IN RE the COMMITMENT OF Charles W. MARK: STATE Of Wisconsin, Petitioner-Respondent, v. Charles W. MARK, Respondent-Appellant-Petitioner.
No. 2003AP2068
Supreme Court
June 29, 2006
2006 WI 78 | 718 N.W.2d 90
Oral argument January 10, 2006.
BRADLEY, J., joins.
BUTLER, JR., J., concurs in part, dissents in part.
For the respondent-appellant-petitioner there were briefs and oral argument by Glenn L. Cushing, assistant state public defender.
For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
¶ 1. N. PATRICK CROOKS, J. Charles W. Mark (Mark) seeks review of a court of appeals’ opinion1 affirming in part and reversing in part a circuit court decision to admit four statements Mark had made to his
¶ 2. We affirm the decision of the court of appeals and remand this case for further proceedings. In doing so, we conclude that
I
¶ 3. The relevant facts are not in dispute. Mark was convicted in 1994 of three counts of sexually assaulting a child, and sentenced to eight years of confinement, followed by two 15-year terms of probation, to be served consecutively to the confinement, but concurrently to one another. Mark was released on parole in May 1999 but his parole was revoked in June 2000 and he was sent back to prison to serve the rest of his confinement. On June 28, 2002, just before his scheduled release, the State of Wisconsin (State) filed a petition alleging that Mark was a sexually violent person under
¶ 4. At trial, the State offered into evidence four statements made by Mark to his parole officer. The first two were handwritten, signed admissions by Mark that he had violated the terms of his parole. Each was written on a form, at the top of which provided:
PROBATIONER/PAROLEE/OFFENDER 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 criminal proceedings.
¶ 5. In his first statement, dated September 8, 1999, Mark described his contact with a woman he met at church. According to the report, Mark talked with this woman on her porch, and watched her fold her underclothes and breastfeed her baby. In the statement, Mark also admitted to telephoning the woman twice. This conduct violated the rules of Mark‘s supervision, which prohibited him from having a relationship with a woman without permission.
¶ 6. In Mark‘s second written report, dated April 28, 2000, Mark described an incident involving a woman living next door to him in his hotel. The report began “I screwed up big,” and described entering his neighbor‘s room without permission, and upon finding her in the bathroom, trying to forcibly gain entrance to that room for about five or ten minutes, while she yelled “get out of here” about three times. Mark‘s statement claimed that he only wanted to see his neighbor naked, and that he reported the incident because the woman threatened to call the police. Mark verbally reported the incident to his parole officer on April 25, 2000, after which an apprehension request was issued. Mark voluntarily turned himself into police that same day. Although his parole had not yet been revoked formally, Mark was in police custody at the time he made his written statement regarding the hotel incident. Mark‘s parole was subsequently revoked as a result of this incident.
¶ 7. In addition to his two written statements, two oral statements Mark made to his parole officer were also entered into evidence at his ch. 980 commit-
¶ 8. At Mark‘s ch. 980 hearing, the circuit court allowed into evidence the four statements Mark made to his parole officer.
¶ 9. At the time of his commitment hearing, Mark had begun to serve his concurrent 15-year terms of probation. At trial, Mark sought to introduce evidence regarding the conditions of his probation, including the rules of supervision to which he would be subjected. The circuit court denied Mark‘s request and, instead, granted the State‘s motion in limine asking the court to prohibit “any evidence, direct or indirect, concerning any probation or parole supervision, conditions of confinement, or other restrictions, which could be imposed on the respondent in the future, on the grounds that such evidence is irrelevant and inadmissible under
¶ 10. On appeal, Mark challenged the admission of the four statements, and the exclusion of the conditions of his probation supervision. The court of appeals determined that the statements concerning the woman on her porch and the sexual activity with his stepson were properly admitted into evidence at Mark‘s ch. 980
II
¶ 11. The State argued at the court of appeals that Mark waived the right to raise the issue of the admissibility of his statements, since he did not object at the circuit court to the admission of such statements. See State v. Mark, 2005 WI App 62, ¶ 13, 280 Wis. 2d 436, 701 N.W.2d 598. Although we generally decline to address issues raised for the first time on appeal, we have the authority to do so. See State v. Moran, 2005 WI 115, ¶ 31, 284 Wis. 2d 24, 700 N.W.2d 884. Because both the State and the defendant have asked us to clarify the issues raised on appeal, we will address them here.
