State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding: The State bears the burden of proof, by preponderance of evidence, of a valid waiver of Miranda rights, ¶27.
¶35 As we have stated above, it is the State’s burden to prove by a preponderance of the evidence that the defendant validly waived his Miranda rights and that the statement was voluntary. See Jiles, 262 Wis. 2d 457, ¶26. The State accomplishes this by, first, producing evidence to establish a prima facie case. See State v. Santiago, 206 Wis. 2d 3, 18-19, 556 N.W.2d 687 (1996). If the evidence does not establish a prima facie case, the State does not meet its burden of persuasion. See id. at 26; see also Jiles, 262 Wis. 2d 457, ¶46 (defense counsel could have refrained from producing evidence because the State failed to meet its initial burden of production). In other words—at least in the only cases we have found on this point in the Miranda/waiver context—the State’s burden of proof consists of both the burden of the initial production of evidence for a prima facie case and the ultimate burden of persuasion. See State v. Armstrong, 223 Wis. 2d 331, 344 n.19, 588 N.W.2d 606 (1999) (citing Santiago, 206 Wis. 2d at 19).
¶36 If the State does establish a prima facie case of waiver and voluntariness, then, in the absence of countervailing evidence, the statement should be admitted. State v. Mitchell, 167 Wis. 2d 672, 696, 482 N.W.2d 364 (1992).