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.