You Can't Ask That Question

The 2nd District Court of Appeals (Fort Worth) has affirmed that, indeed, there are some questions that cannot be asked a probationer.  In Ex Parte Dangelo, the applicant, who was on probation for pleading guilty to one count of "injury to a child," filed an application for writ of habeas corpus when the trial court incarcerated him after he refused to answer the following questions during a polygraph exam given to him as part of his probation:

1. "Since you have been on probation, have you violated any of its conditions?";
2. "Since you have been on probation, have you had sexual contact with any persons younger than 17?";
3. "Since you have been on probation, have you tried to isolate and child for sexual purposes?"; and
4. "Since you have been on probation, have you intentioanlly committed any sexual crimes?"

The applicant claimed that these questions violated his rights under the Texas and United States Constitutions against self-incrimination. (These types of questions tend to be SOP for probationers - especially sex offenders - in Texas.)

The 2nd Court agreed with the applicant, holding:

the trial court’s broad authority to create community supervision terms does not extend to imposing terms that violate a defendant’s constitutional rights as balanced with the goals of the defendant’s probation.

The Fifth Amendment privilege [against self-incrimination] not only extends to answers that would in themselves support a conviction, “but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.”

To bolster its conclusion that questions 2-4 were unconstitutional, Justice Livingston's opinion cited the Supreme Court case of Minnesota v. Murphy, 465 U.S. 420 (1984), wherein the High Court reasoned:

A defendant does not lose [Fifth Amendment protection] by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted. . . .

If [a defendant asserts Fifth Amendment rights], he “may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him” in a subsequent criminal proceeding.

Applying the Supreme Court's holding in Murphy to the facts of Dangelo's case, the Court stated:

In summary, we hold that appellant may not be compelled, over the invocation of his Fifth Amendment right, to participate in any portion of the objected-to community supervision conditions, including the general requirement of sex offender counseling and the specific requirement of answering questions two through four of the planned polygraph examination, that would provide a link to his criminal prosecution for any offense unrelated to the injury to a child offense that he pled guilty to.

Pehaps this opinion will spark a change in the probation tactics employed in the various Texas community supervision programs.  At least in the jurisdiction of the 2nd Court, it should, so long as defense attorneys remain aware of what's happening (or probationers are savvy enough to tell someone).