D EFEATING THE S IMPLE , C RUEL E XPEDIENT How the 5 th Amendment Protects Probationers Matthew S. Pinix Michael G. Soukup L AW O FFICE OF M ATTHEW S. P INIX , LLC 1200 East Capitol Drive, Suite 220 Milwaukee, Wisconsin 53211 p. 414.963.6164 f. 414.967.9169 e. info@pinixlawoffice.com
General Principles • “No person . . . shall be compelled in any criminal case to be a witness against himself .” U.S. Const. Amend. V; Wis. Const. art. I, sec. 8 • “The essence of this basic constitutional principle is the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” Estelle v. Smith , 451 U.S. 454, 462 (1981)
Self-Incrimination • Everyone gets right to remain silent • Government cannot punish exercise of that right Effect of Granting Immunity • Government can compel speech by offering immunity • Grant of immunity must be coextensive with 5 th Am. protection • Must remove criminal consequences for self-incrimination
Immunity Gov’t Must Provide to Overcome Assertion of Right • Use immunity • Contents of person’s protected statement • Derivative use immunity • Any evidence subsequently discovered that does not have legitimate source wholly independent of the compelled statement
Immunity Principles & Probation • Since 1977, Wisconsin has granted probationers immunity for the contents of their compelled, protected statements • This rule (the Evans rule) automatically acts to prohibit use of probationer’s compelled, protected statements in criminal proceedings • Probationers must be accurately informed of the contours of the immunity they will receive at the time of the protected statement • If the probationer is not properly advised of immunity, revocation cannot constitutionally lie
What DOC Must Tell Probationer • Court of Appeals says that “the DOC form would sufficiently explain the type of immunity provided to the probationer if the sentence at issue read : ‘I have also been advised that none of this information, or any evidence derived therefrom, can be used against me in criminal proceedings.’” • Douglas v. Hayes , slip op., No. 2014AP2977, ¶ 16 n.4 (Wis. Ct. App. Oct. 7, 2015)
DOC Statement Form pre-Oct. 2015 DOC Statement Form post-Oct. 2015
How to Apply These Rules • People presently facing revocation who were advised under old form • People who may face revocation in the future under new form • Probationers who are returned to court for sentencing after revocation • Probationers later charged criminally
People Facing Revocation Advised Under Old Form • Must have been compelled to speak • “If the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.” Minnesota v. Murphy , 465 U.S. 420 (1984) • Does not apply to voluntary statements offered by probationer • Certain non-custodial statements have been determined compelled • State v. Peebles, 2010 WI App 156 -- refusal to answer questions at SO treatment mandated by rules • State v. Spaeth , 2012 WI 95 -- polygraph examination mandated by rules of SO supervision
People Facing Revocation Advised Under Old Form • The statement must be incriminating • A statement is an “‘incriminating response’” if “the prosecution may seek to introduce [the statement ] at trial,” regardless of “whether [it is] inculpatory or exculpatory.” Rhode Island v. Innis , 446 U.S. 291, 301 n.5 (1980) • Incriminating statements are “answers [to] a question that both [the probationer] and the government should reasonably expect to incriminate him.” Minnesota v. Murphy , 465 U.S. 420 (1984) • “[A] witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” • “[A] ny statement of the defendant that the prosecution might seek to admit would have the tendency to incriminate or inculpate the defendant,” is thus an incriminating statement. In re Commitment of Mark , 2006 WI 78, ¶ 30, 292 Wis. 2d 1, 718 N.W.2d 90
People Facing Revocation Advised Under Old Form • Investigate what the agent told the probationer immunity • Investigate what questions probationer may have asked about immunity • Elicit testimony regarding the same • Make objections to revocation based on Douglas • *Does probationer face criminal prosecution out-of-state?
People Facing Revocation Under new Form • THE FORM DOES NOT MEAN THE AGENT GOT IT RIGHT • “Of course, related communications from an agent to a probationer should be consistent with this language as well. ” Douglas v. Hayes , slip op., No. 2014AP2977, ¶ 16 n.4 (Wis. Ct. App. Oct. 7, 2015) • Investigate what the agent told the probationer immunity • Investigate what questions probationer may have asked about immunity • Elicit testimony regarding the same • Make objections to revocation based on Douglas
Sentencing After Revocation • Probationer’s protected statement cannot be used in criminal proceeding • This includes . . . • Attachment of the same to PSI materials • Submission of a revocation summary to the court that incorporates the probationer’s statement • Any evidence submitted not wholly independent of the probationer’s statement
Probationers Later Criminally Charged • Would be basis for motion to suppress evidence not wholly independent of probationer’s statement • Statements to agent cannot be used to impeach in a criminal trial • Same rules regarding sentencing apply as in sentencing after revo cases
Important Wisconsin Cases • State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 • Granting immunity for probationers’ protected statements to agents • State v. Peebles, 2010 WI App 15, 330 Wis. 2d 243, 792 N.W.2d 212 • Use of protected statement at sentencing violates 5 th Amendment • State v. Spaeth, 2012 WI 95, 343 Wis. 2d 220, 819 N.W.2d 769 • Evidence derived from protected statement also protected unless independent source
Resources • Prisoners’ Guide to Challenging Revocation by Certiorari, https://media.law.wisc.edu/s/c_27/zkzwz/revocation_manual_2011.pdf • Resource Book for Probation and Parole Revocation Hearings, http://www.doa.state.wi.us/documents/DHA/Digest01/Digest%202001.pdf • Wisconsin State Law Library, Probation & Parole Resources, http://wilawlibrary.gov/topics/justice/crimlaw/probation.php • Wis. Dept. Corrections – Electronic Case Reference Manual, http://doc.helpdocsonline.com/home
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