A
¶ 12. Whether Mark‘s statements to his parole officer should have been excluded from his ch. 980
¶ 13. Mark reasons that
¶ 14. It is the State‘s position that the court of appeals correctly relied on Zanelli II in holding that Mark‘s statements must be both compelled and incriminating in order to gain the protections of the Fifth Amendment. While the State acknowledges that
¶ 15.
¶ 16. Among the rights granted a defendant in a criminal proceeding is the Fifth Amendment privilege against self-incrimination. The Fifth Amendment to the United States Constitution provides, in pertinent part, “[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . .”
It has long been held that this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also “privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”
Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (citing Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). It is also well-established in Fifth Amendment jurisprudence that “[t]he Fifth Amendment prohibits only compelled testimony that is incriminating.” Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177, 189 (2004)(citing Brown v. Walker, 161 U.S. 591, 598 (1896)). In other words, when a defendant seeks to exclude prior statements based upon his or her Fifth Amendment privilege, he or she must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. See id. Therefore, we reject Mark‘s argument
¶ 17. It is Mark‘s further contention that the statements at issue regarding the hotel bathroom incident are, on their face, compelled as he was in custody at the time they were made, and he was required to report truthfully to his parole officer, or face possible revocation. Therefore, Mark believes that remand to the circuit court for determination of whether there was compulsion is unnecessary.
¶ 18. Although the United States Supreme Court has recognized police custody as “[a] well-known exception to the general rule” that an individual must assert his Fifth Amendment “privilege rather than answer if he desires not to incriminate himself,” a defendant‘s custody status alone is not sufficient to determine whether the statements were, in fact, compelled. Murphy, 465 U.S. at 429.
¶ 19. We next consider the scope of the Fifth Amendment privilege in the context of
¶ 20. In Zanelli I, the court of appeals considered the right of the petitioner to exclude the testimony of a state psychologist to the effect that Zanelli had refused to participate in the psychologist‘s prepetition evaluation of him. Zanelli I, 212 Wis. 2d at 369. Noting that “‘[t]he Fifth Amendment protects a person from compelled self-incrimination at all times, not just upon arrest or during a custodial interrogation,‘” the court of appeals concluded that Zanelli‘s right to remain silent would be violated if the prosecution were allowed to comment on his prearrest silence unless he chose to testify. Id. at 371-72 (citing State v. Fencl, 109 Wis. 2d 224, 236, 325 N.W.2d 703 (1982)).
¶ 21. In Zanelli II, petitioner challenged the admissibility of statements he had made to his probation officers and to a police officer. Zanelli II, 223 Wis. 2d at 567. Zanelli argued that “his statements to probation officers were compelled by the threat of loss of liberty associated with both the presentence investigative process and probation supervision.” Because the court of appeals concluded that the statements at issue were not incriminating, in the sense that they could not be used to “incriminate him in a pending or subsequent criminal prosecution,” it deemed them not protected by the Fifth Amendment, and therefore properly admitted by the circuit court. Id. at 550, 568.
¶ 22. In Lombard I, this court considered “whether a person such as Lombard is entitled to receive Miranda warnings prior to being interviewed by a State evaluator in regard to whether a ch. 980 petition should be filed.” Lombard I, 273 Wis. 2d 538, ¶ 16.
