The circuit court and court of appeals held Vice’s post-polygraph confession was involuntary because the police officers interrogating him referred multiple times to Vice’s polygraph results (he failed), told him that proved he remembered the crime despite his denials, but never told him the polygraph results were inadmissible as evidence. As we predicted, the state petitioned for review, the supreme court took the case, and, in an opinion essentially devoid of law development, holds Vice’s confession wasn’t coerced.
Under State v. Davis, 2008 WI 71, ¶¶2, 21, 35, 310 Wis. 2d 583, 751 N.W.2d 332, the admissibility of a post-polygraph confession depends on two findings: first, that the polygraph exam and the confession were two discrete events; second, that the confession was, under the totality of the circumstances, voluntary, not the produce of police coercion.
The real action in this case is on the second issue, voluntariness. In holding the confession to be involuntary, the court of appeals emphasized the officers’ repeated references to the polygraph results (at least 11 in the course of 45 minutes), their insistence the results showed Vice committed the crime, and their failure to tell him the polygraph results couldn’t be used as evidence against him. (¶39).
The supreme court isn’t persuaded. First, it finds a parallel between the offer to take a polygraph in Davis and Vice’s agreement and active involvement in setting one up in this case. “A polygraph ‘can hardly be considered a strategy of the police officers [when] it was administered to the defendant upon his request, and the statement was given after the test was over and the defendant knew the test was over.’” (¶41, quoting Davis, 310 Wis. 2d 583, ¶25).
Next, “[w]hile the number of references to the polygraph examination and results during Vice’s interview was greater than the single reference we held uncoercive in Davis, the context and nature of those references matter, notwithstanding their total number.” (¶42). The context includes the timing of the references (most were at the very beginning or very end of the interrogation), the fact Vice’s initial incriminating statement was made during questioning that didn’t reference the polygraph results, and the numerous other issues they discussed. (¶43).
As to the use of the results to tell Vice he must remember the crime, that wasn’t improper, but simply another way of characterizing the undisputed results of the exam. Moreover, even if the cops lied about the results, or didn’t note that polygraph results can be unreliable (that’s why they’re inadmissible!)—well, cops get to “engage in active deception” (¶45)—i.e., lie to suspects—and their lies by themselves don’t make the resulting confession involuntary. (¶¶44-46). So, too, the failure to tell Vice the polygraph results were not admissible isn’t coercive because….yes, you guessed it, outright deception isn’t coercive. (¶47).
As to the discreteness of the polygraph and interrogation events, the court has no problem affirming the court of appeals’ conclusion that, on the facts of this case, the polygraph and interrogation were two discrete events. (¶¶25-26). The only real dispute about this issue is whether it is even properly before the court, given the fact Vice originally conceded they were discrete events, but later tried to argue they weren’t; the court cuts the Gordian knot of forfeiture and estoppel by electing to address the issue regardless. (¶¶17, 19, 25 n.13).