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. When a defendant seeks to introduce evidence of prior specific instances of violence within the defendant’s knowledge at the time of the incident in support of a self-defense claim, an order that the defendant disclose prior to trial any specific acts that the defendant knew about at the time of the incident and that the defendant intends to offer as evidence so that admissibility determinations can be made prior to trial does not violate the protection against compelled self-incrimination. State v. McClaren, 2009 WI 69, 318 Wis. 2d 739, 767 N.W.2d 550, 07-2382. Without custody, there is no Miranda, 384 U.S. 436 (1966), violation. Although police were present and asked some questions during what the state conceded was an interrogation from which the defendant high school student was not free to leave, when the defendant was not placed in a police vehicle during questioning and the investigation was being conducted primarily by a school official, the defendant, if in custody at all, was in custody of the school and was not being detained by the police at that time. State v. Schloegel, 2009 WI App 85, 319 Wis. 2d 741, 769 N.W.2d 130, 08-1310. An opposing party may object if a person who originally claimed the privilege against self-incrimination in a civil action seeks to withdraw the privilege and testify. Courts should further the goal of permitting as much testimony as possible to be presented in the civil litigation, despite the assertion of the privilege. Because the privilege is constitutionally based, the detriment to the party asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side. The general rule is that if the claimant makes a timely request to the court, the court should explore all possible measures to select that means that strikes a fair balance and accommodates both parties. S.C. Johnson & Son, Inc. v. Morris, 2010 WI App 6, 322 Wis. 2d 766, 779 N.W.2d 19, 08-1647. When a person who asserted the privilege against self-incrimination in a civil proceeding seeks to withdraw the privilege and testify, one of the most important factors in the balancing process is the timing of the withdrawal. Timing can mean everything when determining whether the privilege was invoked primarily to abuse, manipulate, or gain an unfair strategic advantage over opposing parties. The trial court is in a far better position than an appellate court to determine whether prejudice has evolved as a consequence of the belated withdrawal of the invocation. It is eminently fair and reasonable that the trial court have the responsibility to perform the balancing test and make the ultimate decision of whether withdrawal is allowed in the exercise of its discretion. S.C. Johnson & Son, Inc. v. Morris, 2010 WI App 6, 322 Wis. 2d 766, 779 N.W.2d 19, 08-1647. All custodial interrogation of juveniles must be electronically recorded when feasible under Jerrell C.J., 2005 WI 105. “Feasible” in this context is not a synonym for “effortless.” Although the police officer may not have been capable of recording the initial conversation while in a squad car, nothing prevented the officer from waiting a short time until recording equipment was available. State v. Dionicia M., 2010 WI App 134, 329 Wis. 2d 524, 791 N.W.2d 236, 09-3109. Jerrell C.J., 2005 WI 105, does not allow the admission of partially recorded interrogations of juveniles. A major purpose of the Jerrell C.J. rule is to avoid involuntary, coerced confessions by documenting the circumstances in which a juvenile has been persuaded to give a statement. This purpose is not served by allowing an officer to turn on the recorder only after a juvenile has been convinced to confess. State v. Dionicia M., 2010 WI App 134, 329 Wis. 2d 524, 791 N.W.2d 236, 09-3109. If a probationer refuses to incriminate himself or herself as required by a condition of supervision, the probationer cannot be automatically revoked on that ground. If the probationer refuses despite a grant of immunity, probation may be revoked on that basis. Any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings. If a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111. When both the circuit court and the defendant’s probation agent ordered the defendant to attend sex offender counseling, his supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling, the probation supervision rules documents explicitly informed the defendant he could be revoked for failure to comply with any conditions, and the defendant gave his statements, at least in part, because he was required to take lie detector tests, his statements were compelled for purposes of the 5th amendment. Because the statements were then used against him at sentencing to increase his prison sentence, they were incriminating and should have been excluded. