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. 50,
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. 261,
131 S. Ct. 2394,
180 L. Ed. 2d 310 (2011).
A prisoner is not always in custody for purposes of
Miranda,
384 U.S. 436 (1966), whenever the 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. The court will also ask the additional question of whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in
Miranda. Howes v. Fields,
565 U.S. 499,
132 S. Ct. 1181,
182 L. Ed. 2d 17 (2012).
No 5th 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. 178,
133 S. Ct. 2174,
186 L. Ed. 2d 376 (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 Interrogations of Brendan Dassey. Gallini. 102 MLR 777 (2019).
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.
Law Enforcement in the American Security State. Said. 2019 WLR 819.
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.
A referee's fees increase the costs of litigation and may have a chilling effect on litigants. If the expenses are not circumscribed, people with meritorious claims will be discouraged from pursuing them in court because they cannot afford to go to court. A reference to a referee in effect requires litigants to pay for the court system twice — once through the tax system and a second time by paying fees to a referee for resolution of their suit. Referee fees may offend constitutional mandates “if they chill advocacy severely enough to `effectively end the litigation' or impose `an intolerable burden on a losing litigant.'” Appointment of a referee is for the exceptional case; it is not the general rule. Universal Processing Services v. Circuit Court of Milwaukee County,
2017 WI 26,
374 Wis. 2d 26,
892 N.W.2d 267,
16-0923.
I,9m
Victims of crime.
Section 9m
. [
As created April 1993 and amended April 2020]
I,9m(1)(a)(a) In this section, notwithstanding any statutory right, privilege, or protection, “victim” means any of the following:
I,9m(1)(a)1.
1.
A person against whom an act is committed that would constitute a crime if committed by a competent adult.
I,9m(1)(a)2.
2.
If
the
person
under
subd.
1.
is
deceased
or
is
physically
or
emotionally
unable
to exercise
his
or
her
rights
under
this
section,
the
person's
spouse,
parent
or
legal
guardian, sibling, child, person who resided with the deceased at the time of death, or other lawful representative.
I,9m(1)(a)3.
3.
If the person under subd. 1. is a minor, the person's parent, legal guardian or custodian, or other lawful
representative.
I,9m(1)(a)4.
4.
If the person under subd. 1. is adjudicated incompetent, the
person's legal
guardian or other lawful representative.
I,9m(1)(b)
(b) “
Victim” does not include the accused or a person who the court finds would not act in the best interests of a victim who is deceased, incompetent, a minor, or physically or emotionally unable to exercise his or her rights under this section.
I,9m(2)
(2) In order to preserve and protect victims' rights to justice and due process throughout the criminal and
juvenile
justice
process,
victims
shall
be
entitled
to
all
of
the
following
rights,
which shall vest
at
the
time
of
victimization
and
be
protected
by
law
in
a
manner
no
less
vigorous than the protections afforded to the accused:
I,9m(2)(a)
(a)
To be treated with dignity, respect, courtesy, sensitivity, and
fairness.
I,9m(2)(c)
(c)
To proceedings free from unreasonable
delay.
I,9m(2)(d)
(d)
To timely disposition of the case, free from unreasonable delay.
I,9m(2)(e)
(e)
Upon
request,
to
attend
all
proceedings
involving the case.
I,9m(2)(f)
(f)
To
reasonable
protection
from
the
accused
throughout
the
criminal
and
juvenile justice process.
I,9m(2)(g)
(g)
Upon request, to reasonable and timely notification of proceedings.
I,9m(2)(h)
(h)
Upon request, to confer with the attorney for the
government.
I,9m(2)(i)
(i)
Upon request, to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon.
I,9m(2)(j)
(j)
To have information pertaining to the economic, physical, and psychological effect upon the victim of the offense submitted to the authority with jurisdiction over
the case and to have that information considered by that
authority.
I,9m(2)(k)
(k)
Upon
request, to
timely notice of
any release or
escape of the
accused or
death of the accused if the accused is in custody or on supervision at the time of death.
I,9m(2)(L)
(L) To refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.
I,9m(2)(m)
(m)
To full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution.
I,9m(2)(n)
(n)
To compensation as provided by
law.
I,9m(2)(o)
(o)
Upon request, to reasonable and timely information about the status of the investigation and the outcome of the case.
I,9m(2)(p)
(p)
To timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced.
I,9m(3)
(3) Except as provided under sub. (2) (n), all provisions of this section are self-executing. The legislature may prescribe further remedies for the violation
of
this
section and further procedures for compliance with and enforcement of this
section.
I,9m(4)(a)(a) In addition to any other available enforcement of
rights or remedy for a violation of this section or of other rights, privileges, or protections provided by law, the victim, the victim's attorney or other lawful representative, or the attorney for
the
government
upon
request
of
the
victim
may
assert
and
seek
in
any
circuit court
or
before
any
other
authority
of
competent
jurisdiction,
enforcement
of
the
rights
in this
section
and
any
other
right,
privilege,
or
protection
afforded
to
the
victim
by
law. The court or other authority with jurisdiction over the case shall act promptly on such a request and afford a remedy for the violation of any right of the victim.
The court or other
authority with jurisdiction over the case shall clearly state on the record the reasons for any decision regarding the disposition of a victim's right and shall provide those reasons to the victim or the victim's attorney or other lawful
representative.
I,9m(4)(b)
(b) Victims may obtain review of all adverse decisions concerning their rights as victims
by
courts
or
other
authorities
with
jurisdiction
under
par. (a)
by
filing
petitions
for supervisory writ in the court of appeals and supreme court.
