The admission of an involuntary or coerced confession is subject to the harmless error test. State v. Childs, 146 Wis. 2d 116, 430 N.W.2d 353 (Ct. App. 1988).
The use of Goodchild testimony to impeach the defendant's trial testimony does not violate the privilege against self-incrimination. State v. Schultz, 152 Wis. 2d 408, 448 N.W.2d 424 (1989).
An unconstitutionally obtained confession may be admitted and serve as the sole basis for a bindover at a preliminary examination. State v. Moats, 156 Wis. 2d 74, 457 Wis. 2d 299 (1990).
Where a psychiatrist did not comply with Miranda, the constitution does not require exclusion of the results of the interview with the defendant from the competency phase of the trial. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991).
Miranda does not require warning a suspect that he has the right to stop answering questions. State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992).
Miranda safeguards are not required where a suspect is simply in custody, but are required where the suspect in custody is subjected to interrogation. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992).
A criminal defendant may be compelled to submit a voice sample consisting of specific words for purposes of identification. The words do not require a revelation of the contents of the mind to impart an admission of or evidence of guilt. Commenting on a refusal to give a sample does not violate the right against self-incrimination. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992).
Miranda safeguards are applicable to questions during booking concerning name and residence where the questions relate to an element of the crime. State v. Stevens, 173 Wis. 2d 290, 496 N.W.2d 201 (Ct. App. 1992).
A waiver of Miranda rights needs to be made knowingly and intelligently as well as voluntarily. A knowing and intelligent waiver must be shown by a preponderance of the evidence as determined from an objective assessment of the circumstances. State v. Lee, 175 Wis. 2d 348, 499 N.W.2d 258 (Ct. App. 1993).
If police do not use coercive tactics, that a defendant is undergoing medical treatment or experiencing pain is not determinative on the issue of voluntariness. State v. Schambow, 176 Wis. 2d 286, N.W.2d (Ct. App. 1993).
When a defendant pleads guilty then appeals the denial of a suppression motion under s. 971.31 (10), the harmless error rule may not be applied where a motion to suppress was erroneously denied. State v. Pounds, 176 Wis. 2d 315, N.W.2d (Ct. App. 1993).
Miranda protections come into play when a reasonable person in the defendant's position would consider himself to be in custody. State v. Pounds, 176 Wis. 2d 315, N.W.2d (Ct. App. 1993).
Failure to give Miranda warnings during a telephone conversation initiated to encourage the defendant's surrender following an armed robbery police suspected was committed by the defendant did not require suppression of admissions made to the police. State v. Stearns, 178 Wis. 2d 845, 506 N.W.2d 165 (Ct. App. 1993).
The defendant's intoxication for purposes of motor vehicle statutes did not per se demonstrate an inability to knowingly waive Miranda rights. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994).
The suspect's question to an interrogator, ``Do you think I need an attorney?", was an equivocal question insufficient to invoke the right to counsel. Such an equivocal statement requires the police to cease all interrogation except to attempt to clarify the suspect's desire for counsel. State v. Walkowiak, 183 Wis. 2d 478, 515 N.W.2d 863 (1994). But see the note to Davis v. United States, 129 L. Ed. 2d 362 below. See also State v. Long, 190 Wis. 2d 387, 526 N.W.2d 826 (Ct. App. 1994).
Coercive police activity is a predicate to establishing involuntariness but does not itself establish involuntariness. Officer dissatisfaction with a defendant's answers and statements by the officer that cooperation would benefit the defendant is not coercion without a promise of leniency. State v. Deets, 187 Wis. 2d 629, 523 N.W.2d 180 (Ct. App. 1994).
A refusal to perform a field sobriety test is not testimony and not protected by the constitution. The refusal to submit to the test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbit, 188 Wis. 2d 349, 525 N.W.2d 102 (Ct. App. 1994).
Edwards v. Arizona requires interrogation to cease once a suspect requests an attorney. It does not prohibit questions designed to accommodate the request. When in response to being asked his attorney's name a suspect gave a name and then stated that the person was not an attorney, the interrogating officer was not prevented from continuing interrogation. State v. Lagar, 190 Wis. 2d 423, 526 N.W.2d 836 (Ct. App. 1994).
