Self-Incrimination Case Analysis

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The decision leaves open a number of questions for future cases, concerning both the Fifth Amendment and waiver issues.

In a footnote, the court stated, "The parties and the amicus disagree about whether immunity should extend to admissions made during treatment regarding uncharged conduct, and whether immunity should be required where the probationer pleaded guilty or no contest. We note these issues but do not decide them, as they are not implicated by the facts of this case."

Logically, there is no reason why the fact that the defendant pleaded guilty should make a difference. Presumably, on appeal, the defendant is either challenging the validity of that guilty plea, or challenging the denial of a suppression motion.

The effect of prevailing on either ground would be that the defendant would face a realistic threat of incrimination in a criminal trial, just as in this case. Compelled admissions regarding uncharged conduct are likely be a violation of the Fifth Amendment, as well.

A question also exists on the waiver issue is whether this decision is limited to constitutional challenges. The court stated that it would not require that a defendant first seek relief from the conditions of his probation in the circuit and appellate courts before his "constitutional challenge" would be entertained in a revocation proceeding.

This statement suggests that a defendant must make challenges based on statutory grounds, such as unreasonableness, to the sentencing court.

Furthermore, the court’s reasoning on the waiver issue would not apply in all instances. Here, Tate began challenging the conditions very early, as soon as he was terminated from sex offender treatment.

Tate was sentenced on Feb. 3, 1999, filed his motion with that court to modify the conditions of probation on April 19, 1999, and revocation proceedings commenced on May 4, 1999.

The court found it would be a "strange procedural anomaly" to require Tate to simultaneously make the same argument in two courts or have the argument waived in the revocation proceeding.

Suppose the defendant has been on probation for many years, however, and only raises a challenge to some condition after revocation has been instituted as a result of the condition’s breach.

In such a case, there would be no "strange procedural anomaly" in holding that the objection has been waived. If the defendant had an opportunity to appeal the condition for years, but only did so after he violated it, a court’s refusal to consider a collateral attack on the condition doesn’t seem so strange.

Just as interesting as the legal questions left open, are the future mechanics of making collateral attacks on conditions of probation in revocation proceedings.

Not to disparage probation agents, but they are simply not trained or qualified to argue against such attacks at a revocation hearing or administrative review. Nor is a revocation hearing designed for such challenges.

	Links Wisconsin Supreme Court Related Article Probationer can refuse to participate in treatment

In the absence of adversarial attorneys qualified to argue such challenges, an administrative law judge would be placed in a difficult position by a probationer’s challenge. It is not until a revocation proceeding reaches certiorari before the circuit court that there exists a meaningful adversarial forum for arguing the legality of a condition of probation.

As the court found, and the State agreed, there existed no legal authority to support the court of appeals’ conclusion that a probationer cannot make a collateral attack on the conditions of probation in a revocation proceeding. Nevertheless, it is and always has been standard operating procedure for many ALJs to refuse to hear such challenges.

Furthermore, attorneys appointed to represent probationers are
frequently given barely enough time between appointment and the hearing date to prepare a challenge to the facts alleged, much less the legality of the probation conditions.

All things considered, attorneys should not be surprised if ALJs give rather short shrift to such challenges. Effectively, until a case reaches the circuit court, objections are likely to be merely made and preserved.

– David Ziemer

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David Ziemer can be reached by email.