¶ 23. In its analysis, the Lombard I court cited both Zanelli I and Zanelli II with approval. Lombard I noted that Zanelli I was correct in its conclusion that “a person subject to a pre-petition evaluation has the right to remain silent pursuant to
¶ 24. Examining Zanelli I in light of the United States Supreme Court‘s decision in Murphy, we now conclude that the language in Zanelli I sweeps too broadly in declaring that “[t]he Fifth Amendment protects a person from compelled self-incrimination at all times. . . .” Zanelli I, 212 Wis. 2d at 371 (citing Fencl, 109 Wis. 2d at 236). While we agree with the Zanelli I court that the Fifth Amendment guarantee against self-incrimination extends to prearrest silence and that
¶ 25. In Murphy, the United States Supreme Court considered whether the Fifth and Fourteenth
a witness protected by the privilege [against self-incrimination] may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. . . . Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution.
Id. at 426 (citing Lefkowitz, 414 U.S. at 78). The Court went on to note that:
the general obligation to appear and answer questions truthfully did not itself convert [] otherwise voluntary statements into compelled ones. In that respect, Murphy was in no better position than the ordinary witness at a trial or before a grand jury who is subpoenaed, sworn to tell the truth, and obligated to answer on the pain of contempt, unless he invokes the privilege and shows that he faces a realistic threat of self-incrimination. The answers of such a witness to questions put to him are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege.
Id. at 427. Therefore, the mere fact that an individual is required to appear and report truthfully to his or her probation (or parole) officer is insufficient to establish compulsion.
¶ 26. After examining the case law on what constitutes compulsion for purposes of the Fifth Amendment, the United States Supreme Court concluded that “[t]he answers of such a witness to questions put to him
¶ 27. Therefore, in a prepetition or prearrest situation, in order for an individual to effectively invoke his or her Fifth Amendment rights against self-incrimination, he or she must ordinarily assert the privilege.8 We hereby withdraw any language in Zanelli I that conflicts with the United States Supreme Court‘s decision in Murphy.
B
¶ 29. In Zanelli II, the court of appeals defined “incriminating” as such “statements [that] could in-
criminate [one] in a pending or subsequent criminal prosecution....” Zanelli II, 223 Wis. 2d at 568. Mark argues that the court of appeals’ reliance on the definition of incriminating in Zanelli II is inappropriate in light of a footnote in the United States Supreme Court decision in Rhode Island v. Innis, 446 U.S. 291 (1980), which suggests a different definition, although in regard to the term “incriminating response.”¶ 30. In Innis, the United States Supreme Court considered the meaning of “interrogation” under Miranda v. Arizona.11 Innis, 446 U.S. at 297. In a footnote, the Court articulated what it believed constituted an incriminating response by stating: “[b]y ‘incriminating response’ we refer to any response—whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial.” Id. at 302 n.5 (emphasis in original). The flaw in Mark‘s argument is that the Innis definition of “incriminating response” necessarily contemplates the use of statements by the prosecution in a criminal trial. In such circumstances, it is reasonable to infer that any statement of the defendant that the prosecution might seek to admit would have the tendency to incriminate or inculpate the defendant. The same cannot be said in a ch. 980 civil commitment trial, where the object of the proceeding is to determine the likelihood the defendant will commit a future act of sexual violence, not to convict him of a crime. Outside of the criminal context, the rationale behind the Innis definition loses its force. Therefore, for purposes of a ch. 980 trial, we conclude that the definition of incriminating adopted by the court of appeals in Zanelli II is the appropriate one.
¶ 32. Next, we turn to Mark‘s written statement concerning his interactions with the woman from his church. Although such contact was a violation of the rules of his parole, the conduct, in and of itself, was not criminal in nature. Therefore, as it could not subject Mark to a future criminal prosecution, but could merely be used against him in a parole revocation proceeding, we conclude that the statement was not incriminating. We agree with the court of appeals’ decision that the statement was properly admitted at Mark‘s ch. 980 trial.
