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. Although this section itself may not create new rights, it does allow for a remedy through the existing common law. The goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing. The common law develops to adapt to the changing needs of society. Thomas v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523, 03-1528. A referee’s fees increase the costs of litigation and may have a chilling effect on litigants. If the expenses are not circumscribed, people with meritorious claims will be discouraged from pursuing them in court because they cannot afford to go to court. A reference to a referee in effect requires litigants to pay for the court system twice—once through the tax system and a second time by paying fees to a referee for resolution of their suit. Referee fees may offend constitutional mandates if they chill advocacy severely enough to effectively end the litigation or impose an intolerable burden on a losing litigant. Appointment of a referee is for the exceptional case; it is not the general rule. State ex rel. Universal Processing Services of Wisconsin, LLC v. Circuit Court, 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267, 16-0923. I,9mVictims of crime. Section 9m. [As created April 1993 and amended April 2020] I,9m(1)(a)(a) In this section, notwithstanding any statutory right, privilege, or protection, “victim” means any of the following: I,9m(1)(a)1.1. A person against whom an act is committed that would constitute a crime if committed by a competent adult. I,9m(1)(a)2.2. If the person under subd. 1. is deceased or is physically or emotionally unable to exercise his or her rights under this section, the person’s spouse, parent or legal guardian, sibling, child, person who resided with the deceased at the time of death, or other lawful representative. I,9m(1)(a)3.3. If the person under subd. 1. is a minor, the person’s parent, legal guardian or custodian, or other lawful representative. I,9m(1)(a)4.4. If the person under subd. 1. is adjudicated incompetent, the person’s legal guardian or other lawful representative. I,9m(1)(b)(b) “Victim” does not include the accused or a person who the court finds would not act in the best interests of a victim who is deceased, incompetent, a minor, or physically or emotionally unable to exercise his or her rights under this section. I,9m(2)(2) In order to preserve and protect victims’ rights to justice and due process throughout the criminal and juvenile justice process, victims shall be entitled to all of the following rights, which shall vest at the time of victimization and be protected by law in a manner no less vigorous than the protections afforded to the accused: I,9m(2)(a)(a) To be treated with dignity, respect, courtesy, sensitivity, and fairness. I,9m(2)(c)(c) To proceedings free from unreasonable delay. I,9m(2)(d)(d) To timely disposition of the case, free from unreasonable delay. I,9m(2)(e)(e) Upon request, to attend all proceedings involving the case. I,9m(2)(f)(f) To reasonable protection from the accused throughout the criminal and juvenile justice process. I,9m(2)(g)(g) Upon request, to reasonable and timely notification of proceedings. I,9m(2)(h)(h) Upon request, to confer with the attorney for the government. I,9m(2)(i)(i) Upon request, to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon. I,9m(2)(j)(j) To have information pertaining to the economic, physical, and psychological effect upon the victim of the offense submitted to the authority with jurisdiction over the case and to have that information considered by that authority. I,9m(2)(k)(k) Upon request, to timely notice of any release or escape of the accused or death of the accused if the accused is in custody or on supervision at the time of death. I,9m(2)(L)(L) To refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused. I,9m(2)(m)(m) To full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution. I,9m(2)(o)(o) Upon request, to reasonable and timely information about the status of the investigation and the outcome of the case. I,9m(2)(p)(p) To timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced. I,9m(3)(3) Except as provided under sub. (2) (n), all provisions of this section are self-executing. The legislature may prescribe further remedies for the violation of this section and further procedures for compliance with and enforcement of this section. I,9m(4)(a)(a) In addition to any other available enforcement of rights or remedy for a violation of this section or of other rights, privileges, or protections provided by law, the victim, the victim’s attorney or other lawful representative, or the attorney for the government upon request of the victim may assert and seek in any circuit court or before any other authority of competent jurisdiction, enforcement of the rights in this section and any other right, privilege, or protection afforded to the victim by law. The court or other authority with jurisdiction over the case shall act promptly on such a request and afford a remedy for the violation of any right of the victim. The court or other authority with jurisdiction over the case shall clearly state on the record the reasons for any decision regarding the disposition of a victim’s right and shall provide those reasons to the victim or the victim’s attorney or other lawful representative. I,9m(4)(b)(b) Victims may obtain review of all adverse decisions concerning their rights as victims by courts or other authorities with jurisdiction under par. (a) by filing petitions for supervisory writ in the court of appeals and supreme court. I,9m(5)(5) This section does not create any cause of action for damages against the state; any political subdivision of the state; any officer, employee, or agent of the state or a political subdivision of the state acting in his or her official capacity; or any officer, employee, or agent of the courts acting in his or her official capacity. I,9m(6)(6) This section is not intended and may not be interpreted to supersede a defendant’s federal constitutional rights or to afford party status in a proceeding to any victim. [1991 J.R. 17, 1993 J.R. 2, vote April 1993; 2017 J.R. 13, 2019 J.R. 3, vote April 2020] The state did not breach a plea agreement when two police officers, one of whom the defendant shot during the execution of a search warrant, requested during the sentencing hearing that the sentencing court impose the maximum sentence. The police officers were not speaking to the court as investigating officers, but as victims of a crime, which they had a right to do. In Wisconsin, every crime victim has the right to make a statement to the court at disposition. State v. Stewart, 2013 WI App 86, 349 Wis. 2d 385, 836 N.W.2d 456, 12-1457. A victim has an individual interest in privacy guaranteed by sub. (2) (b) and in preserving the atmosphere of trust and confidence necessary to obtain effective medical treatment. State v. Johnson, 2023 WI 39, 407 Wis. 2d 195, 990 N.W.2d 174, 19-0664. The only reasonable interpretation of sub. (2) (m) is that victims have the right to recoup the total amount of money that a circuit court orders as restitution, consistent with the statutes that define and govern the restitution that a court may order. The able-to-pay limitation on juvenile restitution in s. 938.34 (5) (a) does not conflict with the right to “full restitution” provided by sub. (2) (m) and is constitutional. State v. M.L.J.N.L., 2024 WI App 11, 411 Wis. 2d 174, 4 N.W.3d 633, 21-1437. This section provides for restitution only insofar as the legislature confers that right through statute. The legislature makes restitution available to crime victims under s. 973.20 and other statutes, but crime victims are not guaranteed restitution in every instance. Section 973.20 (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under s. 304.074. OAG 2-15.
Marsy’s Law: Changes for Crime Victims? Donaldson, Rabe Mayer, Robson, Rufo, Sattler, & Shirley. Wis. Law. Sept. 2020.
I,10Treason. Section 10. Treason against the state shall consist only in levying war against the same, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. I,11Searches and seizures. Section 11. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. general
Electronic eavesdropping, done with the consent of one of the parties, does not violate the U.S. Constitution. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N.W.2d 354 (1971).
