Constitutional Criminal Procedure
On July 1, 2010, Officer Marlene Davis of the Sexual Crimes Unit of the City of Ames Police Department, State of Blackacre, visits the Heavenly Day Care Center in Ames. There she gives a talk to the children at Heavenly to warn them not to let grownups touch their genitals and to tell their parents if anyone does. Immediately after the talk, Amy Johnson, a five-year-old girl at Heavenly, rushes up to Officer Davis and whispers in her ear, “A big man at school played with my wee-wee today.'' Officer Davis replies, “Who did that, Amy?” However, Amy starts crying hysterically and refuses to say anything more. Officer Davis establishes that four men work at the Heavenly Day Care Center. Officer Davis immediately interviews all four men in Heavenly's cafeteria. Three of those men deny any wrongdoing. However, the fourth man, Adolf Carter, responds by saying, “I don't have to talk to you and I'm not going to,” and then walks away. Officer Davis, however, follows Carter, takes him into custody, and drives him in her patrol car to the offices of the Sexual Crimes Unit. There another police officer, Officer Walton Wanton, a male officer, straps Carter into a chair and subjects him to a penile plethysmograph test, which is is a procedure that involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses. Officer Wanton reports to Officer Davis that Adolf Carter exhibited an extraordinarily high level of sexual arousal on being shown images of young nude female children. Officer Davis informs Adolf Carter, who is still strapped in the chair, “I'm afraid you flunked the test, Mr. Carter.” Carter responds, “OK. So I touched the kid. So what? That's not a crime.” Adolf Carter is indicted for sexual abuse of a minor. At Carter's trial the prosecutor offers in evidence Carter's statement “OK. So I touched the kid. So what? That's not a crime.” Carter's counsel states, “I object, your Honor. The evidence is barred by the Self-Incrimination Clause of the Fifth Amendment and by the Fourth Amendment's Search and Seizure Clause. Moreover, the forcible use of that test was a gross imposition on Mr. Carter's constitutionally-protected liberty and privacy.”
Please evaluate the admissibility of Carter's statement under the Fourth Amendment's Search and Seizure Clause, under the Fifth Amendment's prohibition against compulsory self-incrimination, and under any other federal constitutional principles we have discussed in this seminar.
Does the procedure described above strike you as nothing more than the product of the fevered imagination of a pointy-headed academic? If so, consider
United States v. Cope, 527 F.3d 944 n. 1 (9th Cir. 2008):
As we explained in detail in United States v. Weber, 451 F.3d 552 (9th Cir. 2006), penile plethysmograph testing involves placing a device on a man's penis to "measure[ ] its circumference and thus the level of the subject's arousal as he is shown sexually explicit slides or listens to sexually explicit audio scenes," id. at 562 (internal quotation marks omitted). Plethysmograph testing has become a fairly common component of sex offender treatment programs. Id.
Plethysmograph testing is a procedure that "involves placing a pressuresensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses." Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). Although one would expect to find a description of such a procedure gracing the pages of a George Orwell novel rather than the Federal Reporter, plethysmograph testinghas become routine in the treatment of sexual offenders and is often imposed as a condition of supervised release.
We don't subject the entire American adult male population to the penile plethysmograph test. But we do plan to subject all air travelers to a device -- a full-body backscatter x-ray unit -- that exposes travelers' genitals to the operator of the device. There are said to be plans to use the device on some subway lines and perhaps elsewhere.
The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.