A forced confession as a condition of probation does not violate the right against self-incrimination. The constitution protects against the use of confessions in subsequent criminal prosecutions but does not protect against the use of those statements in a revocation proceeding. State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995).
A suspect's reference to an attorney who had represented or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995).
The rights to counsel and to remain silent are the defendant's. An attorney not requested by the defendant could not compel the police to end questioning by stating that no questioning was to take place outside his presence. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995).
Once given, it is not necessary to repeat the Miranda warnings during an investigation of the same person for the same crime. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995).
The privilege against self-incrimination extends beyond sentencing as long as a defendant has a real fear of further incrimination, as where an appeal is pending, before an appeal as of right or plea withdrawal has expired, or where the defendant intends or is in the process of moving for sentence modification and shows a reasonable chance of success. State v. Marks, 194 Wis. 2d 79, 533 N.W.2d 730 (1995).
A defendant may selectively waive Miranda rights. Refusal to answer specific questions does not assert an overall right to to silence, if there is an unequivocal expression of selective invocation. State v. Wright, 196 Wis. 2d 149, 537 N.W.2d 134 (Ct. App. 1995).
Whether incriminating statements made following an illegal arrest are admissible depends on whether the statements were obtained by means sufficiently attenuated from the illegal act. The factors to be considered are voluntariness, proximity of conduct to the confession, the presence of intervening circumstances and flagrancy of the misconduct. State v. Tobias, 196 Wis. 2d 537, 538 N.W.2d 843 (Ct. App. 1995).
The right to counsel under Miranda must be personally invoked by the suspect. Simply retaining counsel is not an unequivocal statement that the suspect wishes to deal with the police only in the presence of counsel. State v. Coerper, 199 Wis. 2d 216, 544 N.W.2d 423 (1996).
Once a suspect invokes the right to counsel, judicial inquiry into voluntariness is beside the point. Physical evidence derived from statements made in violation of the asserted right must be suppressed. However, evidence admitted in violation of this rule is subject to a harmless error analysis. State v. Harris, 199 Wis. 2d 227, 544 N.W.2d 545 (1996).
Prosecution comments on a defendant's claimed lack of memory and subsequent silence during a police interview conducted shortly after the incident when the defendant testified at length at trial on the same subject did not violate the right against self-incrimination where the comments were intended to impeach the defendant's testimony and not to ask the jury to infer guilt from the defendant's silence. State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996).
A suspect's declaration that he did not wish to speak to a specific police officer is not an invocation of the right to remain silent. Police adoption of "good cop/bad cop" roles did not render an interrogation coercive and its results inadmissible. State v. Owen, 202 Wis. 2d 621, 551 N.W.2d 50 (Ct. App. 1996).
A suspect's silence, standing alone, is insufficient to unambiguously invoke the right to remain silent. State v. Ross, 203 Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996).
A suspect's statement to his mother during an arrest that she should call a lawyer was not an unequivocal statement that the suspect wished to deal with the police only in the presence of counsel. State v. Rodgers, 203 Wis. 2d 83, 552 N.W.2d 123 (Ct. App. 1996).
The sufficiency of Miranda rights given by the police in a foreign language and a subsequent waiver of those rights may be challenged, and if timely notice of the challenge is given the state has the burden to produce evidence to show the the foreign language words reasonably conveyed the rights and that waiver was knowingly and intelligently made. State v. Santiago, 206 Wis. 2d 3, 556 N.W.2d 687 (1996).
The privilege against self incrimination may be replaced by a grant of immunity which has the same scope and effect as the privilege itself. The immunity must protect against derivative use of compelled information which could lead to evidence that could be used in a criminal prosecution as well as information that could be used directly. State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997).
A defendant's refusal to submit to a field sobriety test is not protected by the right against self-incrimination and is admissible as evidence. State v. Mallick, 210 Wis. 2d 428, 565 N.W.2d 245 (Ct. App. 1997).
Evidence of why a defendant did not testify has no bearing on guilt or innocence, is not relevant, and is inadmissible. State v. Heuer, 212 Wis. 2d 58, 567 N.W.2d 638 (Ct. App. 1997).
