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Defense win – cop violated Miranda by claiming suspect wouldn’t be able to testify at trial

State v. Daniel J. Rejholec, 2021 WI App 45; case activity (including briefs)

Police arrested Rejholec on suspicion of sexual assault of a minor. After receiving the Miranda admonitions, Rejholec agreed to speak with a detective. The interrogation was recorded on video. That video reveals the detective’s aggressive deployment of the so-called Reid technique: a method of extracting confessions (be they true or false). The detective bullies, cajoles and wheedles until he gets what he’s after: a confession. Oh, the detective also lies, floridly.

The court of appeals has no problem with most of the lies. It is fine with the detective’s telling Rejholec, dishonestly, that the police had found evidence of the crime on cell phones. It doesn’t bat an eye at the detective’s fabrication of a SANE examination, or his making up of DNA tests, or his lying about a “glow light”–all lies designed to convince Rejholec that conviction is certain, so he might as well confess. (This practice is banned in the UK and most of Europe, but blessed by our courts; there’s some legislative momentum building against it here as well.)

The detective did cross a line, in the court’s view. Blasé the judges may be about an law enforcement officer constructing an elaborate structure of lies to convince a person to adopt the officer’s predetermined “truth.” But, the court says, a cop can’t lie in a way that undermines the Miranda warnings–so the police can lie, just not about the courts.

Specifically, the detective told Rejholec that if he didn’t speak up during the interrogation, “You’re not going to get a chance to tell your story. So the jury is never going to hear your side of the story. They are never going to be able to hear that you are sorry…. This is your opportunity to tell the truth and to tell your side of the story.” Elsewhere, after Rejholec asked about getting a lawyer, the detective told him that a lawyer would tell him “you’re not going to talk to the police anymore.” He also repeatedly implied that a lawyer would not allow Rejholec to testify at trial, such that the interrogation was his only chance to tell his story. This is too much for the court of appeals:

It is the second aspect of the waiver rule—the necessary “requisite level of comprehension”—that is implicated here. Edson violated Miranda when he falsely told Rejholec during the interrogation that Rejholec would not be able to testify at trial unless he gave a statement to police: “You’re not going to get a chance to tell your story. So the jury is never going to hear your side of the story. They are never going to be able to hear that you are sorry…. This is your opportunity to tell the truth and to tell your side of the story.” Edson went on, explaining that he was “trying to give [Rejholec] an opportunity to tell [his] side of the story before it’s too late to be able to do that,” and he told Rejholec that “I’m here just to get the facts and to support your end of this to tell your story.” These statements impermissibly suggested to Rejholec that if he exercised his right to silence and obtained a lawyer that Rejholec would not get the chance to tell his story to the jury. This was clearly untrue. Regardless of whether or not Rejholec provided Edson with a statement explaining his version of events, Rejholec has a constitutional right to testify and to defend himself at trial, which counsel may not prevent. And Rejholec’s defense counsel, far from preventing Rejholec from testifying, would be duty-bound to fully advise Rejholec of this fundamental right. Edson crossed the constitutional line when he told Rejholec that unless he gave a statement that Rejholec would not be able to testify at his trial.

Given the totality of the circumstances, Edson’s repeated misrepresentation of Rejholec’s constitutional right to silence, to an attorney, and to testify at trial created an interrogation in which Rejholec was misled as to his Fifth Amendment rights, rendering his waiver of those rights constitutionally invalid. Rejholec could certainly have remained silent during his interrogation and still testified at trial. Edson also misrepresented Rejholec’s constitutional right to counsel, as it is not true that if Rejholec were to exercise his right to counsel, that the jury would not then have been able to hear his story. By phrasing his statements in this way, Edson was suggesting that Rejholec would suffer adverse legal consequences for invoking his rights, or, more accurately, Edson lied about what those adverse legal consequences would be. Edson repeated these claims and misstatements pertaining to Rejholec’s rights multiple times during the interrogation and reinforced the idea that this was Rejholec’s only opportunity to tell his story. It is significant that Rejholec’s incriminating statements came only after Edson misrepresented Rejholec’s constitutional right to remain silent, to an attorney, and to testify at trial.

(¶¶30-31 (citations omitted)).

Given this violation of Miranda, the court of appeals holds Rejholec’s incriminating statements must be suppressed. Though the state did not argue harmless error, the court of appeals nevertheless directs the circuit court to consider whether Rejholec should be allowed to withdraw his plea. (¶35).

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