IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
MATTHEW C. FULLER,
Defendant and Appellant.
District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
Gary E. Wilcox, Billings, Montana
Anders, Assistant Attorney General; Dennlis Paxinos,
Yellowstone County Attorney, John Kennedy, Deputy
Yellowstone County Attorney
Heard and Submitted:
January 11, 1996
April 16, 1996
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Matthew C.
Fuller (Fuller) was charged in the
Thirteenth Judicial District Court, Yellowstone County, with rape
and sexual assault.
Fuller moved to dismiss the charges, alleging
that the State violated his constitutionally guaranteed privilege
Fuller pled guilty to the charges.
appeals the District Court's denial of his motion to dismiss. We
Fuller raises two issues on appeal:
Did the District Court err in refusing to grant Fuller's
motion to dismiss because the State impermissibly
Did the District Court err in refusing to grant Fuller's
motion to dismiss because his conviction offended the "fundamental
fairness" doctrine set out in State v. Theil (19891, 263 Mont. 63,
768 P.2d 343?
Due to the resolution of the first issue, we do not find it
necessary to address the second.
The parties stipulated to the facts in this case.
On December 9, 1992, Fuller was charged with three counts of
attempted sexual assault.
After a bench trial, the District Court
found Fuller guilty of all three counts.
The District Court
suspended Fuller's sentence but required, among other things, that
he "obtain and/or continue his enrollment and participation in [an]
outpatient Sex Offender Treatment Program" and "follow all policies
of that program."
In September 1994,
this Court reversed the
attempt convictions for lack of evidence, and ordered Fuller to be
acquitted of the charges.
See State v. Fuller (1994), 266 Mont.
880 P.2d 1340.
After his 1992 conviction but prior to the 1994 reversal,
Fuller was accepted into a treatment program in Billings.
are not admitted into the treatment program if they are in denial
or do not honestly disclose
patients will be terminated from the program if dishonesty or
denial occur during their treatment,
if they re-offend during
or if they otherwise break the rules of the treatment
The employees of the treatment center are required to report
to the authorities any evidence they possess about past or present
committed by individuals in the treatment program.
Offenders who enter the treatment program are required to fully
disclose their offense histories.
Fuller prepared and presented to his
treatment group an offense history which disclosed several past
offenses, including the three at issue here, each of which involved
a different prepubescent girl.
On March 30, 1994, the treatment
to notify it
Fuller had violated treatment
In accordance with its statutory duty, the treatment
program also informed the Department of the three prior offenses
The Department in turn
notified the Billings Police Department.
Fuller subsequently was
arrested for unrelated violations of probation.
On April 14, 1994, the State petitioned the District Court to
revoke Fuller's suspended sentence.
The grounds for revocation did
not include the charges which are the basis of,the instant appeal.
The District Court revoked the suspended sentence and remanded
Fuller to the custody of the Montana State Prison.
incidents Fuller had revealed in treatment and took statements. No
investigation had occurred prior to the police department receiving
the information obtained from the treatment center.
On the basis
of the police investigation, Fuller was charged with one count of
He moved to dismiss the charges, alleging that the
State's actions violated his constitutional privilege against
The District Court denied the
Fuller then pled guilty to the charges, but specifically
reserved his right to appeal the denial of his motion.
It is that
appeal which we decide today.
The grant or denial of a motion to dismiss is within the sound
discretion of the trial court and will not be disturbed unless an
abuse of that discretion is shown.
State v. Barker (19931, 260
Mont. 85, 89, 858 P.2d 360, 362-63 (citing State v. Laster
223 Mont. 152, 724 P.2d 721).
Whether or not a defendant's privilege against compelled selfincrimination is triggered is a conclusion of law.
of review of a district court's conclusions of law is plenary. We
determine whether the district court's conclusions are correct.'t
State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143
(citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803
Fuller alleges that his privilege against compelled selfincrimination
This right is guaranteed to all
under both the Montana Constitution and the Fifth
Amendment to the United States Constitution.
resolution of Fuller's appeal will rest on Article II, Section 25
of the Montana Constitution, as well as the United States Supreme
Court's interpretation of the Fifth Amendment.
Did the District Court err in refusing to grant Fuller's
under both the Montana and the United States
Article II, Section 25 of the Montana Constitution
"no person shall be compelled to testify against
himself in [al criminal proceeding."
The Fifth Amendment to the
United States Constitution similarly provides that no person "shall
be compelled in any criminal case to be a witness against himself."
All citizens enjoy this constitutional protection, regardless
of who they are or how they are situated.
or custodial situations, because "the
It extends beyond trial
[Fifth Amendment] privilege
does not turn upon the type of proceeding in which its protection
is invoked, but upon the nature of the statement or admission and
the exposure which it invites."
Estelle v. Smith (1981), 451 U.S.
454, 462, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359 (quoting In re Gault
387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527).
the privilege extends to those already convicted of a
Minnesota v. Murphy (1984), 465 U.S. 420, 426, 104 S.Ct.
1141-42, 79 L.Ed.2d 409 (citing Baxter v. Palmigiano (1976),
425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810).
The language of the Fifth Amendment speaks of "compulsion."
Therefore, if the State has not compelled the defendant to respond,
the Fifth Amendment privilege does not attach.
