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). An instruction to the jury, over defense objection, not to draw an adverse inference from the defendant’s failure to testify did not violate the right against self-incrimination. Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978). While statements made by the defendant in circumstances violating Miranda, 384 U.S. 436 (1966), protections are admissible for impeachment if their trustworthiness satisfies legal standards, any criminal trial use against the defendant of involuntary statements is a denial of due process. Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). Testimony before a grand jury under a grant of immunity could not constitutionally be used for impeachment purposes in a later criminal trial. New Jersey v. Portash, 440 U.S. 450, 99 S. Ct. 1292, 59 L. Ed. 2d 501 (1979). A witness compelled by a grant of immunity to testify despite a claim of the privilege against self-incrimination was property prosecuted for perjured testimony. United States v. Apfelbaum, 445 U.S. 115, 100 S. Ct. 948, 63 L. Ed. 2d 250 (1980). Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether the individual is allowed to talk to the police without the benefit of warnings and counsel, but whether the individual can be interrogated. Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). The right against self-incrimination is not violated when a defendant who testifies in the defendant’s own defense is impeached by use of the defendant’s prearrest silence. Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). An accused who requests counsel may not be interrogated without counsel unless the accused initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). When, for impeachment purposes, the prosecution cross-examined the defendant as to postarrest silence before the defendant received Miranda, 384 U.S. 436 (1966), warnings, due process was not violated. Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982). When the prosecutor improperly commented to the jury that the defendants did not challenge certain accusations against them, the court erred in reversing the conviction on appeal without determining whether the error was harmless. United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). A probationer under an obligation to appear before a probation officer and answer questions truthfully was not entitled to Miranda, 384 U.S. 436 (1966), warnings. A confession was, therefore, admissible. Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984). The court adopts a “public safety” exception to the Miranda, 384 U.S. 436 (1966), rule. When the accused, known to have had gun, did not have a gun at the time of arrest in a supermarket, the officer properly asked where the gun was before giving Miranda warnings. New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). Exclusion of testimony about the circumstances of a confession deprived the defendant of due process and other fundamental constitutional rights. Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986). When no evidence was present suggesting that police officers sent the suspect’s wife in to see him with the hope of obtaining incriminating information, no “interrogation” was undertaken even though a detective was present and tape recorded the conversation. Arizona v. Mauro, 481 U.S. 520, 107 S. Ct. 1931, 95 L. Ed. 2d 458 (1987). Police may not interrogate a suspect held in custody after the suspect has previously requested counsel, even when the interrogation relates to an offense different from that for which the suspect requested counsel. Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988). The custodian of corporate records may not resist a subpoena for records on self-incrimination grounds, regardless of the size of the corporate entity. Braswell v. United States, 487 U.S. 99, 108 S. Ct. 2284, 101 L. Ed. 2d 98 (1988). The self-incrimination privilege does not support a refusal to comply with a juvenile court’s order to produce a child. Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 110 S. Ct. 900, 107 L. Ed. 2d 992 (1990). When counsel is requested, interrogation must cease and may not be reinstated without counsel present even though the accused previously did have an opportunity to consult an attorney. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990). The 6th amendment right to counsel is offense specific. An accused’s invocation of the right during a judicial proceeding did not constitute an invocation of the right to counsel under Miranda, 384 U.S. 436 (1966), arising from the 5th amendment guarantees against self-incrimination in regard to police questioning concerning a separate offense. McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991). A police officer’s subjective and undisclosed view of whether a person being interrogated is a suspect is irrelevant to determining whether the person is in custody and entitled to Miranda, 384 U.S. 436 (1966), warnings. Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994). Officers need not cease questioning a suspect subject to custodial interrogation when the suspect makes an ambiguous reference to an attorney. Although often good practice, it is not necessary that the officer ask clarifying questions. Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). Miranda, 384 U.S. 436 (1966), and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal courts. Miranda may not be overruled by act of Congress. Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). A prison rehabilitation program that required inmates convicted of sexual assault to admit having committed the crime or have prison privileges reduced did not violate the right against self-incrimination although immunity was not granted and prosecution of previously uncharged crimes that might be revealed by the required admissions was possible. McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002). It is not until statements compelled by police interrogations are used in a criminal case that a violation of the 5th amendment self-incrimination clause occurs. When a confession was coerced, but no criminal case was ever brought, there could be no violation. Chavez v. Martinez, 538 U.S. 760, 123 S. Ct. 1994, 155 L. Ed. 2d 984 (2003). When the defendant’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish a link in the chain of evidence needed to prosecute him, application of a criminal statute requiring disclosure of the person’s name when the police officer reasonably suspected the person had committed a crime did not violate the protection against self-incrimination. Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004). A custodial interrogation in which no Miranda, 384 U.S. 436 (1966), warnings are given until the interrogation has produced a confession in which the interrogating officer follows the confession with Miranda warnings and then leads the suspect to cover the same ground a second time violates Miranda, and the repeated statement is inadmissible. Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004). A failure to give a suspect Miranda, 384 U.S. 436 (1966), warnings does not require suppression of the physical fruits of the suspect’s unwarned but voluntary statements. Miranda protects against violations of the self-incrimination clause, which is not implicated by the introduction at trial of physical evidence resulting from voluntary statements. United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004). The four warnings Miranda, 384 U.S. 436 (1966), requires are invariable, but the U.S. Supreme Court has not dictated the words in which the essential information must be conveyed. The inquiry is simply whether the warnings reasonably convey to a suspect the suspect’s rights as required by Miranda. Florida v. Powell, 559 U.S. 50, 130 S. Ct. 1195, 175 L. Ed. 2d 1009 (2010). Under Edwards, 451 U.S. 477 (1981), a voluntary Miranda, 384 U.S. 436 (1966), waiver is sufficient at the time of an initial attempted interrogation to protect a suspect’s right to have counsel present, but not at the time of subsequent interrogation attempts if the suspect initially requested the presence of counsel. However, confessions obtained after a two-week break in custody and a waiver of Miranda rights are most unlikely to be compelled, and hence are unreasonably excluded. Lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda and is not considered continued custody for determining whether custodial interrogation ended. Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). An invocation of the right to remain silent must be unambiguous and unequivocal. The defendant did not say that he wanted to remain silent or that he did not want to talk with the police. Had the defendant made either of these simple, unambiguous statements, the defendant would have invoked the right to cut off questioning. The defendant did neither, so he did not invoke the right to remain silent. A suspect who has received and understood Miranda, 384 U.S. 436 (1966), warnings, and has not invoked Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). The age of a child subjected to police questioning is relevant to the custody analysis of Miranda, 384 U.S. 436 (1966). So long as the child’s age is known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test, but a child’s age will not be determinative, or even a significant, factor in every case. J.D.B. v. North Carolina, 564 U.S. 261, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011). A prisoner is not always in custody for purposes of Miranda, 384 U.S. 436 (1966), whenever the prisoner is isolated from the general prison population and questioned about conduct outside the prison. Imprisonment, questioning in private, and questioning about events in the outside world are not necessarily enough to create a custodial situation for Miranda purposes. “Custody” is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would feel the person is not at liberty to terminate the interrogation and leave. The court will also ask the additional question of whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. Howes v. Fields, 565 U.S. 499, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012). No 5th amendment violation was found in this case. The petitioner, without being placed in custody or receiving Miranda, 384 U.S. 436 (1966), warnings, voluntarily answered the questions of a police officer who was investigating a murder then balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match the petitioner’s shotgun. The petitioner was subsequently charged with murder, and at trial prosecutors argued that the petitioner’s reaction to the officer’s question suggested that the petitioner was guilty. Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013). Collateral estoppel barred the state from introducing evidence of a van theft as an overt act in a conspiracy charge when the accuseds had earlier been acquitted in the van theft trial. The accused’s silence prior to receiving Miranda, 384 U.S. 436 (1966), warnings was properly used to impeach the accused. The prosecution’s reference to post-Miranda silence was harmless error. Feela v. Israel, 727 F.2d 151 (1984). Assertion of the Constitutional Privilege Against Self-Incrimination in Federal Civil Litigation: Rights and Remedies. Daskal. 64 MLR 243 (1980).
Truthful Statements May Be Used in a Perjury Prosecution. Leair. 64 MLR 744 (1981).
Adding (or Reaffirming) a Temporal Element to the Miranda Warning “You Have the Right to an Attorney.” Bazelon. 90 MLR 1009 (2007).
The Interrogations of Brendan Dassey. Gallini. 102 MLR 777 (2019).
The Privilege Against Self-Incrimination in Civil Commitment Proceedings. Wesson. 1980 WLR 697.
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. Johnson. 1992 WLR 1643.
Law Enforcement in the American Security State. Said. 2019 WLR 819.
I,9Remedy for wrongs. Section 9. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws. The constitutional guaranty of a remedy for injuries to person and property does not give a constitutional right to sue the state in tort. There is no right of a citizen to hold the sovereign substantively liable for torts, and the state, being immune from suit without its consent, may define the conditions under which it will permit actions against itself. Cords v. State, 62 Wis. 2d 42, 214 N.W.2d 405 (1974). The action for common-law seduction is extended to allow recovery against the seducer by the woman herself. Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9 (1974). The constitution does not entitle state litigants to the exact remedy they desire, but merely to their day in court. Wiener v. J.C. Penney Co., 65 Wis. 2d 139, 222 N.W.2d 149 (1974). Illegal aliens have the right to sue in Wisconsin for injuries negligently inflicted upon them. Arteaga v. Literski, 83 Wis. 2d 128, 265 N.W.2d 148 (1978). Pre-1981 statutory paternity proceedings, which vested exclusive authority in the district attorney to commence a paternity action, unconstitutionally denied the child a “day in court.” Accordingly, the child’s action was not barred by any statute of limitations. W.R.W. v. Bartholomew, 116 Wis. 2d 150, 341 N.W.2d 682 (1984). When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts can fashion an adequate remedy. Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984). A register in probate’s fee based on the value of the estate does not violate this section. Treiber v. Knoll, 135 Wis. 2d 58, 398 N.W.2d 756 (1987). A court faced with a litigant who has engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on the litigant’s access to the court. Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 565 N.W.2d 586 (Ct. App. 1997), 96-1933. This section applies only when a prospective litigant seeks a remedy for an already existing right. It preserves the right to obtain justice on the basis of law as it in fact exists. Legislative actions define how the law does exist. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, 98-2955.
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