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SCOW to address false confession experts, involuntary statements, and Miranda custody

State v. Dobbs, 2018AP319-CR, petition for review of a per curiam opinion granted 1/14/20; case activity (including briefs)

Issues (based on Dobbs’ petition for review and SCOW’s order granting review:

1. Did the trial court err in precluding the defense’s expert on false confessions from testifying where, consistent with State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, his opinions were relevant to a material issue, but he would not be offering an opinion on the specific facts of the case?

2. Did the trial court err in allowing Mr. Dobbs’ statements to law enforcement into evidence despite the delay in reading him his Miranda rights and because his statements were involuntary due to his mental and physical conditions?

3. Whether the court of appeals’ decision that Dobbs was in custody for purposes of Miranda warnings is consistent with State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23. If not, whether Morgan should be overruled?

The first issue concerns whether false confessions experts are admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which is codified in §907.02. This question has been percolating in Wisconsin’s lower courts for years. Circuit courts have ruled both ways on it. Under Smith, the answer should be yes. Smith held that a social worker’s general testimony about the reactive behaviors of child sexual assault victims (how they delay disclosing the incident, recant, minimize etc.) was admissible under Daubert. Likewise, Dobbs’ expert, Dr. Lawrence White, did not propose to testify about the specifics of Dobbs’ case. The defense wanted him to testify about the circumstances in which false confessions occur.

Note the third issue for review. Apparently the SCOW ordered the parties to brief it sua sponte. The court of appeals held that Dobbs was not entitled to a Miranda warning because he was not in custody when questioned:

¶11 The facts that Dobbs relies on to establish custody upon his being placed in the squad car are that he was handcuffed, placed in the locked back seat of a squad car, and told by the officer that he was being “detained.” We conclude that these facts are not sufficient to lead a reasonable person to believe they had been arrested.

In Morgan, the court of appeals held that that very similar facts–being handcuffed, placed in the back of a squad car and then questioned–did amount to custody for Miranda warning purposes. You may recall that SCOW recently addressed Miranda custody in State v. Bartelt,  2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684. The cert. petition filed by ASPD Lee Todd and Prof. Stuart Banner made SCOTUSblog’s petition for the day. Click here.

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