'I [Al general
obligation to appear and answer questions truthfully [does] not
465 U.S. at 427.
A person claiming the protection of the Fifth Amendment
United States v. Monia
317 U.S. 424, 427, 63 S.Ct. 409, 410-11, 87 L.Ed.2d 376.
This duty to claim the privilege remains with the individual even
when the government
is unquestionably attempting to compel a
a witness under compulsion to
disclosures instead of claiming the privilege, the government has
Garner v. United
States (1976), 424 U.S. 648, 654, 96 S.Ct. 1178, 1182, 47 L.Ed.2d
rights generally will
An individual may lose the benefit of the privilege
without making a knowing and intelligent waiver; if he simply fails
to assert the privilege,
it will be deemed waived.
U.S. at 654; Maness v. Meyers (1975), 419 U.S. 449, 466, 95 S.Ct.
595, 42 L.Ed.2d 574.
In this case,
Fuller never asserted his Fifth Amendment
pursuant to it,
refused to answer.
fully and honestly answered the questions put to him by the
treatment program, in accordance with the District Court's order.
If our inquiry ended here, Fuller would be precluded from assigning
error to the District Court's denial of his motion to dismiss.
There is an exception, however,
to the general rule that a
defendant must affirmatively invoke the privilege in order to enjoy
Failure to invoke the privilege does not preclude
the benefit if the defendant is placed in a situation where he is
to admit, deny, or refuse to answer."
at 429 (citing Garner,
424 U.S. at 657).
Murphv, 465 U.S.
In such cases, a
defendant's privilege against self-incriminating is said to be
The United States Supreme Court has applied this
exception to three different types of cases.
their Fifth Amendment privilege against
refusing to file a federal income tax return.
"In recognition of
the pervasive criminal regulation of gambling activities and the
fact that claiming the privilege in lieu of filing a return would
Court has held that the
privilege may be exercised by failing to file."
Murohv, 465 U.S.
at 439 (citing: Marchetti v. United States (1968), 390 U.S. 39, 88
S.Ct. 697, 19 L.Ed.2d 889; Gross0 v. United States (1968), 390 U.S.
88 s.ct. 709, 19 L.Ed.2d 906; Mackey v. United States (1971),
401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404).
Second, the Supreme Court has held that an individual subject
to a custodial interrogation must be formally advised of his Fifth
Amendment right to remain silent.
86 S.Ct. 1602,
Miranda v. Arizona (1966),
16 L.Ed.2d 694.
The Supreme Court
reasoned that a government agency conducting such an interrogation
Further, the isolation and intimidating atmosphere
inherently found in police custody, whether intentional or not,
might undermine the individual's will and compel him to speak when
he would otherwise be silent. Murnhv,
465 U.S. at 430. Therefore,
the Supreme Court has placed upon the government the affirmative
his right to remain silent before
duty to inform a suspect of
384 U.S. at 498.
extraordinary safeguard does not apply outside the context of the
for which it was
Murohv, 465 U.S. at 430 (quoting Roberts v. United
States (1980) 445 U.S. 552, 560, 100 S.Ct. 1358, 1364, 63 L.Rd.2d
Third, the Supreme Court has held that an individual need not
formally invoke the privilege if
the government prevents a
voluntary invocation of the Fifth Amendment by threatening to
penalize the individual should he or she invoke it.
U.S. at 434 (citing Garner, 424 U.S. at 661).
to the Fifth Amendment
This foreclosure of
is termed a
In Murohv, the Supreme Court further explained the
classic penalty situation:
The threat of punishment for reliance on the privilege
distinguishes cases of the sort from the ordinary case in
which a witness is merely required to appear and give
testimony. A State may require a probationer to appear
and discuss matters that affect his probationary status;
such a requirement, without more, does not give rise to
a self-executing privilege. The result may be different
if the question put to the probationer, however relevant
to his probationary status, calls for answers that would
him in a pending or later criminal
There is thus a substantial basis in our
cases for concluding that if the State, either exoressly
or bv implication, asserts that invocation of the
privilege would lead to revocation of probation, it would
have created the classic penalty situation, the failure
to assert the privilege would be excused, and the
answers would be deemed compelled and
inadmissible in a criminal prosecution.
Murphy, 465 U.S. at 435, (fn. omitted, emphasis added).
Fuller claims the State placed him in a classic penalty
He consequently asserts that his failure to invoke the
Fifth Amendment should be excused, and that the State is prohibited
from using any
disclosure made in treatment in a subsequent
We therefore must evaluate whether the requirements
demanded of Fuller by the District Court placed him in a classic
The District Court ordered Fuller to "obtain and/or continue
his enrollment and participation in the outpatient Sex Offender
program . . .'I
[and to] follow all policies of that
If he failed to comply, his probation would be
revoked and he would be sent to prison.
The policies of the
treatment program required that he fully and honestly disclose his
Again, if he failed to do so, his probation would
be revoked and he would be sent to prison.
It is therefore
activities which it knew would be criminal.
It is further undisputed that the information divulged by
Fuller was self-incriminatory.
On the basis of the offense history
convicted of three additional crimes.
The State insists these circumstances did not rise to the
level of a classic penalty situation because the District Court
to punish Fuller for exercising his Fifth
At any time, the State argues, Fuller could have
invoked his privilege against self-incrimination.
the State further argues,
Had he done so,
the District Court could not have
lawfully punished him for its invocation and his consequent refusal
While Fuller acknowledges
that the District Court never
expressly threatened to punish him for relying on the Fifth
that such a threat was
insistence that he speak or be punished.
implicit in its
under threat of loss of liberty, implicitly
A command to
option of remaining silent.