¶ 33. Finally, we turn to the two statements—one written, one oral—concerning the hotel bathroom incident. In the written statement, Mark admitted to entering his neighbor‘s hotel room without permission, and upon finding her in the bathroom, trying to forcibly gain entrance to that room against her protestations. In the oral statement, Mark indicated that his motivation in the hotel bathroom incident was to have sex with his neighbor. Again, we agree with the court of appeals that the admissions could serve as the basis for one or more possible charges such as the charge of attempted sexual assault. As the statements, themselves, appear to be admissions upon which criminal charges could be
The concurrence of Justice Roggensack, which is based on this court‘s holding in Evans, 77 Wis. 2d 225, claims that the written statement was not incriminating, since the heading on the statement granted Mark limited use immunity. Justice Roggensack‘s concurrence, ¶ 45.
In Evans, we noted, however, that the limited use immunity discussed therein only applies where the statement is given “in response to questions by a probation or parole agent or at a probation or parole revocation hearing, which questions are prompted by pending charges or accusations of particular criminal activity....” Evans, 77 Wis. 2d at 235. Prior to the taking of testimony, upon remand, concerning the circumstances surrounding the giving of the written statement by Mark, it is impossible to determine whether the conditions required for a grant of limited use immunity ever existed.
Evans requires “timely objection in criminal proceedings,” permits the use of such statements for purposes of impeachment or rebuttal, at least where a defendant testifies to matters directly contrary to what is stated in the excluded statement, and discusses the possibility of a charge of perjury where such statement is inconsistent with a statement previously made. Id. It is premature, in this case, to assess the applicability of Tate, 257 Wis. 2d 40, Thompson, 142 Wis. 2d 821, or Evans, 77 Wis. 2d 225.
III
¶ 35. The second issue before this court is whether the circuit court properly exercised its discre
¶ 36. We have consistently held that statutory interpretation ” ‘begins with the language of the statute....‘” State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted). In construing a statute, we give the statutory language “its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id. (citations omitted).
¶ 37.
a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in acts of sexual violence.
¶ 38. Mark contends that the circuit court‘s exclusion of evidence concerning the conditions of his probation supervision constituted error, as the conditions (such as degree of supervision) are relevant in regard to his future dangerousness, which is an element in the statutory definition of a sexually violent person. See
¶ 39. There have been two recent court of appeals’ decisions addressing similar issues to those raised by Mark. In State v. Lombard (Lombard II), the court of appeals determined that the circuit court had not erred when, during a ch. 980 trial, it refused to answer the jury‘s question which asked whether Lombard would remain under supervision, even if the jury was to find he was not sexually violent. State v. Lombard (Lombard II), 2004 WI App 52, ¶ 6, 271 Wis. 2d 529, 678 N.W.2d 338. The circuit court‘s refusal was based upon its conclusion that such evidence was irrelevant to the jury‘s task, which was to determine whether Lombard was still a sexually violent person. In order to answer that question, the jury had to decide whether Lombard had a mental disorder that made it substantially probable that he would engage in future acts of sexual violence. Id., ¶ 16. Because it concluded that the question of Lombard‘s supervision in the absence of a ch. 980 commitment was irrelevant to the question before the jury, the court of appeals concluded that the circuit court properly exercised its discretion when the court refused to answer the jury‘s question. Id., ¶ 21.
¶ 40. Additionally, in State v. Thiel, the court of appeals determined that an independent examiner‘s recommendation that a ch. 980 committee be placed on
By the plain language of the statute, the question at the probable cause hearing is not whether the individual is substantially probable to engage in acts of sexual violence if placed on supervised release or even if discharged from commitment; the statute draws no such distinction. Rather, the question at the probable cause stage is simply whether it is substantially probable that the person will engage in acts of sexual violence without regard to any specific restrictions, supervision or time frame. It is a black-and-white determination—it is either substantially probable that the person will engage in acts of sexual violence or it is not.
