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