State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding1: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:
¶23 Under the totality of the circumstances, we conclude that Davis’s statement was not so closely associated with the voice stress analysis test so as to render it one event; rather, the statement and voice stress analysis were two totally discrete events. Whether a statement is considered part of the test or a totally discrete event is largely dependent upon whether the voice stress analysis is over at the time the statement is given and the defendant knows the analysis is over. Greer, 265 Wis. 2d 463, ¶12. To make this determination, the following factors should be weighed and considered: (1) whether the defendant was told the test was over; (2) whether any time passed between the analysis and the defendant’s statement; (3) whether the officer conducting the analysis differed from the officer who took the statement; (4) whether the location where the analysis was conducted differed from where the statement was given; and (5) whether the voice stress analysis was referred to when obtaining a statement from the defendant. See id., ¶¶12-16 (articulating and applying these principles).
Issue/Holding2: On the particular facts, Davis’s statement was “totally discrete” from the testing procedure, despite close temporal proximity:
¶30 In the case at hand, the voice stress analysis and the interview were totally discrete events: Two different officers were involved——one conducted the examination and the other conducted the interview. Before any statement was made, Detective Buenning stated, “I’m finished here,” closed up his laptop, and left the room with all the voice stress analysis equipment. The interviewing officer did not refer to the polygraph examination or its results during the interview, and the examination and interview took place in different rooms.
¶31 While here, very little time passed between the examination and interview, time alone is not dispositive. For example, in McAdoo, the examination and interview were virtually seamless. However, in McAdoo, as in the case at hand, the interviewer never referred back to the polygraph examination or results, and the equipment was removed from the defendant. Even if little time passes between the two events, the statement may still be admissible so long as two totally discrete events occurred. See Johnson, 193 Wis. 2d at 389 (concluding that neither Barrera v. State  nor Schlise proscribe a bright-line rule of timing and instead look to the totality of the circumstances). “[W]here there is a distinct break between the two events and the post-polygraph interview does not specifically relate back to the . . . test, the events are sufficiently attenuated.” Johnson, 193 Wis. 2d at 389. Unlike the case at hand, in Schlise the interview and examination were conducted by the same person, in the same room, and even the test examiner considered the procedure one event. Schlise, 86 Wis. 2d at 43.
This is a highly fact-intensive case, and therefore no attempt will be made to describe the operative facts in any detail; the reader is urged to closely study the opinion, including the dissent (¶¶47-80, which very persuasively argues that Davis had good reason to think the stress analysis wasn’t over when he made his statement. (And see, especially, ¶¶58-59, which make the point that the majority effectively “alters the test” from whether the examination and interview are totally discrete to whether the examination and statement are.) The upshot may well be that once the subject is unhooked from the testing device and statement is likely to be admissible – though, to be sure, the court makes no such generalization; again: read it closely and draw your own conclusion.