In United States v. Zinn, 321 F.3d 1084, 1090 (11th Cir. 2003), Zinn was convicted of possessing child pornography and was sentenced to imprisonment followed by a period of supervised release. Id. at 1085.
As a condition of his supervised release, Zinn was required to participate in a sexual offender treatment program, which included a polygraph component. Id. at 1086.
Zinn challenged that condition, arguing that it violated his Fifth Amendment rights and delegated too much authority to his probation officer. Id. at 1088.
The court held that Zinn's Fifth Amendment claim was premature. Id. at 1091.
The court explained:
It is undisputed that at this juncture there has been no potentially incriminating question or invocation of the privilege, much less any government compulsion to testify over a valid claim of privilege. Such an eventuality is within the realm of possibility, but hypothetical possibilities do not present a cognizable Fifth Amendment claim. As the First Circuit recently observed in rejecting a similar challenge, it would be pure speculation to assume such facts now simply because they might conceivably come to exist at some future time. See United States v. Davis, 242 F.3d 49 at 52 (1st Cir. 2001) ("Should the court revoke Davis's supervised release as a penalty for his legitimate exercise of his Fifth Amendment privilege, he remains free to challenge that action at the time it occurs. That eventuality, however, has not yet occurred (and may never occur)."). If and when Appellant is forced to testify over his valid claim of privilege, he may raise a Fifth Amendment challenge. In the meantime, we can only decide whether requiring polygraph testing as a condition of supervised release generally violates the Fifth Amendment so as to amount to plain error. We hold it does not.