Court rules Miranda not needed for sexual evaluation

Friday, Nov. 1, 2002 | 9:44 a.m.

CARSON CITY -- A person convicted of a sex crime is not entitled to a Miranda warning prior to undergoing a psychosexual evaluation to determine if he is a good candidate for probation, the Nevada Supreme Court ruled Thursday.

The court also said the individual's right against self incrimination was not violated when he continued to assert his innocence during the interview.

The court, in a 6-1 decision written by Justice Nancy Becker, rejected the appeal of Felipe Dzul, who entered an Alford guilty plea to one count of attempted lewdness with a 9-year-old child in Las Vegas.

In an Alford plea a defendant admits the evidence is sufficient to convict him but he maintains he is innocent. Dzul was sentenced to 10 years in prison with eligibility for parole after four years.

After Dzul entered his plea, District Judge Nancy Saitta ordered a psychosexual examination as required by the law to determine if he was a threat to society.

Dzul maintained he was entitled to be warned that anything he said could be held against him and he was entitled to a lawyer. The court said Dzul was given the Miranda warning when he was arrested.

The court said Dzul had the assistance of an attorney through the evaluation and never invoked his right against self-incrimination.

While being evaluated by two psychological professionals, Dzul said he was innocent.

One of the examiners said Dzul was not a menace to society if he was placed on probation. However the second examiner felt that Dzul's denial of responsibility for the offense was a factor that increased his risk to re-offend. This examiner felt Dzul represented a moderate to high risk to commit another similar crime and was a poor candidate for probation.

Dzul claimed his Fifth Amendment right against self-incrimination was violated because he was denied probation for maintaining his innocence through the psychosexual evaluation.

He said the law requires the grant of probation for a sex crime on a favorable psychosexual evaluation and that a favorable evaluation almost always requires an admission of guilt by the defendant.

He argued that he received an unfavorable evaluation because he refused to admit his guilt and that in effect he is being punished for maintaining his innocence.