A defendant who waived counsel and who agreed to sign a confession admitting 18 burglaries in return for an agreement that the defendant would be prosecuted for only one could not claim that the confession was improperly induced. The state had the burden of showing voluntariness beyond a reasonable doubt. Pontow v. State, 58 Wis. 2d 135, 205 N.W.2d 775 (1973). The administration of a blood or breathalyzer test does not violate a defendant’s privilege against self-incrimination. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850 (1973). Discussing factors to be considered in determining whether a confession is voluntary. State v. Wallace, 59 Wis. 2d 66, 207 N.W.2d 855 (1973). A voluntary confession is not rendered inadmissible because the arrest is made outside the statutory jurisdictional limits of the arresting officer. State v. Ewald, 63 Wis. 2d 165, 216 N.W.2d 213 (1974). While Miranda, 384 U.S. 436 (1966), does require that upon exercise of a defendant’s 5th amendment privilege the interrogation must cease, Miranda does not explicitly state that the defendant may not, after again being advised of the defendant’s rights, be interrogated in the future. State v. Estrada, 63 Wis. 2d 476, 217 N.W.2d 359 (1974). Statements given to police without Miranda, 384 U.S. 436 (1966), warnings, while the defendant was injured and in bed, that the defendant was the driver and had been drinking, while voluntary, were inadmissible since at that time accusatorial attention had focused on the defendant. Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286 (1974). The voluntariness of a confession must be determined by examining all the surrounding facts under a totality of the circumstances test. Brown v. State, 64 Wis. 2d 581, 219 N.W.2d 373 (1974). The validity of a juvenile confession is determined by an analysis of the totality of the circumstances surrounding the confession. The presence of a parent, guardian, or attorney is not an absolute requirement for the juvenile to validly waive the right to remain silent but only one of the factors to be considered in determining voluntariness. Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850 (1974). A written confession is admissible in evidence, although it is not signed by the defendant, so long as the defendant has read the statement and adopted it as the defendant’s own. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750 (1975). When the defendant claimed to understand the defendant’s Miranda, 384 U.S. 436 (1966), rights but agreed to talk to police without counsel because of a stated inability to afford a lawyer, further questioning by police was improper and the resulting confession was inadmissible. Micale v. State, 76 Wis. 2d 370, 251 N.W.2d 458 (1977). The state may compel a probationer’s testimony in a revocation proceeding if the probationer is first advised that the testimony will be inadmissible in criminal proceedings arising out of the alleged probation violation, except for purposes of impeachment or rebuttal. State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977). A volunteered confession made while in custody and prior to Miranda, 384 U.S. 436 (1966), warnings was admissible despite an earlier inadmissible statement in response to custodial interrogation. LaTender v. State, 77 Wis. 2d 383, 253 N.W.2d 221 (1977). No restrictions of the 4th and 5th amendments preclude enforcement of an order for handwriting exemplars directed by a presiding judge in a John Doe proceeding. State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (1977). Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target” of the investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977). The defendant’s confession was admissible although it was obtained through custodial interrogation following the defendant’s request for a lawyer. Leach v. State, 83 Wis. 2d 199, 265 N.W.2d 495 (1978). When a “conversational” visit was not a custodial interrogation, the defendant’s voluntary statement was admissible despite a lack of Miranda, 384 U.S. 436 (1966), warnings. State v. Hockings, 86 Wis. 2d 709, 273 N.W.2d 339 (1979). Immunity for compelled testimony contrary to the 5th amendment privilege extends to juvenile court proceedings. State v. J.H.S., 90 Wis. 2d 613, 280 N.W.2d 356 (Ct. App. 1979). The defendant’s voluntary statements were admissible for impeachment even though they were obtained in violation of Miranda, 384 U.S. 436 (1966). State v. Mendoza, 96 Wis. 2d 106, 291 N.W.2d 478 (1980). When the accused cut off the initial interrogation but was interrogated by another officer nine minutes later following fresh Miranda, 384 U.S. 436 (1966), warnings, the confession was admissible. State v. Shaffer, 96 Wis. 2d 531, 292 N.W.2d 370 (Ct. App. 1980). By testifying as to the defendant’s actions on the day a murder was committed, the defendant waived the self-incrimination privilege on cross-examination as to prior actions related to the murder that were the subject of the pending prosecution. Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980). Miranda, 384 U.S. 436 (1966), warnings were unnecessary when an officer entered the defendant’s home in the belief that the defendant might have killed his wife four days earlier and asked, “Where is your wife?” State v. Kramer, 99 Wis. 2d 306, 298 N.W.2d 568 (1980). A prosecutor’s comment on the failure of an alibi witness to come forward with an alibi story did not infringe on the defendant’s right of silence. State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982). Videotapes of sobriety tests were properly admitted to show physical manifestations of the defendant driver’s intoxication. State v. Haefer, 110 Wis. 2d 381, 328 N.W.2d 894 (Ct. App. 1982). A John Doe subpoena requiring the production of income tax returns violated the self-incrimination right. B.M. v. State, 113 Wis. 2d 183, 335 N.W.2d 420 (Ct. App. 1983). A statement given to police, without Miranda, 384 U.S. 436 (1966), warnings, while the accused was in an emergency room that the accused was the driver in a fatal crash was admissible. State v. Clappes, 117 Wis. 2d 277, 344 N.W.2d 141 (1984). After a guilty plea the privilege against self-incrimination continues at least until sentencing. State v. McConnohie, 121 Wis. 2d 57, 358 N.W.2d 256 (1984). When a defendant does not testify but presents the defendant’s own argument to the jury, the prosecutor may caution the jury that the defendant’s statements are not evidence. State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (Ct. App. 1984). When a relative of the accused contacted police and asked if anything could be done to help the accused, a subsequent confession elicited from the accused by the relative was inadmissible. Discussing factors to be considered in determining when a civilian becomes an agent of the police. State v. Lee, 122 Wis. 2d 266, 362 N.W.2d 149 (1985). Police had no duty to inform a suspect during custodial interrogation that a lawyer retained by the suspect’s family was present. State v. Hanson, 136 Wis. 2d 195, 401 N.W.2d 771 (1987). Incriminating statements by an intoxicated defendant undergoing medical treatment for painful injuries were voluntary since there was no affirmative police misconduct compelling the defendant to answer police questioning. State v. Clappes, 136 Wis. 2d 222, 401 N.W.2d 759 (1987). A probationer’s answers to a probation agent’s questions are “compelled” and may not be used for any purpose in a criminal trial. State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987). The prosecution may comment on an accused’s pre-Miranda, 384 U.S. 436 (1966), silence when the accused elects to testify on the accused’s own behalf. State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988). The admission of an involuntary or coerced confession is subject to the harmless error test. State v. Childs, 146 Wis. 2d 116, 430 N.W.2d 353 (Ct. App. 1988). An unconstitutionally obtained confession may be admitted and serve as the sole basis for a bindover at a preliminary examination. State v. Moats, 156 Wis. 2d 74, 457 N.W.2d 299 (1990). The 5th amendment protects a defendant only when it is the state that is the questioner. Fear of self-incrimination does not exempt one from contractual duties. Constitutional immunity has no application to a private examination arising out of a contractual relationship. Thus, an insured cannot justify refusing to answer questions during an investigation of an insurance claim by invoking the 5th amendment privilege. State Farm Fire & Casualty Insurance Co. v. Walker, 157 Wis. 2d 459, 459 N.W.2d 605 (Ct. App. 1990). See also Link v. Link, 2022 WI App 9, 401 Wis. 2d 73, 972 N.W.2d 630, 20-1244. When a psychiatrist did not comply with Miranda, 384 U.S. 436 (1966), the constitution did not require exclusion of the results of the interview with the defendant from the competency phase of the trial. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991). The primary concern in attenuation cases is whether the evidence objected to is obtained by exploitation of a prior police illegality or instead by means sufficiently attenuated so as to be purged of the taint. Under Brown, 422 U.S. 590 (1975), the presence of Miranda, 384 U.S. 436 (1966), warnings alone does not cause a statement to be sufficiently attenuated so as to purge it of the taint of the illegal action. Other factors to be considered in determining attenuation are the temporal proximity of the official misconduct and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. State v. Anderson, 165 Wis. 2d 441, 477 N.W.2d 277 (1991). Miranda, 384 U.S. 436 (1966), safeguards are not required when a suspect is simply in custody but are required when the suspect in custody is subjected to interrogation. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992). A criminal defendant may be compelled to submit a voice sample consisting of specific words for purposes of identification. The words do not require a revelation of the contents of the mind to impart an admission of or evidence of guilt. Commenting on a refusal to give a sample does not violate the right against self-incrimination. