A Miranda-Goodchild hearing to determine voluntariness of confessions is an evidentiary hearing for the parties. It is not a soliloquy for the court. The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the prosecutor is reduced to a bystander. State v. Jiles, 2003 WI 66, 262 Wis. 2d 457, 663 N.W.2d 798, 02-0153.
Police misrepresentation is not so inherently coercive that it renders a statement inadmissible; rather, it is simply one factor to consider out of the totality of the circumstances. State v. Triggs, 2003 WI App 91, 264 Wis. 2d 861, 663 N.W.2d 396, 02-0447.
Coercive conduct by a private person, absent any claim of state involvement, is insufficient to render a confession inadmissible on due process grounds. Involuntary confession jurisprudence is entirely consistent with settled law requiring some state action to support a claim of violation of the due process clause. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the due process clause. State v. Moss, 2003 WI App 239, 267 Wis. 2d 772, 672 N.W.2d 125, 03-0436.
That the defendant was handcuffed to a ring on a wall for all breaks between interrogations was not coercive in and of itself. State v. Agnello, 2004 WI App 2, 269 Wis. 2d 260, 674 N.W.2d 594, 02-2599.
Relay questioning implies that different interrogators relieve each other in an effort to put unremitting pressure on a suspect. When over a 12-hour period there were breaks during and between 3 interrogation sessions with 3 interrogation teams and at least one of the changes in interrogation teams was due to a shift change, there was no impermissible relay questioning or excessively long isolation or interrogation. State v. Agnello, 2004 WI App 2, 269 Wis. 2d 260, 674 N.W.2d 594, 02-2599.
A convicted defendant was not entitled to Miranda warnings prior to a court-ordered presentence investigation when the defendant's admission to the crime given in the investigation after denying the crime at trial was later used in a perjury prosecution against the defendant when the interview was routine and was not conducted while the defendant's jeopardy was still in doubt. State v. Jimmie R.R. 2004 WI App 168, 276 Wis. 2d 447, 688 N.W.2d 1, 02-1771.
Neither the text nor the spirit of the 5th amendment confers a privilege to lie. Proper invocation of the privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely. No matter how illusory the right to silence may seem to the defendant, that does not exert a form of pressure that exonerates an otherwise unlawful lie. State v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315, 03-1781.
A prosecuting attorney ordinarily may not comment on an accused's decision not to testify. There are circumstances, however, when an accused opens the door to a measured response by the prosecuting attorney. It may be proper for a prosecutor to comment on an accused's failure to testify after the accused's account of events are given during opening statements but the accused later refuses to testify. State v. Moeck, 2005 WI 57, 280 Wis. 2d 277, 695 N.W.2d 783, 03-0002.
If a defendant takes the stand in order to overcome the impact of confessions illegally obtained and hence improperly introduced, his or her testimony is tainted by the same illegality that rendered the confessions themselves inadmissible. The state has the burden to prove beyond a reasonable doubt that its use of the unlawfully obtained statements did not induce the defendant's testimony. Because the ultimate conclusion as to whether the defendant was impelled to testify is a question of constitutional fact, the circuit court may not hold an evidentiary hearing when making the determination. The hearing is a paper review during which a circuit court makes findings of historical fact based on the record. State v. Anson, 2004 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776, 03-1444.
All custodial interrogation of juveniles must be electronically recorded where feasible, and without exception when questioning occurs at a place of detention. State v. Jerrell C.J. 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, 02-3423.
Failure to call a juvenile suspect's parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel will be considered strong evidence that coercive tactics were used to elicit the incriminating statements, but the call is not mandatory. State v. Jerrell C.J. 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, 02-3423.
Despite Patane, 542 U.S. 630, evidence obtained as a direct result of an intentional violation of Miranda is inadmissible under Article I, s. 8, of the Wisconsin Constitution. State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, 00-2590.
When a request to remain silent is ambiguous, police need not endeavor to clarify the suspect's request. A suspect's statement, "I don't know if I should speak to you," was insufficient to unambiguously invoke the right to remain silent. State v. Hassel, 2005 WI App 80, 280 Wis. 2d 637, 696 N.W.2d 270, 04-1824.
That a lawyer who, while present during questioning, instructed the interrogating officer not to read the Miranda warnings and told his client that if the warnings were not given, whatever he said could not be used in court did not relieve the officer from the duty to read the warnings. State v. Rockette, 2005 WI App 205, 287 Wis. 2d 257, 704 N.W.2d 382, 04-2731.
A two-pronged subjective/objective test is applicable for determining whether, as a matter of law, a police officer's statements given in a criminal investigation are coerced and involuntary, and therefore subject to suppression. In order for statements to be considered sufficiently compelled such that immunity attaches, a police officer must subjectively believe he or she will be fired for asserting the privilege against self-incrimination, and that belief must be objectively reasonable. State v. Brockdorf, 2006 WI 76, 291 Wis. 2d 635, 717 N.W.2d 657, 04-1519. See also State v. McPike, 2009 WI App 166, 322 Wis. 2d 561, 776 N.W.2d 617, 08-3037.
When a defendant seeks to exclude prior statements based upon his or her 5th amendment privilege, he or she must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90, 03-2068.
