Criminal Law

Crim. Law Journal Summer 2017, Vol. 17, Issue 2


By Leif M. Dautch*

In People v. Garcia, the California Supreme Court upheld the legality of various probation conditions for convicted sex offenders, including a required waiver of "any privilege against self-incrimination" during participation in sex offender treatment programs. The Court also addressed the propriety of polygraph examinations and the waiver of psychotherapist-patient privilege.

Applying the canon of constitutional avoidance, the Supreme Court held that the required self-incrimination waiver could be interpreted as a narrow waiver of a sex offender’s right to refuse to answer questions during treatment sessions, rather than a broad waiver of his or her Fifth Amendment protections. Moreover, the Court held that the "penalty exception" from Minnesota v. Murphy would invariably bar the introduction of any compelled statements at a later criminal trial, and that a judicial rule of immunity would provide added assurance for probationers. Finally, the Court rejected the claim that conditioning probation on the waiver of psychotherapist-patient privilege violated the constitutional right to privacy.

The decision noted the large number of sex offenders, and the challenges in managing and supervising them. The decision stressed the importance of sex offender treatment, citing an up to 40 percent reduction in recidivism for those offenders successfully completing treatment. Justice Cuellar writes that, "in light of the relevant constitutional provisions and the purpose of Chelsea’s Law, the probation conditions challenged here enable those charged with monitoring the probationer to obtain the information they need, while otherwise safeguarding the probationer’s privacy and protecting the probationer from compelled self-incrimination."

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