Miranda Waivers Don’t Override Immunity for Probationer’s
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
July 19, 2012 – The Wisconsin Supreme Court recently clarified
that a probationer’s compelled, incriminating testimony cannot be
used to prosecute new crimes, even if the probationer waived his
Miranda rights before subsequent police interrogation.
Under Wisconsin law, sex offenders can be forced to take lie detector
tests while on probation or parole. At the direction of his probation
officer, sex offender Joseph Spaeth took a lie
detector test in 2006, admitting to improper contact with minors.
Believing he violated conditions of probation, the probation officer
contacted the Oshkosh police, which took Spaeth into custody on
a probation hold. Officers read Spaeth his
Miranda rights, including his right to remain silent, but
Spaeth agreed to speak with the officers.
Spaeth’s subsequent statements implicated him in sexual assaults
with minors. Police could not confirm any sexual assaults with the minor
children at issue or their parents. But prosecutors used Spaeth’s
testimony to charge him with four counts of sexual assault of a
Spaeth filed a motion to suppress his statements, which was denied.
Ultimately, Spaeth pled no contest and was convicted on four counts of
child enticement. He was sentenced to five years in prison and 10 years
of extended supervision.
Spaeth appealed, and the appeals court certified the case to the
Wisconsin Supreme Court “to clarify if a statement made to law
enforcement following a probationer’s honest accounting to an
agent may become a ‘wholly independent source’” that
can be used to prosecute a crime.
Compelled, Incriminating Statements Immune
Following Fifth Amendment jurisprudence on the issue, a Wisconsin
Supreme Court majority (6-1) in State
v. Spaeth, 2012 WI 95 (July 13, 2012), ruled that
Spaeth’s compelled, incriminating, testimonial statements could
not be used as evidence against him for criminal acts.
“Spaeth’s statement to officers is subject to derivative
use immunity and may not be used in any subsequent criminal
trial,” wrote Justice David Prosser for the majority, which
reversed the convictions because the statements should have been
The majority explained that the Fifth Amendment to the U.S.
Constitution – and Art. I, Section 8 of the Wisconsin Constitution
– protect individuals from self-incrimination. In general, a
person must first assert the Fifth Amendment privilege to be protected
Thus, police must give persons in custody notice of their
Miranda rights, and admissions that occur after
Miranda rights are waived are generally admissible. But an
exception applies when a person is compelled to testify, as Spaeth was
compelled through a lie detector test.
In Kastigar v. United States, 406 U.S. 441, the U.S. Supreme
Court acknowledged that the government can compel testimony but must
grant a corresponding right of immunity.
The Wisconsin Supreme Court explained that the Department of
Corrections has the authority to compel sex offenders to take lie
detector tests. But incriminating statements can only be used “for
purposes relating to correctional programming, care, and treatment of
“This limitation on use of the compelled statements is
constitutionally required,” wrote Justice Prosser, noting that
immunity must be extended to compelled statements under
Kastigar, as explained in State v. Evans, 77 Wis. 2d
225, 252 N.W.2d 664 (1977).
“We see this case as one involving compelled, incriminating,
testimonial evidence,” Justice Prosser wrote. “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
The majority rejected the state’s argument that Spaeth’s
statements to police were “sufficiently attenuated” from the
admissions to his probation agent, thus making them admissible.
“The attenuation doctrine – as normally understood to
include such factors as the passage of time between improper police
conduct and, say, a confession – is simply inapplicable when
police are following up compelled, incriminating, testimonial
statements,” Justice Prosser wrote.
The decision does not prevent law enforcement from investigating
“legitimate independent sources” not derived from a
compelled statement to pursue criminal prosecution, the majority
explained. Compelled statements can also be used to revoke probation or
parole, it noted.
Chief Justice Shirley Abrahamson concurred but wrote separately based
on a concern that Justice Patience Roggensack’s sole dissent
“makes some strong statements of law that appear to break from
precedent and does so without the benefit of briefs or
Justice Roggensack concluded that Spaeth’s statements were not
incriminating or compelled, although the state conceded that argument,
and his statements to police were voluntary.
“Spaeth made no record from which a court could conclude that his
statements to [the agent] were anything other than voluntary
statements,” she wrote. “Therefore, the confession to law
enforcement should not be analyzed as the fruit of incriminating,