Douglas’s probation was improperly revoked based on his refusal to answer his probation agent’s inquiry about Douglas’s suspected involvement in various criminal activities while on probation because he was not sufficiently informed, prior to his refusal, that he had both use and derivative use immunity related to any information he would have provided the agent.
After Douglas was arrested on suspicion of committing various crimes, his probation agent asked him to provide a statement about the crimes. The agent read Douglas this language from the standard DOC form:
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. (Emphasis added.) (¶3).
The agent also told Douglas this meant “nothing he told her could be used against him in criminal court.” (¶¶4, 14). Douglas refused to answer the agent’s questions, and revocation proceedings were begun on multiple grounds, including his refusal to give his agent a statement. The ALJ rejected all the grounds except his failure to give a statement. (¶¶2-6). The court of appeals holds that revocation on that ground was invalid because the explanation of immunity was insufficient: It advised Douglas only about use immunity and failed to advise him about derivative use immunity.
Under the Fifth Amendment privilege against self-incrimination, a probationer cannot be required to answer questions unless he or she is offered immunity. (¶8). In State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977), which involved a situation similar to this case, the supreme court described the immunity afforded a probationer as both use and derivative use immunity, saying that “statements or the fruits of statements made by a probationer to his [or her] probation agent or in a probation revocation hearing in response to questions which, as here, are the result of pending charges or accusations of particular criminal activity, may not be used to incriminate the probationer in a subsequent criminal proceeding.” Id. at 227-28 (emphasis added; footnote omitted). The probationer in Evans hadn’t been advised about immunity at all, so it was improper to revoke him for invoking his privilege against self-incrimination. Id. at 228-30, 236.
The problem in this case is that the language on the DOC form and the agent’s additional comments about what the form meant only informed Douglas that he was afforded use immunity and did not inform him he was also afforded derivative use immunity:
¶15 …[T]here is a significant difference between having only use immunity and having both use and derivative use immunity … and we do not see how the language the agent read to Douglas and/or her additional commentary provided Douglas with “sufficient explanation” that he was afforded not only use immunity but also derivative use immunity. In the context in which they are used, the words “this information” on the DOC form would be understood by a reasonable probationer as referring to the particular information the probationer would be directly providing the agent, either in writing on the DOC form or verbally at the time of the interview. The full sentence “I have also been advised that none of this information can be used against me in criminal proceedings” would tell a probationer that none of the particular information he/she was providing the agent at that time could be used against the probationer in criminal court, but it would not clearly inform a probationer that other information derived from the information directly provided by the probationer also could not be used against him/her in criminal court. And the agent’s further explanation to Douglas that information he provided her could not be used in criminal court would only have further indicated to a probationer such as Douglas that he was protected against the use in criminal court of the particular information he would then provide, but would not have indicated that he was also protected from the use of that information for follow-up investigation, such as by law enforcement, to seek out other evidence which could be used against Douglas in court….
The court agrees with Douglas that the DOC form would sufficiently explain the type of immunity provided to the probationer if it said “I have also been advised that none of this information, or any evidence derived therefrom, can be used against me in criminal proceedings.” (¶16 n.4). Perhaps DOC will change the language on its statement form in response to this decision.
If the form doesn’t get changed, or if you’re handling a case with the language used in this case, an agent could inform a probationer about derivative-use immunity in some other communication, oral or written, and upon proof the agent provided that information refusal to answer the agent’s questions would be a valid ground for revocation. In terms of what information the agent must provide, the court says it is not requiring an agent to explain the details of derivative use immunity to a probationer before questioning, for the issue in this case is whether the agent explained derivative use immunity to Douglas at all. (¶13). The court does say, however, that “we do not suggest that the agent would need to explain to a probationer details such as the rule that with derivative use immunity the burden in any subsequent prosecution would be upon the government to affirmatively demonstrate that evidence it proposes to use ‘is derived from a legitimate source wholly independent of the compelled testimony.’ See Kastigar v. United States, 406 U.S. 441, 460 (1972).” (¶13 n.2).