court concluded that the case fell into the former category. Id.,
137 The Court reached this conclusmn for several reasons. First, the probation condition at issue said nothing about the defendant's freedom to decline to answer particular questions on Fifth Amendment grounds. Id. at 437,
[ 38 The Court further opined that had the defendant harbored some belief that his probation might be revoked for exercising his Fifth Amendment privilege, that belief would © have been unreasonable because "(olur decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege." Id.
139 The present case involves the type of classic penalty situation that the Court found absent in Murphy. Specifically, at least as construed by the People, the probation conditions at issue here required Roberson to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent, Moreover, the People here expressly sought to revoke Roberson's probation based on the exercise of his Fifth Amendment rights. Prior to the polygraph examination at issue, Roberson advised his probation officer and trеatment providers of his Fifth Amendment concerns. As a result, Roberson was placed in an appeal group in which he would not have to incriminate himself while his appeal was pending. Nonetheless, in the course of a polygraph examination, Roberson was asked at least one incriminating question. He then asserted his Fifth Amendment rights, and his invocation of that privilege resulted in his termination from treatment and the People's subsequent effort to revoke his probation.
40 In these circumstances, we conclude that the district court correctly found that requiring Roberson to respond to incriminating questions from the polygraph examiner would amount to compelled self-incrimination, such, that Roberson's probation could not be revoked on those grounds.
{41 We are not persuaded otherwise by the People's argument that the above-quoted passages in Murphy were dicta. To the contrary, those passagеs were central to the Court's analysis, and cases from numerous jurisdictions have expressly or implicitly followed Murphy's admonition that the state cannot revoke a defendant's probation for a valid invocation of his or her privilege against self-incrimination. See, e.g., United States v. Antelope,
[ 42 Nor are we persuaded by the People's contentions that the circumstances here did not amount to unconstitutional compulsion because (1) Roberson voluntarily sought and accepted probation; . (2) additional incarceration does not necessarily amount to compulsion; (8) once the probation department sought to revoke Roberson's probation, Roberson received a fair criminal process and his revocation was not automatic; and (4) the probation revocation at issue was not designed to punish Roberson for exercising his Fifth Amendment rights, We address each of these arguments in turn.
T48 First, the People argue that Roberson voluntarily sought and accepted probation, and the People suggest that under cases like Dzul v. State,
{44 Second, the People argue that the penalty of additional incarceration does not necessarily amount to compulsion, analogizing this case to cases in which (1) incarcerated prisoners who refused to participate in a prison's sex offender treatment program were either denied parole or faced a reduced likelihood of parole, see Ainsworth v. Stanley,
{45 Moreover, because "parole is more akin to imprisonment - than probation is to imprisonment," Samson v. California,
147 Third, relying on McKune, the People argue that when, as here, the consequences that a defendant faces for invoking his or her Fifth Amendment rights are not automatic but rather occur ouly аfter a fair criminal process, those consequences do not amount to compulsion, In McKune,
148 Fourth, the People argue that the state could revoke Roberson's probation because the revocation was not designed to punish Roberson for exercising his Fifth Amendment rights but instead was motivated by the state's legitimate interest in facilitating sex offender treatment. The United States Supreme Court, however, has "rejected the notion that citizens may be forced to incriminate themselves because it serves a governmental need." Cunningham,
' 49 For these reasons, we conclude that to the extent the polygraph examiner's questions called for Roberson to provide incriminating information within the meaning of the Fifth Amendment, requiring Roberson either to provide that information or to face revocation of his probation amounted to unconstitutional compulsion, | |
C. Use in a Criminal Trial
T50 In the alternative, the People cite Chavez v. Martinez,
51 In Chavez,
152 Although the Choves plurality stated in passing that it is not until compelled statements are used in a criminal trial that a violation of the Self-Incrimination Clause oc-eurs, only four justices joined this portion of the opinion.- See id. at 767,
1 53 In light of the foregoing, other courts have rejected arguments similar to the one that the People advance here. See, ag. Antelope,
4] 54 As the Bleeke court observed:
Taking [the Chaves Court's] analysis out of [the section 1983] context and applying it as the rule for when a defendant may properly invoke the Fifth Amendment's privilege, as the Parole Board seeks to do, would have far greater (and worse) implications. In fact, it would effectively vitiate the Fifth Amendment privilege entirely because a defendant could not claim the protection of the Fifth Amendment-only, later, a violation of the Fifth Amendment,. He or she could not refuse to answer a question because the response would be self-incriminating; a defendant could only later seek to have that response exeluded in Court and a violation would only occur if the trial court refused that request.
This is contrary to the greater wealth of U.S, Supreme Court case law on the subject.
Bleeke,
« 56 We agree with this reasoning and thus conclude that Roberson did. not need to wait until the government tried to use inerimina-ting statements against him at a subsequent criminal trial to invoke his Fifth Amendment privilege. .
V. Conclusion ant-1, Remand Qrder
56 For these reasons, we conclude that the district court correctly found that Roberson's privilege against self-incrimination precluded the court from revoking Roberson's probation based on his refusal to answer the polygraph examiner's question regarding his use or viewing of child pornography while he was on probation. On the record before us, however, we are unable to determine whether the court correctly found that Roberson's privilege against self-incrimination precluded the court from revoking Roberson's probation based on his refusal to answer the examiner's questions regarding any post-trial sexual fantasies involving minors that Roberson might have had.
