Criminal Law News
January 2006
Published by the Criminal Law Section of the State Bar of Wisconsin
Chair's Perspective
Jerome F.
Buting
Jerome Buting serves as chairperson of the Criminal
Law Section for a two-year term beginning July 1, 2005. He is in
private practice with the law firm of Buting & Williams, S.C.,
in Brookfield, Wisconsin. His practice is almost exclusively focused on
serious criminal defense matters, both trial and post conviction.
I am pleased to begin my term as chairperson of the Criminal Law Section. The purpose of the Criminal Law Section is to provide a forum for criminal defense lawyers, prosecutors, judges and academicians to discuss issues and, if appropriate, adopt advocacy positions to promote respect, fairness and professionalism in the administration of criminal justice in Wisconsin. The section strives to educate and inform its members on the issues affecting the practice of criminal law.
The legislature is back in session, which means that a great deal of the focus of this section's leadership has been addressing bills or proposals that affect the membership and the public at large through our criminal justice system. For a lot of reasons, it is common to see more bills proposed or introduced in the area of criminal law than any other section of the Bar. Many are well-intentioned, but not the product of a deliberative process with input from all sides involved in the criminal justice process. For those bills that warrant our section's response, we strive to inform the legislators of the benefits or detriments of a particular bill or proposal. Many legislators contact our section early in the process for our thoughts and input, and we are happy to comply, as we believe the best laws arise from input by all who may have specialized knowledge in an area.
One of the best examples of a thoughtful, careful approach to legislation was demonstrated in AB 648/SB 315 (AB 648), the Criminal Justice Reform Bill (formerly known as the Avery Task Force Legislation). Rep. Mark Gundrum, one of an increasingly small number of lawyers in the legislature, put together a diverse group of people from law enforcement, the judiciary, the defense and prosecution bars, victim advocacy, legislators and academics to study flaws that had become apparent in this state's criminal justice process. Legislation was developed after testimony by experts, law enforcement officers and practitioners from all over the country as to the problems with certain current practices and the best means to ameliorate them. I was honored to serve on the task force and pleased with the thoughtful proposals on eyewitness identification techniques and recorded interrogations, which are expected to be signed into law by the governor.
On the other hand, an example of poorly designed legislation is the so-called "Jessica's Law," AB 784/SB 408, which would impose a mandatory minimum of 25 years in prison for even first offenders who commit first degree sexual assault of a child. The bills were introduced without consultation with the Bar or even this state's prosecutors or victim's advocacy groups, and then quickly scheduled for action. As a result, the section has been working almost daily to try to persuade legislators and the governor that while well-intentioned, the law has terrible potential consequences. So much so that the Wisconsin District Attorney's Association and the Wisconsin Coalition Against Sexual Assault registered their opposition to the bill.
Among the numerous concerns with "Jessica's Law" are the fiscal impact, which the Department of Corrections projected would require nine new prisons just from this one law, and the fear that many more victims will refuse to report abuse or testify against a family member or close friend (the types of offender in approximately 90% of cases) if such draconian consequences would result. Current law already provides for a sentence of imprisonment of up to 60 years, which our members report seems more than adequate to punish the most serious offenders, while permitting the courts the discretion to fashion a sentence designed to both assist the healing of affected parties and to protect society. Members are urged to contact their legislators or the governor's office to urge them to reject AB 784. Further details can be obtained from the section's legislative liaison, Lisa Roys.
The section is also involved in a long-term study of the criminal justice system designed to seek further reforms to ensure that only the truly guilty are convicted in this state. The Criminal Justice Study Commission was launched this Fall through the combined financial and other support of the Criminal Law Section, the UW Law School and Marquette University Law School. The commission, chaired by recently retired Judge Michael Malmstadt, includes representatives of the legal, academic and business communities, as well as interested citizens, and will spend the next three years studying ways to improve the accuracy and fairness of the criminal justice process in Wisconsin. The topic next on the agenda of the commission will be the phenomena of false confessions and the types of interrogation techniques which may, unwittingly, provoke them.
Finally, the section has a renewed determination to keep our members informed of the issues we face and the hard volunteer work of so many. We hope this newsletter, together with the regular posting on our Web site of the minutes of all board meetings, will assist that endeavor. Please feel free to contact me anytime you have questions about the work of your Criminal Law Section.
