Joseph J. Spaeth,
DEC 29, 2010
A. John Voelker
Acting Clerk of Supreme Court
Before Brown, C.J., Anderson and Reilly, JJ.
Pursuant to Wis. Stat. Rule 809.61 this court certifies the appeal in this case to the Wisconsin Supreme Court for its review and determination.
In Kastigar v. United States, 406 U.S.
441, 453, 460 (1972), the United States Supreme Court held that the government
may compel incriminating testimony so long as it comes with a grant of use and derivative
use immunity—that is to say, in any subsequent criminal proceeding, the
prosecution has the burden to prove affirmatively that evidence proposed to be
used is derived from a “legitimate source wholly independent of compelled
testimony.” As a standard rule of
probation, probationers are required to be honest about their activities and
whereabouts with their probation agents.
In the case at bar, Joseph Spaeth made incriminating statements to his probation agent after a polygraph examination. The agent informed police of a possible criminal offense. The police met with Spaeth. After receiving his Miranda warnings and being told by his agent that he did not have to talk to police, he repeated his incriminating statements to the police in an interview. We certify to invite the 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” under Kastigar and, if so, under what parameters.
The facts relevant to the issue we here certify are simple. Joseph Spaeth, a convicted sex offender, was on extended supervision with the standard condition that he must comply with polygraph examinationss as requested by his probation agent. Failure to comply with testing would have been grounds to revoke his extended supervision. On February 15, 2006, Spaeth’s probation agent ordered a routine test. After the test, while the agent and examiner were discussing the results, Spaeth disclosed to his agent that he had been “horse-playing” with his nieces and nephews, who were children. His statements indicated a clear violation of his rules of extended supervision, so his agent called the police to take him into custody for a probation hold. After the police were called, Spaeth admitted to his agent that he had been tickling his nieces and nephews and may have brushed their genital and chest areas.
The police came to where Spaeth had been meeting with his agent, handcuffed Spaeth, and put him in the back of a squad car. While Spaeth was present, his agent told the police about Spaeth’s statements to her. Spaeth was then transported to the station, where he was given his Miranda warnings. Spaeth told the police essentially the same thing he had told his agent. The police helped him write a statement summarizing his conduct, which he signed. He said that he had been playing with his siblings’ children when he began “tickling” them. He stated that while playing, he had brushed up against their “vaginas, chest, and buttocks” areas and that he had touched them for less than thirty seconds. He also stated that he knew he “ha[d] a problem” and that his actions were “wrong.” Spaeth’s written and oral statements to police constituted the entire basis for the criminal complaint against him.
Spaeth was charged with four counts of sexual assault of a child as a persistent repeater. After a failed motion to suppress his statement, he eventually pled no contest to a lesser charge. He appeals.
Spaeth seeks to suppress his statement to police based on
two distinct lines of Fifth Amendment case law.
First, he alleges that the statement was a mere extension of his
compelled statements to his probation agent, and therefore must be suppressed because
it too was compelled. In support of that
argument, he cites to State v. Mark, 2008 WI App 44, ¶20,
308 Wis. 2d 191, 747 N.W.2d 727 (hereinafter Mark), which explains
that a statement made after a compelled statement is only admissible if a
sufficient break has occurred such that the second statement is no longer
compelled. Second, he argues that his
statement to police was derived from the compelled statements he made to his
probation agent under a grant of derivative use immunity and was therefore
inadmissible under Kastigar. See Kastigar,
In Mark, the court of appeals
addressed statements made to a parole agent and evidence derived therefrom. Mark, 308
The court of appeals also held that the second (oral)
statement was compelled because there was not a sufficient break between the
[the second statement] was to the same agent, [and] he was still in jail under the agent’s authority…. The circumstances of his restraint had not changed and there [was] no basis for inferring that he did not think he was any longer obligated to give a true and accurate account in order to avoid a revocation on that ground.