T57 Accordingly, we make the rule to show cause absolute and remand this case to the district court with instructions that the court make specific findings as to whether Roberson demonstrated a reasonable fear that the polygraph examiner's question regarding sexual fantasies would elicit an incriminating response. In making such findings, the. court should bear in mind that not all answers to sexually oriented questions in
11 58 If the court finds that Roberson demonstrated, a reasonable fear that the polygraph examiner's question regarding post-trial sexual fantasies involving minors would elicit an incriminating response, then the court's order denying the People s revocation complaint shall stand affirmed. If, however, the court finds that Roberson did not properly invoke his Fifth Amendment privilege in response to the question regarding sexual fantasies, then the court must proceed to determine, in its discretion, whether revocation of Roberson's probation is appropriate on the facts of 'this case. In making this determination, the court may conduct such further proceedings as the court deems nee-essary and appropl iate.
Notes
. The parties do not dispute that the conduct about which the examiner inquired would have occurred, if at all, post-trial аnd while Roberson was on probation,
. The People also rely on United States v. Robinson,
Dissenting Opinion
dissenting.
T59 Because I believe the district court erred in concluding that revoking the defendant's probation for refusing to answer the questions posed to him, as alleged in the complaint, would violate his Fifth Amendment privilege against self-inerimination, I respectfully dissent, In particular, I disagree with the majority's analysis of the Fifth Amendment compulsion question or, more to the point for a case in which no incriminating statements were ever made, the question whether the imposition of any given consequence for asserting the privilege against self-incrimination would amount to a prohibited penalty. Given the extremely unsettled state of United States Supreme Court jurisprudence in this area in general, and concerning the applicability of the privilege to the treatment of convicted sex offenders in particular, I would not leap to characterize revocation of probation, in and of itself, as a prohibited "substantial penalty" for a probationer's refusal to merely answer forthrightly whether he has violated a condition of his probation by possessing child pornography
1 60 The majority's conclusion to the contrary appears to me to rest entirely on a hypothetical example offered by the Supreme Court, over thirty years ago, suggesting a situation in. which, in contradistinetion to the case actually before it, the privilege against self-incrimination might be considered self-executing and, therefore, not have to be asserted at all. See Minnesota v. Murphy,
- 1 61 The maJ onty simply takes the Court’ query in Murрhy as a binding conclusion and moves directly to explaining why today's case is not meaningfully distinguishable from the hypothetical posed there With regard to pronouncements of the United States Supreme Court in particular, I generally find it unhelpful to debate the question whether portions of the published opinions of a higher court represent dicta rather than part of the ratio decidendi itself, and are therefore technically not binding on lower courts, I therefore do not suggest that we should ignore the clear import of Supreme Court pronouncements, no matter how unnecessary they may have been to the outcome of the proceeding,
T 62 Although the probationer in Murphy was also subjected to sex offender treatment the statements at issue there were made to a probation officer, outside any treatment program, and clearly did not implicate a refusal to answer incriminating questions as part of sex offender treatment. By contrast, eighteen years later, in McKune v. Lile,
€63 A fifth justice, who also would have found no unconstitutional compulsion, offered a different standard for making this determination, largely finding constitutional the imposition of virtually any consequence or punishment for remaining silent, as long as the actual imposition was accomplished through a fair criminal process. See id. at 53,
€ 64 While I agree with the majority that Justice O'Connor's proposal for a comprehensive method of evaluating the constitutionality of penalties imposed upon the exercise of the privilege did not carry the day, her conclusion that the penalty imposed in McKune was not unconstitutionally compulsive under any reasonable test, as the narrowest ground for the judgment of reversal in that case, did represent the holding of the court. See Marks v. United States,
T 65 While McKunme addressed a sex abuse treatment program offered in prison, I believe both the plurality opinion and separate opinion of Justice O'Connor apply equally to similar treatment programs for probationers. In particular, unlike the so-called "penalty cases," both probationers and prisoners have already been convicted of crimes. Both situations involve the same legitimate penological interest in rehabilitation, which, as the Supreme Court has emphasized in the past, must be weighed against the exercise of a criminal conviet's liberty, See, e.g., O'Lone v. Estate of Shabazz,
T 66 Both opinions forming the majority in McKune expressed concern for the constitutional validity of both state and federal sentencing considerations and practices taking into account the acceptance of responsibility for purposes of sentencing, probation, or preferential treatment in various penal and rehabilitation programs, if the differential treatment of those admitting and those not admitting their crimes can constitute a "substantial penalty" for Fifth Amendment purposes. See
167 As we have often noted in the past, probation is fundamentally rehabilitative in nature, and in order to best serve the ends of justice and the interests of the public, the probationary power of the courts must retain flexibility, See, e.g., People v. Guatney,
168 Finally, I note that a convicted sex offender is hardly stripped of due process by being forced to choose between the provisional liberty of probation and rehabilitating himself, even at the cost of self-inerimination. In this jurisdiction, quite apart from constitutional limitations, both the granting and revocation of probation are subject to extensive procedural safeguards,. See Guatney,
T 69 For all of these reasons, I would make the rule absolute and return the matter for consideration of any remaining disputed issues and the district court's ultimate exercise of discretion concerning the defendant's probationary status. I therefore respectfully dissent.
I am authorized to state that JUSTICE EID joins in this dissent.