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Colorado Criminal Sex Crimes – Fifth Amendment – Refusing To Talk During The Pre-Sentence Investigation – The question of whether you should cooperate in the pre-sentence and sexual offender interview prior to sentencing – is easy – yes you probably should.
One of the most difficult issues for a sentencing judge in sentencing in a Colorado sexual assault case – is the decision to grant or to deny probation. The question raised in this article is whether a convicted sex crimes defendant’s decision to exercise his or her right to remain silent under the 5th amendment makes sense in the context of the pre-sentence interview – which by law – has to include the so called SOMB (Sex Offender Management Board) Offender Specific Evaluation (OSE).
The position taken in this article is this – in order to have a successful outcome (obtain probation) at the sentencing hearing – the defendant must be honest and open with both the probation department and the therapist performing the OSE.
While a defendant always has the right to remain silent PRIOR to his or her conviction – with no consequences that can impact a judge or a jury’s decision on the guilt of that defendant – following either a conviction or a plea – the exercise of that right to remain silent following the guilt stage can have devastating consequences.
The invoking of one’s Fifth Amendment right against self-incrimination during the sex offender evaluation can lead to a lengthy – and sometimes – even a life sentence to imprisonment.
In a recent case (2014) decided by the Colorado Court of Appeals – the probation department and the psychosexual evaluator recommended that the defendant be sentenced to probation with sex offender treatment.
In this case – the defense lawyer advised his client to maintain his privilege against self-incrimination because the case – which resulted in a jury verdict of guilty – was on direct appeal.
The Trial AND the Appellate Courts found that an important part of a defendant’s sex offender treatment while on probation was the need to admit responsibility for his criminal misconduct. The sentencing judge – in sentencing the defendant not to probation but to prison – found that a defendant is not entitled to probation under these circumstances because “it comes down to the question of [his] participation in treatment.“
In the Court’s Words:
“If I sentence the defendant to probation, and he continues to exercise his Fifth Amendment rights because he has an appeal, he’s effectively not in treatment. And more than effectively not in treatment, . . . but the rules of the Sex Offender Management Board would require that they terminate his treatment. . . .
Now that means he can be supervised I suppose, but not treated. . . . Effectively he gets back on some form of probation for other than sex offenders. I think it does increase the risk to the community for an offender not to be in treatment and yet still placed in the community. . . .I think it would be an exercise in futility to grant probation just so that we can flunk him out of treatment and therefore [cause him to] flunk out of probation and therefore go to prison anyway.
But beyond that, I think there is an increased risk. If somebody’s not actively participating in treatment, there’s an increased risk to the community. . . .I do also have to look at the nature of the offense, and it certainly justifies a prison sentence, although perhaps not requiring it.
Whether to grant or deny probation is a decision committed to the discretion of a sentencing court judge. This decision – to focus on community safety – is at the foundation of the Court’s concerns in Colorado Sex Offender cases.
While the United States and Colorado State Constitutions contain the right to protect against self-incrimination in a criminal case, and a convicted sex offender can assert the Fifth Amendment in the probation application and treatment process, a Judge is allowed to consider that exercise and to use exercise in evaluating the a grant or denial of probation.
The general rule as regards the Fifth Amendment is that:
“[A] State may not impose substantial penalties because a [person] elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.”
[T]he Fifth Amendment guarantees . . . the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.”).
BUT while the State of Colorado cannot revoke a previously granted term of probation because of an assertion of his or her Fifth Amendment right against self-incrimination and a refusal to admit guilt while on probation while an a direct appeal is pending, the court CAN deny probation in the original sentencing proceeding where a defendant first applies for probation.
Here is more of the Court’s reasoning:
“This follows because a person who is applying for probation is in a different situation from a person who has been sentenced to probation. In the latter instance, the person has attained a “liberty interest,” which may not be taken away from him in the absence of due process. “
The application for probation permits a convicted sex offender – in some instances – to avoid serving a harsher sentence,.. a Colorado Sex Offender must apply for probation as it is not a right but is characterized as a privilege.
In Colorado sex offender cases – risk to the community (risk of the commission of another crime) is at the top of the list for considerations in determining whether to grant probation. Court’s view the exercise of the right to remain silent during the application for probation as increasing the risk to the community.
A sentencing court decides to grant or deny probation based on the nature and circumstances of the offense and the history and character of the defendant and ” it determines that imprisonment is more appropriate for the protection of the public. § 18-1.3-203(1).
The argument that a defendant convicted of a Colorado Sex Offense has the right to exercise his or her right to remain silent in the psychosexual evaluation process ignores the reality of the sentencing decision.
It is the law in most states and in the federal system that there is a distinction “between a penalty imposed and a benefit denied.”:
Because probation is a form of leniency – the reasoning used is that one is not penalized for refusing to admit guilt during a psychosexual evaluations, they are just not given a benefit that is extended to defendants who accept responsibility for their wrongs.
…”between admitting responsibility with a greater chance of receiving a favorable psychosexual evaluation or denying responsibility with a greater risk of receiving an unfavorable evaluation is consistent with the historical practice and understanding that a sentence imposed upon a defendant may be shorter if rehabilitation looks more certain and that confession and contrition are the first steps along the road to rehabilitation.”
A Judge has the right to view a defendant’s refusal to answer questions about his sex offense in determining whether he or she is a suitable candidate for probation. Therefore, the exercise of the defendant’s Fifth Amendment right in the decision to deny him the privilege of probation can be based upon his refusal to engage in sex offender treatment which – in turn requires that he responsibility for his crime.
A Trial Court need only make findings at sentencing that demonstrates the court properly considered the risk to the community – whether this defendant could successfully complete sex offender treatment – and the nature of the offense, before denying probation and sentencing the defendant to prison rather than probation. The Colorado Courts may use the likelihood that success on probation will turn on success on successfully complying with the conditions of sex offender probation.
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A Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. If you are seeking counsel there maybe other more specific technical or legal advice on the information provided and related topics. For that, please contact the author.
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