On Point: 5. Confessions

State v. Edward Townsend, 2008 WI App 20, PFR filed 2/13/08
For Townsend: Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether admissibility of evidence gathered in a foreign jurisdiction by Wisconsin officers is tested by the law of that jurisdiction or of Wisconsin.

Holding:

¶1        … Townsend contends that the circuit court should have suppressed unrecorded statements he made while in custody in St.

State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup

Issue/Holding:

¶20      Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka, Wisconsin Evidence§ 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently,

State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup

Issue/Holding1: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:

¶23      Under the totality of the circumstances, we conclude that Davis’s statement was not so closely associated with the voice stress analysis test so as to render it one event;

State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School

Issue/Holding:

¶46      We agree with Mayo’s position, and the State’s concession at oral argument, that the prosecutor’s remarks on Mayo’s pre-Miranda silence, and the testimony she elicited in that regard, during the State’s opening statement and case-in-chief, violated Mayo’s right to remain silent under the Fifth Amendment of the United States Constitution,

State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis

Issue/Holding: Custody, for purposes of Miranda, requires that the suspect’s freedom be restricted to a degree associated with formal arrest, and is as gauged by a multi-factor test articulated in State v. Zan Morgan, 2002 WI App 124, ¶¶13-14. None of those factors are present in this instance,

State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn

Issue/Holding:

¶35   The circuit court relied on statements Markwardt made one hour and eleven minutes into the interview for its ruling that she had properly asserted her right to remain silent. Her exact words were: “Then put me in jail. Just get me out of here.

State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn

Issue/Holding: Markwardt’s in-custody statement was voluntary: any stress she was under was “unrelated to police conduct” (¶37); she didn’t unequivocally assert her rights (¶40); that the interrogator “was at times confrontational and raised his voice is not improper police procedure and does not, by itself, establish police coercion” (¶42,

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: Thexton wasn’t entitled to Miranda warnings “at the time the PSI was being prepared”:

¶8        Thexton also claims that Streekstra violated his Fifth Amendment rights when he interviewed him during the investigation.  Thexton claims that Streekstra used the prior PSI as a basis for questioning him,

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding:

¶16      Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest.

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding:

¶31      … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences,