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State v. Brian I. Harris, 2014AP1767-CR, petition granted 4/6/16

Review of a published court of appeals decision; case activity (including briefs)

Issue (from petition for review):

Is a defendant deprived of his constitutional right against self-incrimination and his rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, § 8 of the Wisconsin Constitution by the admission at trial in the state’s case-in chief of his unwarned custodial statements made in response to law enforcement’s asking for a statement?

The above is the second of two Miranda issues decided against Harris in the court of appeals (see our prior post for the first). Harris was arrested at the scene of his alleged crimes; when he was at the jail (and had not been Mirandized), a detective approached him. The detective asked Harris whether he would come to the detective bureau to be interviewed (or, per the detective’s trial testimony, whether he would like to give a statement). Harris’s response–something to the effect of “I got caught, man, … there’s nothing else to say”–was used against him at trial.

The court of appeals decided that the detective’s question did not constitute interrogation and so did not violate Miranda. It held the question a “procedural one” that a reasonable listener would have interpreted as requesting a yes/no answer as to whether Harris would agree to talk about the crime, rather than eliciting information about the crime itself. Thus in the court of appeals’s view, when Harris responded with information about the crime, he was simply volunteering it rather than answering the detective’s question. (For those who like a little insult with their injury, the court also characterized Harris’s response as “foolish.”) And why not simply require the police to give Miranda warnings before saying anything that a suspect might fairly regard as a question about the crime?  Well, the court of appeals noted that if Harris had gotten the warnings, he might not have agreed to talk, meaning that the warnings wouldn’t have been necessary. (¶24). Wouldn’t want to waste a good Mirandizing.

A fine line, certainly, between questioning and questioning about questioning. We’ll see on which side the supreme court comes down.

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