Issue/Holding: Given a statement taken in violation of the Anson’s 6th amendment right to counsel, in which Anson admitted to facts underlying one of the charges and was prominently mentioned in the opening statements and “evidentiary phase of the trial,” and as to which he filed an unsuccessful interlocutory appeal asserting that admission of the statement would “strategically force” him to testify, the State failed to prove beyond reasonable doubt that Anson would have testified despite introduction of the statement, ¶¶43-56.
As to the underlying principle:
¶27. This issue is governed by Harrison v. United States, 392 U.S. 219 (1968).Harrison teaches us that when a defendant takes the stand in order to overcome the impact of illegally obtained and used statements, his or her testimony is tainted by the same illegality that rendered the statements themselves inadmissible. See State v. Middleton, 135 Wis. 2d 297, 302, 399 N.W.2d 917 (Ct. App. 1986). If such is the case, the defendant does not waive his or her right against self-incrimination and the testimony should be suppressed. See id. at 316-17. The factual basis for such a finding, however, is for the trial court. See id. at 322.
¶28. Even where the trial court finds that the defendant would have decided to testify regardless of whether or not his or her statements had been suppressed, Harrisontells us it does not necessarily follow that the defendant’s testimony is purged of the taint of the underlying illegality. On the contrary, Harrison teaches us that the natural inference is that the defendant would not have taken the stand and repeated the damaging statements if the prosecutor had not already placed the statements before the jury. See Harrison, 392 U.S. at 225-26.
¶29. We direct the trial court on remand to hear evidence and make findings of historical fact concerning whether Anson testified in order to overcome the impact of the incriminating statements he made to the investigators. The State bears the burden of showing that its use of the unlawfully obtained statements did not induce Anson’s testimony. See id. at 225. Further, even if the trial court finds that Anson would have testified anyway, Harrison dictates that for the State to meet its burden of proving that Anson’s testimony was obtained by means sufficiently distinguishable from the underlying constitutional violation, it must dispel the natural inference that Anson would not have repeated the inculpatory statements when he took the stand. See id. at 225-26. If the trial court finds that a link in fact exists between the State’s constitutional violation and Anson’s subsequent decision to take the stand and repeat the inculpatory statements, Anson has not waived his right against self-incrimination and is entitled to a new trial.