New Developments in Interrogation Law
Deja Vishny, Attorney Manager and Training Coordinator, SPD, Milwaukee
This year has seen major changes in criminal law due to recent decisions of the Wisconsin Supreme Court and the newly passed legislative Criminal Justice Reform Act. One of the most significant changes is in police procedures concerning interrogation of suspects. The Wisconsin Supreme Court's landmark ruling in In the Interest of Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, requires recording of juvenile interrogations in order to admit custodial statements in court. This fall, both houses of the Wisconsin State Legislature passed a bill outlining new procedures for interrogations of juveniles and adults. Governor Doyle has stated he will sign the bill. Both the court rulings and the legislative changes are the result of concerns about unrecorded interrogations. Both of these branches of government have come to recognize the superiority of recorded interrogations. Recorded interrogations assist the judicial process by providing courts and jurors a first-hand review of truthful evidence, providing prosecutors with powerful evidence of guilt and at the same time reducing erroneous convictions arising as a result of false confessions. This change is part of a national trend as courts and legislatures in various states such as Minnesota, Alaska, New Jersey, Illinois and New Mexico issue rulings and draft legislation mandating recordation.
Juvenile Interrogations
In the Jerrell C. J. case, the Court exercised its state constitutional supervisory powers to create new rules concerning the admissibility of statements made by juveniles. The court held that all custodial interrogations must be electronically recorded whenever feasible and without exception when questioning occurs in a place of detention. For purposes of this ruling, the court defined juvenile as all persons age 16 or under. The court expressed a preference for videotaping interrogations but held that audio taping is sufficient to satisfy the recording requirement. The court also stated that a failure to record may be excused when the failure is due to a good faith error or equipment malfunction, the violation was not substantial, and when the contents of the interrogation are not in dispute.
After the Jerrell decision, the Wisconsin Legislature passed a bill requiring that law enforcement agencies record custodial interrogations of juvenile suspects in delinquency actions. While the bill primarily tracks the requirements of the Jerrell decision, it adds several definitions and exceptions.
The bill defines " place of detention" as " a secure detention facility, jail, municipal lockup facility, or secured correctional facility, or a police or sheriff's office or other building under the control of a law enforcement agency, at which juveniles are held in custody in connection with an investigation of a delinquent act."
Like the Jerrell decision, the bill also creates exceptions to inadmissibility of unrecorded statements. The legislature added exceptions to the recording requirement beyond those enumerated in Jerrell. These are: that the juvenile refused to cooperate if the interrogation was recorded, as long as a contemporaneous recording or writing documented the refusal; the statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody; the statement was made spontaneously and not in response to a question by the interrogator; exigent public safety circumstances prevented recording; or other "good cause".
The Jerrell decision was made effective the date the case was decided. The legislative provisions become effective on the day after the bill is enacted.
There are many questions left unanswered by the Jerrell decision. There are also differences between the new legislation and the case. These issues are sure to give rise to future litigation. Among them are:
- Must non-recorded custodial interrogations be excluded from evidence when the defendant is age 16 or under but in adult court? The Jerrell decision applies to all custodial interrogations of individuals age 16 and under and the policy considerations underpinning the decision seem to make irrelevant which court the child ultimately appears in. The legislation, on the other hand, applies to delinquency proceedings only. This may be a distinction without a difference if law enforcement are recording all custodial statements whenever they interrogate someone 16 or younger.
- Will the court adopt the legislature's exceptions that did not appear in the Jerrell decision?
- When is it feasible to record an interrogation that occurs outside a "place of detention"? The Wisconsin State Department of Justice, which is currently providing training for law enforcement officers on recordation, has developed model guidelines that encourage recording whenever a juvenile should be read his or her Miranda rights, regardless of location. It certainly appears feasible to record at any location, given the low cost and easy accessibility of voice recorders.
- How will the Court interpret the phrase, "place of detention"? Will it adopt the definition given by the legislature? How will the Court rule when statements of detained juveniles are taken in other locations, such as schools, or by security guards at private businesses?
