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).
The age of a child subjected to police questioning is relevant to the custody analysis of
Miranda. So long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test, but a child's age will not be determinative, or even a significant, factor in every case. J. D. B. v. North Carolina, 564 U.S. ___,
131 S. Ct. 2394,
180 L. Ed. 2d 310 (2011).
A prisoner is not always in custody for purposes of
Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prison. Imprisonment, questioning in private, and questioning about events in the outside world are not necessarily enough to create a custodial situation for
Miranda purposes. “Custody" is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. Howes v. Fields, 565 U.S. ___,
132 S. Ct. 1181,
182 L. Ed. 2d 17 (2012).
No fifth amendment violation was found in this case. Petitioner, without being placed in custody or receiving
Miranda warnings, voluntarily answered the questions of a police officer who was investigating a murder then balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner's shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer's question suggested that he was guilty. Salinas v. Texas, 570 U.S. ___,
133 S. Ct. 175,
185 L. Ed. 2d 807, (2013).
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.
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).
Pre-1981 statutory paternity proceedings, which vested exclusive authority in district attorney to commence paternity action, unconstitutionally denied the child a “day in court." Accordingly, the 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).
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 777,
565 N.W.2d 586 (Ct. App. 1997),
96-1933.
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,
99-2955.
Although Article I, s. 9, itself may not create new rights, it does allow for a remedy through the existing common law. The goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing. The common law develops to adapt to the changing needs of society. Thomas v. Mallett,
2005 WI 129,
285 Wis. 2d 236,
701 N.W.2d 523,
03-1528.
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]
The state did not breach a plea agreement when two police officers, one of whom the defendant shot during the execution of a search warrant, requested during the sentencing hearing that the sentencing court impose the maximum sentence. The police officers were not speaking to the court as investigating officers, but as victims of a crime, which they have a right to do. In Wisconsin, every crime victim has the right to make a statement to the court at disposition. State v. Stewart,
2013 WI App 86,
349 Wis. 2d 385,
836 N.W.2d 456,
12-1457.
This section provides for restitution only insofar as the legislature confers that right through statute. The legislature makes restitution available to crime victims under s. 973.20 and other statutes, but crime victims are not guaranteed restitution in every instance. Section 973.20 (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under s. 304.074. OAG 2-15.
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.