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Defense win: Voluntary statement obtained in violation of Miranda can’t be used in state’s case-in-chief. Period.

State v. Manuel Garcia, 2020 WI App 71, petition to review granted, 1/20/21, affirmed by an evenly divided court, 2021 WI 76; case activity (including briefs)

Even if a court suppresses a defendant’s voluntary statement because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), the state may use the statement to impeach the defendant if he or she elects to testify. Harris v. New York, 401 U.S. 222 (1971); James v. Illinois, 493 U.S. 307 (1990). The issue in this case is whether this “impeachment exception” allows the state to use the defendant’s statement  to “rehabilitate” one of its witnesses. The court of appeals holds it does not: the state may use an illegally obtained statement only to impeach the defendant’s testimony.

Garcia was charged with reckless homicide for the death of his girlfriend’s young child. After waiving his Miranda rights he confessed to striking the child and throwing the child on a mattress. The circuit court suppressed the confession on the ground that Garcia, who is not a native English speaker, didn’t understand his rights when he waived them. (¶2).

At trial, the investigating officer didn’t refer to Garcia’s custodial statements; he did, however, testify to statements Garcia made at the hospital, before he was in custody, that the child slipped on some stairs and jumped out of a car. Garcia’s lawyer cross-examined the investigating officer extensively about why he didn’t investigate all the other ways the child could have been injured. Based on those questions, the state asked to admit Garcia’s custodial statement, saying the cross examination opened the door to explaining why the officer didn’t investigate other ways the child could have been injured. The circuit court granted the state’s request. (¶¶3-4).

This was error, the court of appeals holds. The court summarizes Harris and James as well as a federal habeas decision in a case involving a Wisconsin conviction, Kuntz v. McCaughtry, 806 F. Supp. 1373, 1380 (E.D. Wis. 1992). (¶¶10-13). It’s worth repeating the court of appeals’ quotation from Kuntz because it puts the point quite nicely:

Evidence that has been illegally obtained “is inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.” United States v. Havens, 446 U.S. 620, 628 (1980). Under Havens, use of an illegal statement is thus prohibited during any part of the state’s case, even if used to impeach its own witness. If impeachment of other defense witnesses by use of an illegally obtained statement is prohibited, as it is under James, use of the statement to impeach prosecution witnesses is foreclosed a fortiori. The Court’s concern in James was the chilling effect on presentation of other defense witnesses. That concern about a fair trial is magnified in regard to prosecution witnesses. Allowing the prosecution to use the illegal statement during the presentation of its case—even if used to impeach its own witness—would virtually negate the exclusionary rule altogether. The prosecution would have free reign to present witnesses just for their impeachment value in order to get the illegal statement before the jury. Although defendants should not be able to “‘pervert’ the exclusion of illegally obtained evidence into a shield for perjury, … it seems no more appropriate for the State to brandish such evidence as a sword….” James, 493 U.S. at 317.

The court rejects the state’s reasons for expanding Harris‘s rule to this situation. First, the state argues “fairness” requires it be allowed to respond to the implications of Garcia’s cross. “We agree that ‘fairness’ is a concern, but we also recognize that Harris, James, and their progeny all considered ‘fairness’ in coming to the categorical conclusion that fairness and constitutional concerns dictated that the impeachment exception may only be used against the defendant when the defendant testifies contrary to his or her inadmissible, but voluntary statement.” (¶15).

Alternatively, the state argues, the “lesson” of Harris and later cases is that previously excluded evidence is still be admissible if: 1) it is reliable; 2) admission properly deters government misconduct; 3) does not to preclude the defendant from presenting his best case; and 4) serves the court’s fact-finding function. “The State does not cite any case applying its four-part test. The State’s policy argument may have merit, but we are obligated to follow precedent rather than make new law. We are an error correcting court, not a policy making court.” (¶16). Sounds like an invitation to seek supreme court review—as if the state needed one.

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