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Presentence Report – Miranda Warnings

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: Thexton wasn’t entitled to Miranda warnings “at the time the PSI was being prepared”:

¶8        Thexton also claims that Streekstra violated his Fifth Amendment rights when he interviewed him during the investigation.  Thexton claims that Streekstra used the prior PSI as a basis for questioning him, that this tactic transformed the interview into an “accusatorial” one, and that Thexton was therefore entitled to Miranda warnings.[5]

¶9        Thexton misunderstands the meaning of the word “accusatorial” in this context.  He claims that the interview was accusatorial because Streekstra used a “classic interrogation technique whereby the investigator confronts the accused with prior statements.”  But the word “accusatorial” in this context does not relate to the style or technique of interrogation used.  As our supreme court has made clear, a presentence interview is accusatorial, and as such requires Miranda warnings, “to the extent that it seeks statements from a defendant on an element upon which the state still has the burden of proof.”  State v. Heffran, 129 Wis. 2d 156, 165, 384 N.W.2d 351 (1986).  Such was clearly not the case here, since no elements were outstanding at the time the PSI was being prepared. Thexton’s Fifth Amendment claim fails.

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