JUSTICE LYTTON,
specially concurring:
Although I agree with the majority’s opinion in most respects, I specially concur in order to address a troubling procedural question. What happens when a defendant invokes the fifth amendment and simply refuses to testify at a probation revocation hearing?
The majority correctly holds that since a probation revocation hearing is civil, the fifth amendment right to remain silent does not apply in the same manner as in criminal cases. See Murphy v. Minnesota, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984); People v. Clark, 268 Ill. App. 3d 810, 645 N.E.2d 590 (1995); People v. Martin, 226 Ill. App. 3d 753, 589 N.E.2d 815 (1992); People v. Davis, 216 Ill. App. 3d 884, 576 N.E.2d 510 (1991). This holding is correct as far as it goes, but it does not go far enough.
When the privilege against self-incrimination is raised in a civil context, the party claiming it is required to testify or suffer certain consequences by remaining silent. If the party refuses to testify, the court can draw negative inferences against the party. The fact finder does not violate the fifth amendment by "drawing] whatever inference from [a party’s] silence that the circumstances warrant! ].” Baxter v. Palmigiano, 425 U.S. 308, 318, 47 L. Ed. 2d 810, 821, 96 S. Ct. 1551, 1558 (1976) (a prison disciplinary board could properly give a prisoner’s silence the "evidentiary value [that] was warranted by the facts surrounding his case”).
In Murphy, the Supreme Court extended the Baxter rule to probation revocation hearings. The court found that probation revocation hearings were civil in nature, and, unless a statement would incriminate the defendant in another criminal proceeding, the defendant could be required to communicate with his probation officer. The court stated:
"[Njothing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation or from using the probationer’s silence as 'one of a number of factors to be considered by the finder of fact’ in deciding whether other conditions of probation have been violated.” (Emphasis added.) Murphy, 465 U.S. at 435 n.7, 79 L. Ed. 2d at 425 n.7, 104 S. Ct. at 1146 n.7, quoting Lefkowitz v. Cunningham, 431 U.S. 801, 808 n.5, 53 L. Ed. 2d 1, 9 n.5, 97 S. Ct. 2132, 2137 n.5 (1977).
This situation can be likened to criminal cases prior to Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965), when prosecutors could ask fact finders to draw inferences against defendants because of their failure to testify. Similarly, today in probation revocation hearings, prosecutors can ask trial judges to draw inferences against probationers if they do not testify.
In his treatise on criminal procedure, Professor LaFave describes the rule as follows: "the defendant may be required to testify regarding his noncriminal conduct even if it amounts to a probation violation or else have his refusal considered against him.” (Emphasis added.) 3 W. LaFave & J. Israel, Criminal Procedure § 25.4, at 164 (1984).3
Many jurisdictions have adopted this rule in probation revocation hearings. See United States v. Robinson, 893 F.2d 1244 (11th Cir. 1990) (trial court may infer a violation of a condition of probation from defendant’s silence); Calvert v. State, 310 N.W.2d 185 (Iowa 1981) (same); State v. Mangan, 343 So. 2d 599 (Fla. 1977) (same); Cassamassima v. State, 657 So. 2d 906 (Fla. App. 1995) (probation revoked after refusal to answer); States v. Ferguson, 72 Ohio App. 3d 714, 595 N.E.2d 1011 (1991) (trial court may infer a violation of a condition of probation from defendant’s silence); Watson v. State, 388 So. 2d 15 (Fla. App. 1980) (same).4
A significant distinction exists between drawing inferences from a probationer’s silence and actually ordering the person to testify. The result for a probationer may indeed be the same, depending on the inferences taken in any particular case, but the distinction should not be ignored. The Illinois cases cited by the majority point favorably to-Professor LaFave, but none address the situation presented in this case, where the trial judge ordered the defendant to testify.
Finally, when a prosecutor attempts to prove a violation of probation, the clear preference must always be to call the State’s own witnesses, such as probation officers or TASC employees. While a trial court may compel testimony through its contempt powers, reliance on the defendant’s testimony alone should not be encouraged and could easily backfire. As the trial judge in this case said:
"And if her brains are fried on the drugs, maybe we ought to get her off the witness stand and get somebody from TASC in here and tell what she was directed to do [and] what she didn’t do. Or we can go around and around the post with people who have got fried brains and [not] expect anything rational out of them.” (Emphasis added.)
The question of whether the inference may be conclusive evidence of a violation of probation is an open one. One view holds that if "any” inference can be drawn, it might be sufficient to revoke. See Cassamassima v. State, 657 So. 2d 906 (Fla. App. 1995). However, the Supreme Court in Murphy suggested that a probationer’s reliance on the fifth amendment was one of several factors to be considered. Murphy v. Minnesota, 465 U.S. at 435 n.7, 79 L. Ed. 2d at 425 n.7, 104 S. Ct. at 1146 n.7.
In other diverse types of civil cases, courts have agreed that adverse inferences may be drawn from a party’s refusal to testify. See National Acceptance Co. of America v. Bathalter, 705 F.2d 924 (7th Cir. 1983) (analyzing the application of the fifth amendment in civil cases). See also Pagel, Inc. v. Securities Exchange Comm’n, 803 F.2d 942 (8th Cir. 1986) (SEC broker/ dealer registration); State Department of Law & Public Safety, Division of Gaming Enforcement v. Merlino, 216 N.J. Super. 599, 524 A.2d 821 (1987), aff’d, 109 N.J. 134, 535 A.2d 968 (1988) (casino gambling license); Whitaker v. Prince Georges County, 307 Md. 368, 514 A.2d 4 (1986) (injunction against operation of house of prostitution).