We are therefore unable to imagine how the dissent can assert
that the record does not support Fuller's position.
The facts in
this case are not in dispute;
on the contrary,
stipulated to them, as we pointed out earlier in this opinion. In
the stipulated facts,
both parties conceded this issue and that
portion of the stipulation is set out verbatim:
[The District Court] signed a judgment and commitment
order sentencing Fuller to ten years on each count to run
The execution of the sentence
suspended upon the performance by Fuller of certain
[one1 of which [was1 the following: the
defendant shall obtain and/or continue his enrollment and
participation in the out-patient sex offender treatment
program with a professional who is in compliance with the
standards for treatment . . .
After Fuller was first sentenced in January, 1994,
he entered sexual offender treatment . . . prior to
sentencing, a sexual offender evaluation was ordered by
the District Court. Fuller was accepted into treatment
prior to imposition of sentence.
Patients are not admitted into a treatment program
if they are in denial or do not honestly disclose their
offendins history. Further, patients will be terminated
from the proqram, if the same occurs durinq their
treatment, they reoffend during treatment, or otherwise
break the rules of the treatment proorams.
The District Court threatened to send Fuller to prison if he
did not honestly disclose his offense history.
threatened a real and significant punishment if he remained silent.
The State explains that this threat only applied to unexplained
silence, not to silence maintained pursuant to the Fifth Amendment.
But it is too fine a distinction to expect an individual to
differentiate between exercising a constitutional right to remain
The threat of punishment
implicitly extended to both.
This decision is
supported by the United Stated Supreme
Court's interpretation of the Fifth Amendment as articulated in
though the Supreme
conclusion in that case.
reached the opposite
In Murohv the defendant's probation
required, among other things, that he participate in a sex offender
that he report periodically to his probation
officer, and that he "be truthful with the probation officer in all
After Murphy left the
program, a counselor called his probation officer and
informed her that, while in treatment, Murphy had confessed to a
rape and murder committed years earlier.
When the probation
officer confronted Murphy with the information obtained from the
he again confessed to the rape and murder.
The probation officer forwarded the information to the police and
Murphy was subsequently tried and convicted of the murder.
465 U.S. at 422-25.
The Supreme Court found that Murphy had not claimed his Fifth
and that his was not one of the three
where the privilege is
Specifically, the Supreme Court found that Murphy was not placed in
situation because the Minnesota probation
revocation statute did not impermissibly foreclose a free choice to
465 U.S. at 437.
It therefore concluded that
Murphy's Fifth Amendment privilege was not self-executing and,
since he had not invoked it, that it was properly deemed to have
the case at bar is far different.
' [tlhe state court did not attempt to define the precise contours
of Murphy's obligation to respond to questions.
condition proscribed only false statements;
it said nothing about
his freedom to decline to answer particular questions . . . .I'
Murnhy, 465 U.S. at 437.
In the case at bar, Fuller's
was clearly and precisely set out.
He was required to disclose his
offense history in order to maintain his place in the treatment
program and avoid being sent to prison.
ordered to incriminate himself;
Fuller was directly
this is a condition far removed
from the general obligation to be truthful that constrained Murphy.
Simply put, the State gave Fuller two choices: disclose, or go to
The Supreme Court particularly acknowledged in
is, to a holding that the Fifth Amendment was in
questions rather than just a general obligation to be truthful. As
we have already noted, the Supreme Court in Murphy held that W [tlhe
result may be different if the question put to the probationer,
however relevant to his probationary status, calls for answers that
would incriminate him in a pending or later criminal prosecution."
Murphy, 465 U.S. at 435.
This is precisely what happened in this
and precisely why we properly reach a conclusion opposite to
that reached by the Supreme Court in Murphy.
The State points out, however, that in reality the District
Court could not have revoked Fuller's probation for refusing to
disclose his offense history, because this Court has found that it
is unconstitutional to revoke probation for failure to admit to a
See State v. Imlay (1991), 249 Mont. 82, 813 P.2d
granted, 112 S.Ct. 1260, cert. dismissed 113 S.Ct. 444
It therefore contends that there was no real prospect of
sanctions if Fuller remained silent, despite Fuller's argument to
The dissent also devotes much energy to arguing that
Fuller's interpretation of Imlav is incorrect.
The District Court threatened to revoke Fuller's probation if
he did not remain in the treatment program and follow its policies,
including disclosing his offense history.
Fuller argued that the
district court retained its power to carry out this threat, even in
the face of the Imlay decision.
The State contended, and the
dissent agrees, that Imlav stands for the proposition that a
district court does not have the ability to carry out such a
On this point, the majority and dissent do not disagree.
holding in Imlav stands for the proposition that probation cannot
be revoked solely on the ground that the defendant refuses to admit
that he or she is guilty of a crime.
that Fuller's reading of Imlav is incorrect, may well have
We do not minimize the potential importance of the m
decision in other cases; however, in this case, the holding in
The dissent emphasizes that the
Court, Fursuant to Imlav,
lacked the actual ability to
carry out its threatened revocation of Fuller's probation if he
chose to remain silent.
But whether the District Court actually
could have carried out its threat is beside the point.
itself of a credible threat which is
presumably knowing that it
It is the
Fuller's probation if he refused to admit to past crimes (and such
nevertheless threatened to do exactly that.
cannot be faulted for taking the District Court at its word and
the reliance by the State and the dissent on the
Imlav decision ignores the realities of Fuller's situation.
under a court order to comply with the policies of the treatment
program; he was told that if he failed to do so, his probation
would be revoked.
