Probation condition requiring sex offenders to submit to polygraph examinations as part of Chelsea’s Law does not violate Fifth Amendment where responses cannot be used against probationers in a later criminal proceeding. Defendant was placed on probation following his conviction for several sex offenses. The court imposed a condition of probation requiring defendant to waive his privilege against self-incrimination and submit to polygraph examinations. He appealed, arguing the condition violates his Fifth Amendment rights. Held: Affirmed. Penal Code section 1203.067, subdivision (b)(3) (part of Chelsea’s Law) requires a convicted sex offender, as a condition of probation, to waive any privilege against self-incrimination and to participate in polygraph examinations, which are part of the Containment Model of the sex offender management program. Agreeing that “a coerced waiver of the privilege against self-incrimination would raise serious constitutional questions,” and applying principles of statutory construction, the court concluded that subdivision (b)(3) does not actually require a Fifth Amendment waiver. Rather, it requires a probationer to answer the questions posed by the containment team, on pain of probation revocation should the probationer refuse. In turn, the probationer’s compelled responses may not be used against him in a subsequent criminal proceeding. The court “explicitly declare[d] that probationers have immunity against the direct and derivative use of any compelled statements under the section (b)(3) condition.” Because there is no privilege against compelled disclosure of information that cannot be used to incriminate the probationer, compelling probationers to respond to questioning as part of the sex offender management program does not violate the Fifth Amendment.

The polygraph examination requirement under subdivision (b)(3) is not overbroad. Defendant also argued the probation condition requiring defendant to submit to polygraphs is overbroad because it allows the examiner to ask questions about virtually “anything at all, without limitation.” The court disagreed. By its terms, the condition is already focused on criminal conduct related to the sex offender management program. The fact that the polygraph exam requires some questions that are unrelated to probation but are reasonably necessary to establish a baseline physiological response does not render the condition overbroad. Because the condition is expressly linked to the purposes and needs of the sex offender management program, no further limitation is required.

The condition of probation requiring waiver of the psychotherapist-patient privilege is constitutional. Section 1203.067, subdivision (b)(4) requires, as a condition of probation, that a convicted sex offender waive the psychotherapist-patient privilege in order to enable communication between the sex offender management professional and the supervising probation officer. Defendant argued the waiver requirement violates his federal constitutional right to privacy. The court assumed without deciding that the federal Constitution can in some circumstances protect convicted sex offenders from governmentally compelled disclosure of privileged communications with their psychotherapists. Balancing the intrusion on defendant’s privacy against the justification for the probation condition, the court found no violation. As a probationer, defendant’s right to privacy is limited. Moreover, the waiver in this case is narrow, given that it only permits the confidential information to be shared between the psychotherapist, probation officer, and polygraph examiner, and all parties remain otherwise obligated to maintain confidentiality. This limited intrusion is balanced against the state’s strong and legitimate interest in the success of the sex offender management program, the effectiveness of which depends on open communication between the professionals involved in treating the probationer. Furthermore, the intrusion here is more limited than in People v. Gonzales (2013) 56 Cal.4th 353, where the court held that the involuntary disclosure and use of a parolee’s confidential communications with his psychotherapist does not violate the parolee’s constitutional right to privacy even though the communications were introduced at trial on a petition to commit the parolee as a sexually violent predator. It follows that the more limited intrusion in defendant’s case likewise amounts to no violation. The court also determined that the psychotherapist waiver condition was not overbroad.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S218197.PDF