Miranda

LEGAL ISSUES SURROUNDING POLICE INTERROGATIONS: MIRANDA/GOODCHILD HEARINGS By: Assistant District Attorney Michael J. Luell Racine County District Attorney’s Office •

INTRODUCTION o At pretrial motions or at a jury trial, a defendant (“Δ”) may challenge:  Voluntariness  5th Amendment right to silence and an attorney  6th Amendment right to an attorney  Compliance with Miranda v. Arizona, 384 U.S. 436 (1966)  Compliance with State v. Jerrell C. J., 283 Wis. 2d 145 (2005)  Wis. Stat. § 972.115 o Reversible error – if a judge fails to conduct a Miranda/Goodchild hearing prior to the Δ’s statements being introduced at a jury trial, it is reversible error. Therefore, the prosecutor must get the Δ to waive his right to a Miranda/Goodchild hearing prior to the start of the jury trial or hold the hearing.

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PROCEDURE OF MIRANDA/GOODCHILD HEARING o Both voluntariness and Miranda issues may be heard at the same hearing, but separate findings of fact and conclusions of law should be made o Hearing held outside the presence of the jury o Scope of the hearing is within the discretion of the court  Not to be converted into pre-trial discovery  Weight and credibility not at issue  Truth or falsity not relevant o STATE’S BURDEN – the State must show by a preponderance of the evidence that the witnesses statement was voluntary o The State has the burden to proven certain elements before the statement will be admissible  NOTE – See “The Miranda Primer” produced by the DOJ for a fuller discussion of this topic  Compliance with Miranda under the 5th Amendment • Police or government agent • Interrogation – words or phrases likely to illicit an incriminating response • Custody

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o Whether a reasonable person would feel they are under arrest given the degree of restraint under the circumstances o No Miranda warnings are needed in a typical Terry stop o Δ is always “in custody” when he is in jail or prison Compliance with the 6th Amendment right to counsel • Triggered by the charging of the Δ with criminal offenses • The right is charge/offense specific • When the Δ is in custody, reading the Miranda rights will cover this legal issue • When the Δ is out of custody, he still has a 6th Amendment right to counsel that he must be informed of before the police may interrogate him concerning the matters for which he is currently charged o The police may question the Δ on any other issues without any waiver of rights Δ’s response to the Miranda warnings • Δ asserts the right to silence o Only the suspect may invoke the right, not the attorney o The interrogation must cease o The police may reinitiate contact with a suspect in continuous custody within a reasonable amount of time (Two hours is a good rule of thumb) • Δ asserts the right to an attorney o Only the suspect may invoke the right, not the attorney o The interrogation must cease o No police officer may reinitiate contact with the suspect about any matter as long as the suspect remains in custody • Δ’s invocation of Miranda rights o Δ must clearly invoke his rights o Ambiguous references are not an invocation of rights o Questions about attorneys should be dealt with, but these statements are not necessarily an invocation of rights • PRACTICE POINT – Police should ask suspects about their right to remain silent before asking about their right to an attorney. o If the Δ waives their right to remain silent, they most likely will also waive their right to an attorney

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o If the Δ invokes their right to remain silent, the police may reinitiate contact within a reasonable amount of time o If the Δ invokes their right to an attorney, no police officer may reinitiate contact while the Δ is in continuous custody o Use of statements at trial  If there is a Miranda violation, the statement is suppressed from the State’s case-in-chief, but the statement may be used for rebuttal or impeachment  If the statement is given involuntarily, it can never be used at trial  Waiver of rights does not have to be in writing, although it may be preferable  Written confession need not be signed by the Δ to be admissible  Honesty-testing devices • Results of test are not admissible at trial • Police requests to have a Δ take a test is not admissible at trial • Δ’s request to take a test may or may not admissible at trial • Pre-test interview is admissible at trial • Post-test interview is admissible at trial o PRACTICE POINT – compartmentalize your interview so that there is a wall between the introduction, pre-test interview, test, and post-test interview •

GOODCHILD – VOLUNTARINESS o Standard – whether the confession was a voluntary product of a free and unconstrained will, reflecting deliberateness of choice and not coerced or a product of improper police pressure o For the court to make a finding of involuntariness:  It requires some affirmative evidence of improper police practices deliberately used to procure the confession  Truthfulness of the confession is not relevant and plays no role in determining whether the confession was voluntary o Determining the voluntariness of confessions  Standard • “Totality of circumstances” test balances the personal characteristics of the Δ against the police pressures that were applied • Tie goes to the Δ – When the police have substantial evidence of the Δ’s guilt when the interrogation begins, resolve ambiguities in favor of suppression