He believed the District Court had the authority
and the ability to carry out its threat,
and that belief was
It is far less reasonable to expect him to
know that the threat was an empty one.
The State next argues that this entire situation would never
have arisen if Fuller had been honest with the State in plea
revealing the three previous crimes to the State or
to the District Court at an earlier date.
If Fuller had disclosed
presumably the State would have
It has never been incumbent upon a
defendant to assist the State in his own prosecution.
failure to do so is not relevant to the question of whether his
Fifth Amendment privilege was violated.
particularities of this area of law to be "ludicrous," as the
dissent apparently does.
Considering that the learned members of
the United States Supreme Court, the learned members of this Court,
and a myriad of legal scholars cannot agree on the exact parameters
of an individual's privilege against compelled self-incrimination,
appreciate its intricacies.
Every schoolchild may be familiar with
the Fifth Amendment as a concept, as the dissent claims.
not, however, translate to a widely-held understanding of its every
nuance and subtlety.
Following the analysis set out in Murphy, the proper inquiry
is "whether [a defendant's1 probation conditions merely required
him to appear and give testimony about matters relevant to his
probationary status or whether they went further and required him
to choose between making incriminating statements and jeopardizing
his conditional liberty by remaining silent." Murphy, 465 U.S. at
This latter "required choice" is precisely and solely what
the Fifth Amendment
465 U.S. at 436.
Because the State improperly compelled Fuller to disclose past
criminal acts in violation of his Fifth Amendment privilege against
right to remain silent,
it is prohibited from using any of the
information elicited as the basis for a later, separate
the District Court erred in denying
Fuller's motion to dismiss on these grounds.
While we have devoted
considerable time to a lengthy discussion of the application of the
Fifth Amendment to the United States Constitution, it is to be
noted that this holding is also based separately and independently
on Fuller's right
silent pursuant to Article II, Section
25 of the Montana Constitution.
that this holding does not stand for the
proposition that the State
not compel a defendant to answer.
It can; indeed, in order for treatment to be effective,
because a defendant who refuses to disclose his offense history
cannot be successfully treated.
However, if the State chooses to
it cannot use those
answers against the defendant in a later criminal proceeding.
Justice Terry N. Trieweiler
I concur with the majority opinion and all that is included in
I write separately to respond to the dissenting
opinion which seems to unnecessarily confuse what should be a
straightforward application of clear constitutional principles.
The Fifth Amendment of the United States Constitution provides
in relevant part that "[nlo person shall be . . . compelled in any
criminal case to be a witness against himself."
Article II, Section 25, of the Montana Constitution provides
that "[nlo person shall be compelled to testify against himself in
a criminal proceeding."
The United States Supreme Court has noted that:
It has long been held that this prohibition [the Fifth
Amendment] not only permits a person to refuse to testify
against himself at a criminal trial in which he is a
defendant, but also "privileges him not to answer
official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings."
M i n n e s o t a v. M u r p h y (1984),
465 U.S. 420,
414 U.S. 70, 77).
I would hold that Montana's constitutional right to avoid
self-incrimination found at Article II, Section 25, is similarly
applicable to formal or informal proceedings when a person's
The undisputed facts in this case clearly establish that
Fuller was compelled to provide information about his own criminal
conduct which then formed the basis for his prosecution for that
The District Court's order dated January 27, 1994, which
suspended Fuller's original sentence provided in part as follows:
[Slaid prison sentence is suspended upon the following
conditions . . . :
12. The defendant shall obtain and/or continue his
enrollment and participation in the outpatient Sex
Offender Treatment Program with a professional who is in
compliance with the standards for treatment developed by
the Montana Sex Offender Association.
shall follow all uolicies of that program and shall not
terminate from such treatment without prior approval of
his Supervising Officer.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if
the defendant fails to comply with any of the aboveconditions, a bench warrant of arrest will be issued, the
defendant apprehended, and the said defendant will be
required to appear before this Court for further
The stipulated facts subscribed to on behalf of the State of
Montana by the Deputy Yellowstone County Attorney and filed with
the District Court as the basis for its decision provide the
Fuller's satisfactory completion of the sex offender program which
was a condition to the suspension of his sentence:
Patients are not admitted into the treatment program
if they are in denial or do not honestly disclose their
offending history. . . .
Employees of South Central Treatment Associates are
under a statutory duty to report any evidence they
possess about past or present offenses committed by
individuals in their treatment program. . Offenders
who enter in the treatment program are required to fully
disclose their offense histories. . . .
Exhibit E represents an offense history
prepared by Fuller pursuant to treatment rules and
presented in group on February 15, 1994, which reflect[s]
the incidents which are the subject of this case.
No fair and objective review of the record before this Court
can lead to any conclusion other than that Fuller was compelled by
order of court to participate in a program which required that he
admit prior criminal offenses and that those admissions then formed
the basis of the State's prosecution of Fuller in this case.
The dissent takes the position that all of the above was
perfectly okay because had Fuller chosen to test the District
Court's authority to do what it threatened to do (put him in
prison) he probably could have succeeded pursuant to our decision
in State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979.
misses the point from any practical perspective.
The United States Supreme Court, in Mirandav.
Arizona (1966), 384
U.S. 436, recognized that the right to remain silent in the face of
meaningless to the average person unless that person was informed
of his or her constitutional right.
