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Criminal Procedure — self-incrimination

By: WISCONSIN LAW JOURNAL STAFF//July 13, 2012//

Criminal Procedure — self-incrimination

By: WISCONSIN LAW JOURNAL STAFF//July 13, 2012//

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Wisconsin Supreme Court

Criminal

Criminal Procedure — self-incrimination

A statement made to law enforcement following a probationer’s honest accounting to an agent is not a ‘wholly independent source’ under Kastigar v. United States, 406 U.S. 441, 460 (1972).

“In the present case, Agent DeWitt’s own testimony revealed that Spaeth was required to take the polygraph examination or face a sanction, including possible revocation. This compulsion is authorized by statute and rule, demonstrated in the cases, and testified to by the DOC agent involved. All parties agree that this case involves compulsion. As a result, we have no difficulty determining that Spaeth was compelled, under the rules of his probation, to answer truthfully during the polygraph examination.”

“In short, it makes no difference on the facts of this case that Spaeth did not invoke the privilege against self-incrimination. We see this case as one involving compelled, incriminating, testimonial evidence, making it subject to the principles of Kastigar, Portash, and Evans. This case falls within one of the stated exceptions to the ‘invocation’ rule in Minnesota v. Murphy. As a result, Spaeth’s statement to police may not be used in any criminal proceeding because the statement was not derived from a source wholly independent from the compelled testimony. It was derived from compelled testimonial evidence.”

Reversed and Remanded.

2009AP2907-CR State v. Spaeth

Prosser, J.

Attorneys: For Appellant: Fite, Shelley, Madison; For Respondent: Wellman, Sally L., Madison; Gossett, Christian A., Oshkosh

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