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. A suspect who is detained during the execution of a search warrant has not suffered a restraint on freedom of movement of the degree associated with a formal arrest and is not in custody for purposes of Miranda, 384 U.S. 436 (1966). Handcuffing after questioning cannot operate retroactively to create custody for purposes of Miranda as a reasonable person’s perception at the time of questioning cannot be affected by later police activity. State v. Goetz, 2001 WI App 294, 249 Wis. 2d 380, 638 N.W.2d 386, 01-0954. See also State v. Kilgore, 2016 WI App 47, 370 Wis. 2d 198, 882 N.W.2d 493, 15-0997. If a suspect makes an ambiguous or equivocal reference to counsel, the police need neither cease questioning nor clarify the suspect’s desire for counsel, although the latter will often be good police practice. State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142, 00-1680. The standard for whether a person is in custody so as to require Miranda, 384 U.S. 436 (1966), warnings is whether a reasonable innocent person in the situation would believe the person is in custody. Stated differently, the standard is the objective one of the reasonable person, not the subjective one of the suspect in the particular case, who may assume the suspect is being arrested because the suspect knows there are grounds for an arrest. State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23, 01-2148. See also State v. Dobbs, 2020 WI 64, 392 Wis. 2d 505, 945 N.W.2d 609, 18-0319. The right against self-incrimination survives conviction and remains active while a direct appeal is pending. A probationer may be compelled to answer self-incriminating questions from a probation or parole agent, or suffer revocation for refusing to do so, only if there is a grant of immunity rendering the testimony inadmissible in a criminal prosecution. State ex rel. Tate v. Schwarz, 2002 WI 127, 257 Wis. 2d 40, 654 N.W.2d 438, 00-1635. The clear rule governing the 6th amendment right to counsel is that once adversarial judicial proceedings have commenced, the accused has a right to legal representation when subject to state interrogation. At the onset of post-charge police interrogations, the accused must be made aware that the adversarial process has begun and that the accused can request the assistance of counsel at the interrogations. State v. Anson, 2002 WI App 270, 258 Wis. 2d 433, 654 N.W.2d 48, 01-2907. Miranda, 384 U.S. 436 (1966), warnings need only be administered to individuals who are subjected to custodial interrogation. An officer’s words and conduct in responding to the defendant’s questions regarding the evidence against the defendant was not interrogation. State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 N.W.2d 503, 02-0147. Police conduct does not need to be egregious or outrageous in order to be coercive. Subtle pressures are considered to be coercive if they exceed the defendant’s ability to resist. Pressures that are not coercive in one set of circumstances may be coercive in another set of circumstances. State v. Hoppe, 2003 WI 43, 261 Wis. 2d 294, 661 N.W.2d 407, 00-1886. A Miranda, 384 U.S. 436 (1966)-Goodchild, 27 Wis. 2d 244 (1965), hearing to determine voluntariness of confessions is an evidentiary hearing for the parties. It is not a soliloquy for the court. The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the prosecutor is reduced to a bystander. State v. Jiles, 2003 WI 66, 262 Wis. 2d 457, 663 N.W.2d 798, 02-0153. Police misrepresentation is not so inherently coercive that it renders a statement inadmissible; rather, it is simply one factor to consider out of the totality of the circumstances. State v. Triggs, 2003 WI App 91, 264 Wis. 2d 861, 663 N.W.2d 396, 02-0447. Coercive conduct by a private person, absent any claim of state involvement, is insufficient to render a confession inadmissible on due process grounds. Involuntary confession jurisprudence is entirely consistent with settled law requiring some state action to support a claim of violation of the due process clause. