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Self-Incrimination — Defendant’s Right to Refuse to Testify at NGI Phase

State v. James G. Langenbach, 2001 WI App 222

For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate

Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.

Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal, ¶¶10-11. Nor does it matter that this is an NGI trial:
“¶13. Contrary to the State’s arguments, the United States Supreme Court has held that the availability of the Fifth Amendment privilege does not turn upon the type of proceeding in which the protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. Estelle, 451 U.S. at 462. To sustain the Fifth Amendment privilege, ‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ McConnohie, 121 Wis. 2d at 69 (citation omitted). ‘The privilege is not only intended to protect a defendant when his answers would lead to a conviction … but is intended to protect a defendant when the defendant “apprehends a danger from a direct answer.’” Marks, 194 Wis. 2d at 94 (citation omitted). The United States Supreme Court has recognized that a legitimate danger is that of incarceration or the impending threat of the deprivation of one’s liberty. Id. at 94-95. Here, there is a legitimate impending threat of the deprivation of Langenbach’s liberty, either through commitment to a mental hospital or imprisonment.”