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Pregnancy doesn’t make suspect “particularly vulnerable” to police questioning tactics

State v. Jeanette M. Janusiak, 2015AP160-CR, 1/28/16, District 4 (not recommended for publication); case activity (including briefs)

Pregnancy does not by itself make a suspect particularly vulnerable to police pressure and tactics during custodial interrogation, the court of appeals holds, so the fact that Janusiak was in an advanced state of pregnancy didn’t render her statement to police involuntary. The court also rejects Janusiak’s claims that her statement was coerced because she was threatened with the loss of her children and was promised she could go home if she made a statement.

Janusiak challenged the voluntariness of statements she made during approximately seven hours of interrogation about the death of 4-month-old child in her care. Determining whether a defendant’s statements were voluntary requires balancing the personal characteristics of a defendant against the pressures and tactics police used to induce the statements, considering the totality of the circumstances. State v. Hoppe, 2003 WI 43, ¶¶38-39, 261 Wis. 2d 294, 661 N.W.2d 407.

Janusiak’s personal characteristics were—except for her “advanced state” of pregnancy—much the same as those of suspects in other cases that found the statements to be voluntary, State v. Lemoine, 2013 WI 5, ¶¶21-24, 26, 345 Wis. 2d 171, 827 N.W.2d 589; State v. Reynolds, 2010 WI App 56, ¶¶40, 51, 324 Wis. 2d 385, 781 N.W.2d 739. (¶14). But pregnancy in the abstract doesn’t make a suspect vulnerable to police pressure, and the facts don’t show that Janusiak’s pregnancy mader her vulnerable:

¶15     …. Janusiak would have us conclude that pregnancy automatically renders a woman particularly vulnerable to police pressures and tactics, arguing that “[i]t is beyond cavil that any woman in an advanced stage of pregnancy suffers from at least some degree of diminished physical capacity.” However, we decline her invitation to adopt such a sweeping generalization. Advanced pregnancy might be a contributing factor if combined with other pertinent facts (e.g., denial of bathroom breaks for someone with a greater than normal need to take bathroom breaks), but Janusiak fails to point to any such pertinent facts. Contrary to Janusiak’s argument to the circuit court that her “advanced state of pregnancy and … fatigue” made her particularly vulnerable to coercion, the court found that Janusiak did not appear particularly tired, that she had several bathroom or smoke breaks, and that she was offered food or drink during the interview. Nothing in the circuit court’s findings of fact indicates that Janusiak’s pregnancy made her particularly vulnerable and therefore we reject Janusiak’s argument to the contrary.

The court also concludes the record supports the circuit court’s findings that the police didn’t use improper pressure or tactics. (¶¶16-31). The court also rejects as unfounded Janusiak’s argument that a social worker threatened to remove her children from the home if she did not cooperate and that the police promised her she could go home if she cooperated. First, she “exaggerates the facts” in describing the threat:

¶23     …. Coppernoll [the social worker] informed Janusiak that Coppernoll was not taking Janusiak’s children into custody, but expressed to Janusiak concern that the children might need protection that involved their removal from the home if it were shown that the injuries causing the baby’s death happened while the baby was in Janusiak’s care. It is true that this raised the specter of removal of the children, which is no doubt a topic that could be exploited in a coercive manner. However, Coppernoll did not say anything approximating, “If you don’t confess to harming the baby, your children will be taken away.” ….

Likewiise, the argument about the promise she could go home fails given the findings of the circuit court, which were essentially that officers “did not tell Janusiak that she could go home if she gave them any explanation whatsoever, but instead told her that she could go home if she had an innocent explanation for the baby’s injuries that matched the medical evidence.” (¶27). That was not unduly coercive given the officers’ repeated statements that her version of events didn’t match the medical evidence and that she would remain in custody absent an exculpatory explanation. (¶29). Moreover, “[i]t is not automatically unduly coercive to promise a benefit to a suspect in exchange for cooperation,” Lemoine, 345 Wis. 2d 171, ¶28, citing State v. Cydzik, 60 Wis. 2d 683, 692, 211 N.W.2d 421 (1973). (¶31).

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