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.
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, he or she cannot be automatically revoked on that ground. If the probationer refuses despite a grant of immunity, his or her 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 him 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 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 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 his request for an attorney by voluntarily initiating a request to resume questioning after validly invoking his right to counsel, cancelling his invocation of that right by initiating the dialogue in which he 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.
The court declined to adopt the argument that
Miranda applies when custody is “imminent." While
Hambly 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. Herr,
2013 WI App 37,
346 Wis. 2d 603,
828 N.W.2d 896,
12-0935.
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 his or her 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. 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.
Under
Edwards,
451 U.S. 477 (1981), after a suspect validly invokes the right to counsel, any subsequent waiver is invalid unless an attorney is present or the suspect “initiates further communication, exchanges, or conversations with the police." However, under
Shatzer, 559 U.S. 98, the
Edwards presumption ends when the suspect has been outside police custody for 14 days. The holding of
Shatzer is applicable in Wisconsin cases. State v. Edler,
2013 WI 73,
350 Wis. 2d 1,
833 N.W.2d 564,
11-2916.
The test for whether a subject is in custody for purposes of triggering
Miranda warnings is an objective one that asks whether a reasonable person in the subject's position would have considered himself or herself to be in custody as set forth in
Torkelson. A government employee who is not a law enforcement officer may still violate
Miranda by engaging in questioning designed to elicit incriminating information for law enforcement purposes. The first issue in this appeal was whether the defendant was subjected to custodial interrogation when she was questioned by correctional officers. State v. Ezell,
2014 WI App 101,
357 Wis. 2d 675,
855 N.W.2d 453,
13-2178.
In the absence of actual coercion, the U.S. Constitution does not require suppression of physical evidence obtained as a consequence of unwarned interrogation. The Wisconsin Constitution does require suppression of physical evidence obtained “as a direct result of an intentional violation of
Miranda," but in the absence of coercion or intentional violation of the suspect's rights, there is no basis for suppressing physical evidence. State v. Ezell,
2014 WI App 101,
357 Wis. 2d 675,
855 N.W.2d 453,
13-2178.
When a defendant was compelled to display his platinum teeth to the jury, that display was physical evidence that did not have a testimonial aspect sufficient to implicate constitutional protections. The relevant question under the case law is whether the evidence in question expresses, makes use of, reveals, or discloses the contents of the defendant's mind. Teeth do not do so. The teeth were material to identification, which was a matter at issue. State v. Ramon G. Gonzalez,
2014 WI 124,
359 Wis. 2d 1,
856 N.W.2d 580,
12-1818.
The 5th amendment privilege against self-incrimination continues after a plea and through sentencing. Accordingly, a circuit court employs an improper factor in sentencing if it actually relies on compelled statements made to a probation agent. The defendant has the burden to prove by clear and convincing evidence that the circuit court actually relied on an improper factor in imposing sentence. State v. Alexander,
2015 WI 6,
360 Wis. 2d 292,
858 N.W.2d 662,
13-0843.
Although the defendant who was only 15 years old when questioned, he had more experience with police and law enforcement than most people his age and demonstrated that he was able not only to develop a story about his non-involvement in the shooting but also to adapt the details of that story to information possessed by the police. That ability to concoct and modify a story on the fly suggested a level of sophistication and adaptability perhaps not accounted for by a standard IQ test. Thus, his below-average intellect did not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, disposed of the inquiry into constitutional voluntariness. Rather, it had to be be taken into consideration and weighed against the conduct of the police. State v. Moore,
2015 WI 54,
363 Wis. 2d 376,
864 N.W.2d 827,
13-0127.
Miranda warnings need only be administered to individuals who are subjected to a custodial interrogation. Interrogation refers to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. The defendant's incriminating remark made while in custody was not the product of interrogation when police asked a question in the nature of “would you like to give a statement?" The question was procedural and an objective listener would have interpreted it as an invitation for a simple “yes"/"no"-type response indicating willingness, or lack thereof, to cooperate and not an invitation to blurt out a substantively incriminating response. State v. Harris,
2016 WI App 2,
366 Wis. 2d 777,
874 N.W.2d 602,
14-1767.
A probationer is not required to answer questions unless he or she was offered immunity as described in
Evans, 77 Wis. 2d 225. The
Evans court stated: “Had sufficient explanation been given to the defendant with regard to the type of immunity herein granted, then refusal to cooperate would be grounds for revocation." The immunity described in
Evans is both use and derivative use immunity. With use immunity, particular information provided by an individual cannot be used against that individual in criminal proceedings, whereas with derivative use immunity, any evidence subsequently discovered by authorities through direct or indirect utilization of the provided information can not be used against the individual in criminal proceedings. Douglas v. Hayes,
2015 WI App 87,
365 Wis. 2d 497,
872 N.W.2d 152,
14-2977.
The issue in this appeal was not whether the probation agent explained details of derivative use immunity to the defendant, but whether she explained at all that the defendant was afforded use and derivative use immunity. The statement “
I have also been advised that none of this information can be used against me in criminal proceedings" would tell a probationer that none of the particular information he or she was providing the agent at that time could be used against the probationer in criminal court, but it would not clearly inform a probationer that other information derived from the information directly provided by the probationer also could not be used against him or her in criminal court. Douglas v. Hayes,
2015 WI App 87,
365 Wis. 2d 497,
872 N.W.2d 152,
14-2977.
Once a compelled, incriminating, testimonial statement has been obtained, the state bears the burden of demonstrating that the evidence the state wishes to use is derived from a legitimate source wholly independent of the compelled testimony. It is insufficient to meet the state's burden by merely denying that an immunized statement was used, even if that denial is made in good faith. Rather, the government must document or account for each step of the investigative chain by which the evidence was obtained from a legitimate source wholly independent of the compelled statement. State v. Quigley,
2016 WI App 53, ___ Wis. 2d ___,
883 N.W.2d 139,
15-0681.
Requiring the state in all inevitable discovery doctrine cases to prove active pursuit of an alternative line of investigation at the time of a constitutional violation risks exclusion of evidence that the state might demonstrate that it inevitably would have discovered. Therefore, the factors in
Schwegler,
170 Wis. 2d 487,
Lopez,
207 Wis. 2d 413, and
Avery,
2011 WI App 124, should be regarded as important indicia of inevitability rather than indispensable elements of proof. Instead, the relevant inquiry is whether the prosecution has met its burden of proving by a preponderance of the evidence that it inevitably would have discovered the evidence sought to be suppressed. State v. Jackson,
2016 WI 56,
369 Wis. 2d 673,
882 N.W.2d 422,
14-2238.
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).
Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. 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).
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,
124 S. Ct. 2451,
159 L. Ed 2d 292 (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,
124 S. Ct. 2601,
159 L. Ed 2d 292 (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,
124 S. Ct. 2620,
159 L. Ed 2d 667 (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. 50,
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. 370,
130 S. Ct. 2250,
176 L. Ed. 2d 1098 (2010).