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111. A criminal defendant’s constitutional right not to testify is a fundamental right that must be waived knowingly, voluntarily, and intelligently. Circuit courts are not required to conduct an on-the-record colloquy to determine whether a defendant is so waiving this right although such a colloquy is recommended as the better practice. Once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, an evidentiary hearing is an appropriate remedy to ensure that the defendant knowingly, voluntarily, and intelligently waived the right. State v. Denson, 2011 WI 70, 335 Wis. 2d 681, 799 N.W.2d 831, 09-0694. The state cannot compel a probationer to provide incriminating testimonial evidence, which may be used against the probationer in the noncriminal revocation proceeding, and then use that information again, directly or indirectly, to prosecute the probationer criminally. Compelled statements may not be used in a criminal proceeding, even if the revocation proceeding occurs after the criminal proceeding. State v. Spaeth, 2012 WI 95, 343 Wis. 2d 220, 819 N.W.2d 769, 09-2907. There is a “general on-the-scene” exception to the requirement that police questioning be preceded by Miranda, 384 U.S. 436 (1966), warnings. The “on-the-scene” exception applies only when the person being questioned is not in custody or when law enforcement urgently needs information to attend to a potential emergency. State v. Martin, 2012 WI 96, 343 Wis. 2d 278, 816 N.W.2d 270, 10-0505. There is no authority for the proposition that an incriminating statement offered by a suspect who has not been Mirandized during the course of a custodial interrogation is admissible simply because that particular statement, viewed in complete isolation, appears “voluntary.” It is of no moment to a Miranda, 384 U.S. 436 (1966), analysis that an admission, viewed in a vacuum, appears to have been made voluntarily. State v. Martin, 2012 WI 96, 343 Wis. 2d 278, 816 N.W.2d 270, 10-0505. The defendant withdrew the request for an attorney by voluntarily initiating a request to resume questioning after validly invoking the right to counsel, cancelling the invocation of that right by initiating the dialogue in which the defendant asked to continue the interrogation. That before the interrogator returned, the suspect’s attorney on a prior charge arrived at the police station and asked to see the suspect did not change the court’s analysis. State v. Stevens, 2012 WI 97, 343 Wis. 2d 157, 822 N.W.2d 79, 09-2057. The constitutional prohibition against compelled self-incrimination applies only to testimonial or communicative evidence, not to physical tests. The privilege does not bar compulsion to submit to physical testing such as fingerprinting, photographing or measuring, writing or speaking for identification, assuming a stance, or making a particular gesture. State v. Schmidt, 2012 WI App 137, 345 Wis. 2d 326, 825 N.W.2d 521, 12-0064. A defendant’s statements are voluntary if they are the product of a free and unconstrained will, reflecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the state exceeded the defendant’s ability to resist. The determination is made in light of all of the facts surrounding the interview and decided under the totality of the circumstances, balancing the defendant’s relevant personal characteristics, including the defendant’s age, education and intelligence, physical and emotional condition, and prior experience with law enforcement, with the pressures imposed by the police. State v. Lemoine, 2013 WI 5, 345 Wis. 2d 171, 827 N.W.2d 589, 10-2597. Misrepresentations by police do not necessarily make a confession involuntary; rather, they are a relevant factor in the totality of the circumstances. In this case, misstatements made by the police were not themselves a constitutional violation when the defendant was not in custody. Because the comments were technically a misrepresentation, they weighed toward a finding of involuntariness, but in the context of the whole interview, they did not suffice to make the defendant’s statements involuntary. State v. Lemoine, 2013 WI 5, 345 Wis. 2d 171, 827 N.W.2d 589, 10-2597. Miranda, 384 U.S. 436 (1966), does not apply when custody is “imminent.” While Hambly, 2008 WI 10, held that Miranda was properly invoked before a suspect was interrogated when the suspect had been formally arrested and asked for an attorney, “imminent interrogation” and “imminent custody” are not equally coercive. State v. Lonkoski, 2013 WI 30, 346 Wis. 2d 523, 828 N.W.2d 552, 10-2809. A defendant’s decision to allow the use of compelled testimony is the same thing as a decision to take the stand. While a personal colloquy must be made if the defense announces that the defendant will not take the stand in the defendant’s own defense, no such personal colloquy is mandated when a defendant wants to take the stand. Failing to conduct a personal colloquy concerning the defendant’s desire to waive immunity was not, in itself, an error. State v. Libecki, 2013 WI App 49, 347 Wis. 2d 511, 830 N.W.2d 271, 12-0663. When an officer watching a monitor of a defendant alone in an interview room witnessed the defendant removing his shoelaces and worried, correctly, that the defendant was going to strangle himself, the statements the defendant made to the rescuing officer in that situation were not custodial interrogation because they fell within the “private safety” exception to Miranda, 384 U.S. 436 (1966). This exception provides that, if questioning occurs during an emergency involving the possibility of saving human life, and rescue is the primary motive of the questioner, then no violation of Miranda has occurred. State v. Uhlenberg, 2013 WI App 59, 348 Wis. 2d 44, 831 N.W.2d 799, 12-0827. Under Edwards, 451 U.S. 477 (1981), after a suspect validly invokes the right to counsel, any subsequent waiver is invalid unless an attorney is present or the suspect initiates further communication, exchanges, or conversations with the police. However, under Shatzer, 559 U.S. 98 (2010), the Edwards presumption ends when the suspect has been outside police custody for 14 days. The holding of Shatzer is applicable in Wisconsin cases. State v. Edler, 2013 WI 73, 350 Wis. 2d 1, 833 N.W.2d 564, 11-2916. The test for whether a subject is in custody for purposes of triggering Miranda, 384 U.S. 436 (1966), warnings is an objective one that asks whether a reasonable person in the subject’s position would have considered himself or herself to be in custody as set forth in Torkelson, 2007 WI App 272. A government employee who is not a law enforcement officer may still violate Miranda by engaging in questioning designed to elicit incriminating information for law enforcement purposes. The first issue in this case was whether the defendant was subjected to custodial interrogation when the defendant was questioned by correctional officers. State v. Ezell, 2014 WI App 101, 357 Wis. 2d 675, 855 N.W.2d 453, 13-2178. In the absence of actual coercion, the U.S. Constitution does not require suppression of physical evidence obtained as a consequence of unwarned interrogation. The Wisconsin Constitution does require suppression of physical evidence obtained “as a direct result of an intentional violation of Miranda,” but in the absence of coercion or intentional violation of the suspect’s rights, there is no basis for suppressing physical evidence. State v. Ezell, 2014 WI App 101, 357 Wis. 2d 675, 855 N.W.2d 453, 13-2178. When a defendant was compelled to display the defendant’s platinum teeth to the jury, that display was physical evidence that did not have a testimonial aspect sufficient to implicate constitutional protections. The relevant question under the case law is whether the evidence in question expresses, makes use of, reveals, or discloses the contents of the defendant’s mind. Teeth do not do so. The teeth were material to identification, which was a matter at issue. State v. Gonzalez, 2014 WI 124, 359 Wis. 2d 1, 856 N.W.2d 580, 12-1818. The 5th amendment privilege against self-incrimination continues after a plea and through sentencing. Accordingly, a circuit court employs an improper factor in sentencing if it actually relies on compelled statements made to a probation agent. The defendant has the burden to prove by clear and convincing evidence that the circuit court actually relied on an improper factor in imposing sentence. State v. Alexander, 2015 WI 6, 360 Wis. 2d 292, 858 N.W.2d 662, 13-0843. Although the defendant was only 15 years old when questioned, the defendant had more experience with police and law enforcement than most people that age and demonstrated that he was able not only to develop a story about his non-involvement in the shooting but also to adapt the details of that story to information possessed by the police. That ability to concoct and modify a story on the fly suggested a level of sophistication and adaptability perhaps not accounted for by a standard IQ test. Thus, the defendant’s below-average intellect did not justify a conclusion that the defendant’s mental condition, by itself and apart from