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. See State v. Evans, 77 Wis. 2d 225, 231, 252 N.W.2d 664 (1977). Then, WIS. ADMIN. CODE § DOC 328.04(2)(w) requires probation agents to report any unlawful activities to their supervisor or other appropriate authorities. When combined with Kastigar, WIS. ADMIN. CODE § DOC 328.04(2)(w) sets up a system where compelled statements that are given derivative use immunity are used to initiate criminal investigations.
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.
Evans says the admissions to the p.o. aren’t admissible in the criminal case, because they’re involuntary as a matter of law (given that Spaeth was compelled to open up to the p.o., on pain of revocation). But are the admissions to the police admissible under some variant of the independent-source doctrine? As the court of appeals puts it: “Because Spaeth’s statements before speaking to police were compelled, his statement to police is only admissible if 1) there was a sufficient break from the compelled statements and 2) the statement to police was not ‘derived from’ the compelled statements under Kastigar.” And, the court strongly suggests, in the present context (derivative-use immunity), Kastigar all but compels suppression:
Kastigar explicitly states that once incriminating testimony is compelled, the prosecution’s burden of proof “is not limited to a negation of taint.” Kastigar, 406 U.S. at 460. Instead, a higher burden applies: the prosecution has an affirmative duty to prove that the evidence it proposes is “derived from a legitimate source wholly independent of the compelled testimony.” Id. Therefore, it is not sufficient to say that Spaeth’s confession was admissible because it was not compelled. It must also be found to come from a “wholly independent” source.
The court, however, posits “policy” objections to suppression, namely that Kastigar gets in the way of admissibility; if that sounds circular, that’s because it is: “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.” Translated: we don’t like the idea of following Kastigar, so we’re tossing the ball to you. As an aside, it is surprising, given how long Evans has been on the books, that this issue is only now surfacing. Could be that the criminal justice has functioned just fine without trying to exploit compelled statements to probation officers as in this case.