While all of the above questions may be the subject of future litigation, it seems fairly clear that the Legislature does not have the ability to curtail the decision. Because Jerrell was the product of the Supreme Court's exercise of its constitutional superintending authority, to the extent that there is conflict between the Legislation and the opinion, lower courts will be bound by Jerrell unless it is overruled or modified by the Supreme Court.
Adult Interrogations
The holding in the Jerrell case is limited to statements made by juveniles. However, the legislation also addresses the issue of custodial interrogations and statements made by adults in felony cases.
The legislation creates a state policy that all custodial interrogations by law enforcement agents of felony suspects be recorded. This part of the legislation does not become effective on January 1, 2007.
Unlike with juvenile interrogations, the legislation does not preclude the admissibility of unrecorded statements. Instead, a defendant in a felony trial can request that the jury be instructed that it is state policy to record interrogations and that the jury can consider the absence of a recording in evaluating the evidence relating to the interrogation and the defendant's statement in the case. As with juveniles, there are conditions and exceptions to this remedy. The exceptions are identical to the juvenile exceptions with one addition: the law enforcement officer conducting the interrogation reasonably believed, at the time, that the relevant offense in the matter was not a felony.
The recording of the interrogation and statement would not be deemed an open record until either all criminal investigations and prosecutions relating to the offense were concluded or conviction or acquittal of the offense had occurred.
The legislation does not mandate recording custodial interrogations in adult felony cases. However it creates a strong incentive for law enforcement to record in order to avoid the jury instruction which can negatively impact the prosecution's case.
Left unanswered is how the Wisconsin Supreme Court will rule in a challenge to an unrecorded adult interrogation and how it will interpret this legislation as it applies to adults. The Jerrell decision did not address whether the Court will exercise its supervisory power to condition the admissibility of adult interrogations on recording. However, the court cited many policy concerns in its holding that can apply equally to adults as well as children. These were: providing courts with a more accurate and reliable record of interrogations, thereby eliminating conflicts in evidence attributable to flaws in human memory; reducing the number of disputes over Miranda and voluntariness issues; protection of police officers wrongfully accused of improper tactics; enhancement of law enforcement interrogations by allowing officers to focus on the suspect rather than on note taking, as well as the ability to review the recording to note inconsistencies and evasive conduct; and finally, protecting the rights of the accused.
The problem of false confessions is not one that is limited to juveniles. In 2004, Steven Drizin and Richard Leo cited statistics from the Innocence Project that 35 of 140 (approximately %) individuals exonerated as a result of DNA testing gave false confessions.i Previous studies of wrongful convictions have implicated false confessions as the cause in anywhere from 14 -% of the cases. ii
Drizin and Leo studied 125 cases of proven false confessions. While juveniles were heavily represented in the group of proven false confessors, they did not dominate the study. Of the 125 cases, only 40 involved juveniles. Seventy-three, or close to 60%, of the false confessions were given by adults. iii Drizin and Leo's juvenile group included 17 year olds, who for purposes of criminal prosecution are adults in Wisconsin.
New Work for Practioners
The Jerrell decision and legislation will mean new practices for both prosecutors and defense lawyers. Competent counsel must listen to the recorded interrogations to determine if a juvenile's statement is voluntary or the product of improper police pressure. The Supreme Court has made it clear that police conduct during interrogation need not be egregious in order to be coercive. Subtle pressures that are not coercive in one set of circumstances can be coercive in others if a suspect's individual characteristics render him or her unable to resist police pressure. Although the holding in Jerrell mandating recording interrogations was split 4-3, the Court unanimously found Jerrell's statement was involuntary. The factors personal to Jerrell the Court cited were: his age (14), his education (he was in 8th grade), his intelligence (84 IQ), and his limited previous experience with police (two misdemeanor arrests in which he was permitted to go home after police questioning). The police tactics noted were the detectives' refusal to call Jerrell's parents, the length of the custody and interrogations (8 and 5.5 hours, respectively) and the refusal of police to believe Jerrell's denials, sometimes in a "strong voice" (described by police as a raised voice but short of yelling) that frightened him.
Defense counsel must also listen to the tapes to see if the statement bears the hallmarks of a false confession. For example, is the confession inconsistent with the known facts, and did the suspect provide police with new information or only regurgitate details that either were told to the suspect during the interrogation or were public knowledge? Counsel must also be on the alert for remarks by law enforcement on the tape which are inadmissible in court. These may include the interrogator's opinion regarding a suspect's guilt or other prejudicial or inadmissible evidence such as details of the suspect's prior record. Tapes will have to be carefully reviewed and redacted before trial.
