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Involuntary Statement – Coercion

State v. Dennis D. Lemoine, 2013 WI 5, affirming unpublished court of appeals decision; case activity

Lemoine’s inculpatory statement to the police was voluntary:

¶3   We hold that the admission of Lemoine’s statements at trial was not error because, under the totality of the circumstances, the statements were voluntary. The well-established test for voluntariness balances the personal characteristics of the defendant against pressures imposed by law enforcement officers to determine if the pressures exceeded the defendant’s ability to resist. State v. Clappes, 136 Wis. 2d 222, 236, 401 N.W.2d 759 (1987). Nothing about Lemoine made him particularly vulnerable; he was 22 years old, had earned a high school equivalency diploma (HSED), held a job as a truck driver, was familiar with one of the interviewing officers, and was assertive enough to voice his discomfort with a female officer’s presence, a concern the police accommodated. The interrogator overstated the evidence against Lemoine and provided Lemoine with incentives to give information, including a promise that Lemoine would not be jailed for the night if he told the “true story.” When balanced, however, against the characteristics of Lemoine, the tactics used by the police in the 75 to 80 minute interrogation did not rise to the level of being coercive. Therefore, it was not error for the circuit court to admit the voluntary statements at trial. Accordingly, though our analysis differs from that of the court of appeals, we affirm its decision.

As previously noted on this site, the court of appeals called the voluntariness question in this case “a close one,” but did not decide the issue because it concluded any error in admitting the statement was harmless. A majority of the supreme court didn’t say the question was close, but Chief Justice Abrahamson, in dissent, did, and she also concluded the statement was involuntary (¶39). The primary dispute between the parties (and the majority and dissent) was the effect of the police tactics—e.g., promising Lemoine, who had gone to the sheriff’s department voluntarily, that he’d go home that night if he told the “true story”; telling him he would not be able to make any phone calls if he were jailed; not advising him of his Miranda rights; and deceiving him about the physical evidence against him.

If you’re researching or litigating voluntariness of a statement, you’ll find this case useful for its up-to-date statement of the law and examples of potential arguments. But the majority analyzes the facts using the established test, and does not change that test, establish any new factors to consider, or otherwise break new ground. One might wonder, then, why the court decided to review the case. According to the dissent (¶66), the court accepted review to address the analysis required under Harrison v. United States, 392 U.S. 219 (1968), and State v. Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776, which deal with cases in which statements later determined to be inadmissible are used at trial and the defendant takes the stand and testifies. In a nutshell, Harrison and Anson require a determination of whether the defendant’s testimony at trial was impelled by the admission of the illegally obtained statements in violation of the Fifth Amendment.

As the supreme court notes (¶¶35, 66), the court of appeals proceeded directly to harmless error analysis without Harrison/Anson analysis. Lemoine moved for reconsideration because of the lack of Harrison/Anson analysis, but the court of appeals denied the motion, saying it addressed and rejected that issue by holding the error harmless.  Whether the Harrison/Anson issue can be folded into the harmless error analysis was thus a primary issue before the supreme court, but because the majority held Lemoine’s statement was voluntary, there is no need for analysis under (or discussion of) Harrison and Anson (¶36). The dissent (¶67) lists multiple issues raised by the parties about how Harrison/Anson analyses should proceed, and notes that resolution of those issues awaits another case (¶68). A practitioner dealing with that issue might wish to review the dissent’s list and consult the parties’ briefs for guidance in litigating the issue.

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