Saturday, May 14, 2011

Topic: Exceptions - To Past Admissions

Are there exceptions to self-incrimination? YES!

Time and time again we hear that folks are required to participate in sex offender therapy, and the therapy program REQUIRES that the person admit they have committed the crime for which they are taking therapy.

Then the person worries that, if they admit the crime, in order to gain entrance into therapy, that at some point that will be held against them; maybe criminally resulting in another conviction.

The purpose of this page is to show when past admissions CANNOT be used against the person, in the future, and DOES NOT address when they can be used against the person. For an definitive answer -as to your specific circumstances- always run it by a lawyer, and send him/her a link to this page!

Are there times when past admissions cannot be used?

Yes, what follows are exceptions we have found. You will need to compare them to your circumstances to see if you can use them. Prosecutors WILL USE any past admissions to further damage the person in a legal proceeding, if given the opportunity.

Example 1: To civilly commit a person

Nebraska Supreme Court says mental health board must reconsider sex offender's commitment 5-14-2011 Nebraska:

LINCOLN, Neb. — A state mental health board must reconsider a case in which it ordered a convicted sex offender held for treatment following his prison sentence, under a Nebraska Supreme Court opinion issued Friday.

The state high court's decision reversed a ruling by a Dawson County District judge in the case of a man convicted in the early 1990s of sexually assaulting a 15-year-old girl.

Shortly before the man — referred to in court documents only as "A.M. Jr." — was scheduled to be released from prison in 2008, the state asked that a local mental-health board deem him a dangerous sex offender.

Using the evaluation of three state psychologists, the board concluded that A.M. was at risk of re-offending and committed him to inpatient treatment.

A.M. appealed, objecting to — among other things — the board's allowance of testimony from the psychologists about statements and other facts gathered from his 1992 third-degree sex assault conviction. A.M. was sentenced to probation in that case, but the conviction was later vacated.

Among his objections was that the experts used statements A.M. made during court-ordered treatment, in which he allegedly admitted to sex offenses for which he was never charged.

The psychologists testified at the 2008 commitment hearing that A.M. repeatedly minimized his actions during his court-ordered treatment on the vacated conviction. A.M. was dismissed from the program for noncompliance with treatment goals, dishonesty and failure to complete assignments.

The state Supreme Court agreed with some of A.M.'s arguments, noting that sex offender treatment programs often must be completed as a condition of probation and that the offender is threatened with revocation of probation if he or she fails to admit to sexual conduct.

"Thus, the offender's compelled, incriminating statements cannot be used against him in a subsequent criminal trial,"
the high court wrote, adding that under Nebraska law, a mental health board in sex offender commitment proceeding cannot consider any evidence that would be inadmissible in a criminal case.

Also, the use of those incriminating statements and the psychologist's out-of-court accusations in having A.M. committed violated his right to confront witnesses, the high court wrote. ..Source.. by MARGERY A. BECK

Example 2: As a condition of probation

The full article is found on "Karen Franklin's In the News Site" but we are showing just the circumstances below:

In October 2009 in Yavapai County, Ryan Jacobsen pled guilty to three counts of Luring a Minor for Sexual Exploitation and was subsequently sentenced to probation. His probation conditions included: “Defendant shall submit to any program of psychological or physiological assessment at the direction of the Probation Officer, including but not limited to Abel testing and/or the polygraph and/or the penile plethysmograph, to assist in treatment, planning, and case monitoring.”

When he entered a treatment program, his treatment provider gave him a 15-page sexual history questionnaire to fill out before taking a sexual history polygraph test. Jacobsen declined to answer some questions he felt were incriminating and could be used against him. Jacobsen’s attorney approached the prosecution, but they declined to give him immunity for any crimes he might disclose.

Jacobsen then filed a motion to preclude the polygraph and the questionnaire. The Appeals Court ruled in favor of Jacobsen, holding that "a waiver of the privilege against self-incrimination may not be made a condition of probation." The state then petitioned the Arizona Supreme Court (Jacobsen v. Superior Court and State of Arizona, Supreme Ct. No. CV-10-0309-PR) and the defense filed an amicus brief on post-conviction sex offender polygraph.

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For now, have a great day and a better tomorrow.
eAdvocate (BACK to the Top Page)

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