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the due process clause. State v. Moss, 2003 WI App 239, 267 Wis. 2d 772, 672 N.W.2d 125, 03-0436. Relay questioning implies that different interrogators relieve each other in an effort to put unremitting pressure on a suspect. When over a 12-hour period there were breaks during and between three interrogation sessions with three interrogation teams and at least one of the changes in interrogation teams was due to a shift change, there was no impermissible relay questioning or excessively long isolation or interrogation. State v. Agnello, 2004 WI App 2, 269 Wis. 2d 260, 674 N.W.2d 594, 00-2599. A convicted defendant was not entitled to Miranda, 384 U.S. 436 (1966), warnings prior to a court-ordered presentence investigation when the defendant’s admission to the crime given in the investigation after denying the crime at trial was later used in a perjury prosecution against the defendant when the interview was routine and was not conducted while the defendant’s jeopardy was still in doubt. State v. Jimmie R.R., 2004 WI App 168, 276 Wis. 2d 447, 688 N.W.2d 1, 02-1771. Neither the text nor the spirit of the 5th amendment confers a privilege to lie. Proper invocation of the privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely. No matter how illusory the right to silence may seem to a defendant, that does not exert a form of pressure that exonerates an otherwise unlawful lie. State v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315, 03-1781. A prosecuting attorney ordinarily may not comment on an accused’s decision not to testify. There are circumstances, however, when an accused opens the door to a measured response by the prosecuting attorney. It may be proper for a prosecutor to comment on an accused’s failure to testify after the accused’s account of events are given during opening statements but the accused later refuses to testify. State v. Moeck, 2005 WI 57, 280 Wis. 2d 277, 695 N.W.2d 783, 03-0002. When a request to remain silent is ambiguous, police need not endeavor to clarify the suspect’s request. A suspect’s statement, “I don’t know if I should speak to you,” was insufficient to unambiguously invoke the right to remain silent. State v. Hassel, 2005 WI App 80, 280 Wis. 2d 637, 696 N.W.2d 270, 04-1824. If a defendant takes the stand in order to overcome the impact of confessions illegally obtained and hence improperly introduced, the defendant’s testimony is tainted by the same illegality that rendered the confessions themselves inadmissible. The state has the burden to prove beyond a reasonable doubt that its use of the unlawfully obtained statements did not induce the defendant’s testimony. Because the ultimate conclusion as to whether the defendant was impelled to testify is a question of constitutional fact, the circuit court may not hold an evidentiary hearing when making the determination. The hearing is a paper review during which a circuit court makes findings of historical fact based on the record. State v. Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776, 03-1444. All custodial interrogation of juveniles must be electronically recorded when feasible, and without exception when questioning occurs at a place of detention. State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, 02-3423. Failure to call a juvenile suspect’s parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel will be considered strong evidence that coercive tactics were used to elicit the incriminating statements, but the call is not mandatory. State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, 02-3423. That a lawyer, while present during questioning, instructed the interrogating officer not to read the Miranda, 384 U.S. 436 (1966), warnings and told the lawyer’s client that if the warnings were not given, whatever the client said could not be used in court did not relieve the officer from the duty to read the warnings. State v. Rockette, 2005 WI App 205, 287 Wis. 2d 257, 704 N.W.2d 382, 04-2731. A two-pronged subjective/objective test is applicable for determining whether, as a matter of law, a police officer’s statements given in a criminal investigation are coerced and involuntary, and therefore subject to suppression. In order for statements to be considered sufficiently compelled such that immunity attaches, a police officer must subjectively believe the officer will be fired for asserting the privilege against self-incrimination, and that belief must be objectively reasonable. State v. Brockdorf, 2006 WI 76, 291 Wis. 2d 635, 717 N.W.2d 657, 04-1519. See also State v. McPike, 2009 WI App 166, 322 Wis. 2d 561, 776 N.W.2d 617, 08-3037. When a defendant seeks to exclude prior statements based upon the defendant’s 5th amendment privilege, the defendant must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90, 03-2068. When defense counsel prompted jurors to speculate that the defendant’s alleged cohorts did not testify because they would not corroborate the accusations of an undercover officer, the prosecutor fairly suggested that the pair