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SCOW to address admissibility of un-Mirandized statements

State v. Manuel Garcia, 2018AP2319-CR, petition for review granted 1/20/21; case activity

Issue for review: (adapted from the State’s PFR  and the COA’s opinion):

Whether the State may invoke the impeachment exception to the exclusionary rule during its case-in-chief and thereby use a defendant’s statement, taken in violation of Miranda, to rehabilitate one of its witnesses?

Garcia made inculpatory statements to an officer about his involvement in the death of his girlfriend’s 2-year-old son. The circuit court excluded those statements from Garcia’s trial on the grounds that his waiver of his Miranda rights, while voluntary, was invalid due to his limited English proficiency. Later the circuit court let the State use the statements to rehabilitate the officer on redirect after Garcia allegedly opened the door through his cross-examination of the officer. The court of appeals reversed and held that the impeachment exception to the exclusionary rule applies only where the defendant testifies contrary to statements he made within an inadmissible statement. See our post on the COA’s decision.

Generally, the State may not use a defendant’s un-Mirandized statements during its case in chief. However, it may ask the defendant about un-Mirandized statements he made to officers shortly after his arrest if they contradict the testimony he gives at trial. Harris v. New York, 401 U.S. 222 (1971); James v. Illinois, 493 U.S. 307 (1990). The State may also elicit testimony about a defendant’s pre-Miranda warning silence where defense counsel “opens the door” to that issue at trial. State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96 (1988). The State contends that Brecht applies to un-Mirandized statements as well as pre-Miranda silence. Therefore, SCOW should reverse the COA’s published opinion and hold that the circuit court properly admitted Garcia’s un-Mirandized statements.

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