A CHIPS proceeding is not a criminal proceeding within the meaning of the 5th amendment. Miranda warnings are not required to be given to the CHIPS petition subject, even though the individual is in custody and subject to interrogation, in order for the subject's statements to be admissible. State v. Thomas J.W. 213 Wis. 2d 264, 570 N.W.2d 586 (Ct. App. 1997)
That the defendant is detained in a temporary Terry stop does not automatically mean Miranda warnings are not required. Whether the warnings are required depends on whether a reasonable person in the defendant's position would have considered himself or herself to be in custody. State v. Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998).
Use of prearrest silence is barred if it is induced by governmental action. The right to silence was not implicated by a governmental employe defendant's refusal to meet with his supervisors to discuss employment issues. The prosecution was free to comment on that refusal. State v. Adams, 221 Wis. 2d 1, 584 N.W.2d 695 (Ct. App. 1998).
That a police officer intentionally withheld information that she had a warrant for the defendant's arrest and intended to arrest him at some point was irrelevant to whether the defendant was in custody when he made incriminating statements without having received Miranda warnings. State v. Mosher, 221 Wis. 2d 203, 584 N.W.2d 553 (Ct. App. 1998).
There are 4 requirements that together trigger the privilege against self-incrimination. The information sought must be 1) incriminating, 2) personal to the defendant, 3) obtained by compulsion and 4) testimonial or communicative in nature. Discovery of information that not meeting these criteria is not barred. State v. Revels, 221 Wis. 2d 315, 585 N.W.2d 602 (Ct. App. 1998).
The application of the "fruit of the poisonous tree" doctrine to violations of Miranda that are not also violations of the 5th or 14th amendment is improper. A failure to administer Miranda warnings that was unaccompanied by any actual coercion is insufficient to result in an imputation of taint to subsequent statements. State v. Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999).
The state must prove by a preponderance of the evidence that a confession was voluntarily made. Whether a confession is true or false cannot play a part in determining whether it was voluntary. A relevancy objection to questioning regarding the truthfulness of a confession was sufficient to preserve the issue for appeal. State v. Agnello, 226 Wis. 2d 164, 593 N.W.2d 427 (1999).
If a statement secured by the police is voluntary, although secured by the police in violation of Miranda, it may be used to impeach the defendant's conflicting testimony, although it is inadmissible in the prosecution's case-in-chief. Whether the statement is voluntary depends on whether it was compelled by coercive means or improper police practices, as indicated by the totality of the circumstances. State v. Franklin, 228 Wis. 2d 408, 596 N.W.2d 855 (Ct. App. 1999).
When a criminal defendant objects to testimony of his or her out of court statement as incomplete or attempts to cross-examine the witness on additional parts of the statement, the court must make a discretionary determination regarding whether the additional portions are required for completeness. Additional portions of the defendant's statement are not inadmissible solely because the defendant chooses not to testify. State v. Anderson, 230 Wis. 2d 121, 600 N.W.2d 913 (Ct. App. 1999).
Failure to administer Miranda warnings is not itself a violation of the 5th amendment. If after a voluntary statement in violation of Miranda is made, a second statement is made following valid administration of the Miranda warnings, the test for admissibility of the second statement is whether both statements were voluntarily given and whether Miranda rights were knowingly waived. State v. Yeng, 2000 WI App 63, 233 Wis. 2d 545, 608 N.W.2d 703.
The "fruit of the poisonous tree" doctrine does not apply to physical evidence discovered as the result of a statement obtained in violation of Miranda but not in violation of the constitution. State v. Yeng, 2000 WI App 63, 233 Wis. 2d 545, 608 N.W.2d 703.
Statements made after Miranda warnings but before contact with requested counsel are admissible for impeachment purposes. Oregon v. Hass, 420 U.S. 714.
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.
The accused's silence during police interrogation lacked probative value for impeachment of an alibi at trial. United States v. Hale, 422 U.S. 171. See: Doyle v. Ohio, 426 U.S. 610.
The use of defendant's income tax returns to prove a gambling charge did not deny self-incrimination protection. Garner v. United States, 424 U.S. 648.
A voluntary interview at a police station was not "custodial interrogation". Oregon v. Mathiason, 429 U.S. 492.
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 (1978).
