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  • WisBar News
    October 12, 2015

    Appeals Court Says Probation Improperly Revoked Under Fifth Amendment

    Joe Forward

    Oct. 12, 2015 – Rockie Douglas was arrested and jailed while on probation, but refused to tell his probation agent about his “whereabouts and activities” relating to the arrest. Recently, a state appeals court ruled that Douglas’s probation was improperly revoked.

    The probation agent initiated revocation proceedings after Douglas refused to issue a statement, noting that Douglas signed an agreement with the Wisconsin Department of Corrections (DOC) called “rules of community supervision.” The agreement stated that Douglas would provide information to the agent as a condition of his probation.

    An administrative law judge ordered the probation revoked, noting that Douglas signed the community supervision agreement and the agent had properly informed him that any statement could not be used against him in subsequent criminal proceedings.

    An administrator for the Wisconsin Division of Hearings and Appeals affirmed that decision, as did the Kenosha County Circuit Court. But a state appeals court reversed.

    In Douglas v. Hayes, 2014AP2977 (Oct. 7, 2015), a three-judge panel for the District II Wisconsin Court of Appeals ruled that Douglas was protected by the Fifth Amendment privilege against self-incrimination when his probation agent questioned him.

    The panel noted that the probationers are protected by the Fifth Amendment to the U.S. Constitution unless they have immunity from prosecution based on their statements.

    Under State v. Evans, 77 Wis. 2d 225, 252 N.W.2d, 664 (1977), the panel noted, probation agents must sufficiently explain the type of immunity that applies.

    That is, an agent must explain that probationers have both “use immunity” and “derivative use immunity.” Use immunity prohibits direct statements to be used against a probationer in criminal proceedings. Derivative use immunity prohibits the use of “evidence subsequently discovered by authorities through direct or indirect utilization of the provided information” in criminal proceedings against the probationer.

    “Douglas argues that the standard language on the DOC form used in this case, and the additional comments the agent testified that she stated to Douglas, only informed Douglas that he was afforded ‘use immunity’ and did not inform him he was also afforded ‘derivative use immunity,’” wrote Judge Mark Gundrum. “We agree.”

    The panel explained that a “reasonable probationer” would not understand that his or statements had both use and derivative use immunity, based on the language in the “rules of community supervision” and the explanation that the agent provided.

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