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Involuntary Statement – Derivative Evidence – Admissibility of Subsequent Statement

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


¶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)).


¶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.


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