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Police can lie to an extent – deceit by an officer may not be improper nor coercive o Factors bearing upon voluntariness – what goes in to the “totality of the circumstances” analysis?  Police pressure • Length of time the Δ is in custody and delay in arraignment o Long detention time looked upon with disfavor and may result in exclusion o Purpose and nature of detention is significant • Allowing Δ outside communication o This is especially important when interrogating a juvenile (See Jerrell below) • Threats to the Δ o But mere expression of skepticism is not coercion • Relays of investigators • Showing the Δ victims of crime • The psychological coercion inherent in custodial interrogation • Physical abuse • Promises of leniency o Δ’s statements are inadmissible if the police promise leniency, but the police may explain that cooperation will benefit the Δ • Length of interrogation • Police misrepresentations  Δ’s susceptibility factors • Need for water and nourishment • Physical and emotional conditions o Mere existence of physical pain or intoxication insufficient to render a statement involuntary • Deprivation of sleep • Drunkenness o Alcohol withdrawal and withholding of medication to deal with tremors may be relevant, along with the length of the interviews • Age, education, intelligence, intelligence, and understanding of the Δ • Previous experience with the police • Whether the Δ has received his Miranda warnings before •

JERRELL o A Juvenile Δ may seek to suppress custodial statements made without some type of recording

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o The Wisconsin Supreme Court declined to abandon the “totality of the circumstances” test. Therefore, there is no per se rule that juveniles must be allowed to consult with their parent or interested adult  HOWEVER, the court stated that “failure to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel will be considered strong evidence that coercive tactics were used to elicit the incriminating statements  Wis. Stat. § 938.19(2) requires the police to make an “immediate attempt” to notify the parent when a juvenile is taken into custody. •

WIS. STAT. § 972.115(2) o Failure to record an adult, in-custody, felony interrogation will allow for a negative jury instruction at trial (See attached statute)  “[T]the court shall instruct the jury that it is the policy of this state to make . . . a recording of a custodial interrogation of a person suspected of committing a felony and the jury may consider the absence of a . . . recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case.  Exceptions: • Δ refuses to cooperate with the recording • Δ makes statements during booking procedure • Police make a good faith mistake or equipment malfunctions • Δ makes spontaneous statement not in response to questioning • Exigent public safety concern • Police officer believed the interview was not concerning a felony • NOTE – Δ’s lack of consent does not affect admissibility

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VIDEO EXAMPLES OF INTERROGATIONS o State v. Darryl W. Rollins, Racine County Case 07CF948, RPD 07-44962  City of Racine Police Investigator Todd Morschhauser  Facts – the Δ is a known drug dealer with several prior convictions and an open case. On the date of the interview, the police served a search warrant on the Δ’s home. The Δ was found in bed, with his girlfriend, in the upstairs bedroom. On the floor near the foot of the bed was a bag of THC.  17:03 – TM comes into the room • TM: “All right man, you don’t have your ID on you do you” • Δ: “Mmm mmm, you all still got my ID down here” • TM: “Oh really, what detective are you working with usually?”

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Δ: “I wanna say . . .” TM: “Was he at the search warrant?” Δ: “Uhh uhh . . . no” TM continues to take the Δ’s personal information 20:25 – Δ: “You all know who shot AM in the neck?” o TM and Δ go on to talk about a different homicide o TM slides his paperwork away, turns towards the Δ, and discusses various crimes unrelated to the Δ 44:00 – TM takes a call on his cell phone, talks about talking to the Δ, talks about the search warrant, and walks out of the room o Δ reads TM’s paperwork o PRACTICE POINT – This is a great time to leave some paperwork behind that you want the Δ to see 47:30 – TM returns to the room o TM: “We didn’t find the gun” o Δ “I told you” o TM: “You’re pretty confident” o TM continues to interview the Δ concerning the shooting of AM 1:10:00 – TM starts interviewing the Δ about a suspect in bank robberies 1:20:50 – “Well the problem you got now is your in bed upstairs and there is a bag of weed there” “Yeah, there’s some weed there” “So now you’re getting arrested for that . . . another simple possession” “How you know that’s not my weed” “Alright, I’ll take her too then, I’ll take the both of you” “She already going to jail” “Just for simple possession” TM then attempts to read the Δ his rights. TM states that these questions are different then what they have been talking about Δ states his girl is going to take the weed TM attempts to read the Δ his rights, but he says not to bother Δ keeps making statements without TM asking questions 1:23:19 – TM states that he took a DNA swab of the bags of weed (problem – this is a statement likely to illicit a criminal response)

