00-1635 State ex rel. Tate v. Schwarz

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Accordingly, revocation of defendant’s probation for refusing to admit to his crime of conviction under these circumstances violated his Fifth Amendment right against self-incrimination.

Further, we reject the Court of Appeals’ conclusion that defendant had waived any Fifth Amendment challenge by failing to appeal the circuit court’s denial of his motion to modify the conditions of his probation.

“The constitutional principles underlying our decision in [State v.] Evans[77 Wis.2d 225 (1977), as expanded by State v. Thompson, [142 Wis. 2d 821 (1987)] also apply to a probationer who invokes the Fifth Amendment privilege during court-ordered sex offender treatment in refusing to admit his crime of conviction, and we extend the Evans immunity rule to this situation. We also reaffirm the principle set forth in Thompson barring the use of any such compelled self-incriminating statements for impeachment or rebuttal. A probationer who is revoked for refusing, during court-ordered sex offender treatment, and before the time for a direct appeal has expired or an appeal has been denied, to admit to the crime of conviction has suffered a violation of his Fifth Amendment privilege. An immunity rule mirroring the one adopted in Evans, as modified by Thompson, allows the DOC to seek such admissions as a part of sex offender treatment without violating the probationer’s privilege against self-incrimination.

“The revocation of Tate’s probation must be and hereby is reversed, because it was premised on a legitimate assertion of the Fifth Amendment privilege against self-incrimination, and because Tate was not afforded immunity co-extensive with the privilege.”

Reversed and remanded.

Court of Appeals; Sykes, J.

Attorneys:

For Appellant: Jerome F. Buting, Pamela S. Moorshead, Brookfield

For Respondent: William C. Wolford, James E. Doyle, Madison