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Criminal Law Click here for the full text of this decision FACTS:While on probation for a sex offense, appellant made unwarned, self-incriminating statements to his therapist during his participation in a court-ordered Sexual Offender Treatment Program. He then repeated these statements when questioned, first by his probation officer and second by a police officer. Appellant pleaded guilty to the two offenses, and the trial judge sentenced him to 20 years in prison. HOLDING:Affirmed. The leading “penalty” case on the use of self-incriminating statements made by probationers is Minnesota v. Murphy, 465 U.S. 420 (1984), in which the Supreme Court held that the defendant’s failure to invoke his Fifth Amendment privilege was not excused. As explained in Murphy: “[I]f the State, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.” The court disagrees with the appellant’s contention that Murphyis distinguishable from his case and further find that appellant’s reliance on State v. Fuller, 915 P.2d 809 (Mont. 1996), and Lile v. McKune, 224 F.3d 1175 (10th Cir. 2000), rev’d, 536 U.S. 24 (2002), is misplaced. Although both cases involve participation in sexual offender treatment programs, the court finds that the similarities end there. The treatment program in Fullerexpressly requiredthe probationer to fully disclose his offense history or his probation wouldbe revoked and he wouldbe sent to prison. The Montana Supreme Court found that, unlike in Murphy, the district court “threatened to send [the probationer] to prison if he did not honestly disclose his offense history. It therefore threatened a real and significant punishment if he remained silent.” In Murphyand the present case, however, the state did not, either overtly or impliedly, make the demand: “Confess all sex offenses or be punished.” Here, as in Murphy, the probationer’s probation condition proscribed only false statements; it said nothing about his freedom to decline to answer particular questions.” Similarly, in Lile v. McKune, 224 F.3d 1175 (10th Cir. 2000), rev’d, 536 U.S. 24 (2002), prison officials “recommended” that Lile, a sex offender inmate, participate in a Sexual Abuse Treatment Program, but before he could be admitted into the program he had “to disclose his sexual history, including the crime of which he was convicted and any uncharged sexual offenses.” When Lile declined to participate in the SATP because the required disclosure of his criminal history would violate his Fifth Amendment privilege against self-incrimination, he was told that his privilege status would be reduced and he would be transferred to a maximum-security unit. He sued under the federal civil rights statute, requesting an injunction to prevent the prison officials from punishing him for refusing to participate in the SATP. The 10th Circuit found that the threat of automaticrestriction of privileges and transfer to a maximum security facility constituted impermissible compulsion. That court stated: “The second consideration that bears on whether the government has sought to compel self-incrimination is the automaticity of the penalty. . . . We believe that the distinction between an automatic and a conditional consequence is helpful in determining whether government action rises to the level of compulsion. . . . It remains worth noting that . . . the adverse consequences in this case would be imposed on [Lile] automatically once he refused to admit responsibility and disclose his sexual history and thereby refused to participate in the SATP.” In the present case, by contrast, the appellant was never put into this automatic “confess all sex offenses or be punished” dilemma. He now argues that if he “had refused [to] answer the sexual history requirement, he would have been terminated from the Sex Offender Treatment Program thereby violating his probation and jeopardizing his freedom.” There is no evidence in the record to support this assertion. There is no evidence that anyone attempted to compel appellant to answer any “sexual history” questions. The SOTP contract that appellant signed contains no requirement that he disclose his entire sexual history or admit to uncharged misconduct as was required in the Fullerand Lile programs. There is no evidence that, had he been directly asked and had he refused to answer, invoking his Fifth Amendment right against self-incrimination, appellant would have been terminated from the SOTP. There was no evidence that appellant would suffer anyautomatic penalty if he invoked his Fifth Amendment right not to disclose his prior sexual offenses. Indeed, the state has repeatedly acknowledged that the trial judge could not revoke appellant’s probation simply because he invoked his right against self-incrimination. Here, unlike the prison policy in Lile, appellant’s probation status was not automatically contingent upon his disclosure of prior sexual offenses. This record does not support any “speak or be punished” penalty situation. Because appellant did not affirmatively invoke his Fifth Amendment right against self-incrimination, the trial court did not err in denying appellant’s motions to dismiss and to suppress his voluntary statements to his therapist, his probation officer, and the police. OPINION:Cochran, J., delivered the opinion of the court.

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