Denning v. Board of Parole

26 March 29, 2023 No. 147

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

JACK UDEAN DENNING,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A177329

Submitted February 27, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Rond Chananudech, Deputy Public Defender,

Office of Public Defense Services, filed the brief for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Emily N. Snook, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

POWERS, J.

Affirmed.

Cite as 325 Or App 26 (2023) 27

POWERS, J.

Petitioner seeks judicial review of a final order of the

Board of Parole and Post-Prison Supervision that imposes a

special condition of supervision requiring him to participate

in random polygraph examinations in accordance with ORS

144.102(4)(b)(J). Among his arguments on review, petitioner

asserts that the imposition of the supervision condition vio-

lates his rights under the Fifth Amendment. As explained

below, the imposition of the condition does not violate peti-

tioner’s rights under the Fifth Amendment, and petitioner

remains free to invoke his rights against self-incrimination

in response to a particular question. Accordingly, we affirm.

The procedural facts are uncontested. In 2010, peti-

tioner pleaded no contest to unlawful sexual penetration

with a foreign object and attempted unlawful sexual pen-

etration in the first degree and was sentenced to a lengthy

prison term. Shortly before he was released from prison onto

post-prison supervision (PPS), the board issued an Order of

Supervision Conditions that imposed a number of general

and special conditions of supervision that petitioner would

be subject to while he served 140 months of PPS in the com-

munity. As required by ORS 144.102(4)(b), the board imposed

what is commonly referred to as the Sex Offender Package

of conditions, which includes the challenged polygraph con-

dition. More specifically, ORS 144.102(4)(b)(J) requires the

following special conditions of supervision for a person who

was convicted of a sex crime as defined in ORS 163A.005

and then placed on PPS:

“Participation in random polygraph examinations to obtain

information for risk management and treatment. The per-

son is responsible for paying the expenses of the examina-

tions. The results of a polygraph examination under this

subparagraph may not be used in evidence in a hearing to

prove a violation of post-prison supervision.”

Petitioner sought administrative review of that condition,

arguing that the condition violated his rights under the

Fifth and Fourteenth Amendments to the United States

Constitution and Article I, sections 10 and 12, of the Oregon

Constitution. The board denied relief noting that the condi-

tion was required by ORS 144.102(4)(b)(J) and explaining

28 Denning v. Board of Parole

that the condition was imposed “for the purposes of risk

management and treatment, and not for the purposes of

proving that you violated [your] post-prison supervision.”

Petitioner timely sought judicial review.

On review, petitioner renews his challenge under

the Fifth Amendment, arguing that the condition is uncon-

stitutionally overbroad because it infringes on his Fifth

Amendment right against self-incrimination.1 Petitioner

asserts that the board’s failure to narrowly tailor the con-

dition to explain why the condition does not contain an

exception for the exercise of petitioner’s constitutional rights

makes the condition overbroad. We disagree. The board’s

imposition of the condition does not run afoul of petitioner’s

rights under the Fifth Amendment; rather, petitioner retains

his ability to assert his Fifth Amendment rights on a

question-by-question basis.

The Fifth Amendment to the United States

Constitution provides, in part, that “[n]o person * * * shall

be compelled in any criminal case to be a witness against

himself.” The right against self-incrimination secured by

the Fifth Amendment may be asserted in “any proceeding,

civil or criminal, administrative or judicial, investigatory or

adjudicatory; and it protects against any disclosures that

the witness reasonably believes could be used in a crimi-

nal prosecution or could lead to other evidence that might

be so used.” Kastigar v. United States, 406 US 441, 444-

45, 92 S Ct 1653, 32 L Ed 2d 212 (1972). Not only does the

Fifth Amendment protect statements that could be directly

incriminating, but it also protects testimony that “would

furnish a link in the chain of evidence needed to prosecute

the * * * crime.” Hoffman v. United States, 341 US 479, 486,

71 S Ct 814, 95 L Ed 1118 (1951).

Importantly, the privilege is not a right to refuse

to honor a subpoena or take the stand as a witness. As we

recently explained:

“barring exceptional circumstances, the only way a per-

son can assert the privilege is on a question-by-question

basis. As to each question asked, the party has to decide

1

Petitioner does not renew his claim under the state constitution.

Cite as 325 Or App 26 (2023) 29

whether or not to raise [a] Fifth Amendment right. Mitchell

v. United States, 526 US 314, 321-22, 119 S Ct 1307, 143

L Ed 2d 424 (1999) (‘The privilege is waived for the matters

to which the witness testifies, and the scope of the waiver

is determined by the scope of relevant cross-examination[.]

The witness himself * * * determines the area of disclosure

and therefore of inquiry.’ (Internal citations and quotation

marks omitted.)); see also United States v. Bodwell, 66 F3d

1000, 1001 (9th Cir 1995) (holding that Fifth Amendment

invocation must occur on a question-by-question basis).

Barring exceptional circumstances, the requirement for

a question-by-question invocation is necessary for the court

to determine whether the privilege applies, by evaluating

whether ‘the answer to that particular question would sub-

ject the witness to a real danger of * * * crimination[,]’ as

opposed to ‘a mere imaginary possibility of increasing the

danger of prosecution.’ Rogers v. United States, 340 US 367,

374-75, 71 S Ct 438, 95 L Ed 344 (1951) (internal quota-

tion marks omitted). The witness claiming the privilege

bears the burden of establishing that an answer could be

injurious, although the court must construe the privilege

liberally ‘in favor of the right it was intended to secure.’

Hoffman v. United States, 341 US 479, 486, 71 S Ct 814, 95

L Ed 1118 (1951).”

State v. Rodriguez, 301 Or App 404, 412-13, 456 P3d 312

(2019) (bracketed text in original; footnote omitted). Thus,

just as the Fifth Amendment does not allow a person to dis-

regard a subpoena to appear as a witness in court because

that person must show up to invoke the right on a question-

by-question basis, the Fifth Amendment does not allow an

offender who is subject to a supervision condition requiring

participation in random polygraph examinations to disre-

gard a request to participate in a polygraph examination.

It is at that point—while participating in a polygraph

examination—that petitioner may choose on a question-by-

question basis to invoke the Fifth Amendment privilege, the

exercise of which cannot be punished under the terms of the

supervision condition itself. That is, the board explicitly rec-

ognizes as much when the supervision condition provides,

in part: “The results of a polygraph examination under this

subparagraph may not be used in evidence in a hearing to

prove a violation of post-prison supervision.” See, e.g., United

States v. Antelope, 395 F3d 1128, 1139 (9th Cir 2005) (holding

30 Denning v. Board of Parole

that the revocation of probation and supervised release vio-

lated the defendant’s Fifth Amendment right against self-

incrimination and that such “self-protective silence” could

not be punished).

Accordingly, because the imposition of the poly-

graph condition does not violate petitioner’s rights under

the Fifth Amendment, we reject his claims and affirm the

board’s supervision order.

Affirmed.