Defense counsel in adult cases should closely review the Jerrell case and the new legislation. Counsel should consider bringing motions to suppress unrecorded interrogations and argue the policy reasons which led to the holding in Jerrell. Additionally, although the new legislation does not require juries to be instructed regarding unrecorded interrogations, there is nothing to prevent a court from giving such instructions in cases where counsel is challenging the accuracy of the confession.
Endnotes
i Drizin and Leo, the Problem of False Confessions in the Post-DNA World, 82 N.C.L. Rev. 891, 905.
ii Id. p.907
iii Id. p. 945. Drizin and Leo were uncertain of the ages of 12 persons in the studied cases.
The Use of Polygraph Examinations in Wisconsin
Gerald W. Mowris, Pellino, Rosen, Mowris & Kirkhuff, S.C., Madison, Wisconsin; and Chief Polygraphist Theodore G. Welch, Theodore G. Welch & Associates, Madison, Wisconsin
For many years, polygraph examinations were inadmissible in the State of Wisconsin. However, a 1974 Wisconsin Supreme Court decision permitted the limited use of polygraph examinations in criminal trials for purposes of corroboration or impeachment. In State v. Stanislawski, 62 Wis. 2d 730, 216 N.W.2d. 8 (1974), the court ruled a polygraph examiner's opinion was admissible provided: (1) there was a written agreement signed by the examinee, defense counsel and prosecutor; (2) the trial court was satisfied (regardless of the agreement) that the examination was administered properly and that the polygraphist's qualifications were acceptable; and (3) opposing party would have the right to cross-examine the polygraphist.
In 1981, the Wisconsin Supreme Court reversed Stanislawski. They struck down the admissibility of stipulated polygraph examinations in State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628. Consequently, since September 1, 1981, the results of polygraph examinations have not been permitted in criminal proceedings. However, in the Dean ruling, the court concluded that "(The Court) is not now prepared to say polygraph evidence is so unreliable that it cannot be admitted under any circumstance." Dean at 265.
Subsequently, the legislature in 1993 provided that law enforcement officers may not, in connection with the report of a sexual assault, order, request or suggest that an alleged victim submit to a test using a lie detector device or provide information regarding lie detector tests unless the alleged victim requests information regarding tests using lie detectors. Even a district attorney may not order a person to submit to a lie detector test. However, a district attorney may suggest or request a person submit to a test if he or she first provides the alleged victim with notice and an explanation of his or her right not to submit to such a test. See Wis. Stat. §968.265. Additionally, under Wisconsin law, employers, under most circumstances, may not require polygraph testing as a condition precedent to employment.
In the face of these court and legislative bans, are polygraph examinations still useful in Wisconsin?
The Research
In an attempt to provide an answer to that question, one of the authors of this article, Polygraph Examiner Ted Welch, conducted a survey of attorneys who retained him to conduct polygraph examinations of clients over a 12-month period in the year 2001. The purpose of the research was to determine the relationship between felony polygraph examinations administered during 2001 for only the defense counsel and the final disposition of each case. In each of these cases, the prosecuting agency was unaware that the examinee was scheduled for polygraph examination and had no input into the issues covered or the relevant questions utilized during testing procedures. Only the defense counsel was provided with the examination results, at least by the polygraph examiner.
During a 12-month period from January 1, 2001, through December 31, 2001, Mr. Welch administered 153 polygraph examinations solely at the request of the examinee's defense counsel. Prior to each examination, defense counsel provided "case facts" and was able to discuss relevant issues regarding the allegations. Examinations administered within the polygraph suite were able to be monitored, both by audio and visually. However, those administered outside the polygraph suite (i.e., jail, prisons, and attorney's offices) did not have monitoring capabilities.
Each examination utilized standard comparison question test procedures. A computerized polygraph recording the examinee's respiration, skin resistance response and cardiovascular changes was used in each examination.
