On Point blog, page 2 of 5
SCOW: expert testimony needn’t meet Daubert if it’s not “opinion,” Miranda violation was harmless
State v. Timothy E. Dobbs, 2020 WI 64, 7/3/20, affirming an unpublished per curiam court of appeals opinion, 2018AP319; case activity (including briefs)
There’s really only one important holding here: despite adoption of the Daubert standard, Wisconsin continues to permit expert testimony in the form of “dissertation or exposition.” That is, an expert can educate the jury about the principles or findings of his or her field without talking about the facts of the case, and an expert who does so is not subject to the requirement that he or she “appl[y] the principles and methods” of that field “reliably to the facts of the case.” Though the court also decides a separate Miranda issue, the discussion is fact-intensive and breaks no legal ground. What’s notable (and regrettable) about the Miranda decision is a meandering three-justice concurrence that repeats the court’s error in State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684, by grafting a third step onto the familiar two-part Miranda-custody inquiry.
Detention of juvenile to investigate car crash didn’t amount to custody requiring Miranda warnings
State v. D.R.C., 2019AP1155, District 2, 5/13/20 (one-judge decision; ineligible for publication); case activity
Police detained, initially handcuffed, patted down, and then questioned D.R.C. about his involvement in a car crash from which he had fled. The court of appeals holds the officers’ actions were part of an investigatory Terry stop and didn’t amount to custody requiring that D.R.C. be given Miranda warnings before being questioned.
SCOW to decide whether incarceration is per se “custody” under Miranda
State v. Brian Halverson, 2018AP858-CR, review of a published court of appeals opinion granted 3/17/20; affirmed 1/29/21; case activity (including briefs)
Issues:
Whether a person who is interrogated by police while incarcerated is “in custody” and entitled to a Miranda warning under either the federal or state constitution?
Whether, under the totality of the circumstances, Halverson, who was incarcerated in jail was “in custody” when police interrogated him?
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?
Incarceration is no longer custody per se under Miranda
State v. Brian L. Halverson, 2019 WI App 66; petition for review granted 3/17/20; affirmed 1/29/21; case activity (including briefs)
Until now, Wisconsin held that a person who is interviewed by law enforcement while incarcerated is per se in custody and thus must receive a Miranda warning. State v. Armstrong, 223 Wis. 2d 331, 588 N.W. 2d 606 (1999). This published court of appeals’ decision holds that the SCOTUS effectively overturned Armstrong in Howes v. Fields, 565 U.S. 499 (2012). Going forward, courts must determine whether an inmate is in custody by analyzing the totality of the circumstances surrounding his interrogation.
Statements driver made before arrest admissible; so was retrograde extrapolation testimony
State v. Christopher J. Durski, 2018AP1750-CR, District 2, 8/21/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Durski was arrested at a motel, where he had decamped after a family dispute. In investigating the family dispute police learned Durski drank alcohol before leaving for the motel, so they tracked him down. Durski wasn’t in custody during the officers’ initial questioning of him at the motel, so his statements were admissible despite the lack of Miranda warnings. So was the state’s retrograde extrapolation evidence.
COA: driver ordered out of car and interrogated wasn’t in Miranda custody
State v. Traci Busha, 2018AP1863, 8/20/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Ms. Busha’s car was stuck in a ditch on the outskirts of Superior. A responding police officer found her alone in the passenger seat. She had been drinking but said she hadn’t been driving; her boyfriend “Scott” had been. For various reasons the officer didn’t buy her story. After about 15 minutes, while a tow truck was en route, the officer told her to get out of the car and stand by his vehicle. At this point, he told her he didn’t believe her account and said it was time to tell the truth. She admitted to driving.
SCOW muddles confrontation, hearsay analysis; addresses Miranda at John Doe proceeding
State v. Peter J. Hanson, 2019 WI 63, 6/5/19, affirming an unpublished decision of the court of appeals; case activity (including briefs)
Hanson was called to testify at a John Doe proceeding looking into an unsolved homicide. He was eventually charged with the crime, and at his trial the jury heard a portion of Hanson’s John Doe testimony. The supreme court held the admission of this evidence didn’t violate Hanson’s right to confrontation. The court also holds that Hanson’s John Doe testimony was admissible despite the lack of Miranda warnings because that warning isn’t required at a John Doe proceeding.
Polite questioning about drinking and evening plans don’t amount to custody or require Miranda warning
Marquette County v. Christopher Patrick Bray, 2018AP665, 2/28/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs).
Bray was convicted of OWI. He argued that the circuit court should have suppressed statements he made to a sergeant during a traffic stop because he wasn’t Mirandized. The court of appeals held that Bray wasn’t in custody so no Miranda warning was necessary.
SCOW to address admissibility of deceased’s hearsay statements, whether Miranda warnings are required at John Doe hearings
State v. Peter J. Hanson, 2016AP2058-CR, petition for review of per curiam opinion granted 1/15/19; case activity (including briefs)
Issues (from the petition for review):
Whether the admission of hearsay statements of a defendant’s deceased wife inculpating him in murder violates his right to confrontation?
Whether trial counsel is ineffective in failing to move to suppress inculpatory statements that the defendant made at a John Doe hearing where he was in custody and not properly Mirandized?