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Δ continues to make incriminating statements, and TM tells him that he cannot be making these statements because TM has not read the Δ his rights 1:27:20 – TM leaves the room 1:28:50 – TM returns with Inv. Steve Diener o Both investigators show the Δ pictures from an armed robbery o The investigators state that the suspect of the robbery looks like the Δ o This is questioning!

o Interrogation of Senator Larry Craig  Facts – Senator Craig was arrested for soliciting sex in a public restroom at an airport. Senator Craig never made explicit statements requesting a sex act, but his actions are allegedly consistent with the signals men give to other men when they want to have sexual contact in a public restroom  The officer is aggressive and creates an argumentative atmosphere to the interrogation (See attached transcript)  The officer does not get Senator Craig to agree to any of the facts  The officer does not get any incriminating statements out of Senator Craig o Investigation of Jose Neave, RCSD 07-47263  Racine County Sheriff’s Investigator Christopher Schmaling  Facts – the Δ’s ex-girlfriend’s daughter has reported that she was sexually abused by the Δ, the Δ’s brother, and her own brother throughout the years. The victim is a troubled teen who is currently in a residential treatment facility. CS has been brought into the investigation to administer a Computerized Voice Stress Analyzer test (“CVSA”). The Δ voluntarily comes into the sheriff’s department to take the test.  00:00 – CS offers the Δ a soda  1:15 – Introduction of CS and the CVSA  Δ states he cannot believe his “daughter” would say something like this about him  2:15 – CS: You know what is possible that she got confused about what a good touch and a bad touch is  2:30 – CS explains that the Δ is not in custody • CS has the Δ explain what it means to “not be under arrest”  3:50 – CS boots up the computer for the CVSA and gets personal information from the Δ  7:30 – CS confirms that the Δ is willing to take an honesty test  Δ rambles about how great he has been to the victim

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8:55 – CS asks why the victim would say these things about the Δ CS has the Δ explain the allegations 9:55 – CS asks the Δ if he ever gave the victim a kiss Δ agrees that he has given the victim a kiss, but just a peck. Never with tongue 10:25 – CS asks have you ever kissed her more as a joke or something Δ denies CS states that sometimes people “screw around” a little bit and then it is misconstrued Δ still denies 11:00 – CS confirms that the Δ admits that he kissed the victim, and then asks if it is possible that his hand slipped between the victim’s legs Δ denies 11:45 – CS tells the Δ that these allegations go back a number of years. CS asks during that time was the Δ using any drugs or alcohol Δ admits that he was using drugs and alcohol CS states that he is not here to judge the Δ. That this does not mean he is a bad person, and states that it probably makes the Δ a good person because he overcame his addictions CS gets the defendant to admit that he was using THC, cocaine, and alcohol back then 12:40 – CS sets up the question of “Is it possible?” with a short story about a guy who accidentally touched his daughter while sleeping because he thought it was his wife. • CS clarifies that the defendant knows what a vagina is • CS continues to tell the story about how the man accidentally touched his daughter and he felt awful about it • CS states that when it came time for the CVSA, the man did not do well • CS states that after finding out what happened, he talked to the man’s wife and was able to determine that it was a mistake • CS states that sometimes things appear so bad but there is an explanation 15:00 – CS gets the Δ to admit that back then the Δ was drinking and doing drugs so that he was not in the right state of mind • CS states that sometimes we do things that we do not remember • Δ jumps in and states I was drunk and I would not do that to my “daughter” • CS asks is it possible though