¶ 41. The decision in Thiel lends support to our conclusion that the plain language of
IV
¶ 42. In conclusion, we affirm the decision of the court of appeals and remand this case for further proceedings. In doing so, we conclude that
By the court.—The decision of the court of appeals is affirmed, and the case is remanded to the circuit court for further proceedings in accord with this opinion.
¶ 43. PATIENCE DRAKE ROGGENSACK, J. (concurring). Charles W. Mark (Mark) made four statements that are examined in this appeal. The majority opinion remands two of the statements to the circuit court to determine whether they were compelled. Ma
¶ 44. The parole report form on which Mark reported his efforts to gain entry to a neighboring woman‘s bathroom contains the following pre-printed representation by the State: “I have been advised that... none of this information can be used against me in criminal proceedings.” The majority opinion does not give this statement proper effect. See majority op., ¶ 33 n.12. In my view, the State‘s representation is dispositive of whether Mark‘s written statement is incriminating within the meaning of the
¶ 45. The State may require a parolee to truthfully report his conduct as a condition of probation, but not without a grant of immunity that limits its use. State v. Evans, 77 Wis. 2d 225, 235, 252 N.W.2d 664 (1977). As we explained in Evans where testimony from a probationer was sought, “The state may, however, compel a person‘s testimony if he is protected by a grant of immunity that renders the compelled testimony inadmissible against the witness in a criminal prosecution.” Id. In my view, the representation by the State that Mark‘s statements on the parole report form will not be used in any subsequent criminal prosecution afforded Mark limited immunity as a condition to Mark‘s accurate reporting of his activities while on
Because the defendant here was not made aware that any statements he made could not be used against him in a subsequent criminal proceeding arising out of the same fact situation... this case must be returned to the Department for the purpose of conducting a revocation hearing if the Department so desires. At that time the defendant may be properly advised with respect to the limited use immunity herein declared.
Id. at 236. The State did what we suggested in Evans by the representation it made to Mark on the parole report form: it granted limited use immunity for his statement. In so doing, the State removed the possibility of Mark‘s statement being used in a subsequent criminal proceeding.
¶ 46. Additionally, in order for testimony to be incriminating under the terms of the
The
Fifth Amendment prohibits only compelled testimony that is incriminating... and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.
Id. (citations omitted). The statement Mark made to his parole agent cannot be incriminating because he was required to truthfully report his activities on the parole report form and the State represented to Mark that his
¶ 47. Therefore, while I agree with the majority opinion‘s conclusion that
¶ 48. If Mark‘s statement is to be excluded from his ch. 980 trial, according to the standard set out in Zanelli II and adopted by the majority opinion, the statement must be incriminating, as well as testimonial and compelled. Use of a statement in a ch. 980 trial does not make the statement incriminating, as the court of appeals explained:
The fact that such statements can be used in a ch. 980, Stats., case does not mean that the statements could incriminate him in a pending or subsequent criminal prosecution as ch. 980 is a civil commitment proceeding, not a criminal proceeding.
Zanelli II, 223 Wis. 2d at 568. Furthermore, the immunity granted to Mark on the parole report form prevents use of the statement in a criminal prosecution. Evans, 77 Wis. 2d at 235. Therefore, remanding Mark‘s written statement for further circuit court determination is inconsistent with the aforementioned conclusions of Zanelli II and the majority opinion‘s adoption of those criteria for the exclusion of evidence at a ch. 980
¶ 49. I am authorized to state that Justice ANN WALSH BRADLEY joins this concurrence.
¶ 50. LOUIS B. BUTLER, JR., J. (concurring in part, dissenting in part).
¶ 51. I respectfully disagree with the majority‘s analysis as well as its conclusion. I conclude that the majority first misapplies
¶ 52. I conclude that statements made to a parole agent would be admissible in a civil ch. 980 proceeding, and that a proper application of the
I
¶ 53. The Wisconsin Legislature has provided persons being tried to determine whether they are sexually violent with all constitutional rights available to a defendant in a criminal proceeding.
