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Self-Incrimination: Inapplicable to Reconfinement Hearing

State v. Travis Joe Brimer, Jr., 2010 WI App 57; for Brimer: Lora B. Cerone, SPD, Madison Appellate; Resp. Br.Reply Br.

“The right against self-incrimination only applies at criminal proceedings or “other proceeding … where the answers might incriminate [the defendant] in future criminal proceedings.” Allen v. Illinois, 478 U.S. 364, 368 (1986) (citations omitted),” ¶7. Because a reconfinement hearing isn’t part of the criminal process, and because Brimer’s challenged statement was given under a grant of immunity against prosecution, he can’t argue that the statement’s use in determining length of his reconfinement violated the 5th amendment.

¶12      In sum, we discern no indication Truth-in-Sentencing altered the substantive nature of the reconfinement decision. Rather, as before Truth-in-Sentencing, the reconfinement determination is part of the revocation process and therefore not a criminal proceeding. See Struzik, 77 Wis. 2d at 221.

¶13      Because a reconfinement hearing is not a criminal proceeding, it is unnecessary to examine whether Brimer’s statements were compelled and incriminating “[A] State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.” Murphy, 465 U.S. at 435 n.7. Here the State did just that. It required Brimer to truthfully account for his drug test failure as a condition of his extended supervision, and immunized him against using the statement in criminal proceedings. Therefore, there was no Fifth Amendment violation and Brimer’s attorney was not deficient for failing to object to using the statement at the reconfinement hearing.

As the court indicates, caselaw clearly established that revocation hearings were not part of the criminal process, therefore the right against compelled self-incrimination didn’t apply. The narrow question, then, is whether a reconfinement hearing is part of the criminal or the revocation case. But as the court acknowledges, ¶7 n. 2, 2009 Wis Act 28 abolished reconfinements: length of confinement is now determined administratively rather than judicially. The net result is that the holding likely will affect a very small number of cases.

Limited impact or no, the basic issue of applying the 5th outside the criminal process is recurrent. Brimer was given the standard warning that if he failed to cough up “truthful and accurate” information his ES would be revoked. So he admitted he’d sold cocaine while on ES, which was of course then revoked. ¶2. Heads you lose, tails you lose. Pretty clear, then, that his statement was compelled in a real-world sense. Not only did his admission help support revocation, it was also the largest factor in his reconfinement sentence, ¶3. However, it was (again, keeping with standard practice) given under grant of immunity, ¶6 n. 1—which means that in the 5th amendment sense, the statement was not “compelled.” No possibility of criminal prosecution, no self-incrimination analysis, unless, of course, it was used against Brimer during a criminal case. And that is exactly what the court says: it wasn’t used in a criminal proceeding. It nonetheless remains true that an involuntary statement indeed may be excluded from an administrative proceeding, Oddsen v. Board of FPC, 108 Wis.2d 143, 163, 321 N.W.2d 161 (1982) (“As a matter of law, the coerced, involuntary confessions here extracted may not, under the circumstances, be used for any purpose”; involuntary statements thus excluded from use in police disciplinary proceeding). To be sure, the tactics used to extract Oddsen’s statement were aggravated, but the fact remains that his was not a criminal case. Someday the court may bother to explain just where the line is drawn between “coerced, involuntary confessions” that may, and may not, be used in a non-criminal setting.