Chapter 980 Case Analysis

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Although the court remanded this case to the circuit court for factfinding to determine whether Mark’s statements were "compelled," it is unclear what, if any, relevant facts it expects to be developed on the record, that were not already available to the court of appeals.

The facts are as follows: Mark was on parole; the rules of parole require him to be truthful about his activities, or he can be revoked; he (presumably) committed a crime; he turned himself in and admitted his conduct; and while he was not given Miranda warnings, the statement forms provide, "I have been advised that I must account in a truthful and accurate manner for my whereabouts and activities and that failure to do so is a violation for which I could be revoked. I have also been advised that none of this information can be used against me in a criminal proceedings."

There are very few other relevant facts to determine. Perhaps Mark can be asked, "why did you turn yourself in and confess?" However, we can already assume, with 99 percent certainty, that the answer is to cut his losses.

Mark could also be questioned whether the qualified immunity clause was explained to him. His agent may have told him, for example, that the clause means his statements can be used "only" in a parole revocation hearing. If this were the case, it would bolster Mark’s argument. Barring this narrow circumstance, however, it is difficult to imagine what relevant facts will be found at the hearing.

Mark argued that the compulsion is established, as a matter of law, by virtue of his status on parole, and that hiding information from his agent is grounds for revocation of that parole. It is a strong argument, given that, if this were a criminal case, this alone be sufficient to bar admission of the statements.

Either a ch. 980 proceeding is sufficiently quasi-criminal that the same rule applies, or it is not. Lengthy hearings, held on a case-by-case basis, are not likely to produce facts that provide a sound basis for holding that some statements are admissible and others not.

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Likewise, the State argued that the statements cannot be considered compelled, as a matter of law, because Mark voluntarily turned himself into police. If individual facts are relevant, and the statement is not compulsory as a matter of law, simply because of the rules of parole, again, there are no more relevant facts to determine; this statement is as voluntary, as voluntary gets.

The court of appeals invited the Supreme Court to review its decision in this case, and such review would be beneficial. The court wrote, "We cannot readily articulate a rationale for excluding statement in a ch. 980 trial because it would be incriminating in a future, hypothetical criminal proceeding."

However, there is a very obvious reason why such statements should be excluded. The form on which mark gave his statement provides, "… none of this information can be used against me in a criminal proceeding." Even if a ch. 980 proceeding is not a "criminal" proceeding, it is close enough that it is misleading to give such qualified immunity, and then use the statements in such a proceeding.

Even if one disagrees that this is sufficiently misleading to warrant exclusion of relevant evidence, it certainly qualifies as a readily articulable rationale for the rule. A holding from the Supreme Court, either adopting or rejecting this rationale, will obviate unnecessary evidentiary hearings such as the one for which this case was remanded.

– David Ziemer

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David Ziemer can be reached by email.