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Big mess: warrant, first amend rights, probation, etc

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V

Virginian

Guest
My brother is on probation in Virginia under an Interstate Compact with California. As part of this probation he is required to take lie detector tests (VA requirement with the Compact says he has to comply with, though not allowed in Calif). His PO here in Va is on a 3-week vacation. There was a probation hearing in Calif (which we didn't even know about) and they issued a warrant for his arrest based on self-incriminating things they learned from the lie detector tests here in VA! (Like that he had one drink on New Year's Eve when he is supposed to totally abstain from alcohol----they would not have known any other way, as he is pee testing and has been negative.)

So now he has a bench warrant in California (showing mandatory hearing appearance), but lives in Va. Is there any way he can deal with this WITHOUT going back to Calif?
If he has to go to Calif he may very well lose his job if he is gone too long. (As part of the Interstate COmpact, he had to "waive extradition", but the Compact gives him a right to an extradition hearing here to establish "matters of fact", i.e. there is a warrant, he is the right person, etc.)

He is scheduled for another lie detector test this morning and we are thinking he should not attend, since a) he might be arrested on the spot and b) they will only use it against him! Isn't this a violation of 5th amend constitutional rights?
 


calatty

Senior Member
Not showing up to the hearing will be held against him too and will not benefit him. As far as self-incrimination, probation often involves conditions that infringe on constitutional rights. The lie detector test is apparently a condition of probation he agreed to in order to be in Virginia. However, there is a legal rule called the corpus delicti rule under which a person cannot be convicted based solely on their own word. There must be some other evidence, even if it is slight. In other words, they have to have some other evidence that he drank on New Year's Eve in order to violate his probation for it.
 
V

Virginian

Guest
I know, all he had to do is follow the terms of his probation and he wouldn't be in this trouble. BUT,
the thing that bugs me about the lie detector test is that if he doesn't take them it's a violation of probation: if he does, they use the stuff against him to claim probation violation. Thus he is COMPELLED to testify against himself. In the old days they did this with thumbscrews: now they do it with technology. And, if he doesn't pass them he can't see his kids: so they use the most insidious form of psychology, the love of his kids, in this torture. This is not justice. It isn't constitutional, in my opinion. And it certainly isn't mercy. (After recognizing this, I went out and joined the ACLU.)

Actually he wasn't required to attend the first hearing since he lives in Virginia now---his previous (worthless) atty appeared instead. We are glad that one was removed from the case for a conflict of interests, before we had to fire him!

Thank God we had been sooooo nice to his old San Diego probation officer. The guy told us we could hire a Calif atty (public defenders aren't assigned til the hearing and so can't do this advance stuff) and have him call the DA to negotiate an orderly surrender date. The State does this to save themselves the cost of having to come get you when you live in another State, and then you get a couple of weeks to get your affairs all in order before turning yourself in. The atty also "bargains" with the DA for you. My brother has to go back to San Diego to answer the charges but his new atty thinks he will be able to go back to Va the same day because this is his first probation violation and the charges aren't serious. But, no guarantees of course: we're told that with a "hanging judge" even a first violation can result in serving the rest of one's sentence.

My brother had joined the Legal Services Plan so called them, and they assigned him a really high-caliber atty in San Diego. He is only paying $70 per hour for him which is a huge discount from normal rates.
 

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