dissenting:
Pursuant to section 4 of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1981, ch. 38, par. 105 — 4) (hereinafter Act), the defendant was ordered to undergo psychiatric examinations to determine whether he was sexually dangerous. Two psychiatrists testified that based on their examinations, the defendant was mentally ill and exhibited propensities to commit sex crimes. The majority finds that this testimony was inadmissible because the defendant was not given Miranda warnings before the examinations in violation of his fifth amendment rights. I dissent.
The majority opinion proceeds from the erroneous premise that the defendant was compelled to incriminate himself because his statements to the psychiatrists were used to show that he was a sexually dangerous person. Not so. Proceedings under the Act are civil in nature. (Ill. Rev. Stat. 1981, ch. 38, par. 105 — 3.01.) Therefore, a defendant’s statements are incriminating only if they expose the defendant to actual criminal prosecution as opposed to a determination of his civil mental status under the Act.
In People v. English (1964), 31 Ill. 2d 300, 307-08, the Illinois Supreme Court held that a defendant can be compelled to answer questions during a psychiatric examination under the Act so long as he is not forced to make incriminating statements:
“We hold that the privilege against self-incrimination protects defendant from making any statements to the psychiatrists which may tend to incriminate him.
This does not mean, however, that defendant is privileged from submitting to any examination. In People v. Greer, 28 Ill. 2d 107, and People v. Munziato, 24 Ill. 2d 432, we held that the privilege protects only against testimonial compulsion. Thus, defendant can be compelled to submit [to] those parts of the ex-animation which do not call upon his testimonial capacity, even though some of the information obtained may be incriminating; and he can, of course, be compelled to make replies as long as the questions do not require an answer which may tend to incriminate him.” (Emphasis added.)
According to English, a defendant’s privilege against self-incrimination does not extend to a disclosure of his mental condition unless it would also reveal criminal conduct independent of the defendant’s status under the Act. The majority has departed from this rule by defining an incriminating statement as anything which is used to support a finding of sexual dangerousness. If this definition is followed, then a defendant may refuse to answer all questions during an examination on fifth amendment grounds. This is clearly contrary to People v. English (1964), 31 Ill. 2d 300.
United States ex rel. Stachulak v. Coughlin (7th Cir. 1975), 520 E2d 931, does not support the majority’s position. In Coughlin, the court held that in proceedings under the Act, the State must prove its case beyond a reasonable doubt. Although this requirement has been incorporated into the Act, proceedings thereunder remain civil in nature. Ill. Rev. Stat. 1981, ch. 38, par. 105 — 3.01.
Coughlin also held that the privilege against self-incrimination applied to the Act but did not discuss the issue in depth. Instead, the court cited with approval People v. English (1964), 31 Ill. 2d 300, which the majority has now rendered obsolete.
Likewise, Estelle v. Smith (1981), 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866, provides no authority for suppressing all unwarned statements made during a psychiatric examination under the Act. Estelle addressed the issue of a defendant’s fifth amendment rights during a compulsory psychiatric examination prior to a death penalty hearing which is a criminal proceeding. Estelle should not be employed as a precedent in civil matters such as the present case.
In my opinion, the lack of Miranda-type warnings prior to the defendant’s examinations should not render incriminating statements inadmissible in this proceeding. Such incriminating statements made by the defendant should be held inadmissible only in subsequent criminal prosecutions. I am aware that in People v. Potter (1967), 85 Ill. App. 2d 151, the court held that such statements would be inadmissible both under the Act and in a subsequent criminal prosecution. However, I would decline to follow Potter insofar as it purports to bar use of the unwarned statements in a proceeding under the Act.
Indeed, in the present case, there is no indication that the defendant made incriminating statements which exposed him to potential criminal prosecution. Therefore, the lack of warnings does not render the psychiatrist’s testimony inadmissible. I would affirm the circuit court’s judgment finding the defendant to be a sexually dangerous person.