United States v. Juan Elias Lara (4th Cir, 3/14/17): Psychotherapist-Patient Priv and 5th Amendment Protections in Interviews with Supervision Agents
This case raises an important issue– the extent to which statements made to a supervisory government agent (like a probation agent, or as in this case, a sex offender treatment program provider) can remain confidential. Not good news for the more criminal-defense minded among us.
Lara was convicted in Virginia state court for a sex assault. He was sentenced to 20 years, with 17 years suspended and a term of 20 years of probation (!). As a term of his supervised probation, he was ordered to attend and successfully complete a Sex Offender Treatment Program and to permit the program to have “unrestricted communication with the probation and parole department” and to “submit to any polygraph.” Lara signed the form listing these conditions. He was then released and referred to a sex offender treatment program. There, he was interviewed by a licensed clinical social worker. During that interview, he disclosed other sexual assaults he had committed and his involvement in two murders (!!). He confirmed all this by way of a polygraph he took a few weeks later. Three months after that, he signed a form called “Sex Offender Program Acknowledgment of Confidentiality Waiver” acknowledging that whatever Lara tells a therapist or group leader is not privileged. Lara completed his probation without incident . . . until . . .
He moved from Virginia to Texas and failed to notify his probation agent, nor did he register with the Sex Offender and Crimes Against Minors Registry maintained by Virginia. He was ultimately indicted for violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. 2250.
Lara pleaded guilty and filed a motion to exclude from consideration at sentencing the admissions of other criminal activity he told the clinical social worker. The district court denied his motion.
Lara raised two claims for the court’s consideration. First, he argued that the district court erred in concluding that he knowingly and voluntarily waived the psychotherapist-patient privilege because he was “compelled to participate” in the treatment program. He also argued that the district court’s using of the statements he made to the social worker violated his 5th amendment privilege against self-incrimination.
As for the psychotherapist-patient claim, the Court found that Lara’s waiver was knowing and voluntary.
Probation is “one point…on a continuum of possible punishments” imposed on those convicted of a crime. Samson v. California, 547 U.S. 843, 848 (2006) (quoting United States v. Knights, 534 U.S. 112, 119 (2001). Therefore, courts administering probation “may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” Knight, 534 U.S. at 119. Essentially the Court found that Lara could have decided just to stay incarcerated if he didn’t like the terms and conditions of probation, so his acquiescence was “voluntary.” See McKune v. Lile, 536 U.S. 24, 50 (2002) (opinion of O’Connor, J.) (concluding that the defendant had a voluntary choice, and was not compelled to incriminate himself, when required to participate in a sex offender treatment program to avoid transfer from a medium-security to a maximum-security area of a prison).
As for the 5th Amendment claim, the Court was not persuaded by that argument either. Lara didn’t invoke his 5th Amendment right at the time he gave his statements, and the Court did not find that his conditions of probation fell within the narrow “penalty” exception to the rule:
To invoke the Fifth Amendment privilege against self-incrimination, a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” Minnesota v. Murphy, 465 U.S. 420, 429 (1984). One exception to this general rule occurs in “penalty” cases, in which assertion of the privilege results in a penalty that essentially “foreclose[s] a free choice to remain silent.” Id. at 434 (internal brackets omitted). As the Supreme Court has explained, in order for conditions of probation to provide a sufficient “penalty” to overcome a defendant’s free choice to remain silent, the threat of revocation must be nearly certain. In this case, Lara was never threatened with the imposition of a penalty sufficient to overcome his freedom of choice to remain silent. For this reason, no Fifth Amendment violation.
So, an important case for those clients who have given statements in connection with probation or supervised release. Those statements are not going to held privileged should your client find himself in trouble in the future.