Friday, September 02, 2016

McCormick v. Parker, 2016WL1743388 (May 3, 2016) (OK): The panel grants McCormick’s habeas petition on Brady grounds. It found that a SANE nurse was a member of the prosecution team and she testified falsely at trial that she was a certified SANE nurse at the time of trial. The panel imputed her knowledge of her own lack of credentials to the prosecutor, who was obligated to disclose this impeachment evidence to the defense. The duty to disclose this information arises even if the prosecutor does not have actual knowledge of the evidence at issue. The panel was quick to note that it was not finding that every “medical professional treating survivors of sexual abuse are automatically members of the prosecution team for Brady purposes.” Here, the panel ruled the SANE nurse was part of the prosecution team because she acted at the request of law enforcement in the pre-arrest investigation of the crime.
Interestingly, in discussing why the nurse’s misrepresentation was material, the court pointed out that during voir dire, two venire members who ended up on the jury, said that they would need a SANE nurse’s corroborating testimony to convict McCormick of child sexual abuse. From that the court concluded that the nurse’s credibility was essential to the state’s case, especially when she was the only one who provided ‘forensic’ corroboration of the complaining witness’s testimony.

United States v. Von Behren, 2016WL2641270 (May 10, 2016) (CO): The panel finds that a person on supervised release does not have to answer questions when the answers risk incriminating him. Therefore, a polygraph condition that compelled Von Behren to answer specific questions about prior sexual behavior violated his Fifth Amendment privilege against self-incrimination.
Right before he was released from prison, Von Behren’s supervised release conditions were modified. He was required to participate in and successfully complete a sex offender treatment program. The program to which he was sent demanded a polygraph and that he answer the following four questions: (1) After the age of 18, did you engage in sexual activity with anyone under the age of 15? (2) Have you had sexual contact with a family member or relative? (3) Have you ever physically forced or threatened anyone to engage in sexual contact with you? (4) Have you ever had sexual contact with someone who was physically asleep or unconscious? If he answered yes to any one of the questions that would trigger a mandatory follow-up question, “how many” times? Among these four questions, Mr. Von Behren could refuse to answer one. If he didn’t comply he would be discharged from the program. Von Behren balked and filed a motion to block the exam. The government threatened to ask that he be remanded to prison if he did not receive sex-offender specific treatment.
To qualify for the Fifth Amendment privilege, the panel wrote, a communication must be testimonial, incriminating and compelled. It quickly found that answering questions during a polygraph is a “communicative act which is testimonial.” The rest of the opinion it spent discussing whether Von Behren’s answers would be incriminating and compelled.
The panel held that those answers would be incriminating because they would provide a lead or link in the chain of evidence needed to prosecute Von Behren. The panel also said that under FREs 413 & 414, an affirmative answer could potentially be used against him if he were ever charged with a sex crime. It concluded Von Behren would face “at least some authentic danger of self-incrimination by answering” any of these questions. It added that once a court determines that the answers requested would tend to incriminate the person, it should not attempt to speculate whether the person will in fact be prosecuted. Regarding compulsion, the panel ruled that the government’s threat to ask that Von Behren be remanded to prison if he didn’t complete the program constituted unconstitutional compulsion within the meaning of the Fifth Amendment.
Some other points: Von Behren filed this appeal after the district court refused to block the polygraph. The panel noted it has jurisdiction to review rulings on the post-judgment modification of supervised release and here, the issue was ripe for judicial review. It also noted that its opinion does not protect someone refusing to answer a question relevant only to his supervised release status, such as whether he had looked at pornographic material. Similarly, its opinion does not help someone who has been given immunity or whose answer does not risk incriminating him.