10th Circuit Says No to Compulsory Polygraph Testing

By Zachary M. Nielsen

The Tenth Circuit made waves in United States v. Von Behren  (D. Colo)(15-1033)(04-CR-0341-REB-1), when it invalidated the sexual history polygraph requirement of Mr. Von Behren’s state-approved sex offender treatment program. The program was a prerequisite of Mr. Von Behren’s terms of supervised release following a prison sentence. Writing for the court, Circuit Judge Seymour concluded that such a requirement compelled Mr. Von Behren to make incriminating testimonial statements in violation of his Fifth Amendment right.


Mr. Von Behren was sentenced to ten years in prison and three years of supervised release following a conviction for child pornography. Near his release in 2014, his conditions of supervised release were changed to include successful completion of an approved sex offender treatment program. The Colorado Sex Offender Management Board (SOMB) requires programs, including Mr. Von Behren’s program Redirecting Sexual Aggression (RSA), to subject its patient’s to sexual history polygraph exams. The RSA required its patients to sign a contract allowing the program to report any illegal activity to authorities. Refusal to comply with all of RSA’s conditions would result in dismissal from the treatment program and likely revocation of supervised release. The Court of Appeals put an emergency stay on the procedure only hours before Mr. Von Behren was scheduled to take the polygraph exam.
Unlike the lower court, the Court of Appeals held that the exam questions presented a risk of incrimination. At least three of the questions would require an individual to admit to having committed a felony. If answered ‘yes,’ the examiner could ask how many times. Though a ‘yes’ answer could not sustain a conviction on its own, it could help to narrow an investigation. The Court found that this level of self-incrimination is constitutionally impermissible.
Even so, incriminating questions may be asked as part of the rehabilitative process of supervised release. However, the government cannot compel someone to answer such questions, if the answers will be used to incriminate the individual. The Court found that Von Behren was given a Hobson’s choice. Because he was required to sign an agreement that authorized his treatment provider to disclose his answers to authorities, he was left to decide between two impossible choices. If he refused to answer, he would be kicked out the program and in violation of his supervised release which could send him back to prison. The Court determined that this was compulsion. In addition, if he took the polygraph, his answers could be used against him. Thus, the Court resolved, the polygraph exam cannot be mandated as it is a government compulsion of self-incrimination.

Author: COFPD

Federal Public Defender's Office for the Districts of Colorado and Wyoming