The Mark court did address Kastigar’s
effect on expert testimony where the experts had considered information that
was only available in Mark’s two compelled statements. Mark, 308
Both parties agree that Spaeth’s statements during the polygraph
and his statements to his probation agent were compelled and therefore made
under a grant of derivative use immunity. See Kastigar,
In Mark, we listed three factors
that are relevant in deciding whether a sufficient break has occurred: a change in place of the interrogation, the
time that passes between the statements, and a change in the identity of the
interrogators. Mark, 308
As stated above, under Wis. Admin. Code § DOC 328.04(2)(w), Spaeth’s probation agent was required to “[r]eport all violations of the criminal law by clients to a supervisor or appropriate law enforcement authority.” Thus, once Spaeth was compelled to give his incriminating statements to the polygraph examiner and to his agent, his agent had a legal obligation to report those statements to the police. Here, the State did not seek to use Spaeth’s statement to his probation agent, presumably because it would have been excluded by Kastigar and Evans. It did, however, seek to use the statement that Spaeth made to police officers a short time later after he was taken to the station.
Kastigar explicitly states that once
incriminating testimony is compelled, the prosecution’s burden of proof “is not
limited to a negation of taint.” Kastigar,
In its brief, the State makes a compelling policy argument: that if Spaeth’s statement to police is considered derived from the immunized testimony, it would “place the State’s probation system at odds with itself” because of the cooperation that is necessary between probation agents and law enforcement. It argues that a rule making statements like Spaeth’s inadmissible would cause law enforcement to avoid communication between probation agents and police so as to avoid tainting the investigation. The State’s concern, which we share, appears to be that a holding that excludes statements like Spaeth’s may have the effect of rendering Wis. Admin. Code § DOC 328.04(2)(w) and other provisions encouraging cooperation between agents and police useless.
Spaeth’s answer to the State’s argument is simple:
regardless of the effect it may have on the operations of the extended
supervision system, defendants have the constitutional right to derivative use
immunity for compelled statements to probation agents. See Kastigar, 406
It seems to us that if we agree with the trial court that
Spaeth’s statement to police was not compelled, then we are saying that the statement (not necessarily the source) was independent. See Mark, 308
It also seems to us that if Spaeth had initiated his statement to police—by going to the station of his own volition the next day, for example—the statement would satisfy the Kastigar “wholly independent source” standard without question. Likewise, if the police had interviewed Spaeth for an unrelated reason (without knowledge of his statements to his agent), and Spaeth had volunteered the information to them, use of the statement would not be problematic under Kastigar. But when the questions prompting the “independent” statement were instigated by the first statement, it would seem to go against the spirit of Kastigar to say that the second statement was not “derived from” the first.
We are mindful, however, of the State’s policy argument as to the effect of a rule suppressing statements like Spaeth’s. Indeed, the combination of Kastigar and Wis. Admin. Code § DOC 328.04(2)(w) lead us to believe that this is a fact pattern that will continue to occur with frequency. This case is a prime example of why this area of law is in need of clarification: it is clear that everyone from the lie detector examiner to the probation agent to the police officers followed protocol to ensure Spaeth’s statement to police would be admissible. Yet we are left to unravel this issue on appeal nearly five years after the investigation was initiated. Because of the tension between Kastigar and the needs and policies of the DOC (as illustrated in Wis. Admin. Code § DOC 328.04(2)(w)), we believe this case is most appropriately decided by the state supreme court.
 Spaeth was originally convicted in a trial by jury, but that verdict was overturned after it was discovered that one of the jurors recognized Spaeth’s address as the address of a registered sex offender and shared that information with the jury. Trial testimony consisted of two officers who spoke with Spaeth on February 15, and two parents of the children involved. Both parents testified that they were present when the “tickling” occurred and did not see anything that they concerned them.
v. Mark, 2006 WI 78, ¶2, 292
 Spaeth also argues that suppression of statements like his would not be overly burdensome to the probation system in part because a probation agent may still compel the incriminating statements and use them to revoke probation. She also points out that a probation agent may also share the information with officers, but the officers should then “wall off the statements from their investigation.”
Spaeth is not alone in seeing creative ways to get
around the burden Kastigar imposes on investigations of crimes admitted to in
probation revocation hearings. In her
concurrence to State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977), Justice
Abrahamson noted that giving derivative use immunity could hamper
investigations and pointed out that one way to deal with that might be to delay
probation proceedings until after criminal prosecution.