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Δ states “maybe when I was messed up or something” CS states well the good thing is that you don’t do those things anymore, you’re a better man now • CS continues to chip away at the Δ • Δ: “Right now, I say that I didn’t do nothing” 16:20 – Δ states he was messed up but he couldn’t do that • CS clarifies, “You think you didn’t, but maybe in the back of your head there is a possibility . . .” • Δ: “maybe when I was messed up or something like that” • Δ goes on to state that right now he does not drink or do anything like that • CS: “That’s great Jose, a lot of people cannot say that” 17:00 – CS: “This is something that happened long ago, it is in your past, you were drinking and doing drugs . . . It doesn’t make you a bad person, basically, you stepped off the sidewalk a bit.” • CS: “But you know what is really important . . . and I talked to her . . . it seems to me that it is really that she understands that what happened back then is real.” and “More importantly, your sorry” • Δ brings up a friend who is prison for sexual assault because the friend’s daughter lied about her father 19:25 – “Do you think Olivia is lying?” • Δ: “I don’t know” • CS: “I look at her and I don’t see her lying . . . she says she loves you . . . but this did happen . . . and I really want her to understand that you’re done doing that . . and that you’re sorry, and let her move on with her life” o Δ rambles about other issues within the family 23:00 – CS: Is it possible that you accidentally did these things when you were drunk . . . it is not like she is saying you put your fingers inside of her or had sex with her, all she is saying you did is that you kissed her and put your hand on her leg, her private area 24:50 – Δ states the victim was never home, and he always drank by himself. He would go up in the room by himself • CS keeps asking if it is possible and stating that the Δ is no longer that bad person who drinks and does drugs 28:00 – 32:50 CS and the Δ talk about the CVSA. The Δ declines to take the test 33:00 – CS comes back with, “Do you want to stay and just talk with me a little bit . . . you say there is a possibility that this could have happened when you were drinking or doing drugs. Why do you think it is a possibility?” • Δ: The drinking and doing drugs, you don’t remember what you were doing. 9

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CS: Maybe it is better that we don’t give you this test because you feel in the back of you head that you may have done this • Δ: Yeah • CS: I believe Olivia is an honest person, you believe Olivia is an honest person, do you believe she is making this up? • Δ: Oh, no no 34:20 – CS, “If Olivia was sitting right here, do you think she is a liar?” • Δ brings up other times Olivia has lied • CS comes back with the fact that Olivia is not saying the Δ held her down and had sex with her, she is only saying that the Δ kissed her with tongue and touched her “pussy” (to use the Δ’s word) • CS states she did not say those other things because that would have been a lie and she is being honest about the little things that she is saying. • CS states he believes Olivia and he thinks the Δ believes Olivia. • CS states that all of this happened when he was drinking and he wants to put all of that behind him 35:50 – Δ: Maybe it happened when I was all messed up, when I was drunk, that is what I am trying to be saying. Right now I feel like I didn’t do nothing to her • CS: But you think it is possible that back then it happened • Δ states something about saying he is sorry. Δ states he knows in his heart that he did not touch his “daughter”, but “like you say, maybe it happened when I was drunk” If that is what she said, I will say I am sorry because that is my daughter. 36:30 – CS: “If Olivia was sitting right here right now, what would you say to her?” • Δ: “Maybe it happened when I was drunk” 37:30 – CS: why wouldn’t Olivia say he ripped my clothes off and raped me . . . and make it a big, big story? No. She is stating that you only touched her leg, touched her “pussy”, and kissed me with tongue. That’s all. That is all she said and that tells me something, that tells me she is being honest. You know what I mean? • Δ: If she said it, I know I didn’t do it • CS: You say you didn’t do it, today, because you are not using drugs. But wouldn’t you say that in order to move forward, you have to help out the people that you have hurt? She wants to hear right now that Jose is sorry, that he

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did that when he was drunk, and he would never do that again. • Δ: “That’s right” • CS: And that is what I want to be able and go a back and tell her • Δ: I will tell her I am sorry, if I did it, I was all messed up, I love my daughter • CS: Jose, you keep saying “if I did it”. There is no doubt in my mind. Jose, you know this . . . I believe her, and I do not want to go back to her and tell her Jose stated “he might have” or “if he did this” She is going to look at me and say why doesn’t he remember. If he loved me, he would remember.” • Δ: if she said I did it, then I am sorry, it ain’t never going to happen again, that is my baby • CS: I believe when you say that, it would never happen again, but we need to talk about what did happen • Δ continues to deny her touched the victim 43:00 – CS keeps confronting the Δ with, “But you think it is possible this happened when you were messed up?” • Δ: “Maybe it happened when I was messed up? . . . I can tell her I am sorry, if she says that, then I am sorry . . . Sorry what happened when I was all messed up, I don’t drink no more, you can trust me now and I don’t do that to you . . .” • CS: And she knows you’re a good person. She says that she loves you and she cares about you. She would love nothing more then to see that family get back together. But she needs help with this, about what had happened. And it helps her to hear that you’re sorry and that it was never going to happen again. But she needs to know that you are saying this did happen • Δ: If she is saying this, maybe it happened when I was drunk 45:10 – CS: Do you think she is telling the truth • Δ: Yeah, she is • CS: Good, I think she is telling the truth too. And you think when this happened, it happened when you were drinking? • Δ: Yeah • CS: What do you think should happen to people who do this? • Δ: I don’t know • CS: What do you think should happen to you?

