Grant, Matter of

• Decision Date: 05 April 1978
• Docket Number: No. 75-865,75-865
• Citation: 83 Wis.2d 77,264 N.W.2d 587
• Parties: In the Matter of Sheila GRANT. Sheila GRANT, Appellant, v. STATE of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 587

264 N.W.2d 587

83 Wis.2d 77

In the Matter of Sheila GRANT.

Sheila GRANT, Appellant, v. STATE of Wisconsin, Respondent.

No. 75-865.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 8, 1978.

Decided April 5, 1978.

Janine P. Geske, Legal Aid Society, Milwaukee, on briefs for appellant.

Robert P. Russell, Corp. Counsel, and Anthony J. Caronna, Asst. Corporation Counsel, Milwaukee, on brief for respondent.

CALLOW, Justice.

The issue in this case is whether in a statutory paternity proceeding the mother of an illegitimate child may refuse to testify on the grounds that her answers may incriminate her.

In May, 1974, the Milwaukee County corporation counsel obtained an order for an examination of Sheila Grant in county court concerning the paternity of her child. This examination is authorized by sec. 52.24, Stats., which provides that "(i)f any woman bears a child out of wedlock which is or is likely to become a public charge," and if the corporation counsel ¹ believes it to be in the best interests of the child, he shall apply to any court which "shall thereupon examine such woman on oath respecting the father of such child, the time when and the place where such child was begotten and such other circumstances as he deems necessary; . . . ."

During the examination, the Milwaukee corporation counsel asked her: "The law presumes you became pregnant sometime between July 13th and September 11, 1972, during that period of time, with whom, if with any man did you have sexual intercourse?" Sheila Grant responded: "I refuse to answer on the grounds that it might tend to incriminate me." The court cleared the courtroom of all uninterested persons; ² and after hearing oral argument, the court ruled that Sheila Grant did not have a privilege against self-incrimination in a statutory paternity proceeding. The court ordered her to answer; and when she did not, the court found her in contempt of court and sentenced her to imprisonment of ten days in the county jail, or until such time as she expressed a willingness to answer the corporation counsel's question. The court stayed this sentence pending appeal.

In adjudging Sheila Grant in contempt, the county court reasoned that Sheila Grant's testimony concerning her sexual intercourse during the period of possible conception would have provided no more incriminating information than was already available to the state by reason of the birth of an illegitimate child. The court stated that in its opinion immunity could have been arranged. Finally, the court concluded that the statutory restrictions on access to testimony given in a sec. 52.24 examination obviated the assertion of the privilege. ³

We cannot affirm the county court's analysis of Sheila Grant's constitutional claim. We hold that, in refusing to reveal the identity of a partner to sexual intercourse during the period of conception, Sheila Grant appropriately asserted her privilege against self-incrimination. We hold further that neither the restrictions on access to this testimony nor the immunity statutes provide a basis for compelling her to testify when she asserted her privilege concerning incriminating testimony.

The right against self-incrimination is a fundamental right guaranteed by both art. I, sec. 8, Wis.Const., and by the U.S.Const., amend. V, which is made applicable to the states by reason of the due process clause of the fourteenth amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Wolke v. Fleming, 24 Wis.2d 606, 617, 129 N.W.2d 841 (1964), cert. denied, 380 U.S. 912, 85 S.Ct. 897, 13 L.Ed.2d 798 (1965). The fact that a paternity proceeding authorized by Ch. 52, Stats., is characterized as civil ⁴ has no bearing on whether a witness in such a proceeding has a privilege against self- incrimination. The privilege extends to all court proceedings, civil and criminal. Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); In Re Gault, 387 U.S. 1, 44, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The privilege against self-incrimination exists whenever a witness has a real and appreciable apprehension that the information requested could be used against him in a criminal proceeding. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 94, 82 S.Ct. 146, 7 L.Ed.2d 91 (1964); Mason v. United States, 244 U.S. 362, 366, 37 S.Ct. 621, 61 L.Ed. 1198 (1917); Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 95 L.Ed. 170 (1950). It extends not only to testimony which would support a conviction but also to evidence which would furnish a link in a chain of evidence necessary to prosecution. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