had the right not to testify in accordance with their 5th amendment right against self-incrimination. It is not improper for a prosecutor to note that the defendant has the same subpoena powers as the government, particularly when done in response to a defendant’s argument about the prosecutor’s failure to call a specific witness. State v. Jaimes, 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669, 05-1511. Under the totality of the circumstances of this case, that it was not necessary for the prosecutor interviewing the defendant to formally re-advise the defendant of the defendant’s Miranda, 384 U.S. 436 (1966), rights when it was undisputed that the defendant had been advised of those rights the day before, and the defendant clearly indicated to the prosecutor in the prosecutor’s office that the defendant remembered those rights and understood those rights, and therefore the statement the defendant made to the prosecutor was admissible. State v. Backstrom, 2006 WI App 114, 293 Wis. 2d 809, 718 N.W.2d 246, 05-1270. Pre-custody invocation of the right to counsel was not an invocation of the right to counsel under Miranda, 384 U.S. 436 (1966), and therefore the defendant’s ensuing post-Mirandized inculpatory statements made while undergoing custodial interrogation did not need to be suppressed. State v. Kramer, 2006 WI App 133, 294 Wis. 2d 780, 720 N.W.2d 459, 05-0105. Pre-Miranda, 384 U.S. 436 (1966), silence may be used: 1) to impeach a defendant when the defendant testifies; or 2) substantively to suggest guilt. Once the defendant testifies, the defendant’s pre-Miranda silence may be used by the prosecutor. State v. Mayo, 2007 WI 78, 301 Wis. 2d 642, 734 N.W.2d 115, 04-1592. The corroboration rule is a common law rule that requires that a conviction of a crime may not be grounded on the admission or confessions of the accused alone. There must be corroboration of a significant fact in order to produce a confidence in the truth of the confession. The significant fact need not independently establish a specific element of a crime. It is also unnecessary that the significant fact be particular enough to independently link the defendant to the crime. State v. Bannister, 2007 WI 86, 302 Wis. 2d 158, 734 N.W.2d 892, 05-0767. Once the defendant initiated the topic of why he chose to remain silent and his explanation put him in a better position than had he not mentioned the reason, it was not then fundamentally unfair for the state on cross-examination to attack the credibility of that explanation. The suggestion of fabrication in cross-examination was not fundamentally unfair and not the equivalent of asking the jury to infer guilt from the defendant’s silence. State v. Cockrell, 2007 WI App 217, 306 Wis. 2d 52, 741 N.W.2d 267, 05-2672. Under Ross, 203 Wis. 2d 66 (1996), a suspect’s claimed unequivocal invocation of the right to remain silent must be patent. The Ross rule allows no room for an assertion that permits even the possibility of reasonable competing inferences. There is no invocation of the right to remain silent if any reasonable competing inference can be drawn. State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546, 06-2871. See also State v. Cummings, 2014 WI 88, 357 Wis. 2d 1, 850 N.W.2d 915, 11-1653. The fact that an interrogating officer was at times confrontational and raised the officer’s voice was not improper police procedure and did not, by itself, establish police coercion, nor did the length of the defendant’s custody nor the defendant’s two-hour interrogation qualify as coercive or improper police conduct. As such, it was improper to consider the defendant’s personal characteristics because consideration of personal characteristics is triggered only if there exists coercive police conduct against which to balance them. State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546, 06-2871. Factors to consider in determining if a suspect’s freedom to act is restricted to a degree associated with formal arrest so that Miranda, 384 U.S. 436 (1966), warnings are required include the suspect’s freedom to leave, the purpose, place, and length of the interrogation, and the degree of restraint. Degree of restraint includes the manner in which the suspect is restrained, the number of officers involved, and whether: 1) the suspect is handcuffed; 2) a weapon is drawn; 3) a frisk is performed; 4) the suspect is moved to another location; and 5) questioning takes place in a police vehicle. State v. Torkelson, 2007 WI App 272, 306 Wis. 2d 673, 743 N.W.2d 511, 07-0636. Under either a standard requiring