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• Δ: Not to go by her 46:55 – CS: Well, I am going to be calling her and talking to her. What do you want me to tell her? • Δ: If that what she is saying, tell her I am sorry. • CS: You know what she is going to say? She is going to say, does daddy remember? • Δ: Tell her, I don’t drink or nothing. I know it myself that I did not touch her • CS: I think she is going to be upset when I tell her that, Jose. She is going to feel that you do not love her. She is going to think that you are not telling the truth • Δ: That is what I am saying, I don’t remember nothing • CS: That is going to upset her • Δ: She knows, she knows that I was drunk. I am very sorry to her and daddy don’t drink, he don’t do nothing 48:00 – CS: So that is what you want me to tell her, that you believed that it happened, you just don’t remember • Δ: I was drunk 49:00 – CS: Is there anything that you wouldn’t have done when you were dinking? Is there anything that there is no way you could have done when you were drinking? Like if I said, you robbed a bank, what would you say? • Δ: No • CS: Is it possible you could of robbed a bank? • Δ: No • CS: Wait, back then when you were drinking and you don’t remember, what if I told you that you robbed a bank? • Δ: No • CS: Is it possible? • Δ: No • CS: Why is it not possible? • Δ: No • CS: But when Olivia says you gave her a kiss and you touched her, you say it is possible, why is that possible? • Δ: Just like I said, I don’t remember nothing. I was drunk, I don’t remember nothing 50:45 – CS goes back to talking about the CVSA 51:30 – CS leaves the room 59:30 – CS takes one more shot at getting the Δ to confess 1:00:15 – Δ sticking with his story of he did not remember 1:00:20 – CS: See, I don’t believe that. I believe that you do remember. • Δ: No, no 12

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CS: I think you do. I think you do, Jose. I think Olivia will be just crushed, and she will think that you don’t love her • Δ shrugs his shoulders • CS: So how does that make you feel? • Δ: I just feel in my heart, that I did not do this • CS: But you say it is possible though • Δ: That is what I am saying, I was drunk 1:01:10 – CS: So you are saying it happened when you were drunk, but you don’t remember the details • Δ: Yeah • CS: OK, well, we are going to get you going

o State v. John Tetting, Juneau County Case 07CF244 and State v. David Turner, 07CF255 , JCSD 07-44962  Juneau County Sheriff’s Department Investigator Randy Georgeson  Facts – Joshua Alderman and Tabatha Nealy were found shot to death in a vehicle on a rural county road in northern Juneau County. The police can place John Tetting and David Turner near the homicide scene around the time that the victims may have been killed. All three men are partners in a drug distribution conspiracy. John Tetting has granted RG several interviews where Tetting lied on multiple occasions. RG keeps proving Tetting’s statements to be false and then reinterviews him. Tetting will then give RG additional statements that turn out to be a mixture of truth and lies.  Interview number three on March 29, 2007, 27:46 – RG confronts Tetting that he and Turner were not in Tomah, Wisconsin on the evening of the homicides. They were in a ditch near the homicide scene approximately an hour to the northeast.  28:25 – RG: Did you drop Dave off? John, did you drop Dave off for a while? You know this is wrong. If you didn’t do it, I sure as hell don’t want to put it on you if you didn’t do it  Tetting asks RG to turn off his hand held cassette recorder. RG turns it off. Tetting is unaware that the interrogation room camera is still recording, and he makes up a new story. RG proves this new story to be false. Eventually, in interview number five, on October 4, 2007, Tetting confesses to being at the scene of the homicide but states Turner pulled the trigger.

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