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Criminal Procedure — compelled testimony — immunity

Wisconsin Court of Appeals


Criminal Procedure — compelled testimony — immunity

The right to exclude immunized testimony or evidence derived from that testimony is not a right that only the defendant, personally, may waive.

“While a personal colloquy must be made if the defense announces that the defendant will not take the stand in his or her own defense, State v. Weed, 2003 WI 85, ¶40, 263 Wis. 2d 434, 666 N.W.2d 485, no such personal colloquy is mandated when a defendant wants to take the stand, State v. Denson, 2011 WI 70, ¶63, 335 Wis. 2d 681, 799 N.W.2d 831. The decision to allow the use of compelled testimony is the same thing as a decision to take the stand because, after all, it is the defendant’s testimony. So, requiring a personal colloquy before a defendant decides to waive immunity would make little sense under these precedents. A grant of use and derivative use immunity is designed to provide protection ‘coextensive’ with the privilege against self-incrimination, not broader protection. See State v. Spaeth, 2012 WI 95, ¶36, 343 Wis. 2d 220, 819 N.W.2d 769 (discussing Kastigar v. United States, 406 U.S. 441 (1972)).”


Recommended for publication in the official reports.

2012AP663-CR State v. Libecki

Dist. II, Washington County, Gonring, J., Brown, J.

Attorneys: For Appellant: Backes, Michael J., Shorewood; For Respondent: Kassel, Jeffrey J., Madison; Bensen, Mark, West Bend

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