Probation Violations, Polygraphs, and the Privilege Against Self-Incrimination

On September 8, 2020, the Minnesota Court of Appeals issued a reversal in State of Minnesota v. Adam Charles McCoy, A20-0485 (Minn. Ct. App. Sept. 8, 2020) in favor of the state prosecutors and against the defendant. McCoy reinforces that individuals must affirmatively claim the privilege against self-incrimination, even in the context of court-ordered probationary conditions, and even where certain disclosures or conditions have been mandated by a judge or probation agent. 

In State v. McCoy, McCoy was on probation for third-degree criminal sexual conduct. He received a stay of adjudication after pleading guilty, which means that if he successfully completed probation and complied with all probationary terms and conditions, he would avoid a felony conviction for criminal sexual conduct in the third degree, and he would avoid registration as a predatory offender (often referred to as sex offender registration). 

As a condition of his probation, the Cass County District Court in Minnesota ordered that McCoy complete a sex offender treatment program, which included successfully passing a polygraph examination (a lie detector test). Failing to successfully complete sex offender treatment, including failing to pass that polygraph, could have resulted in a probation violation and possible incarceration. It also would have likely voided the stay of adjudication, resulted in a permanent felony conviction, and resulted in at least 10 years of sex offender registration. 

Prior to taking that polygraph, McCoy’s probation agent ordered him to fill out a “sexual-history packet.” This packet included statements about McCoy’s sexual and criminal sexual conduct history, including information about other uncharged prior victims and uncharged crimes he had committed related to sex. Again, noncompliance with probation was grounds to issue a probation violation, so McCoy complied. 

In the packet, McCoy outlined additional sex crime victims and discussed them with his probation agent, who was a mandatory reporter under Minnesota law. This included an incident that occurred 14 years earlier, in which McCoy had sexually assaulted a two year-old child. McCoy later sat for the polygraph.

During the examination, the polygraph examiner told McCoy that he would be asked to disclose information about additional uncharged victims. The examiner cautioned McCoy, however, not to disclose the names of any uncharged victims or else the state prosecutors might be able to use those statements to charge him with additional crimes.  

McCoy confessed about the incident with the child, but did not use the child victim’s name. The examiner, however, mentioned the victim’s name after reviewing the forms McCoy filled out with probation prior to the examination. The examiner concluded that McCoy passed the examination. 

Despite this, the State used the victim’s identification to charge McCoy with two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. A conviction for one count of criminal sexual conduct in the first degree carries a baseline, presumptive 144-month (12-year) prison sentence. However, with prior criminal history—which McCoy had—that presumptive sentence increases. 

At the district court level, McCoy’s criminal defense lawyer asserted that McCoy’s “confession” was coerced. The district court did not agree with the criminal defense lawyer, and instead suppressed McCoy’s statements as a violation of McCoy’s right to self-incrimination. The Court of Appeals reversed, however, citing Minnesota v. Murphy, 465 U.S. 420, 422, 104 S. Ct. 1136, 1140 (1984).

The Court of Appeals held that, despite that it would have arguably constituted contempt of court and likely would have triggered a felony probation violation, it was McCoy’s burden to assert his right against self-incrimination prior to filling out the “sexual history packet” and prior to submitting to the polygraph examination. If McCoy was working with a criminal defense lawyer or a probation defense lawyer, that attorney may have been able to guide McCoy through this treacherous legal landscape. Instead, McCoy fell victim to a nuanced legal trap and is now facing remand on a felony-level criminal sexual conduct case that carries a presumptive prison sentence of more than a decade.

The moral of the story is that it is critical to understand and exercise your rights in the context of probation and while under court supervision. Successfully completing probation can mean the difference between a felony conviction or a misdemeanor conviction. It can mean the difference between a weekend in jail, or six months in the workhouse. As was the case here, it can also mean the difference between registration as a sex offender in Minnesota, and avoiding that requirement completely.

Constitutional and statutory rights may be diminished while on probation and while under court supervision, but they do not cease to exist. 

Probation violation attorneys in Minneapolis, conditional release violation lawyers, and supervised release violation lawyers (parole lawyers) throughout Minnesota are a huge resource for defendants on supervision who have questions about their rights, procedures, and defense strategies. Apart from testing the state’s evidence and fighting against probation violations, the skilled felony probation attorneys at Wilson Criminal Defense frequently advise individuals how to effectively exercise their rights while on probation. If McCoy reinforces anything, it’s that the fight isn’t over after a guilty plea or conviction. 

As of now, it’s unclear whether the defense will be pursuing an appeal to the Minnesota Supreme Court. 

Read the full opinion here: http://www.mncourts.gov/mncourtsgov/media/Appellate/Court%20of%20Appeals/Standard%20opinions/OPa200485-090820.pdf