¶ 53. (dissenting). I conclude that ch. 980 individuals are entitled to be advised at the pre-petition examination (1) that they have the right to remain silent, and (2) that their silence will not be used against then at any stage of the ch. 980 commitment proceeding.
¶ 54. Lombard was advised that he had the right to remain silent (that is, that he had the right not to participate in the examination). He was not advised that his silence could not be used against him. I therefore conclude that the state psychologist should not have been allowed to testify to the conclusions he reached based on Lombard's statements. Even more startling and prejudicial in the present case is that the psychologist incorrectly advised Lombard that his refusal to answer would be used as part of the evaluation and could be repeated in testimony at trial.
¶ 55. I conclude that Lombard should prevail on his ineffective assistance of counsel claim. Lombard should get a new trial on the issue of his ch. 980 commitment.
¶ 56. The parties and the majority opinion frame the issue as involving Miranda1 rights because at issue in the present case is the right of an individual in custody to remain silent and the right of the individual to be advised that the State may not use his or her silence or statements in subsequent proceedings. These rights are derived from the Miranda case and other cases. The present case does not involve any other "MirandaASke" right.
¶ 57. This is a ch. 980 commitment case. The prospective ch. 980 individual has statutory rights (as *568well as constitutional rights). The statute in issue, Wis. Stat. § 980.05(lm), provides that "all constitutional rights available to a defendant in a criminal proceeding are available to the person."
¶ 58. As the majority recognizes, this case raises the following three issues:
A. Does a prospective ch. 980 individual have the right to remain silent in a pre-petition examination?
B. May a prospective ch. 980 individual's silence during a pre-petition examination be used against him or her at trial? and
C. Is the State required to advise a prospective ch. 980 individual at the beginning of the pre-petition examination about the right to remain silent and that silence cannot be used against the individual?
¶ 59. I decide each of these issues as follows:
¶ 60 A. I agree with the majority opinion that a prospective ch. 980 individual has a right to remain silent at the pre-petition examination pursuant to Wis. Stat. § 980.05(lm).2 Zanelli I established this right.3 The majority opinion adheres to Zanelli I.
*569¶ 61. B. I agree with the majority opinion that a prospective ch. 980 individual's silence during a pre-petition examination may not be used against the individual during trial.4
¶ 62. This case does not involve silence. Lombard spoke. The State used Lombard's speech against him at triad.
¶ 63. C. I disagree with the majority opinion that a prospective ch. 980 individual need not be advised that he or she has a right to remain silent and that his or her silence will not be used against him or her at trial.5 I discuss this aspect of the case below.
*570¶ 64. As I see it, implicit in the legislature's grant of the right to remain silent (a constitutional right of a criminal defendant) is the individual's right to be advised of the right to remain silent. If an individual does not know of the right, the individual's right to pre-petition silence is meaningless. "[I]f a person in custody is to be subjected to questioning, 'he must first be informed in clear and unequivocal terms that he has the right to remain silent,' so the ignorant may learn of this right and so that the pressures of the'interrogation atmosphere will be overcome for those previously aware of the right."6
I — !
*571¶ 65. The State "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation... unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."7 Unless procedural safeguards to inform the person of his or her right of silence and a continued opportunity to exercise it are in place, "no statement obtained . . . can truly be the product of [the person's] free choice."8 In sum, "the privilege [against self-incrimination] is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will.' "9
¶ 66. Fundamental fairness and protection of the privilege against self-incrimination require a pre-examination warning of the right to remain silent. The potential ch. 980 individual is in custody.10 The interview is conducted in prison by a psychologist acting on behalf of the state. The interview is mandatory. The prisoner's freedom, his liberty interest, is on the line. Although a ch. 980 individual's potentially-for-life commitment is not, according to the legislature and this court, punishment for past criminal sexual conduct, but rather is treatment, the individual will feel compelled to speak unless advised that his silence will not be used against him.
*572¶ 67. Without a warning that the individual can remain silent and that this silence cannot be used against the individual, the individual's free choice is eviscerated; compulsion is inherent in the circumstances. Without advice about the right to remain silent the prospective ch. 980 individual cannot make a free and deliberate choice whether to exercise his statutory (a criminal defendant's constitutional) right to remain silent.
