THE FORGOTTEN FIFTH AMENDMENT
by
(303) 860-7686
INTRODUCTION
Defense lawyers jealously guard their client’s right to remain silent while interacting with the police. We’re also extremely careful how we approach juries with regard to the Fifth Amendment. But for some reason we have dropped the ball as the Fifth Amendment relates to judges. While we keep our clients from talking to the police, we blindly march them off to probation, treatment evaluators, etc. This article focuses on the client’s right to refuse to participate in this self-incrimination, and some strategies to enforce those rights.
The Defendant has a
right to be free from self-incrimination.
Mitchell also held that the sentencing court could draw no adverse inference from this silence, as did People v. Young, 987 P.2d 889 (Colo. App. 1999) (sentencing court may not penalize defendant for failure to show remorse where he has remained silent) throughout the proceedings.
Given that the defendant has the right to remain silent in the sentencing process, it’s worth taking a quick look at areas where this comes into play:
DRUG CASES
C.R.S. §16-11.5-102(1)(a) provides for a standardized drug assessment to be employed by the probation department and others. The assessment can be used at sentencing.
DUI’S
DUI offenders are routinely sent for alcohol evaluations, C.R.S. §42-4-1301(10)(c), the result of which are used at sentencing.
Sex offenders are evaluated pursuant to C.R.S. §16-11.7-104 and sex offender treatment standard 3.200 (http://cdpsweb.state.co.us/odvsom/pdf/sombstnd2.pdf), the latter of which waives confidentiality in the treatment process.
Domestic violence offenders, pursuant to C.R.S. §18-6-801(1)(a) and (b), are similarly evaluated. Domestic violence treatment standard 6.8.1 (http://cdpsweb.state.co.us/odvsom/pdf/dvstand.PDF) states “the approved treatment provider shall obtain signed releases of information from the offender for the following persons: victim, victim’s advocate/therapist, and the responsible criminal justice agency.”
PROBATION
The probation department, of course, interviews our clients prior to sentencing to varying degrees, depending on the severity of the offense. Defendants routinely give their version of the offense, facts relating to restitution and their prior criminal history.
COMMUNITY CORRECTIONS
In
POST-SENTENCING
After
sentencing, the Fifth Amendment guarantees remains intact, except for the
offense of conviction (and lesser included offenses, if any). The defendant has the right to remain silent
for any other offenses, i.e., those for which he was not adjudicated and
remains in jeopardy. People v. Fleming, 3 P.2d 449 (Colo.
App.1999) (“If [the defendant] had been asked during the evaluation about other
incidents, he would have been entitled to invoke his Fifth Amendment
privilege.”); Lyle v. McKune, 224 F.3d 1175 (10th Cir. 2000),
cert granted sub nom McKune v. Lile, 149 L.Ed.2d 752, 121 S.Ct. 1955, No.
00-1187 (
There is no confidentiality in the sex offender treatment process, as previously indicated, just like in the presentencing evaluation process. While in People v. Ickler, 877 P.2d 863 (Colo. 1994) (no Fifth Amendment issue presented) and People v. Colabello, 948 P.2d 77 (Colo. App. 1997) (same), the courts held that the defendant’s probation can be revoked for failure to participate in the treatment program, the defendant may refuse to answer specific questions, be they posed by therapists, by polygraph examiners, or others, to the extent they expose him to prosecution.
For sex offenders serving prison sentences, and for that matter anyone in one of the D.O.C.’s “therapeutic communities”, the Tenth Circuit has recently turned a favorable ear to these claims. In Lyle v. McKune, supra, the court disallowed the Kansas Department of Corrections’ denial of privileges for plaintiff’s refusal to disclose his sexual history, a predicate to his admission to the sex offender treatment program. The transfer to a maximum security prison and resulting loss of privileges improperly burdened the exercise of Plaintiff’s right to remain silent. Colorado D.O.C. has interpreted McKune to mean they man not withhold earned time from an inmate if the inmate refuses to participate in the Sex Offender Treatment Program (S.O.T.P.) because it would infringe on the inmate’s Fifth Amendment right to silence. The most common way this occurs is when the inmate is asked to disclose a potential sex offense for which he has not been adjudicated. The holding of McKune should apply to probation revocations since the sanction for violation is imprisonment.
In Chambers v. Colorado D.O.C., 205 F.3d 1237 (10th Cir. 2000) the court found the stigma that attaches merely by placing the label of someone of “sex offender” implicates due process concerns. Chambers involved an inmate who was not convicted of a sex offense, but whom the Department nevertheless sought to label as a sex offender and press into a treatment program by virtue of his prior conduct before coming to the Department. The court held that before the inmate can be labeled a sex offender, he is entitled to an administrative hearing at which the Department must show some indication that he is really a sex offender. The Department has promulgated regulations to implement this opinion. D.O.C. Admin. Reg. 750-02, found at http://www.doc.state.co.us/admin_reg/0750_02.pdf.
There are a couple of strategies to assert the defendant’s Fifth Amendment rights in a way that will not adversely impact the sentencing hearing. One would be to fully cooperate with the evaluator or treatment provider, but not actually answer incriminating questions. Done literally, this would mean appearing at the evaluation, responding to non-incriminating questions, and refusing to answer those that are incriminating. A blanket refusal to participate in the evaluation is probably not going to cut it. Remember that the client cannot complain unless, prior to making the statement, he believed that the statement was being made under compulsion.
A probationer has a Fifth Amendment right against
compelled self-incrimination. However,
because that right is not self-executing, it is incumbent upon the probationer
to invoke it. If, as a condition of probation, a probationer is required to
participate in therapy which involves truthfully answering questions designed
to solicit incriminating responses, no Fifth Amendment violation occurs unless
"the State, either expressly or by implication, asserts that invocation of
the privilege would lead to revocation of probation."
People v. Elsbach, 934 P.2d 877, 881 (
With these concerns in mind it is a good idea to advise the evaluator/treatment provider, in writing, that if anything the defendant says is to be used against him, he will assert his Fifth Amendment right. Inquire as to the evaluator’s position in this regard and confirm the lack of confidentiality in the evaluator’s results.
A second strategy is to obtain a prior court order outlining the scope of the client’s obligation to answer questions posed by the evaluator or treatment provider. The motion should also remind the court that it can draw no adverse inference from the defendant’s future assertion of silence.
CONCLUSION
As a tactical consideration, many times we let our clients talk because we think it will help. That strategy remains valid but we need to remember that we have the option of silence.
[1] As recited in the cert petition, the question presented is “Whether the revocation of correctional institution privileges violates the Fifth Amendment's privilege against self- incrimination where the inmate has no liberty interest in the lost privileges and such revocation is based upon the inmate's failure to accept responsibility for his crimes as part of a sex offender treatment program?”