The U.S. Supreme Court
therefore held that before persons suspected of committing a crime
can be interrogated in a custodial situation, they must be advised
of the right to remain silent and the consequences of failing to do
The dissenting opinion, however, proceeds from the assumption
that while the average person cannot be expected to understand that
he or she has a Fifth Amendment right,
that same person should be
fully aware of his or her rights pursuant to this Court's decision
even though that person is specifically instructed to the
contrary by agents for the State.
The logic of that conclusion
for one, as the author of May, recall the outcry from the
Attorney General's Office and prosecutors in this State about their
surprise at that decision.
Their complaint was that it was totally
unforeseeable and unjustified by the prior decisions of this Court
or the federal courts.
While I strongly disagree,
am now at a
loss to understand how the result could have been so unforeseeable
to people with legal educations and years of experience in the area
of criminal and constitutional law, and yet some totally uneducated
is supposed to be aware of the case's
I suppose there have been stranger arguments made before this
none come immediately to mind.
This is a classic penalty case.
Fuller was told that he
either report accurately and completely his prior history of sex
offenses or he would not be allowed to remain in his treatment
program and his suspended sentence would be revoked. Revocation of
his suspended sentence meant imprisonment.
He was never advised
that he had a right pursuant to this Court's decision in Imlay to
refuse to disclose his prior history of offenses and that he could
not be sent to prison for doing so.
There could not be a clearer
threat of penalty for exercise of a person's right to remain
The dissent's suggestion that we have no basis for concluding
that Fuller admitted his prior offending history because it was a
requirement of his treatment program is incorrect.
portion of the District Court's order and the facts to which the
State stipulated make that fact absolutely clear.
case after case before this Court we have been told that admission
of the offending history is a condition to participation in a sex
offender treatment program.
SeeState V. Skroch
(1994), 267 Mont. 349,
P.2d 1256, 1262; States.&V?WO~ (1992), 253 Mont. 95, 108,
dissenting) ; Imluy,
Mont. at 85-86, 813 P.2d at 982; Statev.Donnelly
(1990), 244 Mont. 371,
798 P.2d 89, 95.
The dissent suggests that the U.S. Supreme Court's decision in
clearly does not provide for immunity from prosecution based
on the statements which are the subject of this appeal.
conclusion is as obvious
as the dissent suggests,
I find it
interesting that the State took just the opposite position before
the United States Supreme Court when it argued Statev.
506 U.S. 5. Although the writ of certiorari was dismissed in that
case as improvidently granted,
dissenting opinion, he noted that:
At oral argument, however, two further questions
were raised concerning whether any live controversy
persists in this case. . . . Second, counsel for
petitioner [the State of Montana] stated his belief that
a probationer would enjoy immunity from prosecution for
This statement calls into doubt a critical
the Montana Supreme court ' s
judgment and might suggest that there really is no
disagreement about the Fifth Amendment's application to
, . This "concession" appeared to rest solely on
the State's assumption that this Court's decision in
Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79
L.Ed.2d 409 (1984), mandated such a result.
506 U.S. at 5, 7-E (White, J., dissenting).
even the Attorney General's Office did not agree
with the dissent's interpretation of
Murphy when the opposite
interpretation was to its greater advantage.
I find it incredible that the dissent bemoans the
fact that someone compelled to admit offenses should be given
immunity from prosection as a result of those disclosures.
Immunity for compelled disclosures is nothing new.
See § 46-15-331, MCA.
It is provided
The dissent does nothing less
than suggest that the State's ability to enforce the law depends on
abrogate the plain language of the Fifth Amendment and Article II,
Law enforcement has
operated for over 200 years, in spite of the
constraints imposed by the Fifth Amendment.
The nearly hysterical tone of the dissent's concerns is
totally inconsistent with its initial legal conclusion.
On the one
argues that Fuller should have known that
pursuant to our decision in Imlay he had a right to refuse to
disclose any prior offending history (in which event no one would
have known about it; he could not have been prosecuted for it; and
his victims could not have been treated).
On the other hand, the
dissent suggests that if he does disclose that prior history in an
effort to be effectively treated and the State cannot prosecute him
on the basis of his compelled disclosures,
the criminal justice
system, as we now know it, will somehow crumble and the citizens of
this state will be unsafe in their homes.
How the two positions
can possibly be reconciled is never explained.
I would suggest that the general public in Montana is much
better off in the long term by effective treatment of sex offenders
and open disclosure would
than by the dissent's first suggestion which is that
Fuller could have simply remained in
the program and avoided
revocation of his suspended sentence by invoking his right pursuant
to Imlay to conceal his prior offending history.
I conclude that while the dissent may make sensational reading
for nonlawyers, it makes little sense from a constitutional point
and if followed, it would impair the State's ability to
effectively treat sex offenders and their victims.
Justice Karla M. Gray joins in the foregoing concurring opinion.
Justice James C. Nelson dissenting.
I dissent from the Court's decision in this case.
I would hold that under our interpretation of State v.
113 s.ct. 444,
even if Fuller had
been dismissed from or refused treatment under the sex offender
treatment program because he invoked his Fifth Amendment right to
incriminate himself by disclosure of other uncharged sex
offenses, his probation could not have been revoked.
Fuller was under no explicit or implicit threat of sanction or
penalty for exercising his Fifth Amendment right to remain silent.
