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Right to Silence During Pendency of Direct Appeal

State ex rel. Gary Tate v. Schwarz, 2002 WI 127, reversing 2001 WI App 131
For Tate: Jerome F. Buting, Pamela S. Moorshead, Buting & Williams

Issue/Holding: The Evans-Thompson rule — “the state may compel a probationer to answer self-incriminating questions from his probation or parole agent, or suffer the consequence of revocation for refusing to do so, only ‘if he is protected by a grant of immunity that renders the compelled testimony inadmissible against the [probationer] in a criminal prosecution'” — applies during the pendency of a direct appeal, or the time during which a direct appeal could be taken. ¶¶20-22.(Meaning, of course, that there is an absolute right not to discuss the crime of conviction during this period of time, absent grant of immunity. However, the court holds open whether the same safeguards apply “regarding uncharged conduct” or “where the probationer pleaded guilty or no contest.” ¶22 n. 10.)

See State v. Evans, 77 Wis. 2d 225, 235, 252 N.W.2d 664 (1977), and State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987). For a like result, see State v. Kaquatosh, 600 N.W.2d 153 (Minn. App. 1999).) For a different result, where the problem arises outside the time for direct appeal, see State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995).

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