¶ 68. Relinquishment of a statutory right to remain silent (which is, according to the statute, comparable to a criminal accused's relinquishment of the constitutional right to remain silent) should be the product of free choice rather than the result of intimidation, coercion, or deception. A valid waiver of a right to remain silent must be made with the awareness of both the right being abandoned and the consequences of the decision to abandon that right.11 This rule safeguards the privilege of self-incrimination, regardless of whether the individual will incriminate himself.12
¶ 69. This interpretation of Wis. Stat. § 980.05(lm) is supported by Wis. Stat. § 51.20(9)(a)4., which specifies that prior to examination for civil commitment the individual shall be informed that his or statements can be used as a basis for commitment and that he or she has the right to remain silent. The issuance of such a warning establishes, by statute, a presumption that the individual understands that he or she need not speak to the examiner.
¶ 70. This interpretation of Wis. Stat. § 980.05(lm) is further supported by Allen v. Illinois, *573478 U.S. 364 (1986). In Allen the court held that admissions obtained in an Illinois sexually-dangerous proceeding without Miranda warnings were properly received. The court's conclusion was grounded on the civil label (although the label is not determinative) and the civil attributes of the statute and the fact that "[i]n short, the State has disavowed any interest in punishment, provided for the treatment of those it commits, and established a system under which committed persons may be released after the briefest time in confinement:."13 Release "after the briefest of time in confinement" are not words that can be used to describe ch. 980 or the practice thereunder. Wisconsin's ch. 980 committees have waited years before they were released on supervised release even though a court declared them eligible for such release. Thus one of the major grounds underlying the Allen majority is missing in the present case, and therefore the majority opinion in Allen does not, in my opinion, support the majority opinion in the present case.
¶ 71. I conclude, as did the four dissenters in Allen, that the criminal law "casts so long a shadow on a putatively civil proceeding... that the procedure must be deemed a 'criminal case' within the meaning of the Fifth Amendment"14 and the Miranda warnings about silence must be given. Chapter 980 relies heavily on the criminal justice system: The proceedings are triggered by a criminal conviction; the proceedings are prosecuted by the state; the burden of proof is that applicable to the criminal law; the constitutional rights of a criminal defendant apply; the consequences of the proceedings are institutionalization for an indefinite *574time, possibly life. Justice Stevens in his dissent wrote: "In my opinion, permitting a State to create a shadow criminal law without the fundamental protection of the Fifth Amendment conflicts with the respect for liberty and individual dignity that has long characterized, and that continues to characterize, our free society."15
HH hH
¶ 72. Even if a ch. 980 individual does not have a right to be warned that he or she has a right to remain silent and that silence cannot be used against him or her at any stage of the ch. 980 proceeding, as the majority opinion holds, an incorrect and misleading warning is unacceptable. And that's what happened in this case.
¶ 73. The majority opinion emphasizes that the state psychologist "went to great lengths to ensure that Lombard was informed about the pre-petition evaluation process,"16 and that "Lombard understood that it was entirely his choice to decide if he wanted to participate . .. ,"17 Yet the majority opinion ignores the fact that the psychologist misstated the law about the use to which Lombard's silence may be put and thus misled Lombard.
¶ 74. The psychologist advised Lombard that his silence will be used as part of his evaluation. This information was erroneous. The new form the State supplied the court correctly explains that the indivi*575dual's decision regarding participation in the interview "cannot be used against [the individual]."18
¶ 75. The psychologist also advised Lombard that "nothing during the evaluation will be confidential and may be repeated in testimony or written response."19 The psychologist thus advised Lombard that even Lombard's silence during the evaluation would not be confidential. This information too was erroneous. The new form the State supplied the court correctly explains that "nothing said during the evaluation would be confidential."20
¶ 76. It is one thing for the State not to advise a prospective ch. 980 individual about his right to remain silent and about the use to which the silence may (or may not) be put. It is another thing for the State to give the individual erroneous advice and then use the information the State obtains through this erroneous advice against the individual.
¶ 77. This case can be boiled down to these important facts: Lombard was not advised of his statutory right to remain silent. In fact, Lombard received erroneous advice, advice contrary to the law of Wisconsin: He was advised that his silence would be used against him. The State thus misled Lombard into speaking. The state's misleading Lombard was, in my opinion, prejudicial error.
¶ 78. I conclude that counsel should have, at a minimum, objected to the psychologist's testimony on the ground that Lombard was incorrectly advised about his right to remain silent, that this incorrect advice was *576misleading, and that Lombard's agreement to participate in the examination based on this erroneous advice was invalid as a matter of law. Trial counsel's failure to object to the psychologist's testimony was, I conclude, ineffective assistance of counsel and prejudicial per se.