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992). A waiver of Miranda, 384 U.S. 436 (1966), rights must be made knowingly and intelligently, as well as voluntarily. A knowing and intelligent waiver must be shown by a preponderance of the evidence as determined from an objective assessment of the circumstances. State v. Lee, 175 Wis. 2d 348, 499 N.W.2d 250 (Ct. App. 1993). If police do not use coercive tactics, that a defendant is undergoing medical treatment or experiencing pain is not determinative on the issue of voluntariness. State v. Schambow, 176 Wis. 2d 286, 500 N.W.2d 362 (Ct. App. 1993). When a defendant pleads guilty then appeals the denial of a suppression motion under s. 971.31 (10), the harmless error rule may not be applied when a motion to suppress was erroneously denied. State v. Pounds, 176 Wis. 2d 315, 500 N.W.2d 373 (Ct. App. 1993). Failure to give Miranda, 384 U.S. 436 (1966), warnings during a telephone conversation initiated to encourage the defendant’s surrender following an armed robbery police suspected was committed by the defendant did not require suppression of admissions made to the police. State v. Stearns, 178 Wis. 2d 845, 506 N.W.2d 165 (Ct. App. 1993). Routine booking questions, such as the defendant’s name and address, that are not intended to elicit incriminating responses are exempted from the coverage of Miranda, 384 U.S. 436 (1966). Miranda safeguards are applicable to questions asked during an arrest or concerning name and residence when the questions relate to an element of the crime. State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994). The defendant’s intoxication for purposes of motor vehicle statutes did not per se demonstrate an inability to knowingly waive Miranda, 384 U.S. 436 (1966), rights. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994). Coercive police activity is a predicate to establishing involuntariness but does not itself establish involuntariness. Officer dissatisfaction with a defendant’s answers and statements by the officer that cooperation would benefit the defendant is not coercion without a promise of leniency. State v. Deets, 187 Wis. 2d 630, 523 N.W.2d 180 (Ct. App. 1994). A refusal to perform a field sobriety test is not testimony and not protected by the constitution. The refusal to submit to the test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbitt, 188 Wis. 2d 349, 525 N.W.2d 102 (Ct. App. 1994). Edwards, 451 U.S. 477 (1981), requires interrogation to cease once a suspect requests an attorney. It does not prohibit questions designed to accommodate the request. When in response to being asked his attorney’s name a suspect gave a name and then stated that the person was not an attorney, the interrogating officer was not prevented from continuing interrogation. State v. Lagar, 190 Wis. 2d 423, 526 N.W.2d 836 (Ct. App. 1994). A forced confession as a condition of probation does not violate the right against self-incrimination. The constitution protects against the use of confessions in subsequent criminal prosecutions but does not protect against the use of those statements in a revocation proceeding. State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995). A suspect’s reference to an attorney who had represented or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995). The rights to counsel and to remain silent are the defendant’s. An attorney not requested by the defendant could not compel the police to end questioning by stating that no questioning was to take place outside the attorney’s presence. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995). Once given, it is not necessary to repeat the Miranda, 384 U.S. 436 (1966), warnings during an investigation of the same person for the same crime. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995). While polygraph tests are inadmissible, post-polygraph interviews, found distinct both as to time and content from the examination that preceded them and the statements made therein, are admissible. State v. Johnson, 193 Wis. 2d 382, 535 N.W.2d 441 (Ct. App. 1995). See also State v. Greer, 2003 WI App 112, 265 Wis. 2d 463, 666 N.W.2d 518, 01-2591; State v. Davis, 2008 WI 71, 310 Wis. 2d 583, 751 N.W.2d 332, 06-1954. The privilege against self-incrimination extends beyond sentencing as long as a defendant has a real fear of further incrimination, as when an appeal is pending, before an appeal of right or plea withdrawal has expired, or when the defendant intends or is in the process of moving for sentence modification and shows a reasonable chance of success. State v. Marks, 194 Wis. 2d 79, 533 N.W.2d 730 (1995). A defendant may selectively waive Miranda rights. Refusal to answer specific questions does not assert an overall right to to silence, if there is an unequivocal expression of selective invocation. State v. Wright, 196 Wis. 2d 149, 537 N.W.2d 134 (Ct. App. 1995), 94-3004. The analytical framework to apply in attenuation cases was set forth in Brown, 422 U.S. 590 (1975). Under Brown, the threshold requirement is the voluntariness of the challenged statements. The remaining factors bearing on admissibility are the temporal proximity of the illegal conduct and the confession, the presence of any intervening circumstances, and the purpose and flagrancy of the official misconduct. The burden of showing admissibility rests on the prosecution. State