On Point

State v. Danny G. Harrell, 2008 WI App 37
For Harrell: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Expert opinion that Harrell is sexually violent was derived from his compelled, incriminatory statement and therefore also inadmissible, ¶¶14-35.

The court essentially tracks the discussion in Mark, which therefore won’t be repeated, and applies it to the particular facts. The court also reserves authority to remand for a “ Kastigar” hearing, ¶32 n. 11, but decides that’s unnecessary on this record.

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding¹:

¶20      When an individual has given an involuntary statement, a subsequent statement is also considered involuntary unless it can be “separated from the circumstances surrounding” the earlier statement by a “break in the stream of events,” between the first statement to the second, “sufficient to insulate the statement from the effect of all that went before.” Clewis v. Texas, 386 U.S. 707, 710 (1967); see also Darwin v. Connecticut, 391 U.S. 346, 349 (1968); Beecher v. Alabama, 389 U.S. 35, 38 (1967). …

¶21      The State agrees with Mark that, in applying the principle of these cases, when the State seeks to use a statement made subsequent to an involuntary statement, it has the burden of demonstrating that the second statement is free from the coercive circumstances surrounding the first statement and was not directly produced by the existence of the earlier statement. ^[12] See Darwin, 391 U.S. at 351 (Harlan, J., concurring in part and dissenting in part) (citing Bayer, 331 U.S. at 540-41).

¶22      Factors that may be relevant in deciding whether there is a sufficient break in the stream of events from the first statement to the second include: the change in place of the interrogations, the time that passed between the statements, and the change in the identity of the interrogators. 3 William E. Ringel, Searches & Seizures, Arrests and Confessions § 25.12 (2d ed. 2007) (citing United States v. Marenghi, 109 F.3d 28, 33 (1st Cir. 1997); see also United States v. Lopez, 437 F.3d 1059, 1066-67 (10th Cir. 2006)). Additionally, the extent to which the coercion employed in obtaining the initial confession was severe enough to be likely to affect the defendant’s subsequent statements is to be considered. Id. (citing Lyons v. Oklahoma, 322 U.S. 596 (1944)).

Issue/Holding²:

¶25      We conclude the circuit court correctly decided the State did not meet its burden of showing that the oral statement was not compelled. Thirteen days earlier he had given the written statement on a form that warned him that he had to “account in a truthful and accurate manner for my whereabouts and activities, and that failure to do so is a violation for which I could be revoked,” and the court accepted the agent’s testimony that, although she could not remember this meeting with Mark, she would have explained this warning to him. When he gave the oral statement, it was to the same agent, he was still in jail under the agent’s authority, and he had been served with notice there were going to be revocation proceedings. The circumstances of his restraint had not changed and there is no basis for inferring that he did not think he was any longer obligated to give a true and accurate account in order to avoid a revocation on that ground. The State’s proffer of an independent motivation is based on a weak inference from the evidence that the circuit court was not asked to consider and that is insufficient to meet its burden. Accordingly, we conclude the oral statement, like the written statement, was compelled.

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding¹:

¶28      In Kastigar, the … Court stated that, once a defendant demonstrates that he or she has testified under a grant of immunity for matters related to the prosecution, the government has the burden of showing “that [its] evidence is not tainted by establishing that [it] had an independent, legitimate source for the disputed evidence.” Id. at 460 (citations omitted). “This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Id.

…

¶30      Where the issue is whether a witness’s testimony was directly or indirectly derived from a defendant’s immunized statement, the inquiry is what the witness knew prior to the exposure to the immunized testimony and what information was gleaned from the exposure. See United States v. North , 920 F.2d 940, 944 (D.C. Cir 1990). The State might meet this burden, for example, by demonstrating through testimony that a witness exposed to the immunized testimony had set down his or her “story” before exposure. See id.

…

¶35      The State also relies on State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), to argue that, because expert opinions are admissible at trial even if they are based on inadmissible evidence, the experts’ use here of Mark’s compelled statements to form their opinions is not a use that occurs at trial and, therefore, is not within the scope of Wis. Stat. § 980.05(1m). …

¶36      We do not agree that Watson supports the State’s position. Watson does not support an argument that expert opinions are admissible even if they are based on a compelled statement that is inadmissible under the Fifth Amendment. The inadmissibility in Watson was based on the evidentiary rules excluding hearsay; that case does not purport to, and could not, limit the scope of protection a person has under the Fifth Amendment.