While statements made by the defendant in circumstances violating Miranda 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 (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 (1979).
An explicit statement of waiver is not necessary to support a finding that the defendant waived Miranda rights. North Carolina v. Butler, 441 U.S. 369 (1979).
A voluntary confession obtained during a custodial interrogation following an illegal arrest was inadmissible. Dunaway v. New York, 442 U.S. 200 (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 (1980).
An officer's comment that a child might find a loaded gun was not the functional equivalent of questioning in violation of Miranda rights. Rhode Island v. Innis, 446 U.S. 291 (1980).
The right against self-incrimination was not violated when the defendant who testifies in his own defense is impeached by use of the defendant's prearrest silence. Jenkins v. Anderson, 447 U.S. 231 (1980).
Upon the defendant's request, the judge must instruct the jury not to infer guilt from the defendant's failure to testify. Carter v. Kentucky, 450 U.S. 288 (1981).
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 (1981).
Where, for impeachment purposes, the prosecution cross-examined the defendant as to postarrest silence before the defendant received Miranda warnings, due process was not violated. Fletcher v. Weir, 455 U.S. 603 (1982).
Where 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 error was harmless. U.S. v. Hasting, 461 U.S. 499 (1983).
A probationer under an obligation to appear before a probation officer and answer questions truthfully was not entitled to Miranda warnings. A confession was, therefore, admissible. Minnesota v. Murphy, 465 U.S. 420 (1984).
The court adopts an "inevitable discovery" exception to the exclusionary rule. Nix v. Williams, 467 U.S. 431 (1984).
The court adopts a "public safety" exception to the Miranda rule. Where the accused, known to have had gun, did not have a gun at 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 (1984).
A person subjected to custodial interrogation is entitled to Miranda warnings regardless of the nature or severity of offense. Berkemer v. McCarty, 468 U.S. 420 (1984).
A suspect who has once responded to unwarned yet uncoercive questioning may later waive his or her rights and confess after Miranda warnings are given. Oregon v. Elstad, 470 U.S. 298 (1985).
The prosecutor's use of the defendant's postarrest, post-Miranda warnings silence as evidence of the defendant's sanity violated due process clause. Wainwright v. Greenfield, 474 U.S. 284 (1986).
Police failure to inform the defendant that a third party had retained counsel did not invalidate the defendant's waiver of Miranda rights. Moran v. Burbine, 475 U.S. 412 (1986).
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 (1986).
Where no evidence is 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 (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 (1988).
The custodian of corporate records may not resist a subpoena for records on self-incrimination grounds, regardless of the size of corporate entity. Braswell v. United States, 487 U.S. 99 (1988).
The self-incrimination privilege does not support a refusal to comply with a juvenile court's order to produce a child. Baltimore Soc. Serv. v. Bouknight, 493 U.S. 474, 107 L. Ed. 2d 992 (1990).
An undercover officer is not required to give Miranda warnings to a suspect before surreptitious custodial interrogation. Illinois v. Perkins, 496 U.S. 292, 110 L. Ed. 2d 243 (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. Minnich v. Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489 (1990).
Admission of a coerced confession may be found to be "harmless error". Arizona v. Fulminate, 499 U.S. 279, 113 L. Ed. 2d 302 (1991).
The 6th amendment right to counsel is offense specific. An accused's invocation of this right during a judicial proceeding did not constitute an invocation of the right to counsel under Miranda 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, 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 warnings. Stansbury v. California, 511 U.S. 318, 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, 129 L. Ed. 2d 362 (1994).
Miranda and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal courts, and it may not be overruled by act of Congress. Dickerson v. U.S. 530 US ___, 147 L. Ed. 2d 405 (2000).
Collateral estoppel barred the state from introducing evidence of a van theft as an overt act in a conspiracy charge where the accuseds had earlier been acquitted in the van theft trial. The accused's silence prior to receiving Miranda 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).
Privilege against self-incrimination-truthful statements may be used in a perjury prosecution. 64 MLR 744 (1981).
The privilege against self-incrimination in civil commitment proceedings. 1980 WLR 697.
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 WLR 1643.
I,9 Remedy 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, because there is no right of a citizen to hold his sovereign substantively liable therefor, 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.
