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Huge Decision in Child Porn Supervision Case

Posted by Seth Chazin | Jun 03, 2016 | 0 Comments

The Tenth Circuit Court of Appeals held that a defendant, specifically in a child pornography case, cannot be forced to answer questions asked during a compliance polygraph as part of their supervised release, where the questions are designed to self-incriminate the defendant.

The defendant, Brian Von Behren, is serving a three-year sentence of supervised release from a 2005 conviction for the distribution of child pornography. One of the conditions of his release was modified to require that he completes a sex offender treatment program, which includes a sexual history lie detector test. This test requires him to answer questions regarding whether he committed other sex crimes for which he was never charged. The treatment program required him to sign an agreement that allowed the treatment provider to report any discovered sexual crimes to the authorities. Von Behren believed that the polygraph condition violated his Fifth Amendment protection against self-incrimination.  The district court upheld the decision and disagreed that the polygraph questions did not pose danger in a constitutional sense.  Mr. Von Behren appealed the case and the decision was overturned on the Fifth Amendment issue.

The Tenth Circuit Court of Appeals stated, “There is no doubt that answering questions during a polygraph examination involves communicative act which is testimonial.” The court held that the government compelled Mr. Von Behren to be a witness against himself, which is why they chose to reverse the decision.

For further reading on the Opinion: US v. Brian Von Behren

About the Author

Seth Chazin

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 30 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.


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“The death penalty is a lie, a misguided mistake born of anger and frustration. Capital punishment has become a perverse monument to inequality, to how some lives matter and others do not. It is a violent example of how we protect and value the rich and abandon and devalue the poor. The death penalty is a grim, disturbing shadow formed by the legacy of racial apartheid and bias against the poor that condemns the disfavored among us, but corrupts us all. It’s the perverse symbol elected officials use to strengthen their ‘tough on crime’ reputations and distract us from confronting the causes of violence. It is finally the enemy of grace, redemption and all of us who recognize that each person is more than their worse act.”
- Bryan Stevenson