¶ 54. At issue in this case is how the
¶ 55. This court has recognized that ch. 980 proceedings are not criminal trials, but are civil proceedings that authorize the civil commitment of persons previously convicted of a sexually violent offense, who currently suffer from a mental disorder that predisposes them to commit such acts. State v. Post, 197 Wis. 2d 279, 294, 541 N.W.2d 115 (1995). The purpose of civil commitment “is to treat the individual‘s mental illness and protect him and society from his potential dangerousness.” Id. at 308 (quoting Jones v. United States, 463 U.S. 354, 368 (1983)). The court has specifically held that “ch. 980 was not enacted to punish convicted sex offenders but rather to protect public safety and treat sexually violent persons.” State v. Carpenter, 197 Wis. 2d 252, 274, 541 N.W.2d 105 (1995). Consequently, ch. 980 trials are not criminal cases, and as such, the
¶ 56. I would follow the lead of the Illinois Supreme Court and conclude that there is no privilege against self-incrimination in sexually-dangerous-person proceedings. See People v. Allen, 107 Ill. 2d 91, 103, 481 N.E.2d 690 (1985) (”Allen II“). There, the court noted that since treatment, not punishment, is the aim
¶ 57. The persuasive analysis of the Illinois court is certainly applicable here. Our sexually-dangerous-persons provisions, like those in Illinois, are also civil in nature. Our statute‘s purpose, as in Illinois, is to provide treatment and to protect the public from sexually-dangerous persons. While this case involves statements made to a parole agent as opposed to a psychiatrist, to allow a person to refuse to truthfully and accurately account to his or her agent the person‘s whereabouts and activities would similarly frustrate the purposes of the sexually-dangerous-person provisions by making it more difficult to determine if the person was sexually dangerous. It makes perfect sense to require a potential committee to communicate with probation and parole agents and psychiatrists as part of the process in determining whether the person is dangerous and in need of treatment. We should encourage procedures that lead to a proper determination of dangerousness, not frustrate them.
¶ 58. The Illinois court was mindful of the problems associated with allowing a person who might be sexually dangerous to refuse to answer questions which might incriminate him or her as a means of protecting
¶ 59. The United States Supreme Court subsequently affirmed the procedure approved by the Illinois Supreme Court. Allen I, 478 U.S. 364. The nation‘s high court noted that Illinois had expressly provided that proceedings under the act were civil in nature. Id. at 368. The Court determined that the state had disavowed any interest in punishment, provided for treatment of those it commits, and established a system under which committed persons could be released permanently or conditionally. Id. at 370. The Court indicated that in Illinois, the “proceedings under the Act are accompanied by procedural safeguards usually found in criminal trials[,]” including the right to counsel, the right to demand a jury trial, the right to confront and cross-examine witnesses, and a burden of proof upon the state beyond a reasonable doubt. Id. at 371. Yet, the court concluded that the proceedings under the Act were not “criminal” within the meaning of the
¶ 60. Moreover, the Court reasoned that the Illinois Supreme Court ruled that a person whom the state attempts to commit under the Act is protected from use
[t]his Court has never held that the Due Process Clause of its own force requires application of the privilege against self-incrimination in a noncriminal proceeding, where the privilege is protected against his compelled answers in any subsequent criminal case. We decline to do so today.
