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.
Miranda warnings need not be given in the suspect's language of choice, but the warnings must be given in a language in which the suspect is proficient enough to to understand the concepts that are involved in the warnings. State v. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48.
Whether a suspect knowingly and intelligently waived Miranda rights is a separate inquiry from whether the statement was voluntary. State v. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48.
Whether an interrogation that resumed after an invocation of the right to remain to silent violated the right against self-incrimination is analyzed based on whether: 1) the original interrogation was promptly terminated; 2) it was resumed after a significant amount of time; 3) Miranda warnings were given at the beginning of the subsequent interrogation; 4) a different officer resumed the questioning; and 5) the subsequent interrogation was limited to a different crime. These factors are not exclusively controlling, however, and should not be woodenly applied. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142.
There is an exception to the application of Miranda for routine booking questions. The questions must be asked: 1) by an agency ordinarily involved in booking suspects; 2) during a true booking; and 3) shortly after the suspect is taken into custody. The test of whether questioning constitutes interrogation and is not covered by the exception is if in light of all the circumstances the police should have known that the question was reasonably likely to elicit an incriminating response. State v. Bryant, 2001 WI App 554, 241 Wis. 2d 554, 624 N.W.2d 865.
When the defendant's plea put his mental competency at issue and his attorney consented to 2 competency examinations and had actual notice of them, the use of those reports during sentencing did not violate the right against self-incrimination. State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50.
The right against self-incrimination survives conviction and remains active while a direct appeal is pending. A probationer with a pending direct appeal on the merits cannot be revoked for refusing to admit the crime. State ex rel. Tate v. Schwarz, 2001 WI App 131, 246 Wis. 2d 293, 630 N.W.2d 761.
If the defendant opens the door to government questioning by the defendant's own remarks about post-arrest behavior or by defense counsel's questioning, the state may use the defendant's silence for the limited purpose of impeaching the defendant's testimony. When defense counsel asked leading questions of the officer who conducted a post-Miranda interview of the defendant that implied the defendant had actively denied the crime charged, the state was permitted to clarify that defendant had not answered all questions asked of him. State v. Nielsen, 2001 WI App 192, 247 Wis. 2d 466, 634 N.W.2d 325.
A defendant who offers expert testimony to show the lack of a psychological profile of a sex offender puts his or her 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.
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.
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. Handcuffing after questioning cannot operate retroactively to create custody for purposes of Miranda because 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.
If a suspect makes an ambiguous or equivocal reference to counsel, the police need neither to 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.
For purposes of whether a person is in custody so as to require Miranda warnings, the standard is whether a reasonable innocent person in the situation would believe he or she was in custody, which is another way of saying that the standard is the objective one of the reasonable person, not the subjective one of the suspect in the particular case, who may assume he or she is being arrested because he or she knows there are grounds for an arrest. State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23.
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 U.S. 428, 147 L. Ed. 2d 405 (2000).
A witness who denies all culpability has a 5th amendment privilege against self-incrimination. Ohio v. Reiner, 532 US 67, 149 LEd 2d 205 (2001).
A prison rehabilitation program that required inmates convicted of sexual assault to admit having committed the crime or have prison privilege reduced did not violate the privilege against self-incrimination although immunity was not granted and prosecution of previously uncharged crimes that might be revealed by the required admissions is possible. McKune v. Lile, ___ U.S. ___, 153 L. Ed. 2d 47 (2002).
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.
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.
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.
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).
No legal rights are conferred by this section. Mulder v. Acme-Cleveland Corp. 95 Wis. 2d 173, 290 N.W.2d 176 (1980).
Pre-1981 statutory paternity proceedings, which vested exclusive authority in district attorney to commence paternity action, unconstitutionally denied the child "day in court". Accordingly, child's action was not barred by any statute of limitations. In re Paternity of R.W.L. 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).
The state is not entitled to protection under this section. State v. Halverson, 130 Wis. 2d 300, 387 N.W.2d 124 (Ct. App. 1986).
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 775, 565 N.W.2d 586 (Ct. App. 1997).
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.
I,9m Victims of crime. Section 9m. [As created April 1993] This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law. [1993 J.R. 2, vote April 1993]
I,10 Treason. 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,11 Searches 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.
The prohibition against unreasonable searches and seizures is not limited to criminal cases. It applies in forfeiture actions arising out of ordinance violations. Milwaukee v. Cohen, 57 Wis. 2d 38, 203 N.W.2d 633.
An inspection by police of a basement storage room accessible to the public and the observation of evidence found there in open view that was later seized under a search warrant does not amount to an improper invasion of the defendant's privacy. Watkins v. State, 59 Wis. 2d 514 (1973).
Police have a right to lock a car to protect its contents after arresting the driver, but if it is already locked they cannot enter it on the pretense of locking it and thus discover contraband. Where the car was borrowed, consent by the lawful user of the car was sufficient to allow a search and any containers found could be opened and examined. Soehle v. State, 60 Wis. 2d 72, 208 N.W.2d 341.
When officers, armed with a search warrant, knocked on a door, pushed it open when the defendant opened it 2 inches, and put him under restraint before showing the warrant, they acted legally. State v. Meier, 60 Wis. 2d 452, 210 N.W.2d 685.
The observation of tools in a car by police officers did not constitute a search, and the tools could be seized and were properly admissible into evidence. Anderson v. State, 66 Wis. 2d 233, 223 N.W.2d 879.
Pertinent to the validity of an investigative stop is whether the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Wendricks v. State, 72 Wis. 2d 717, 242 N.W.2d 187.
Where an abused child, an occupant of defendant's house, was accompanied to the house by social workers to recover the child's belongings and exhibited to the workers the instruments used to inflict punishment, a subsequent search warrant was not tainted by an unconstitutional search. State v. Killory, 73 Wis. 2d 400, 243 N.W.2d 475.
Where evidence seized in an illegal search was admitted, no reversible error resulted since other evidence uninfluenced by the inadmissible evidence was sufficient to convict. Kelly v. State, 75 Wis. 2d 303, 249 N.W.2d 800.
The drawing and testing of blood solely for diagnostic and not government-instigated purposes is not a "search or seizure" even if the testing physician testifies at negligent homicide trial. State v. Jenkins, 80 Wis. 2d 426, 259 N.W.2d 109.
A stop and frisk was not an unreasonable search and seizure. State v. Williamson, 113 Wis. 2d 389, 335 N.W.2d 814 (1983).
A person who is lawfully in custody for a civil offense may be required to participate in a lineup for an unrelated criminal offense. State v. Wilks, 121 Wis. 2d 93, 358 N.W.2d 273 (1984).
There is no reasonable expectation of privacy in garbage once it has been routinely collected by garbage collectors. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).
An unlawful arrest does not deprive a court of personal jurisdiction over a defendant. State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986).
Under the inevitable discovery doctrine, evidence seized under a defective search warrant was admissible because a later inventory search would have discovered it. State v. Kennedy, 134 Wis. 2d 308, 396 N.W.2d 765 (Ct. App. 1986).
