Self-Incrimination
Case Analysis
Nov.
27, 2002
The
decision leaves open a number of questions for future cases, concerning
both the Fifth Amendment and waiver issues.
In
a footnote, the court stated, "The parties and the amicus
disagree about whether immunity should extend to admissions made
during treatment regarding uncharged conduct, and whether immunity
should be required where the probationer pleaded guilty or no
contest. We note these issues but do not decide them, as they
are not implicated by the facts of this case."
Logically,
there is no reason why the fact that the defendant pleaded guilty
should make a difference. Presumably, on appeal, the defendant
is either challenging the validity of that guilty plea, or challenging
the denial of a suppression motion.
The
effect of prevailing on either ground would be that the defendant
would face a realistic threat of incrimination in a criminal trial,
just as in this case. Compelled admissions regarding uncharged
conduct are likely be a violation of the Fifth Amendment, as well.
A
question also exists on the waiver issue is whether this decision
is limited to constitutional challenges. The court stated that
it would not require that a defendant first seek relief from the
conditions of his probation in the circuit and appellate courts
before his "constitutional challenge" would be entertained
in a revocation proceeding.
This
statement suggests that a defendant must make challenges based
on statutory grounds, such as unreasonableness, to the sentencing
court.
Furthermore,
the court’s reasoning on the waiver issue would not apply
in all instances. Here, Tate began challenging the conditions
very early, as soon as he was terminated from sex offender treatment.
Tate
was sentenced on Feb. 3, 1999, filed his motion with that court
to modify the conditions of probation on April 19, 1999, and revocation
proceedings commenced on May 4, 1999.
The
court found it would be a "strange procedural anomaly"
to require Tate to simultaneously make the same argument in two
courts or have the argument waived in the revocation proceeding.
Suppose
the defendant has been on probation for many years, however, and
only raises a challenge to some condition after revocation has
been instituted as a result of the condition’s breach.
In
such a case, there would be no "strange procedural anomaly"
in holding that the objection has been waived. If the defendant
had an opportunity to appeal the condition for years, but only
did so after he violated it, a court’s refusal to consider
a collateral attack on the condition doesn’t seem so strange.
Just
as interesting as the legal questions left open, are the future
mechanics of making collateral attacks on conditions of probation
in revocation proceedings.
Not
to disparage probation agents, but they are simply not trained
or qualified to argue against such attacks at a revocation hearing
or administrative review. Nor is a revocation hearing designed
for such challenges.
In
the absence of adversarial attorneys qualified to argue such challenges,
an administrative law judge would be placed in a difficult position
by a probationer’s challenge. It is not until a revocation
proceeding reaches certiorari before the circuit court that there
exists a meaningful adversarial forum for arguing the legality
of a condition of probation.
As
the court found, and the State agreed, there existed no legal
authority to support the court of appeals’ conclusion that
a probationer cannot make a collateral attack on the conditions
of probation in a revocation proceeding. Nevertheless, it is and
always has been standard operating procedure for many ALJs to
refuse to hear such challenges.
Furthermore,
attorneys appointed to represent probationers are frequently given
barely enough time between appointment and the hearing date to
prepare a challenge to the facts alleged, much less the legality
of the probation conditions.
All
things considered, attorneys should not be surprised if ALJs give
rather short shrift to such challenges. Effectively, until a case
reaches the circuit court, objections are likely to be merely
made and preserved.
-
David Ziemer
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David
Ziemer can be reached by email.