Issue/Holding²: The opinions of the State’s experts were based on actuarial instruments, which were themselves based on Mark’s compelled statements, and the opinions were therefore derivative of those statements and inadmissible, ¶¶43-44.

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding: Parolee’s statement made under grant of immunity (per State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)), was compelled (therefore involuntary) and inadmissible at a ch. 980 trial governed by § 980.05(1m). ¶16.

As the court of appeals held in the first go-around, 2005 WI App 62, ¶14, Evans says that the statement of someone under supervision to his field agent is compelled to choose “between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent.” The compromise is that the person is granted immunity: he must then open up or else his silence will itself be a basis for revocation. And, keeping in mind that the 5^th amendment bars compelled self-incrimination, the grant of immunity in other words resolves the self-incrimination part—without the prospect of being prosecuted for the answer, the person isn’t incriminating himself. And that is indeed what the trial court ruled on remand (¶16). One slight problem, though: because the statement was compelled it isn’t admissible at a criminal trial, and further because § 980.05(1m) grants (or, rather, granted) an SVP respondent the same constitutional protections as a criminal defendant, Mark’s written statement to his parole agent under grant of immunity was no more admissible than if he had been facing a criminal charge.

Note that § 980.05(1m) was repealed as of June 6, 2006, 2005 Wis Act 434, making the impact of this holding very limited, at least with respect to the rights attaching under this statute. That doesn’t mean that there’s no potential fall-out, though. Mark argued that as a mater of constitutional law involuntary statements may not be admitted into evidence against an SVP respondent, but the court declined to reach the argument, ¶12 n. 9. The supreme court has indeed held, in excluding involuntary statements from an administrative proceeding: “As a matter of law, the coerced, involuntary confessions here extracted may not, under the circumstances, be used for any purpose,” Oddsen v. Board of FPC, 108 Wis.2d 143, 163, 321 N.W.2d 161 (1982). To be sure, the tactics used to extract Oddsen’s statement were pretty aggravated, but at least it settles the principle that the ban on evidentiary use of coerced statements isn’t limited to criminal trials.

State v. Edward Townsend, 2008 WI App 20, PFR filed 2/13/08
For Townsend: Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether admissibility of evidence gathered in a foreign jurisdiction by Wisconsin officers is tested by the law of that jurisdiction or of Wisconsin.

Holding:

¶1        … Townsend contends that the circuit court should have suppressed unrecorded statements he made while in custody in St. Paul, Minnesota. He argues the circuit court should have applied Minnesota law to the motion to suppress, which requires suppression of evidence gathered from an unrecorded custodial interview, and not Wisconsin law, which presently encourages electronic recording of custodial interviews ^[2] but does not require suppression of evidence obtained from an unrecorded interview of an adult. ^[3] Because we conclude that the circuit court properly applied Wisconsin law to Townsend’s suppression motion, we affirm.

…

¶7        … He cites Kluck v. State, 37 Wis. 2d 378, 389, 155 N.W.2d 26 (1967), in which the Wisconsin Supreme Court applied Minnesota law in determining the validity of a Minnesota arrest, and Kennedy, 134 Wis. 2d at 320, where we said: “The manner and method of obtaining evidence is governed by the law of the jurisdiction in which the evidence is secured.”

…

¶15      … Consistent with the rationale supporting Kennedy, we conclude that Wisconsin law shall be applied to evidence gathered in a foreign state by a Wisconsin official charged with the duty to gather evidence for use in a Wisconsin criminal prosecution.

¶16      Turning to the facts of this case, we conclude the circuit court was correct in applying Wisconsin law to the question of whether to suppress the unrecorded custodial statement. Townsend was arrested in Minnesota on a Minnesota warrant following a lawful traffic stop. The Minnesota police were subsequently informed that the vehicle in which Townsend was a passenger had been reported stolen in a car-jacking two days earlier in Milwaukee. Huerta, a detective from Milwaukee, interviewed Townsend in a Minnesota jail about the car-jacking and about another car-jacking that also occurred in Milwaukee. Townsend was subsequently charged and convicted in Wisconsin of crimes related to the car-jackings. The statement taken by Huerta in Minnesota was used in the Wisconsin trial. Applying the rationale set forth in Kennedy, it is unreasonable to require and expect Huerta to be aware of and implement Minnesota’s evidence gathering rules. ^[6]

State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup

Issue/Holding:

¶20      Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka, Wisconsin Evidence§ 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently, “at least under the present state of the scientific art”). We see no reason at this time to treat these two methods of “honesty testing” differently.¶21      Our analysis, as detailed below, primarily requires us to determine whether a defendant’s statement was given at an interview totally discrete from the voice stress analysis. If the defendant’s statement was given at an interview that was totally discrete from the voice stress analysis test, its admission is not automatically precluded. The statement, however, is also subject to ordinary principles of voluntariness. Therefore, if the statement is given at an interview that is totally discrete from the voice stress analysis test and the statement is voluntarily given, the statement is admissible.