Sheila Grant contends that testifying concerning a specific occasion of sexual intercourse could elicit information which could be used against her in a prosecution for any one of several crimes contained in Ch. 944, Stats., crimes against sexual morality. The corporation counsel does not deny that admissions of sexual intercourse and cohabitation out of wedlock are incriminating. Indeed, it is evident that they are. See: United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), (because cohabitation out of wedlock is a crime in Wisconsin, statements admitting cohabitation out of wedlock are against the declarant's penal interest); Poplowski v. State ex rel. Lewandowski, 194 Wis. 385, 216 N.W. 488 (1927), (in a paternity proceeding the trial court's right, if not its duty, was to instruct the witness of his right not to answer a question intended to elicit an admission of sexual intercourse with the prosecutrix); See also: State v. Robbins, 318 A.2d 51 (Me.1974); Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967). But Milwaukee County does argue that: (1) because few if any prosecutions under Ch. 944, Stats., are based on information obtained from paternity suits; and (2) because of the restrictions on access to the testimony, the likelihood of prosecution is too remote to give rise to the privilege.

The fear of self-incrimination must be "real and appreciable," "not merely (an) imaginary possibility of danger." Mason v. United States,supra. This danger should be appraised "with reference to the ordinary operation of law in the ordinary course of things not a danger of an imaginary or unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct." Id. 244 U.S. at 366, 37 S.Ct. at 622. Accord: Blau v. United States, supra. In Mason v. United States, supra, the Supreme Court determined that plaintiff Mason's fear of incrimination was too remote when he refused to answer questions about the existence of card playing at a table at which he was sitting because there was no allegation that card playing was criminal in the state, unless gambling was involved. Id. at 367.

In Zicarelli v. New Jersey Investigation Commission, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972), the Court held that Zicarelli's fear of prosecution under foreign law was too remote because it was obvious from the questioning context that the question referred to strictly domestic matters for which Zicarelli had already been granted full immunity. Thus the Court has been cautious in finding the possibility of incrimination too remote to support a reasonable fear unless the fears were clearly far-fetched and imaginary. The Court has instead liberally construed the privilege in favor of the right which it was intended to protect. Hoffman v. United States, supra at 486, 71 S.Ct. 814. In Hoffman, the Court stated:

"To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question . . . might be dangerous because injurious disclosure could result." Id. at 486-87, 71 S.Ct. at 818.

In the present case it is clear that Sheila Grant's testimony concerning specific occasions of sexual intercourse would admit critical elements of a crime. Most if not all of Ch. 944, Stats., crimes require the state to name the defendant's victim or partner in the crime. Thus evidence of the child's birth alone would have been insufficient to support a criminal charge. But by supplying the names of a partner to sexual intercourse during the period of conception, Sheila Grant would have furnished evidence of most if not all of the elements of several Ch. 944 crimes and under Hoffman v. United States, supra, would have furnished a link in a chain of evidence necessary for prosecution. Despite the fact that it may be less than probable that Sheila Grant will be prosecuted with evidence compelled in a sec. 52.24, Stats., proceeding, her fear of self-incrimination is sufficiently real and appreciable to be a valid exercise of her right. ⁵

The corporation counsel also contends that restrictions on access to Sheila Grant's testimony afford sufficient protection from criminal prosecution. Under sec. 52.27, Stats., the court may exclude the public from the preliminary examination. Under sec. 52.35, Stats., the court may exclude the public from trial. Under sec. 52.42, Stats., "All records of court proceedings in cases under ss. 52.21 to 52.45 shall be withheld from inspection by, and copies shall not be furnished to, persons other than the parties in interest and their attorneys except upon order of the court."

The corporation counsel points out that in Milwaukee County, where the corporation counsel and not the district attorney handles paternity proceedings, the district attorney would not be a party in interest and hence would have no access to the court records. But in most areas of Wisconsin the district attorney does handle paternity cases, would have complete access to the records of court proceedings, and is the prosecutor of Ch. 944, Stats., violations. Even in Milwaukee...