its relation to official coercion, disposed of the inquiry into constitutional voluntariness. Rather, it had to be be taken into consideration and weighed against the conduct of the police. State v. Moore, 2015 WI 54, 363 Wis. 2d 376, 864 N.W.2d 827, 13-0127. A probationer is not required to answer questions unless the probationer is offered immunity as described in Evans, 77 Wis. 2d 225 (1977). The Evans court stated: “Had sufficient explanation been given to the defendant with regard to the type of immunity herein granted, then refusal to cooperate would be grounds for revocation.” The immunity described in Evans is both use and derivative use immunity. With use immunity, particular information provided by an individual cannot be used against that individual in criminal proceedings, whereas with derivative use immunity, any evidence subsequently discovered by authorities through direct or indirect utilization of the provided information can not be used against the individual in criminal proceedings. State ex rel. Douglas v. Hayes, 2015 WI App 87, 365 Wis. 2d 497, 872 N.W.2d 152, 14-2977. The issue in this appeal was not whether the probation agent explained details of derivative use immunity to the defendant, but whether the agent explained at all that the defendant was afforded use and derivative use immunity. The statement “I have also been advised that none of this information can be used against me in criminal proceedings” would tell a probationer that none of the particular information the probationer was providing the agent at that time could be used against the probationer in criminal court, but it would not clearly inform the probationer that other information derived from the information directly provided by the probationer also could not be used against the probationer in criminal court. State ex rel. Douglas v. Hayes, 2015 WI App 87, 365 Wis. 2d 497, 872 N.W.2d 152, 14-2977. Requiring the state in all inevitable discovery doctrine cases to prove active pursuit of an alternative line of investigation at the time of a constitutional violation risks exclusion of evidence that the state might demonstrate that it inevitably would have discovered. Therefore, the factors in Schwegler, 170 Wis. 2d 487 (1992), Lopez, 207 Wis. 2d 413 (1996), and Avery, 2011 WI App 124, should be regarded as important indicia of inevitability rather than indispensable elements of proof. Instead, the relevant inquiry is whether the prosecution has met its burden of proving by a preponderance of the evidence that it inevitably would have discovered the evidence sought to be suppressed. State v. Jackson, 2016 WI 56, 369 Wis. 2d 673, 882 N.W.2d 422, 14-2238. Once a compelled, incriminating, testimonial statement has been obtained, the state bears the burden of demonstrating that the evidence the state wishes to use is derived from a legitimate source wholly independent of the compelled testimony. It is insufficient to meet the state’s burden by merely denying that an immunized statement was used, even if that denial is made in good faith. Rather, the government must document or account for each step of the investigative chain by which the evidence was obtained from a legitimate source wholly independent of the compelled statement. State v. Quigley, 2016 WI App 53, 370 Wis. 2d 702, 883 N.W.2d 139, 15-0681. Custodial interrogation can take the form of either express questioning or its functional equivalent. Asking a defendant if the defendant wanted to give a statement, although designed to obtain a response, did not seek the statement itself. The response to such a question is either “yes” or “no,” and neither would have any testimonial significance whatsoever. The question did not constitute express questioning or its functional equivalent, so no Miranda, 384 U.S. 436 (1966), warnings were necessary before the question was asked. State v. Harris, 2017 WI 31, 374 Wis. 2d 271, 892 N.W.2d 663, 14-1767. Upon a defendant’s lawful arrest for drunk driving, the defendant has no constitutional or statutory right to refuse to take a breathalyzer test, and the state can comment at trial on the defendant’s improper refusal to take the test. State v. Lemberger, 2017 WI 39, 374 Wis. 2d 617, 893 N.W.2d 232, 15-1452. A defendant’s confession to a serious crime did not transform a noncustodial interview into a custodial interrogation for purposes of Miranda, 384 U.S. 436 (1966). Not every confession obtained absent Miranda warnings is inadmissible. The critical inquiry is not whether the interview took place in a coercive or police dominated environment, but rather whether the defendant’s freedom to depart was restricted in any way. In