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Name: United States v. Antelope
Case #: 03-30557
Court: US Court of Appeals
District 9 Cir
Opinion Date: 01/27/2005

A sex offender undergoing treatment cannot be compelled to detail his sexual history if that history may be used against him in future prosecutions. The defendant pled guilty to possession of child pornography and was placed on probation. One condition of probation required him to participate in a treatment program that in turn required him to undergo a polygraph examination and fully disclose his past sexual history. After he was informed that he would not be granted immunity from prosecution for anything he revealed as part of the sexual history disclosure, the defendant refused to participate in that portion of the treatment; he was accordingly sentenced to prison. The Ninth Circuit vacated the sentence, finding that the probation condition violated the Fifth Amendment privilege against self-incrimination. The defendant’s risk of incrimination was real and immediate, and moreover, the penalty for failing to incriminate himself was sufficiently substantial to constitute compulsion for purposes of the Fifth Amendment. Further, the court found that the defendant was entitled to a promise of immunity prior to making disclosures, and was not required to first incriminate himself and then challenge the admissibility of each piece of incriminating evidence at any subsequent prosecution.