¶ 61. I agree with the approach taken by the Illinois Supreme Court in Allen II, and approved by the United States Supreme Court in Allen I. Our statute provides a person facing commitment with all constitutional rights available to a defendant in a criminal proceeding, no more and no less. There is no constitutional privilege against compulsory self-incrimination available to a defendant in a sexually-dangerous-person proceeding, as the proceeding is civil, not criminal, so long as any compelled statements are precluded from use in subsequent criminal proceedings. By excluding statements made in anticipation of a ch. 980 proceeding to a probation and parole agent in subsequent criminal actions against the person, the privilege against compulsory self-incrimination is protected.4 I would not, as an
alternative means of protecting the privilege in some potential future prosecution, allow a defendant to refuse to provide the very answers that would enable a court to determine whether he or she should be committed as a sexually-dangerous person. The State of Wisconsin has a substantial interest in treating the person‘s mental illness and protecting that person and society from his or her future dangerousness. Accordingly, I would admit all four statements in the ch. 980 proceeding against Mark, but bar their admission in subsequent criminal proceedings.
II
¶ 62. The majority defines “incriminating” as “statements [that] could incriminate [one] in a pending or subsequent criminal prosecution....” Majority op., ¶ 29 (citing Zanelli II, 223 Wis. 2d at 568). In doing so, the majority inadvertently mischaracterizes Zanelli II by taking the language out of context in providing the above definition when, in fact, the Zanelli II court was saying something else. The actual language taken from Zanelli II is as follows:
Zanelli never specifies the statements he is challenging and has not set forth any facts to establish that he was compelled to choose between giving answers that would incriminate him and risking revocation of his conditional liberty. A review of the record reveals that Coffey,
Miller, and Porter testified regarding the 1977 and 1991-92 matters for which Zanelli had already been convicted, so such statements could not subject Zanelli to future criminal prosecution. Further, any statements about Zanelli‘s background, including his employment and family, could not, by themselves, incriminate Zanelli in a subsequent criminal prosecution. The fact that such statements can be used in a ch. 980, Stats., case does not mean that the statements could incriminate him in a pending or subsequent criminal prosecution as ch. 980 is a civil commitment proceeding, not a criminal proceeding. See State v. Carpenter, 197 Wis. 2d 252, 270-72, 541 N.W.2d 105, 112-13 (1995).
Zanelli II, 223 Wis. 2d at 568 (emphasis added).
¶ 63. Zanelli II cited this court‘s decision in Carpenter when it stated that ch. 980 proceedings were civil, not criminal. Carpenter, in turn, cites to the analysis in Allen I in determining that the principal purposes of ch. 980 are the protection of the public and the treatment of convicted sex offenders who are at risk to offend, and not punishment. Carpenter, 197 Wis. 2d at 270-72. Accordingly, instead of creating a new definition for “incriminating,” the Zanelli II court was merely applying Allen I in determining why no privilege against compulsory self-incrimination applies to ch. 980 civil proceedings. A new definition for the word “incriminating” can be discerned only by adding words to what was written by the court and deleting a portion of the sentence, and that has the effect of altering the meaning. I instead view Zanelli II as being consistent with Part I of this concurring/dissenting opinion, and not creating a new definition for the term “incriminating.”
¶ 64. As the majority notes, “incriminating response” has already been defined by the United States Supreme Court. Majority op., ¶ 30. “By ‘incriminating
No distinction can be drawn between statements which are direct confessions and statements which amount to “admissions” of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely “exculpatory“. If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.
Miranda v. Arizona, 384 U.S. 436, 476-77 (1966).
¶ 65. I see no reason to deviate from the definition provided by our high court in Innis. That definition is perfectly consistent with the
III
¶ 66. I conclude that statements made to Mark‘s parole agent are admissible in his civil ch. 980 proceeding, and that a proper application of the
Notes
The general rule that the privilege must be claimed when self-incrimination is threatened has . . . been deemed inapplicable in cases where the assertion of the privilege is penalized so as to “foreclos[e] a free choice to remain silent, and . . . compe[l] . . . incriminating testimony.” Garner v. United States, 424 U.S., at 661. . . .
Murphy, 465 U.S. at 434-35 (footnote omitted).There is thus a substantial basis in our cases for concluding that if the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer‘s answers would be deemed compelled and inadmissible in a criminal prosecution.