1/10/18: A supervised-release revocation hearing is not a criminal proceeding for purposes of the Fifth Amendment right against self-incrimination

In United States v. Hulen, --- F.3d ---, No. 16-30160 (9th Cir. 2018), the Court held that a proceeding to revoke supervised release is not a criminal case for purposes of the Fifth Amendment right against self-incrimination.  Thus, the district court could base the revocation on admissions made during mandatory sex-offender treatment.  In other words, compelled statements can be introduced at revocation hearings.  

Obviously, this has troubling implications.  For example, what if the government tries to force your client to testify against him or herself at a revocation hearing?  

A possible answer comes from in United States v. Antelope, 395 F.3d 1128,1135 (9th Cir. 2005).  There, a probationer refused to detail his sexual history out of fear that he would be charged with new crimes for past actions. The Court upheld the refusal because it had “no doubt,” “that any admissions of past crimes would likely make their way into the hands of prosecutors.”  The Court focused on the possibility that the answers “would incriminate [the defendant] in a pending or later criminal prosecution.” 

The same argument can be made in the revocation context.  If the answer could result in a new prosecution, the privilege should remain. 

Another helpful reminder for appeals: "An appeal of a sentence is not moot where success on the appeal could alter the length or conditions of the supervised release portion of the defendant’s sentence."