On Probation: The Dangers of Assuming a “General Rule” [UPDATED below]

In criminal law, we typically start with a general constitutional rule that was designed to protect individuals from the coercive power of the government.  But then, judges decide that the rule is giving too much protection at the government’s expense, and they spend years chipping away at it in court decisions.  They create multiple bizarre, hyper-technical exceptions to the rule, based on factual distinctions without a meaningful difference, until the original rule becomes unrecognizable.  The best and most extreme example of this phenomenon—an example that has unfolded over several decades—is what the courts have done to our Fifth Amendment rights, including our right to remain silent and our right to an attorney before and during police interrogation (see pp. 915-28 of this article).  But it doesn’t end with police interrogations.  Thanks to a new Wisconsin case, it appears that the Fifth Amendment is on the ropes in the probationary context as well.

When Wisconsin probationers talk to their probation agents, I suspect that most criminal defense lawyers assumed the “general rule” is this: (1) the failure to give a statement to your agent is grounds to revoke your probation and send you to jail; (2) because you could go to jail for not giving the statement, the statement is considered compelled; and (3) because the statement is compelled, it cannot be used against you as the basis for a new criminal proceeding.

I was always cautious about making this assumption.  After more than a decade of criminal defense work, I’ve learned that so-called “general rules” often have numerous, subtle, and illogical exceptions.  Therefore, I’ve always been extremely cautious in giving any advice to probationers.  And now, it appears that State v. Sahs proves my fear.  In Sahs, the defendant was on probation and gave a statement to his agent.  The government then used this statement as the basis for a brand new criminal case.  Sahs was convicted and appealed, arguing that his statement to his probation agent was compelled—i.e., if he did not give it, he could be revoked and sent to jail—and was therefore inadmissible.  Sahs lost his five-year long appeal. 

It would be easy for criminal defense lawyers to dismiss the Sahs case because the court held that Mr. Sahs simply failed to meet his burden of proof.  That is, the trial court record was so bare that it didn’t even include the actual, written rules of probation, let alone actual testimony from Sahs.  But I think such a reading of this case would be a mistake.  Instead, a closer reading illuminates several issues that will likely be litigated in the future.  That is, when a probationer speaks to his agent, and that statement is then used in the prosecution of a brand new criminal case, we’ll be endlessly arguing and appealing these issues:

1. Did the rules of probation really require that the probationer make a statement to his agent?  Or did they merely state that, if he chooses to make a statement, false statements are prohibited?  This distinction could be critical.  If the rules only prohibited false statements, but “said nothing about his freedom to decline to answer particular questions,” then the court might decide that the statement was not compelled, and therefore can be used in a subsequent criminal prosecution. (Sahs, ¶ 57.)
2. Beyond requiring that a defendant make a statement (or, refrain from making false statements), did the rules “either expressly or by implication” contain any warning that “his invocation of his privilege against self-incrimination would lead to the revocation of his probation”?   If not, the privilege might not be self-executing, and the probationer's failure to affirmatively invoke it could be deemed a waiver. (Sahs, ¶ 58.)
3. What if the privilege is not self-executing, but the probationer does affirmatively invoke it when questioned?  Wouldn’t the overworked probation agent (who is not a lawyer) simply be dumfounded and/or frustrated, and revoke him for failing to give a statement?  (Answer: yes, of course.)  What would be the probationer’s remedy then?  At his revocation hearing, how receptive would the ALJ be to the argument that the probationer shouldn’t be revoked because the agent should have first offered him immunity before initiating revocation proceedings? (Answer: not at all receptive.)
4. Suppose that a probationer’s rules are, in fact, clear: he must answer all questions, must answer them truthfully, and the failure to do both of these things will result in the revocation of his probation.  Further suppose that the rules also state that his statements cannot be used against him in subsequent criminal proceedings.  Would that be enough to show coercion and to render the statements inadmissible in future cases?  Or must the defendant put on additional evidence to demonstrate “when he was first advised” of all of this, “whether he saw the form before he gave the oral statements,” and whether he understood and believed it? (Sahs, ¶ 28.)
5. Does it matter whether the probation agent initiated the interrogation of the probationer, or whether the probationer “volunteered that he had violated the rules of probation”?  Does the answer to this question depend on the precise wording of other rules, e.g., a rule that would require the probationer to account for his whereabouts and activities to his agent, as opposed to a rule that merely requires the probationer to truthfully answer questions posed by the agent? (Sahs, ¶ 37.)
6. Even if the statement can’t be used in a subsequent criminal proceeding, could the statement lead to physical evidence that could be used in a subsequent criminal proceeding?  The answer to this question, actually, might be well-settled by a different case of which I am currently unaware.  But, by analogy, in some states, Miranda violations might render the statement inadmissible in the state’s case-in-chief, but physical evidence recovered as a result of the statement could be admissible (see p. 940, footnote 199 of this article).  And even if the physical evidence is not admissible because it is derivative of the probation-compelled statement, can the government create an “independent discovery” scenario on which a court could hang its hat, and admit the physical evidence?  And if not, is this derivative evidence rule the next thing at which the courts will chip away?

These questions are just the tip of the iceberg as to the types of issues that will be litigated in future cases.  (For example, a large part of Sahs case deals with lie detector tests, which I haven’t even addressed here.)  Further, don’t think for a minute that all of this discussion in Sahs is mere dicta.  Sure, defense lawyers should try to distinguish this case by arguing that Sahs lost because he failed to provide even the most minimal evidence; he even failed to move his probation rules into the trial court record.  But as defense lawyers know, trial courts have a distorted definition of dicta.  While we define dicta as language that is not central to an appellate court’s holding, many trial judges, on the other hand, define dicta as any language that doesn’t benefit the state.

This decision also spells trouble for the casual defense lawyer.  Post-Sahs, defense lawyers should proceed with caution before giving any advice to probationers.  At a minimum, the lawyer should first obtain and read the rules of probation and other documents given to the client.  (No assumptions should be made about what was probably in the rules, or that the client’s rules will be the same rules that the Department of Corrections used for previous clients.)  Additionally, the lawyer should question the client about what he knew and believed, and when he knew and believed it, with regard to his obligations and rights while on probation.  Only then can a lawyer even begin to properly advise a probationer client about the best course of action.  Other considerations might be the length of potential incarceration if the client is revoked.  If a truthful statement could conceivably form the basis for a serious criminal prosecution, but the client is facing only, say, 90 days on revocation, it might be advisable to refuse to make a statement and simply accept the revocation, especially when a truthful statement would likely lead to revocation anyway. 

The complexity of the law is best described by the lengthy concurring opinion in Sahs.  The concurrence's purpose?  To “draw attention to unduly broad statements in some [previous] opinions that could cause confusion if the statements were applied without a thorough consideration of all underlying legal principles.” (Sahs, ¶ 88.)

Sigh.  What a disastrous mess—a mess brought about by hyper-technical distinctions piled on top of more hyper-technical distinctions, all designed to chip away at another “general rule” in criminal law.

UPDATE:  For possible answers to some of the above questions, including whether the state can use a probationer's otherwise inadmissible statement to uncover additional evidence that could be admitted at trial, see the Wisconsin case State v. Douglass.  (Douglass also discusses "use immunity" v. "derivative use immunity" v. "transactional immunity.")  In light of Douglass, here's another question: under "derivative use immunity," could the police simply set up an "independent source" for the physical evidence that they really obtained as a result of the defendant's immunized statement?  This is independent source doctrine, after all, is common in the Fourth Amendment context, see, e.g., State v. Gant.