v. Tobias, 196 Wis. 2d 537, 538 N.W.2d 843 (Ct. App. 1995), 95-0324. The right to counsel under Miranda, 384 U.S. 436 (1966), must be personally invoked by the suspect. Simply retaining counsel is not an unequivocal statement that the suspect wishes to deal with the police only in the presence of counsel. State v. Coerper, 199 Wis. 2d 216, 544 N.W.2d 423 (1996), 94-2791. Once a suspect invokes the right to counsel, judicial inquiry into voluntariness is beside the point. Physical evidence derived from statements made in violation of the asserted right must be suppressed. However, evidence admitted in violation of this rule is subject to a harmless error analysis. State v. Harris, 199 Wis. 2d 227, 544 N.W.2d 545 (1996), 93-0730. Prosecution comments on a defendant’s claimed lack of memory and subsequent silence during a police interview conducted shortly after the incident when the defendant testified at length at trial on the same subject did not violate the right against self-incrimination when the comments were intended to impeach the defendant’s testimony and not to ask the jury to infer guilt from the defendant’s silence. State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996), 95-1732. A suspect’s declaration that the suspect did not wish to speak to a specific police officer was not an invocation of the right to remain silent. Police adoption of “good cop/bad cop” roles did not render an interrogation coercive and its results inadmissible. State v. Owen, 202 Wis. 2d 620, 551 N.W.2d 50 (Ct. App. 1996), 95-2631. A suspect’s silence, standing alone, is insufficient to unambiguously invoke the right to remain silent. State v. Ross, 203 Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996), 95-1671. A suspect’s statement to the suspect’s mother during an arrest that she should call a lawyer was not an unequivocal statement that the suspect wished to deal with the police only in the presence of counsel. State v. Rodgers, 203 Wis. 2d 83, 552 N.W.2d 123 (Ct. App. 1996), 95-2570. The sufficiency of Miranda, 384 U.S. 436 (1966), warnings given by the police in a foreign language and a subsequent waiver of those rights may be challenged. If timely notice of the challenge is given the state has the burden to produce evidence to show that the foreign language words reasonably conveyed the rights and that waiver was knowingly and intelligently made. State v. Santiago, 206 Wis. 2d 3, 556 N.W.2d 687 (1996), 94-1200. The privilege against self-incrimination may be replaced by a grant of immunity, which has the same scope and effect as the privilege itself. The immunity must protect against derivative use of compelled information that could lead to evidence that could be used in a criminal prosecution as well as information that could be used directly. State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), 94-2848. A defendant’s refusal to submit to a field sobriety test is not protected by the right against self-incrimination and is admissible as evidence. State v. Mallick, 210 Wis. 2d 427, 565 N.W.2d 245 (Ct. App. 1997), 96-3048. Evidence of why a defendant does not testify has no bearing on guilt or innocence, is not relevant, and is inadmissible. State v. Heuer, 212 Wis. 2d 58, 567 N.W.2d 638 (Ct. App. 1997), 96-3594. A CHIPS proceeding is not a criminal proceeding within the meaning of the 5th amendment. Miranda, 384 U.S. 436 (1966), warnings are not required to be given to the CHIPS petition subject, even though the individual is in custody and subject to interrogation, in order for the subject’s statements to be admissible. State v. Thomas J.W., 213 Wis. 2d 264, 570 N.W.2d 586 (Ct. App. 1997), 97-0506. Use of prearrest silence is barred if it is induced by governmental action. The right to silence was not implicated by a governmental employee defendant’s refusal to meet with the employee’s supervisors to discuss employment issues. The prosecution was free to comment on that refusal. State v. Adams, 221 Wis. 2d 1, 584 N.W.2d 695 (Ct. App. 1998), 97-1926. That a police officer intentionally withheld information that the officer had a warrant for the defendant’s arrest and intended to arrest the defendant at some point was irrelevant to whether the defendant was in custody when the defendant made incriminating statements without having received Miranda, 384 U.S. 436 (1966), warnings. State v. Mosher, 221 Wis. 2d 203, 584 N.W.2d 553 (Ct. App. 1998), 97-3535. There are four requirements that together trigger the privilege against self-incrimination. The information sought must be: 1) incriminating; 2) personal to the defendant; 3) obtained by compulsion; and 4) testimonial or communicative in nature. Discovery of information not meeting these criteria is not barred. State v. Revels, 221 Wis. 2d 315, 585 N.W.2d 602 (Ct. App. 1998), 97-3148. The application of the “fruit of the poisonous tree” doctrine to violations of Miranda, 384 U.S. 436 (1966), that are not also violations of the 5th or 14th amendment is improper. A failure to administer Miranda warnings that is unaccompanied by any actual coercion is insufficient to result in an imputation of taint to subsequent statements. State v. Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999), 97-0925. The state must prove by a preponderance of the evidence that a confession is voluntarily made. Whether a confession is true or false cannot play a part in determining whether it is voluntary. A relevancy objection to questioning regarding the truthfulness of a confession was sufficient to preserve the issue for appeal. State v. Agnello, 226 Wis. 2d 164, 593 N.W.2d 427 (1999), 96-3406. If a statement secured by the police is voluntary, although in violation of Miranda, 384 U.S. 436 (1966), it may be used to impeach the defendant’s conflicting testimony, although it is inadmissible in the prosecution’s case-in-chief. Whether the statement is voluntary depends on whether it is compelled by coercive means or improper police practices, as indicated by the totality of the circumstances. State v. Franklin, 228 Wis. 2d 408, 596 N.W.2d 855 (Ct. App. 1999), 98-2420. When a criminal defendant objects to testimony of the defendant’s out-of-court statement as incomplete or attempts to cross-examine the witness on additional parts of the statement, the court must make a discretionary determination regarding whether the additional portions are required for completeness. Additional portions of the defendant’s statement are not inadmissible solely because the defendant chooses not to testify. State v. Anderson, 230 Wis. 2d 121, 600 N.W.2d 913 (Ct. App. 1999), 98-3639. Miranda, 384 U.S. 436 (1966), warnings need not be given in the suspect’s language of choice, but the warnings must be given in a language in which the suspect is proficient enough to understand the concepts that are involved in the warnings. State v. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48, 99-1374. Whether an interrogation that resumes after an invocation of the right to remain silent violates the right against self-incrimination is analyzed based on whether: 1) the original interrogation is promptly terminated; 2) it is resumed after a significant amount of time; 3) Miranda, 384 U.S. 436 (1966), warnings are given at the beginning of the subsequent interrogation; 4) a different officer resumes the questioning; and 5) the subsequent interrogation is limited to a different crime. These factors are not exclusively controlling, however, and should not be woodenly applied. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943. There is an exception to the application of Miranda, 384 U.S. 436 (1966), for routine booking questions. The questions must be asked: 1) by an agency ordinarily involved in booking suspects; 2) during a true booking; and 3) shortly after the suspect is taken into custody. The test of whether questioning constitutes interrogation and is not covered by the exception if in light of all the circumstances the police should have known that the question was reasonably likely to elicit an incriminating response. State v. Bryant, 2001 WI App 41, 241 Wis. 2d 554, 624 N.W.2d 865, 00-0686. When the defendant’s plea put the defendant’s mental competency at issue and the defendant’s attorney consented to two competency examinations and had actual notice of them, the use of those reports during sentencing did not violate the right against self-incrimination. State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50, 00-1586. If the defendant opens the door to government questioning by the defendant’s own remarks about post-arrest behavior or by defense counsel’s questioning, the state may use the defendant’s silence for the limited purpose of impeaching the defendant’s testimony. When defense counsel asked leading questions of the officer who conducted a post-Miranda, 384 U.S. 436 (1966), interview of the defendant that implied the defendant had actively denied the crime charged, the state was permitted to clarify that the defendant had not answered all questions asked of the defendant. State v. Nielsen, 2001 WI App 192, 247 Wis. 2d 466, 634 N.W.2d 325, 00-3224. A defendant who offers expert testimony to show the lack of a psychological profile of a sex offender puts the defendant’s mental status at issue and waives the right against self-incrimination. A defendant who intends to present such evidence may be ordered to submit to a psychiatric evaluation by a state-selected expert. If after an exam by the state’s expert the defendant foregoes the presentation of the testimony, the state is barred from introducing any evidence derived from the state-sponsored exam on the issue of guilt. State v. Davis, 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922, 00-2916. A defendant can only be found not guilty by reason of mental disease or defect after admitting to the criminal conduct or being found guilty. While the decision made in the responsibility phase is not criminal in nature, the mental responsibility phase remains a part of the criminal case in general, and the defendant is entitled to invoke the 5th amendment at the mental responsibility phase without penalty. State v. Langenbach, 2001 WI App 222, 247 Wis. 2d 933, 634 N.W.2d 916, 01-0851.
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000019/000008/000040
section
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