¶ 79. As a result of the majority opinion, a state agent (the psychologist) is free to mislead a prospective ch. 980 individual to believe that his silence at the pre-petition examination can be used against him and thus induce the individual to speak. I dissent.
¶ 80. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
Miranda v. Arizona, 384 U.S. 436 (1966).
Majority op., ¶ 39.
State v. Zanelli, 212 Wis. 2d 358, 372, 569 N.W.2d 301 (Ct. App. 1997) (Zanelli I).
Zanelli I protects the respondent's right to silence at the ch. 980 trial, and bars testimony about or reference to the individual's silence during or before the trial. At the ch. 980 trial in Zanelli I both the prosecutor and the psychologist commented on Zanelli's silence during a pre-petition interview. Zanelli I, 212 Wis. 2d at 369. Zanelli argued that by commenting on his silence the State violated his constitutional right to remain silent. Zanelli I, 212 Wis. 2d at 370. The court of appeals concluded that when a witness and the prosecutor commented on Zanelli's silence, they violated *569the rule of State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982), made applicable to Zanelli by virtue of § 980.05(1m). Zanelli I, 212 Wis. 2d at 372.
Majority op., ¶ 39; Zanelli I, 212 Wis. 2d at 371-72.
I confess that I find it difficult to follow the reasoning of the majority opinion, much of which seems more applicable to the first two issues rather than this third issue.
The majority opinion seems to rely on the "constitutional rights" granted by Wis. Stat. § 980.05(lm) as being limited to the trial. Section 980.05(lm) provides in full as follows: "At the trial to determine whether the person who is the subject of a petition under § 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person."
The first sentence of the provision refers to trial and evidence. Evidence is a trial matter. The second sentence does not refer to trial. It addresses all constitutional rights in a "criminal proceeding." Constitutional rights arise before, during, and after trial. Thus the words "criminal proceeding" denote more than rights at trial. To read the words "at the trial" from the first sentence into the second sentence conflicts with the words "criminal proceeding" in the second sentence.
Reading Wis. Stat. § 980.05(lm) as limited to trials appears to make it redundant. Wisconsin Stat. § 980.03 (2)(b) states the rights of a prospective ch. 980 individual, including the right to *570remain silent, at all hearings. Therefore § 980.05(lm) must provide more than simply a right to silence at trial.
The majority opinion relies on State ex rel. Seibert v. Macht, 2001 WI 67, ¶ 12, 244 Wis. 2d 378, 627 N.W.2d 881, as revised by 2002 WI 12, ¶ 2, 249 Wis. 2d 702, 639 N.W.2d 707, to support its interpretation of Wis. Stat. § 980.05(lm). In a motion for reconsideration in that case, the State asked the court to amend its decision because "the last sentence in § 980.05(lm) may, but need not, be interpreted as applicable only to trial." The State requested the court to refrain from defining the scope of § 980.05(lm) without discussing all the possible interpretations of the section and explaining why one interpretation is preferred.
The court in Macht did not heed the state's warning and did not explain why it added the words "at trial." The case at bar is the first case in which it has the opportunity to examine the statute closely and it does not.
In other cases this court has treated Wis. Stat. § 980.05(1m) as applying throughout the ch. 980 proceeding. See State v. Sorenson, 2002 WI 78, ¶ 19, 254 Wis. 2d 54, 646 N.W.2d 354; State v. Thiel, 2001 WI App 32, ¶ 15, 241 Wis. 2d 465, 626 N.W.2d 787.
2 Wayne R. LaFave et al., Criminal Procedure § 6.5(b), at 509 (2d ed. 1999) (quoting Miranda v. Arizona, 384 U.S. 436 (1966)).
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Miranda, 384 U.S. at 458.
Miranda, 384 U.S. at 460 (quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)). See also Fencl, 109 Wis. 2d at 236.
See State v. Armstrong, 223 Wis. 2d 331, 355, 588 N.W.2d 606 (1999) (persons incarcerated are per se in custody).
See Miranda, 384 U.S. at 460.
Id. at 444.
Allen v. Illinois, 478 U.S. 364, 370 (1986).
Id. at 376 (Stevens, J., dissenting).
Id. at 384 (Stevens, J., dissenting).
Majority op., ¶ 44.
Id., ¶ 45.
Id, ¶ 4 n.4.
The full written form Lombard signed, including these statements, appears in the majority opinion, ¶ 4.
Majority op., ¶ 4 n.4 (emphasis added).