When defense counsel prompted jurors to speculate that the defendant's alleged cohorts did not testify because they would not corroborate the accusations of an undercover officer, the prosecutor fairly suggested that the pair had the right not to testify in accordance with their 5th amendment right against self-incrimination. It is not improper for a prosecutor to note that the defendant has the same subpoena powers as the government, particularly when done in response to a defendant's argument about the prosecutor's failure to call a specific witness. State v. Jaimes, 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669, 05-1511.
Under the totality of the circumstances of this case, that it was not necessary for a prosecutor interviewing the defendant to formally re-advise the defendant of his Miranda rights when it was undisputed that the defendant had been advised of his rights the day before, and he clearly indicated to the prosecutor in her office that he remembered those rights and understood those rights, and therefore the statement the defendant made to the prosecutor was admissible. State v. Backstrom, 2006 WI App 114, 293 Wis. 2d 809, 718 N.W.2d 246, 05-1270.
Pre-custody invocation of the right to counsel was not an invocation of the right to counsel under Miranda and therefore the defendant's ensuing post-Mirandized inculpatory statements made while undergoing custodial interrogation did not need to be suppressed. State v. Kramer, 2006 WI App 133, 294 Wis. 2d 780, 720 N.W.2d 459, 05-0105.
Pre-Miranda silence may be used: 1) to impeach a defendant when he or she testifies; or 2) substantively to suggest guilt. Once the defendant testifies, his or her pre-Miranda silence may be used by the prosecutor. State v. Mayo, 2007 WI 78, 301 Wis. 2d 642, 734 N.W.2d 115, 04-1592.
The corroboration rule is a common law rule that requires that a conviction of a crime may not be grounded on the admission or confessions of the accused alone. There must be corroboration of a significant fact in order to produce a confidence in the truth of the confession. The significant fact need not independently establish a specific element of a crime. It is also unnecessary that the significant fact be particular enough to independently link the defendant to the crime. State v. Bannister, 2007 WI 86, 302 Wis. 2d 158, 734 N.W.2d 892, 05-0767.
Once the defendant initiated the topic of why he chose to remain silent and his explanation put him in a better position than had he not mentioned the reason, it was not then fundamentally unfair for the state on cross-examination to attack the credibility of that explanation. The suggestion of fabrication in cross-examination was not fundamentally unfair and not the equivalent of asking the jury to infer guilt from the defendant's silence. State v. Cockrell, 2007 WI App 217, 306 Wis. 2d 52, 741 N.W.2d 267, 05-2672.
Under Ross, a suspect's claimed unequivocal invocation of the right to remain silent must be patent. The Ross rule allows no room for an assertion that permits even the possibility of reasonable competing inferences. There is no invocation of the right to remain silent if any reasonable competing inference can be drawn. State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546, 06-2871.
The fact that an interrogating officer was at times confrontational and raised his voice was not improper police procedure and did not, by itself, establish police coercion, nor did the length of the defendant's custody nor her 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 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 took 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 his Miranda right to counsel when he requested counsel while in custody and before law enforcement officers interrogated him. (The court divided on the question whether to adopt a temporal standard to determine whether a suspect in custody has effectively invoked his or her 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 v. Arizona, after the defendant effectively invokes his or her Miranda 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 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 the defendant asserts that he or she previously invoked his or her 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 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 his or her 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.
Without custody, there is no Miranda 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.
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 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.
Where the dictates of Miranda are otherwise followed, the only impermissible aspect of incommunicado questioning is that which prevents a suspect from speaking with those to whom he or she has a constitutional right to speak. Preventing others from contacting the suspect has no impact on the suspect's ability to waive his or her rights or on his or her 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.
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.
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 the 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 is 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).
When, 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).
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. 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. When 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 the 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 the 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).
When 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 the 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 the 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. Miranda 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 U.S. 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 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, 153 L. Ed. 2d 47 (2002).
It is not until statements compelled by police interrogations are used use 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, 155 L. Ed. 2d 984, 123 S. Ct. 1994 (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 of Nevada, Humboldt County, 542 U.S. 177, 159 L. Ed 2d 292, 124 S. Ct. 2451 (2004).
A custodial interrogation in which no Miranda 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. 177, 159 L. Ed 2d 292, 124 S. Ct. 2601 (2004).
A failure to give a suspect Miranda 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. 600, 159 L. Ed 2d 667, 124 S. Ct. 2620 (2004).
The 4 warnings Miranda 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 his or her rights as required by Miranda. Florida v. Powell, 559 U.S. ___, 130 S. Ct. 1195, 175 L. Ed. 2d 1009 (2010).
Under Edwards, 451 U.S. 477, a voluntary Miranda 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 2-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. ___, 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 he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning. He did neither, so he did not invoke his right to remain silent. A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Berghuis v. Thompkins, 560 U.S. ___, 130 S. Ct. 2250; 176 L. Ed. 2d 1098 (2010).
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 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).
Adding (or Reaffirming) a Temporal Element to the Miranda Warning "You Have a Right to an Attorney. Bazelon. 90 MLR 1009 (2007).
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. 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.