I,9m(5)
(5) This section does not create any cause of action
for damages
against
the
state;
any
political
subdivision
of
the
state;
any
officer,
employee,
or agent
of
the
state
or
a
political
subdivision
of
the
state
acting
in
his
or
her
official
capacity; or any officer, employee, or agent of the courts acting in his or her official
capacity.
I,9m(6)
(6) This section is not intended and may not be
interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim. [
1991 J.R. 17, 1993 J.R. 2, vote April 1993; 2017 J.R. 13, 2019 J.R. 3, vote April 2020]
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.
The 2020 constitutional amendment creating this section grants standing to a crime victim to oppose and to make arguments supporting the victim's opposition to a defendant's
Shiffra,
175 Wis. 2d 600 (1993), motion for an in camera review. That grant of standing applies retrospecitvely to a victim's request for standing. This section therefore abrogates the holding regarding standing in
Jessica J.L.,
223 Wis. 2d 622 (1998). State v. Johnson,
2020 WI App 73,
394 Wis. 2d 807,
951 N.W.2d 616,
19-0664.
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.
Marsy's Law: Changes for Crime Victims? Donaldson, Rabe Mayer, Robson, Rufo, Sattler, & Shirley. Wis. Law. Sept. 2020.
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 (1971).
The prohibition against unreasonable searches and seizures is not limited to criminal cases. It applies in forfeiture actions arising out of ordinance violations. City of Milwaukee v. Cohen,
57 Wis. 2d 38,
203 N.W.2d 633 (1973).
An inspection by police of a basement storage room accessible to the public and the observation of evidence found there in open view that was later seized under a search warrant did not amount to an improper invasion of the defendant's privacy. Watkins v. State,
59 Wis. 2d 514,
208 N.W.2d 449 (1973).
Police have a right to lock a car to protect its contents after arresting the driver, but if it is already locked they cannot enter it on the pretense of locking it and thus discover contraband. When the car was borrowed, consent by the lawful user of the car was sufficient to allow a search and any containers found could be opened and examined. Soehle v. State,
60 Wis. 2d 72,
208 N.W.2d 341 (1973).
When officers, armed with a search warrant, knocked on a door, pushed it open when the defendant opened it two inches, and put him under restraint before showing the warrant, they acted legally. State v. Meier,
60 Wis. 2d 452,
210 N.W.2d 685 (1973).
The observation of tools in a car by police officers did not constitute a search, and the tools could be seized and were properly admissible into evidence. Anderson v. State,
66 Wis. 2d 233,
223 N.W.2d 879 (1974).
Pertinent to the validity of an investigative stop is whether the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Wendricks v. State,
72 Wis. 2d 717,
242 N.W.2d 187 (1976).
When an abused child, an occupant of defendant's house, was accompanied to the house by social workers to recover the child's belongings and exhibited to the workers the instruments used to inflict punishment, a subsequent search warrant was not tainted by an unconstitutional search. State v. Killory,
73 Wis. 2d 400,
243 N.W.2d 475 (1976).
When evidence seized in an illegal search was admitted, no reversible error resulted when other evidence uninfluenced by the inadmissible evidence was sufficient to convict. Kelly v. State,
75 Wis. 2d 303,
249 N.W.2d 800 (1977).
The drawing and testing of blood solely for diagnostic and not government-instigated purposes was not a “search or seizure" even when the testing physician testified at a negligent homicide trial. State v. Jenkins,
80 Wis. 2d 426,
259 N.W.2d 109 (1977).
A person who is lawfully in custody for a civil offense may be required to participate in a lineup for an unrelated criminal offense. State v. Wilks,
121 Wis. 2d 93,
358 N.W.2d 273 (1984).
There is no reasonable expectation of privacy in garbage once it has been routinely collected by garbage collectors. State v. Stevens,
123 Wis. 2d 303,
367 N.W.2d 788 (1985).
Under the inevitable discovery doctrine, evidence seized under a defective search warrant was admissible because a later inventory search would have discovered it. State v. Kennedy,
134 Wis. 2d 308,
396 N.W.2d 765 (Ct. App. 1986).
The reasonableness of an investigative stop depends on facts and circumstances present at the time of the stop. State v. Guzy,
139 Wis. 2d 663,
407 N.W.2d 548 (1987).
When an officer observed a traffic violation but stopped the vehicle merely to render assistance, inadvertently discovered criminal evidence was admissible. State v. Baudhuin,
141 Wis. 2d 642,
416 N.W.2d 60 (1987).
The trial court is permitted to consider suppressed evidence at sentencing when nothing suggests consideration will encourage illegal searches. State v. Rush,
147 Wis. 2d 225,
432 N.W.2d 688 (Ct. App. 1988).
An escapee does not have a legitimate privacy expectation in premises other than the penal institution the escapee is sent to. State v. Amos,
153 Wis. 2d 257,
450 N.W.2d 503 (Ct. App. 1989).
Aerial surveillance using standard binoculars and cameras with generally available standard and zoom lenses from an airplane flying no lower than 800 feet was reasonable. State v. Lange,
158 Wis. 2d 609,
463 N.W.2d 390 (Ct. App. 1990).
The statutory privilege protecting an informer protects the contents of a communication that will tend to reveal the identity of the informant. The trial court may rely on redacted information in determining the informant's reliability and credibility in determining whether there was reasonable suspicion justifying a warrantless seizure. State v. Gordon,
159 Wis. 2d 335,
464 N.W.2d 91 (Ct. App. 1990).
Bank customers have no protectable privacy interest in bank records relating to accounts. State v. Swift,
173 Wis. 2d 870,
496 N.W.2d 713 (Ct. App. 1993).
