Probation condition requiring that probationer waive Fifth Amendment rights and submit to polygraph tests or else face the denial of probation and incarceration is unconstitutional; Fifth Amendment waiver requirement must be stricken. Forney was placed on probation after pleading no contest to two sex offenses. He appealed, arguing that a probation condition that required a Fifth Amendment waiver and that he submit to polygraph tests or else face denial of probation and incarceration was unconstitutionally coercive. Held: Condition stricken in part. Minnesota v. Murphy (1984) 465 U.S. 420, and McKune v. Lile (2002) 536 U.S. 24, 35, “make clear a convicted sex offender retains his Fifth Amendment privilege not to provide incriminating answers that could be used in a pending or subsequent criminal proceeding, and the pivotal question is whether the consequences of a defendant’s refusal to waive his Fifth Amendment right rise to the level of unconstitutional compulsion to waive it.” Both Murphy and McKune acknowledge that the compulsion at issue here—denial of probation and incarceration—is unconstitutionally coercive. Accordingly, the Fifth Amendment waiver requirement must be stricken from the probation condition. Absent the compelled Fifth Amendment waiver, the polygraph requirement is valid. “[I]t has long been settled law in our state that requiring a polygraph examination does not violate an individual’s Fifth Amendment right.” (E.g., Brown v. Superior Court (2002) 101 Cal.App.4th 313, 320.) Furthermore, the polygraph requirement is not unreasonable under the test set forth in People v. Lent (1975) 15 Cal.3d 481. While the condition itself does not state the polygraph examiner is limited to asking questions reasonably related to his successful completion of the sex offender management program, “it is inherent in the structure and language of the statute [Pen. Code, § 1203.067] that polygraph examinations be used only in furtherance of the probationer’s treatment.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A144450.PDF