State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate
¶28 In Kastigar, the … Court stated that, once a defendant demonstrates that he or she has testified under a grant of immunity for matters related to the prosecution, the government has the burden of showing “that [its] evidence is not tainted by establishing that [it] had an independent, legitimate source for the disputed evidence.” Id. at 460 (citations omitted). “This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Id.
¶30 Where the issue is whether a witness’s testimony was directly or indirectly derived from a defendant’s immunized statement, the inquiry is what the witness knew prior to the exposure to the immunized testimony and what information was gleaned from the exposure. See United States v. North , 920 F.2d 940, 944 (D.C. Cir 1990). The State might meet this burden, for example, by demonstrating through testimony that a witness exposed to the immunized testimony had set down his or her “story” before exposure. See id.
¶35 The State also relies on State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), to argue that, because expert opinions are admissible at trial even if they are based on inadmissible evidence, the experts’ use here of Mark’s compelled statements to form their opinions is not a use that occurs at trial and, therefore, is not within the scope of Wis. Stat. § 980.05(1m). …
¶36 We do not agree that Watson supports the State’s position. Watson does not support an argument that expert opinions are admissible even if they are based on a compelled statement that is inadmissible under the Fifth Amendment. The inadmissibility in Watson was based on the evidentiary rules excluding hearsay; that case does not purport to, and could not, limit the scope of protection a person has under the Fifth Amendment.
Issue/Holding2: The opinions of the State’s experts were based on actuarial instruments, which were themselves based on Mark’s compelled statements, and the opinions were therefore derivative of those statements and inadmissible, ¶¶43-44.