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Statements – Voluntariness – Police Deception/Promises – Informing of Potential Benefits of Cooperation not Improper

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding:

¶29      Berggren also argues that his statements were induced by promises of probation and treatment. This amounts to an argument that his statements were not voluntarily given. He contends that the detective questioning him conveyed: “the belief that simple possession of child pornography photos would result in a probation disposition”; “the idea that if [Berggren] confessed he would get treatment and help and his confession would have a large impact on the district attorney’s position”; “if [Berggren] confessed the confession would have a lot to do with how he was received in the district attorney’s office[, however, i]f he persisted in a denial[,] the district attorney would not like to hear that version,” and it would affect how the district attorney viewed the case; and finally, if Berggren admitted his guilt, he would get help.

¶32      Here, the statements Berggren relies on to support his argument do not amount to coercion or improper police practices. We agree with the State that “there is no affirmative evidence in the record of [improper] police practices deliberately used to procure Berggren’s confession.” See Clappes, 136 Wis. 2d at 239. As Berggren should know after sixteen years as a police officer, it is not coercive conduct for an officer to invite a defendant’s cooperation by informing the defendant of potential benefits of cooperation or to offer a prediction as to what the prosecutor will do. The statements Berggren references do not constitute promises of leniency. Under the totality of the circumstances, we conclude that Berggren was properly advised of his rights under Miranda and he voluntarily gave his statements.

Hard to tell precisely what was said, but it is surely one thing to promise that if only you fess up the DA will smile on you and quite another to promise you’ll get “treatment and help.” If the latter was indeed expressly said, it probably shouldn’t have been waved off so dismissively. Not that the result necessarily would have been different, just that the question seems a lot closer.

 

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