Miranda Waivers Don’t Override Immunity for Probationer’s Compelled Testimony

By Joe Forward, Legal Writer, State Bar of Wisconsin

July 19, 2012 – The Wisconsin Supreme Court recently clarified that a probationer’s compelled, incriminating testimony cannot be used to prosecute new crimes, even if the probationer waived his Miranda rights before subsequent police interrogation.

Under Wisconsin law, sex offenders can be forced to take lie detector tests while on probation or parole. At the direction of his probation officer, sex offender Joseph Spaeth took a lie detector test in 2006, admitting to improper contact with minors.

Believing he violated conditions of probation, the probation officer contacted the Oshkosh police, which took Spaeth into custody on a probation hold. Officers read Spaeth his Miranda rights, including his right to remain silent, but Spaeth agreed to speak with the officers.

Spaeth’s subsequent statements implicated him in sexual assaults with minors. Police could not confirm any sexual assaults with the minor children at issue or their parents. But prosecutors used Spaeth’s testimony to charge him with four counts of sexual assault of a child.

Spaeth filed a motion to suppress his statements, which was denied.

Ultimately, Spaeth pled no contest and was convicted on four counts of child enticement. He was sentenced to five years in prison and 10 years of extended supervision.

Spaeth appealed, and the appeals court certified the case to the Wisconsin Supreme Court “to clarify if a statement made to law enforcement following a probationer’s honest accounting to an agent may become a ‘wholly independent source’” that can be used to prosecute a crime.

Compelled, Incriminating Statements Immune

Following Fifth Amendment jurisprudence on the issue, a Wisconsin Supreme Court majority (6-1) in State v. Spaeth, 2012 WI 95 (July 13, 2012), ruled that Spaeth’s compelled, incriminating, testimonial statements could not be used as evidence against him for criminal acts.

“Spaeth’s statement to officers is subject to derivative use immunity and may not be used in any subsequent criminal trial,” wrote Justice David Prosser for the majority, which reversed the convictions because the statements should have been suppressed.

The majority explained that the Fifth Amendment to the U.S. Constitution – and Art. I, Section 8 of the Wisconsin Constitution – protect individuals from self-incrimination. In general, a person must first assert the Fifth Amendment privilege to be protected by it.

Thus, police must give persons in custody notice of their Miranda rights, and admissions that occur after Miranda rights are waived are generally admissible. But an exception applies when a person is compelled to testify, as Spaeth was compelled through a lie detector test.

In Kastigar v. United States, 406 U.S. 441, the U.S. Supreme Court acknowledged that the government can compel testimony but must grant a corresponding right of immunity.

The Wisconsin Supreme Court explained that the Department of Corrections has the authority to compel sex offenders to take lie detector tests. But incriminating statements can only be used “for purposes relating to correctional programming, care, and treatment of the offender.”

“This limitation on use of the compelled statements is constitutionally required,” wrote Justice Prosser, noting that immunity must be extended to compelled statements under Kastigar, as explained in State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977).

“We see this case as one involving compelled, incriminating, testimonial evidence,” Justice Prosser wrote. “As a result, Spaeth’s statement to police may not be used in any criminal proceeding because the statement was not derived from a source wholly independent from the compelled testimony. It was derived from compelled testimonial evidence.”

The majority rejected the state’s argument that Spaeth’s statements to police were “sufficiently attenuated” from the admissions to his probation agent, thus making them admissible.

“The attenuation doctrine – as normally understood to include such factors as the passage of time between improper police conduct and, say, a confession – is simply inapplicable when police are following up compelled, incriminating, testimonial statements,” Justice Prosser wrote.

The decision does not prevent law enforcement from investigating “legitimate independent sources” not derived from a compelled statement to pursue criminal prosecution, the majority explained. Compelled statements can also be used to revoke probation or parole, it noted.

Chief Justice Shirley Abrahamson concurred but wrote separately based on a concern that Justice Patience Roggensack’s sole dissent “makes some strong statements of law that appear to break from precedent and does so without the benefit of briefs or argument.”

Justice Roggensack concluded that Spaeth’s statements were not incriminating or compelled, although the state conceded that argument, and his statements to police were voluntary.

“Spaeth made no record from which a court could conclude that his statements to [the agent] were anything other than voluntary statements,” she wrote. “Therefore, the confession to law enforcement should not be analyzed as the fruit of incriminating, compelled testimony.”