It has long been settled that judges have broad powers to impose conditions of probation against those convicted of criminal acts. In this case the courts found that a Defendant who committed sex offenses may be required to waive his right against self-incrimination in order to receive probation. Defendant, who was 16 years old when he committed the offenses, pled no contest to two counts of lewd conduct on a child (Pen. Code, § 288, subd. (a)), and was placed on probation. Over defense objection, the court imposed sex offender probation conditions mandated by Penal Code section 1203.067, subdivision (b). These terms required defendant to complete a sex offender management program, to waive his privilege against self-incrimination and take polygraphs examinations, and to waive his psychotherapist-patient privilege. On appeal he claimed the required waiver of rights violated the Fifth Amendment, was overbroad, and was unreasonable.

The appeals court upheld the order. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” But it “does not prohibit the State from requiring a prospective probationer to chose between accepting the waiver and going to prison.” The section 1203.067, subdivision (b)(3) probation condition does not itself compel a criminal defendant to bear witness against himself in a criminal proceeding; it requires only that the probationer provide full disclosure in connection with the sex offender program. The rule of the Fifth Amendment applies to the use of a defendant’s incriminating statements in a criminal proceeding, it does not bar the government from compelling those statements. Because the classic penalty exception would apply to any statements that defendant makes under compulsion of the probation term, those statements may not be used against him in a criminal proceeding. To the extent the condition impinges on defendants Fifth Amendment rights, it is narrowly tailored to the purpose of the condition—to facilitate his participation in the sex offender program and to determine whether he is committing additional offenses, in order to protect the public. The Fifth Amendment waiver condition serves the rehabilitative goals of probation. Without this compelled disclosure, “the program would not be Defendant who committed sex offenses may be required to waive his right against self-incrimination in order to receive probation. Garcia, who was 16 years old when he committed the offenses, pled no contest to two counts of lewd conduct on a child (Pen. Code, § 288, subd. (a)), and was placed on probation. Over defense objection, the court imposed sex offender probation conditions mandated by Penal Code section 1203.067, subdivision (b). These terms required Garcia to complete a sex offender management program, to waive his privilege against self-incrimination and take polygraphs examinations, and to waive his psychotherapist-patient privilege. On appeal he claimed the required waiver of rights violated the Fifth Amendment, was overbroad, and was unreasonable. Held: Affirmed. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” But it “does not prohibit the State from requiring a prospective probationer to chose between accepting the waiver and going to prison.” The section 1203.067, subdivision (b)(3) probation condition does not itself compel a defendant to bear witness against himself in a criminal proceeding; it requires only that the probationer provide full disclosure in connection with the sex offender program. The rule of the Fifth Amendment applies to the use of a defendant’s incriminating statements in a criminal proceeding, it does not bar the government from compelling those statements. Because the classic penalty exception would apply to any statements that Garcia makes under compulsion of the probation term, those statements may not be used against him in a criminal proceeding.

The Fifth Amendment waiver condition of probation is not overbroad because it is closely tailored to its purpose. To the extent the condition impinges on Garcia’s Fifth Amendment rights, it is narrowly tailored to the purpose of the condition—to facilitate his participation in the sex offender program and to determine whether he is committing additional offenses, in order to protect the public.

The Fifth Amendment waiver condition is not unreasonable. In many criminal prosecutions The Fifth Amendment waiver condition serves the rehabilitative goals of probation. Without this compelled disclosure, “the program would not be able to identify the psychological or physiological factors” that caused the sexual offense. As many Torrance Criminal Defense Attorneys can attest, judges deem the interests of public safety as the justification to impose often harsh conditions on those it grants probation. It must be remembered that the grant of probation is one of clemency and is within the court’s discretion.

The compelled waiver of the psychotherapist-patient privilege does not violate his right to privacy and is not overbroad. The right to privacy may be abridged in furtherance of compelling state interests. Here, the State has an interest in protecting the public from his sexual misconduct and in monitoring his compliance with probation terms. As the condition does not require defendant to waive his rights beyond that necessary to monitor his progress in the program, it is not overbroad. Further, it is reasonably related to reforming and rehabilitating the probationer.

In this case the court went even further, requiring the accused to give up the privilege that most persons have with their doctors. The compelled waiver of the psychotherapist-patient privilege does not violate the accused right to privacy and is not overbroad. The right to privacy may be abridged in furtherance of compelling state interests. Here, the State has an interest in protecting the public from defendants sexual misconduct and in monitoring his compliance with probation terms. As the condition does not require the criminal defendant to waive his rights beyond that necessary to monitor his progress in the program, it is not overbroad. Further, it is reasonably related to reforming and rehabilitating Garcia. (CCAP)

Torrance Attorney, Matthew Ruff is a criminal lawyer focusing on serious felony and misdemeanor matters in California.