He did not,
"Hobson's choice" that would have rendered his right against selfincrimination
actually invoke that right, and in failing to do so, he waived his
Fifth Amendment protection against self-incrimination and subjected
himself to criminal prosecution for the other
The Fifth Amendment's protection against compelled
incrimination not only permits
a person to refuse to testify
against himself at a criminal trial in which he is a defendant, but
also privileges him not to answer official questions put to him in
any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal proceedings.
Minnesota v. Murphy (1984), 465 U.S. 420, 426, 104 S.Ct. 1136,
79 L.Ed.2d 409, 418 (quoting Lefkowitz v. Turley (1973), 414
U.S. 70, 77,
94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281).
Seizure of $23,691.00 in U.S. Currency (Mont. 19951, 905 P.2d 148,
152, 52 St.Rep.
1063, 1065, where we cited with approval this same
However, except in certain circumstances hereafter discussed,
the privilege against self-incrimination is not "self-executing."
it must be affirmatively claimed.
In other words, a
general obligation to appear and answer questions truthfully does
into compelled ones.
A person's answers to questions put to him
are not compelled within the meaning of the Fifth Amendment unless
the witness is
required to answer over his valid claim of
Murphy, 465 U.S. at 427.
If the person desires the
protection of the privilege he must claim it or his answers will
not be deemed compelled for Fifth Amendment purposes.
U.S. at 427 (quoting United States v. Monia (1943), 317 U.S. 424,
63 S.Ct. 409, 410, 87 L.Ed. 376, 380).
"if a person under compulsion to testify makes
disclosures instead of claiming the privilege, the government has
him to incriminate himself," Murphy, 465 U.S. at
427 (quoting Garner v. United States (19761, 424 U.S. 648, 654, 96
S.Ct. 1178, 1182, 47 L.Ed.2d 370,
377) and those disclosures are
deemed voluntary and may be used against him in a subsequent
465 U.S. at 440.
This is true even
where the government should reasonably expect the questions to
elicit incriminating evidence (Murphy, 465 U.S. at
nature of the questions asked are incriminating (Murphy, 465
at 428 (quoting Monia, 317 U.S. at 433 and citing United States v.
Mandujano (1976), 425 U.S. 564, 574-75, 96 S.Ct. 1768, 1775-76,
L.Ed.2d 212, 221)) or where the person alone is reasonably aware of
the incriminating tendency of the questions (Murphy, 465 U.S. at
428 (Brennan, J., concurring)
445 U.S. 552, 562 n*, 100 S.Ct. 1358, 1365 n*, 63 L.Ed.2d
If the person being questioned chooses to answer,
his choice is considered to be voluntary because he was free to
claim the privilege, because he was privileged to decline to answer
and because he would suffer no penalty if he did so.
U.S. at 429.
Here, as the majority recognizes, it is undisputed that Fuller
failed to assert his Fifth Amendment privilege and decline to
disclose evidence of his other uncharged sex crimes in response to
questions posed by the therapist.
that his case is within one of the exceptions to the above-stated
in Murphy described this
known as the "classic-penalty" situation or "Hobson's
choice," (Murphy, 465 U.S. at 443 (Marshall, J., dissenting)).
The general rule . . .
inapplicable in cases where
privilege is penalized so as
choice to remain silent, and
incriminating testimony." Garner
has also been deemed
the assertion of the
to "foreclos[el a free
424 U.S. at 661.
In each of the so-called "penalty11 cases, the State
not only compelled an individual to appear and testify,
but also sought to induce him to forgo the Fifth
Amendment privilege by threatening to impose economic or
selfincrimination which the Amendment forbids. Leftowitz v.
Cunningham (19771, 431 U.S. 801, 805, 97 S.Ct. 2132,
2135, 53 L.Ed.Zd 1, 7
These cases make clear that "a State my not impose
substantial penalties because a witness elects to
incriminating testimony against himself. Lefkowitz, 431
U.S. at 805.
* * * *
[Ilf the State, either expressly or by implication,
asserts that invocation of the privilege would lead to
revocation of probation, it would have created the
classic penalty situation, the failure to assert the
privilege would be excused, and the probationer's answers
would be deemed compelled and inadmissible in a criminal
Murphv, 465 U.S. at 434-35.
When faced with a classic penalty situation or
choice--i.e. being forced to choose between self-incrimination and
suffering a sanction or penalty for choosing to remain silent--the
Fifth Amendment privilege against self-incrimination is "selfexecuting."
It does not have to be affirmatively asserted or
Cunninqham, 431 U.S. at 805; Turkey,
414 U.S. at 79-
84; Sanitation Men v. Sanitation Comm’r (1968), 392 U.S. 280, 28384,
1 9 1 7 ,
20 L.Ed.2d 1089,
Broderick (1968), 392 U.S. 273, 278-79, 88 S.Ct. 1913, 1916, 20
1087; Garrity v. New Jersey (1967), 385 U.S. 493,
87 S.Ct. 616, 619, 17 L.Ed.2d 562, 566.
Fuller claims, and the majority agrees, that he was faced with
just such a classic penalty situation or
argues that he was required to honestly disclose his offending
history in order to complete his sex offender program which was, in
a requirement of his probation.
He contends that he was
faced with the choice of truthfully disclosing his uncharged other
criminal prosecution or not
truthfully and being subject to termination from the sex offender
program and revocation of probation.
Fuller's argument fails, however, because he and the majority
ignore his third alternative.
Fuller could have asserted his Fifth
Amendment right to not incriminate himself.