answering that question, the court looks at the totality of the circumstances while keeping in mind that the determination is based on the objective circumstances of the interrogation, not on the subjective views harbored by the interrogating officers or the person being questioned. Although, in this case, police officers clearly suspected the defendant and had enough evidence to arrest the defendant when the defendant confessed, that by itself did not restrain the defendant’s freedom of movement. State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684, 15-2506. It is essential to distinguish between, on the one hand, a valid waiver of Miranda, 384 U.S. 436 (1966), rights and, on the other hand, a later invocation of those rights. The state must always show that a Miranda waiver is knowing and voluntary, and a suspect’s mental condition is a significant factor in this analysis. The suspect may later decide to invoke the right to remain silent or the right to have counsel present. To invoke the right to counsel, a suspect must make an unambiguous and unequivocal request for counsel. A suspect’s personal characteristics can be relevant to whether the suspect knowingly and voluntarily waived Miranda rights, but a suspect’s apparent mental state does not relax the requirement that the right to counsel be invoked with an unambiguous and unequivocal statement. State v. Abbott, 2020 WI App 25, 392 Wis. 2d 232, 944 N.W.2d 8, 19-0021. Nothing in sub. (1) suggests that all incarcerated individuals should be deemed “in custody” for purposes of Miranda, 384 U.S. 436 (1966). Neither the purposes of Miranda warnings nor the text and history of the Wisconsin Constitution support the invitation to adopt this per se rule. State v. Halverson, 2021 WI 7, 395 Wis. 2d 385, 953 N.W.2d 847, 18-0858. Statements made during a post-polygraph interview are admissible if: 1) the interview is discrete from the polygraph examination; and 2) the statements are not the product of police coercion and are therefore voluntary. State v. Vice, 2021 WI 63, 397 Wis. 2d 682, 961 N.W.2d 1, 18-2220. While the constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the 5th amendment privilege, in this case the interrogator misrepresented the defendant’s right to counsel, right to silence, and right to testify, and, as a result, the defendant’s waiver of Miranda, 384 U.S. 436 (1966), rights was not made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Given those misrepresentations, the defendant could not validly waive Miranda rights as the defendant did not have the requisite level of comprehension. State v. Rejholec, 2021 WI App 45, 398 Wis. 2d 729, 963 N.W.2d 121, 20-0056. For the purpose of the corroboration rule, a significant fact is one that gives confidence that the crime the defendant confessed to actually occurred. It is not necessary that the significant fact either independently establish the specific elements of the crime or independently link the defendant to the crime. While the corroborating evidence does not establish the elements of the crime of sexual assault, it does corroborate the facts of the defendant’s confession and produce a confidence in the truth of the confession. The standard is “any significant fact” to corroborate that the crime the defendant confessed to actually occurred. State v. Thomas, 2021 WI App 55, 399 Wis. 2d 277, 963 N.W.2d 887, 20-0032. The Griffin, 380 U.S. 609 (1965), rule is concerned only with adverse comment on a defendant’s silence—that is the invitation to infer guilt from the defendant’s decision not to take the stand. Three elements must be present for a prosecutor to violate a defendant’s 5th amendment right against self-incrimination: 1) the prosecutor’s language must have been manifestly intended to be or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify; 2) the prosecutor’s language must also have been manifestly intended to be or was of such character that the jury would naturally and necessarily take it to be adverse, meaning comment that such silence is evidence of guilt; and 3) the prosecutor’s comments must not have been a fair response to a claim made by the defendant or the defendant’s counsel. State v. Hoyle, 2023 WI 24, 406 Wis. 2d 373, 987 N.W.2d 732, 20-1876. A witness who refuses to testify on self-incrimination grounds after the judge grants immunity may summarily be found in criminal contempt. United States v. Wilson, 421 U.S. 309, 95 S. Ct. 1802, 44 L. Ed. 2d 186 (1975).
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wisconsinconstitution
/constitution/wi/000229/000019/000008/000127
section
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