Voluntariness Analysis

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Effectively, the decision removes any stigma from the term, “coercion.” Previous decisions used the terms “coercive” and “improper” interchangeably, and with negative connotations. In this case, the court has distinguished between the two, and held that conduct that is “coercive” but not “improper” can nevertheless support a finding of involuntariness.

It is questionable, however, whether the decision in this case will have much use as precedent, because of the extraordinary debilitation of this particular defendant.

Nevertheless, given the large number of defendants with drug and alcohol problems, suffering withdrawal during the initial stages of their confinement after arrest, many will no doubt try to use it to their advantage.

Another extraordinary aspect of the decision is that the court held the statement involuntary, even though Hoppe was not in custody.

The majority opinion does not even mention this, except to say, “no Miranda warnings were given to Hoppe. Although the circuit court ruled that the Miranda warnings were not required, the circuit court was correct to consider the absence of the warnings in its voluntariness analysis.”

Thus, it only considered the fact that no Miranda warnings were given as a factor weighing in favor of involuntariness, a point with which the dissent agreed.

However, Hoppe wasn’t under arrest; the court fails to explain how the police could have given him Miranda warnings, which begin with the statement, “You are under arrest,” and end with the statement that an attorney will be appointed for him if he can’t afford one, when Hoppe wasn’t under arrest, and had no right to a court-appointed attorney.

The giving of Miranda warnings, or lack thereof, should only be a proper consideration in determining voluntariness, if there is a custodial interrogation.

Absent from both opinions is any recognition that the reason Miranda warnings did not need to be given is that Hoppe was never in custody — meaning that the police conduct was insufficiently heavy handed for a reasonable person to consider himself not free to terminate the interview. Yet, the majority held the same conduct sufficiently heavy handed to overcome the will of the defendant and render his statement involuntary.

This may not be remarkable from a purely legal standpoint. The Wisconsin Supreme Court stated long ago in Roney v. State, 44 Wis.2d 522, 171 N.W.2d 400, 404 (1969), that the question of voluntariness is separate from the question of whether a suspect was in custody and Miranda warnings should have been given.

	Links Wisconsin Supreme Court Related Article Confession during alcohol withdrawal involuntary

The court there stated, “As Miranda points out, … there can be compliance with the rules set forth therein, but the confession might still be subject to the objection of involuntariness. … A confession can be constitutionally antiseptic under Miranda in that it arises neither from interrogation nor custody, but can be involuntary because of coercive circumstances to which the police are not parties.” Roney, 44 Wis.2d at 533.

However, the court has never explained what it means by “coercive circumstances to which the police are not parties.” Unless the court meant that a third party ordered somebody at gunpoint to go and confess a crime to an officer, it makes no sense.

Until this case was decided, it was arguable that custody was a prerequisite to a finding of involuntariness — that it is logically and/or practically impossible for police conduct to be so coercive as to overcome a suspect’s will without also being so coercive that it creates a custodial situation requiring Miranda warnings. This decision silently, but implicitly, rejects that argument.

Finally, it should be noted that this decision creates a terrible precedent
in holding that the police did nothing improper, when they did take one action that was egregious — telling the nurse not to give Hoppe medication that he needed so they could interview him first.

Unlike withdrawal from heroin or cocaine, withdrawal from alcohol can actually be fatal, and there can be no justification for withholding medication from a person in such a condition. There is nothing in the opinion suggesting that this action had any effect on the voluntariness of the statements. Nevertheless, it should have been flatly condemned, rather than implicitly approved.

– David Ziemer

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David Ziemer can be reached by email.