He could have simply
refused to say anything about his uncharged sex offenses.
option was available to Fuller because under Imlav, had he chosen
to remain silent,
the State could not have imposed any sanction
whatsoever against him for his assertion of his Fifth Amendment
It could not have
revoked his probation even if his
participation in the sex offender program was terminated by reason
of his refusal to disclose his uncharged sex offenses.
P.2d at 985.
The majority ignores
the fact that Fuller's position is
premised in large part on his erroneous and unreasonable reading of
our decision in
While in order to reach the result sought,
the majority baldly declares that Imlav is beside the point and is
it is precisely because of this Court's decision in
Imlay that Fuller's right against self-incrimination was not self31
sanction which the State could impose on Fuller if he chose to
exercise his right to remain silent.
consider Imlay beside the point or irrelevant.
Fuller did not
In fact, on brief
Fuller premised his position on his
our decision in that case,
considerable effort arguing that Imlav did not prohibit the State
from revoking his probation if he exercised his Fifth Amendment
rights and refused to disclose his prior offending history. As
Fuller stated on brief:
Two central questions control the decision in this
Will the court determine that Minnesota v. Murphy
104 S. Ct. 1136 (1984) controls? Is this court willing to
expand its holding in State v. Imlav 813 P.2d 979 (Mont.,
1991)? (Emphasis added).
However, while Fuller narrowly reads Imlay and argues that our
holding in that case would not have precluded the trial court from
revoking his probation because "all Imlav prohibits is revocation
of a suspended sentence because of refusal to admit guilt to the
crime," that clearly is not what our opinion stands for.
We stated in Imlav:
[B]y admitting guilt in this case, the defendant would
have to abandon his right guaranteed by the Fifth
Amendment, not only as to the crime for which he has been
convicted, but also to the crime of perjury [since he had
testified in is own defense at trial and denied
committing the offense with which he was charged.1
813 P.2d at 985 (emphasis added).
See also State v.
(1994), 268 Mont. 258, 273, 886 P.2d 402, 411 (stating
"Imlav prevents a sentencing court from incarcerating a defendant
for refusing to confess to the crime in order to complete treatment
that is a condition of a suspended sentence").
interpreted Imlav as
The State has
the revocation of
probation because of the defendant's refusal to admit to not only
the charged crime but to any other crime as well.
Court correctly interpreted Imlav as mandating that result.
interpret Imlav in the same way.
even the United States Supreme Court acknowledged
the government cannot constitutionally carry out a
threat to revoke probation for the legitimate exercise of the Fifth
Murvhv, 465 U.S. at 438.
Fuller stands alone
in his misreading of Imlav; his position is unreasonable and finds
no support in either federal or state law.
of our decision in Imlav
It is precisely because
that Fuller's Fifth Amendment right
and it is
because of Imlav that the majority decision, here, is wrong.
Its choice to simply ignore the law does not,
render its legal analysis correct.
short, there was nothing that would have prevented Fuller
from exercising his Fifth Amendment right and refusing to disclose
Even if he was terminated from the sex
offender program, his probation could not, as matter of state and
federal law, have been revoked.
While Fuller was, without doubt,
faced with a difficult, technical choice as to whether to disclose
his sex offending history or to stand on his right to remain
silent, he was not, in fact or in law, faced with a classic penalty
who was not
custodial interrogation and who was not under a subpoena when he
made his disclosures,
was faced with even less intimidating
pressure than is a person who is compelled to tell the truth upon
being required to testify in court, before a grand jury or in some
other proceeding where he is under subpoena, is sworn and is under
pain of contempt.
Even in those circumstances the law is clear
that the witness must affirmatively assert his Fifth Amendment
privilege, and, in the usual case, must do so on the basis of his
own knowledge of his rights,
without the benefit of any prior
Miranda warning (which is not required, in any event, since there
is no custodial interrogation) and without the benefit of counsel.
If the witness fails to claim his Fifth Amendment right to remain
his statements can be used against him in a subsequent
See Murvhv, 465 U.S. at 427, 430-31.
Here, Fuller was at all times represented by counsel from whom
he could have sought advice
as to the exercise of his Fifth
Amendment rights and as to the consequences of his doing so.
Knowing that he would have to disclose his sex offending history as
part of his sex offender treatment, he could have sought immunity
from prosecution during plea negotiations. He availed himself of
the actual record in this case does not support
Neither the portion of the stipulated facts
relied upon by the majority nor any other part thereof state or
much less concede, that Fuller was ever told, threatened or
led to believe that the exercise of his Fifth Amendment right would
result in his being sanctioned.
as the District Court found, and as Fuller concedes,
he was never told or led to believe that the exercise of his Fifth
Amendment privilege would result in revocation of his probation,
and there is no evidence in the record that Fuller admitted to his
prior crimes because he feared revocation if he chose to remain
There is no evidence that Fuller was deterred from
claiming his Fifth Amendment privilege by the threat of revocation.
is nothing in
the stipulated facts which describes any
subjective belief on Fuller's part that he would be sanctioned for
exercising his Fifth Amendment right to remain silent or that he
was under any real threat, explicit or implicit, that his probation
would be revoked.
To the contrary, we are left only with Fuller's self-serving,
interpretation of Imlav--an interpretation which flies not only in
the face of the clear language of that opinion but in the face of
Murohv which he and the majority,
cite as authority for their
position. In this regard, the only reason Fuller relies upon and
argues Murphy, is that he misreads Imlay,
that our decision in that case would permit the revocation of his
probation if he had exercised his Fifth Amendment privilege to
No one agrees with that contention.
While the majority cites Murphv, it does so on the proposition
case and Murphv are factually
Nothing could be further from the truth.
The facts are almost
Murphy's incriminating statements, like Fuller's, were
first made to his sex offender treatment program counselor, and, as
it was the counselor who reported the previously unknown
who in turn reported to the
Murphy, 465 U.S. at 423.
While the majority states that Murphy's obligation to tell the
truth was only a general obligation, and Fuller's was "clearly and
distinction without a
As the Murohv opinion states:
[tlhe terms of Murphy's probation required, among other
things, that he participate in a treatment program for
sexual offenders at Alpha House, report to his probation
officer as directed, an be truthful with the probation
officer "in all matters." Failure to comply with these
conditions, Murphy was informed, could result in his
return to the sentencing court for a probation revocation
Murphy, 465 U.S. at 422. Accordingly, whether the obligation to be
truthful was general or specific, it is clear that Murphy was faced
with precisely the same sort of pressure of potential sanction for
lying (revocation of probation and imprisonment) as was Fuller. Of
is the fact that in neither Murphv nor in the
instant case was there any proscription of the defendant's freedom
to decline to answer particular questions and no suggestion that
either's probation was conditional
on his waiving his Fifth
Amendment privilege with respect to further criminal prosecution.
&, Murnhv, 465 iJ.S.
implication that Fuller--a person who was
already well acquainted with the criminal justice system--did not
appreciate or understand his right to remain silent is ludicrous.
As the Supreme Court noted:
[alt this point in our history virtually every schoolboy
is familiar with the concept, if not the language, of the
Murnhv, 465 U.S. at 437 (citing Michigan v. Tucker (1P74), 417 U.S.
94 S.Ct. 2357, 2361, 41 L.Ed.2d 182, 190).
Contrary to the majority's opinion, Muruhy
case are on all fours,
and the instant
and the same result should,
this Court relies on Murphv
to come to
precisely the opposite result on the same essential facts.
AS in Murphy,
Fuller was not faced with a classic penalty
situation or a Hobson's choice.
His right to be free from self-
disclosures of his prior uncharged sex crimes were not compelled
within the meaning of the Fifth Amendment.
As a result, he could
not prevent his volunteered disclosures from being used against him
in the subsequent criminal prosecutions at issue here.
465 U.S. at 437-40.
The majority's conclusion to the contrary is
The foregoing aside, it also deserves mention that the
ramifications of today's opinion go beyond the mere reversal of
Fuller's conviction and his premature release from a much-deserved,
lengthy term of imprisonment.
Rather, the greater mischief in the
majority's decision is that in failing to apply to this case the
Amendment analysis requires, we have now effectively established a
rule of absolute immunity from prosecution for criminal defendants
who confess (and who now, according to our opinion, must confess)
to otherwise unknown crimes during sex offender treatment.
when the defendant tells all his past crimes to the therapist, he
free. There will henceforth likely be more sins forgiven in sex
offender treatment than in the confessional.
the defendant, as part of sex offender treatment,
disclosed a previously unknown homicide perpetrated as part of a
previously unknown rape.
Just like Fuller, he sought to suppress
his statements in connection with his subsequent prosecution for
the undisclosed crimes on the basis that his confession was
obtained in violation of his Fifth Amendment right against selfincrimination.
Murphy, 465 U.S. at 422-25.
By applying a proper
Fifth Amendment analysis, as discussed above, the Court concluded
that he could be prosecuted.
465 U.S. at 440.
henceforth, not be the result in Montana under our decision here.
Fuller and similarly situated defendants, unlike Murphy, will never
be brought to justice for their crimes.
As a result of this
it will be interesting indeed,
to watch the legal
cartwheels when some defendant first confesses to a previously
unknown homicide during sex offender therapy.
Furthermore, as pointed out above, it is well-established that
a witness who is sworn and compelled to testify truthfully in
in some other legal proceeding or before a grand jury on the
pain of contempt does not need to be given a Miranda warning, but,
rather, must affirmatively assert his Fifth Amendment privilege in
order to avoid incriminating himself.
465 U.S. at 431.
That long-standing legal principle is now very much in question as
result of our decision here.
Any witness who incriminates
himself can now make the same argument as Fuller.
"Nobody told me
I had to assert my Fifth Amendment right, or that I even could.
Since I was subpoenaed to testify and sworn to tell the truth,
figured I didn't have any other choice and that I'd be thrown in
jail for contempt if I didn't testify." Presumably, such a witness
will be able to cite our decision in this case for the rule that,
circumstances, his incriminating statements cannot be
used against him in a subsequent criminal prosecution.
How the various participants in the criminal justice system in
Montana will now deal with the rule we have established remains to
in my view however,
principles of Montana and federal law to reach a result that is
grounded in nothing more than the illogical proposition that even
where the record and the law do not support the conclusion that
Fuller was required to incriminate himself, he was "compelled"
In doing so, we have misapplied a U.S. Supreme Court
decision factually and legally on point and we have unnecessarily
undone a whole body of Fifth Amendment law.
Worse, in the process
we have created much greater and more serious problems that will
have ramifications far beyond the fact situation presented here
I would affirm the decision of the District Court,
dissent from our failure to do so.
Chief Justice J.A. Turnage and J
the foregoing dissent.