…

¶44      While some prior precedent from this court and the court of appeals may not have clearly or perhaps even properly articulated the underlying rationale for excluding statements made during honesty testing, ^[16] the underlying rationale is simply that our state legislature has generally precluded such a scenario under the plain language of Wis. Stat. § 905.065. ^[17] Wisconsin Stat. § 905.065(2) states, “[a] person has a privilege to refuse to disclose and to prevent another from disclosing any oral or written communications during or any results of an examination using an honesty testing device in which the person was the test subject.”

¶45      Therefore, the legislature has decided that statements made during honesty testing are generally excluded, but if those statements are given at an interview that is totally discrete from the honesty testing, under the factors articulated in this opinion, and the statement was given voluntarily, then the statement is admissible. However, if the statements and examination are not totally discrete events but instead are considered one event, then the statements must be excluded by virtue of Wis. Stat. § 905.065.

State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup

Issue/Holding¹: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:

¶23      Under the totality of the circumstances, we conclude that Davis’s statement was not so closely associated with the voice stress analysis test so as to render it one event; rather, the statement and voice stress analysis were two totally discrete events. Whether a statement is considered part of the test or a totally discrete event is largely dependent upon whether the voice stress analysis is over at the time the statement is given and the defendant knows the analysis is over. Greer, 265 Wis.  2d 463, ¶12. To make this determination, the following factors should be weighed and considered: (1) whether the defendant was told the test was over; (2) whether any time passed between the analysis and the defendant’s statement; (3) whether the officer conducting the analysis differed from the officer who took the statement; (4) whether the location where the analysis was conducted differed from where the statement was given; and (5) whether the voice stress analysis was referred to when obtaining a statement from the defendant. See id., ¶¶12-16 (articulating and applying these principles).

Issue/Holding²: On the particular facts, Davis’s statement was “totally discrete” from the testing procedure, despite close temporal proximity:

¶30      In the case at hand, the voice stress analysis and the interview were totally discrete events: Two different officers were involved——one conducted the examination and the other conducted the interview. Before any statement was made, Detective Buenning stated, “I’m finished here,” closed up his laptop, and left the room with all the voice stress analysis equipment. The interviewing officer did not refer to the polygraph examination or its results during the interview, and the examination and interview took place in different rooms.

¶31      While here, very little time passed between the examination and interview, time alone is not dispositive. For example, in McAdoo, the examination and interview were virtually seamless. However, in McAdoo, as in the case at hand, the interviewer never referred back to the polygraph examination or results, and the equipment was removed from the defendant. Even if little time passes between the two events, the statement may still be admissible so long as two totally discrete events occurred. See Johnson, 193 Wis.  2d at 389 (concluding that neither Barrera v. State ^[14] nor Schlise proscribe a bright-line rule of timing and instead look to the totality of the circumstances). “[W]here there is a distinct break between the two events and the post-polygraph interview does not specifically relate back to the . . . test, the events are sufficiently attenuated.” Johnson, 193 Wis.  2d at 389. Unlike the case at hand, in Schlise the interview and examination were conducted by the same person, in the same room, and even the test examiner considered the procedure one event. Schlise, 86 Wis.  2d at 43.

This is a highly fact-intensive case, and therefore no attempt will be made to describe the operative facts in any detail; the reader is urged to closely study the opinion, including the dissent (¶¶47-80, which very persuasively argues that Davis had good reason to think the stress analysis wasn’t over when he made his statement. (And see, especially, ¶¶58-59, which make the point that the majority effectively “alters the test” from whether the examination and interview are totally discrete to whether the examination and statement are.) The upshot may well be that once the subject is unhooked from the testing device and statement is likely to be admissible – though, to be sure, the court makes no such generalization; again: read it closely and draw your own conclusion.