2009AP3111-CR State v. Peebles

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Evidence
Social worker privilege

Statements a probationer is compelled to make to a social worker as a condition of probation cannot be used against him at sentencing after revocation.

“Peebles’ situation falls under the second of the two categories of cases we described at the outset; i.e., rather than invoking the privilege, he provided statements and now seeks to exclude them in a subsequent criminal proceeding, arguing they were compelled. Both the circuit court and Peebles’ probation agent ordered Peebles to attend sex offender counseling. His supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling. Both of the supervision rules documents explicitly informed him he could be revoked for failure to comply with any conditions. Moreover, Peebles then gave his statements, at least in part, because he was required to take lie detector tests. Therefore, as Peebles’ trio of cases makes clear, his statements were compelled for purposes of the Fifth Amendment.”

“Because Peebles’ statements were then used against him at sentencing to increase his prison sentence, they were incriminating and should have been excluded. See Estelle, 451 U.S. at 462-63 (compelled statement to psychologist may not be used to determine punishment after conviction); see also State v. Brimer, 2010 WI App 57, 324 Wis. 2d 408, 781 N.W.2d 726 (admissions to parole officer may be used in a reconfinement hearing because, in contrast to a sentencing hearing, it is not a criminal proceeding); Scales v. State, 64 Wis. 2d 485, 496, 219 N.W.2d 286 (1974) (defendant may invoke the Fifth Amendment privilege at sentencing). The State argues Peebles’ admissions to the other sexual assaults were not incriminating because there was no realistic threat that he would be prosecuted for them. While this argument also ignores that the statute of limitations may not have run on those cases, the State is again off-track. Whether statements might be incriminating in a future criminal proceeding is an irrelevant inquiry in this, the second type of Fifth Amendment case we described earlier. Unlike the first type of case, here Peebles sought not to invoke his right to silence, but to exclude statements he already made; statements that were, in fact, incriminating in the criminal proceeding from which he sought their exclusion.”

Reversed and Remanded.

Recommended for publication in the official reports.

2009AP3111-CR State v. Peebles

Dist. III, Brown County, Zuidmulder, J., Hoover, J.

Attorneys: For Appellant: Hagopian, Suzanne L., Madison; For Respondent: Zakowski, John P., Green Bay; Remington, Christine A., Madison

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