only that a suspect be in custody when the request for counsel is made or a standard requiring that interrogation be imminent or impending when the request for counsel is made, the defendant effectively invoked the Miranda, 384 U.S. 436 (1966), right to counsel when the defendant requested counsel while in custody and before law enforcement officers interrogated him. Discussing whether to adopt a temporal standard to determine whether a suspect in custody has effectively invoked the 5th amendment Miranda right to counsel. State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48, 05-3087. Under Edwards, 451 U.S. 477 (1981), after the defendant effectively invokes the Miranda, 384 U.S. 436 (1966), right to counsel, police interrogation, unless initiated by the defendant, must cease. Interrogation refers not only to express questioning, but also to the functional equivalent of express questioning, which means any words or actions on the part of the police other than those normally attendant to arrest and custody that the police should know are reasonably likely to elicit an incriminating response. Interrogation must reflect a measure of compulsion above and beyond that inherent in custody itself. State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48, 05-3087. In order to establish that a suspect has validly waived the Miranda, 384 U.S. 436 (1966), right to counsel after effectively invoking it, the state has the burden to show: 1) as a preliminary matter, that the suspect initiated further communication, exchanges, or conversations with the police; and 2) the suspect waived the right to counsel voluntarily, knowingly, and intelligently. Whether a suspect “initiates” communication or dialogue does not depend solely on the time elapsing between the invocation of the right to counsel and the suspect’s beginning an exchange with law enforcement, although the lapse of time is a factor to consider. State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48, 05-3087. When a defendant asserts that the defendant previously invoked the right to counsel as a basis for invalidating a later waiver, both the burden of going forward with a prima facie case and the burden of persuasion are on the state to show a prior waiver of the 5th amendment/Miranda, 384 U.S. 436 (1966), right to counsel when the defendant has timely raised the issue. State v. Cole, 2008 WI App 178, 315 Wis. 2d 75, 762 N.W.2d 711, 07-2472. As a criminal defendant’s constitutional right to testify on the defendant’s behalf is a fundamental right, it follows that the constitutionally articulated corollary to the right to testify, the right not to testify, is fundamental as well. Because the right not to testify is fundamental, a defendant’s waiver of this right must be knowing and voluntary. The circuit court was not obligated to conduct a colloquy during the trial to ensure the defendant waived that right. Nevertheless, the court was required, once the issue was raised in the postconviction motion, to determine whether the defendant knowingly and voluntarily waived the right not to testify. State v. Jaramillo, 2009 WI App 39, 316 Wis. 2d 538, 765 N.W.2d 855, 08-1785. A request to speak with family members triggers no constitutional rights in the manner that a request to speak with counsel does. The police had no obligation to inform a defendant that her husband was waiting outside. The defendant’s challenge of her Miranda, 384 U.S. 436 (1966), waiver and challenge to the voluntariness of her statements subsequent to that waiver because of detectives’ evasiveness in response to questions regarding the status and location of her husband, who was actually waiting outside the interrogation room, did not go to the validity of her waiver of rights. It was the defendant’s responsibility, not her husband’s, to determine whether she wanted to exercise her 5th amendment rights. State v. Ward, 2009 WI 60, 318 Wis. 2d 301, 767 N.W.2d 236, 07-0079. When the dictates of Miranda, 384 U.S. 436 (1966), are otherwise followed, the only impermissible aspect of incommunicado questioning is that which prevents a suspect from speaking with those to whom the suspect has a constitutional right to speak. Preventing others from contacting the suspect has no impact on the suspect’s ability to waive the suspect’s rights or on the suspect’s choice to speak voluntarily with the police. State v. Ward, 2009 WI 60, 318 Wis. 2d 301, 767 N.W.2d 236, 07-0079.
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000019/000008/000079
section
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