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BENCH BLOG: Officer’s question to suspect a lesson for deposition preparation

By: Jean DiMotto//May 2, 2017//

BENCH BLOG: Officer’s question to suspect a lesson for deposition preparation

By: Jean DiMotto//May 2, 2017//

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Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com
Judge Jean DiMotto retired in 2013 after
16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

A police officer’s question to a suspect led the Wisconsin Supreme Court on a 42-page exploration of the constitutional consequences recently.

State v. Harris tells the tale.

The suspect, Brian Harris, was apprehended in the basement of a vacant residence. While sitting in a squad car in front of the residence, he loquaciously volunteered to police that he had been homeless for about seven years, often slept in vacant homes, and had committed misdemeanors as he got things from the homes to sell for food. He said this was his plan for the copper piping in the basement of this residence.

The fateful question

Later in the morning, a police detective took Harris out of his cell and asked the fateful question. Interestingly, the exact wording of the question is unknown because the detective’s testimony at the suppression hearing differed from his testimony at trial.

At the suppression hearing, the detective said he had asked Harris, “If he would like to come with me to the detective bureau to be interviewed.” At trial, he testified that he had asked Harris “if he would like to give me a statement.” In any event, no Miranda warnings were first given.

Harris responded: “They caught me, man. I got nothing else to say.”

Trial court’s reasoning

After being charged with two felonies and two misdemeanors, all as a repeater, Harris brought a suppression motion to prevent the state from using his “they caught me” statement at trial.

The late Kenosha County Circuit Judge Michael Wilk noted that if police had no latitude to inquire about whether a defendant would be willing to cooperate in providing a formal statement, “there would be no way to initiate the whole concept of giving a statement.”

Wilk said the expected response to the detective’s question would have been, “Yes, I’ll give a statement” or, “No, I won’t give a statement.” Accordingly, he found there had been no violation of Harris’s right to be free from self-incrimination and denied the motion.

The statement was used against Harris at trial and a jury convicted him of all four counts.

On appeal, the District 2 Court of Appeals concluded that the detective’s communication to Harris “was not reasonably likely to elicit an incriminating response.” Therefore, the question did not constitute interrogation for which Miranda warnings would have to be given.

Supreme Court’s analysis

Harris asked the court to consider a single issue: Whether the state compelled him to be a witness against himself by using his answer to the detective’s question.

Justice Daniel Kelly, writing for the majority, chose: “Would you like to give me a statement?” as the detective’s question.

He then launched into a lengthy, sometimes abstruse, examination of matters related to incrimination, custodial interrogations and the Miranda warning’s reminder that suspects may remain silent.

In summary, custodial interrogation may occur by express questioning. If the questioning by its nature seeks incriminating information it is forbidden unless a Miranda warning has first been issued. If, however, the information sought has no potential to incriminate, no warning is needed.

Like the trial court, the state Supreme Court decided that the question asked of Harris sought only a yes or no response, not an incriminating statement.

Here, it’s important to remember that custodial interrogation may occur by the functional equivalent of express questioning, that is, by a law enforcement officer’s use of words or actions that are reasonably likely to elicit an incriminating statement.

A State v. Cunningham analysis must then be undertaken to determine from a reasonable observer’s perspective whether such a functional equivalent was reasonably likely to induce incrimination in view of what the police knew about the suspect.

After a belabored analysis, the court concluded that a reasonable observer would decide that the detective’s question “was diagnostic in nature: Should he conduct Mr. Harris into the interview room where he would then give his statement, or should he instead return Mr. Harris to his cell?” Therefore, Harris was not compelled to incriminate himself.

The court also rejected Harris’ assertion that he was susceptible to questioning because he was “inclined to explain himself to law enforcement” with incriminating statements.

Dissent

The dissent did a far more concise Cunningham analysis. Justice Shirley Abrahamson concluded that since the police knew about Harris’ garrulousness, an objective observer would reasonably perceive the detective’s question as meant to elicit from Harris a statement that went beyond a yes or no response.

Commentary

The question put to Harris brings to mind litigators getting clients ready for depositions. A common preparatory admonition is to listen carefully to whatever question is being presented and answer only that question.

Thus, “Do you have a watch?” is a yes or no question. Often, however, this type of question is answered with a statement, e.g., “It’s 1:15.”

Harris did the same thing, responding with a statement rather than a simple yes or no. Although lawyers and judges (and experienced expert witnesses) may be attuned to the precise nature of a question, lay people are not.

Nonetheless, as Judge Wilk observed, there needs to be some latitude granted to police officers when they are inquiring about whether a defendant is willing to give a formal statement.

On another note, Harris was not the only loquacious one in this case; so too was Justice Kelly. He is fond of linguistic flourishes, and this together with his verbose writing prompted a concurrence to rein in and clarify the court’s decision. Justice Annette Ziegler did so succinctly.

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