Each examination was evaluated by numerical scoring of the polygraph charts. Total scores of +5 or higher were determined "no deception," -5 or lower were determined "deception indicated," and scores within the +4 and -4 range were determined to be "no opinion." Additionally, each examination was evaluated by POLYSCORE, a product of the Johns Hopkins University Applied Physics Laboratory and Axcition Charta Analysis algorithms.
Prior to the scheduled examination, instructions were provided that the examinee get a good night's rest, eat a meal prior to the appointment, refrain from the use of alcohol and controlled substances for twenty-four hours, provide the examiner with a list of all prescribed medication and provide prior notice of any history of heart disease.
A breakdown of the 153 scheduled examinations revealed that 107 cases were fully completed and that a "not truthful" opinion was rendered in 84 cases. A "truthful" opinion was rendered in 12 of the cases and "no opinion" was rendered in the remaining 11 cases. Examinations in which the examinee made pre-test admissions, terminated testing, was not suitable, or was otherwise not completed, were excluded. Only those examinations which were determined to be "not truthful," "truthful," or "no opinion" were utilized during this survey.
The vast majority of the examinations utilized during this research consisted of sexual assaults (57), followed by theft (11), battery (5), death investigations (5), armed robbery (9), fraud (5), physical abuse (4), drug crimes (4), child enticement (3), sexual exploitation (2), exposure (1), and bail jumping (1).
Of the 57 sexual assault cases, 52 allegations were made by females and 5 by males. The average of the victim was 13; the oldest was 47, and the youngest was 3.
Of the 107 completed examinations, all subjects were adults; 17 were females, and 90 were males. The average education level of the examinee was 12.47 years. The lowest was 7 years of formal education and the highest was 20. There were 28 cases in which the examinee had not graduated from high school, 43 examinees had a high school diploma or the equivalent, and in 36 cases the examinee had attended college. There were 45 cases in which the examinee had not been married, 32 in which the examinees were married, and 30 in which the examinees had been divorced.
The average numerical score for the "not truthful" opinion was -9; the highest in that category was -22. The average numerical score for the "truthful" opinion was +7; the highest in that category was +10.
Post-Testing
Questionnaires were sent to defense attorneys who had requested the examinations. There were 69 responses returned of the 107 questionnaires mailed. Forty-seven of the responses were on cases in which the opinion had been "not truthful," 12 were on cases in which the opinion had been "truthful," and 6 were on cases in which there had been "no opinion." Four of the respondents failed to indicate disposition on their questionnaire.
Of the 47 "not truthful" opinions, 41 involved cases in which criminal charges had been filed. Sixteen involved a trial or contested hearing. Of those cases, 12 were found guilty and 3 not guilty (1 of the guilty verdicts was overturned on appeal) and 1 had his parole revoked. Twenty-three entered into a plea agreement, 2 had their cases dismissed, 5 were never charged. One of the questionnaires did not include disposition.
Of the 12 "truthful" opinions, none went to trial or had a contested hearing. Five had the charges dismissed and 6 were never charged. In 1 of the cases there was a plea to a different allegation that was not part of the examination with no disposition related to the polygraph results.
Of the 6 "no opinion" examinations, 3 went to trial or had a contested hearing, one of the 3 was found guilty, and 2 entered into a plea agreement. One "no opinion" case was never charged. The remaining 2 "no opinion" cases did not include the disposition on the questionnaire.
Table #1
Polygraph results:
| Not Truthful | Truthful | No Opinion | |
| Total | 47 | 12 | 6 |
| Trial/ Hearing |
16 | 2 | |
| Guilty | 12 | 1 | |
| Not Guilty | 3 | ||
| Revoked | 1 | ||
| Plea | 23 | 2 | |
| Not Charged | 5 | 5 | 1 |
| Dismissed | 2 | 6 |
One of the "not truthful" questionnaires did not include disposition
One of the "truthful" questionnaires did not include disposition
Two of the "no opinion" questionnaires did not include disposition
Regarding the question "Do you feel polygraph examinations should be admissible in criminal trial or contested hearing?" the respondents indicated:
- Yes: 39
- With stipulation: 36
- Without stipulation: 3
- No: 16
- Two indicated that they felt the results should be admissible with or without a stipulation and twelve of the respondents did not complete this portion of the questionnaire.
Conclusions from this research:
- Of the 46 "not truthful" responses, 41 involved cases in which formal charges had been filed. Thirty-five of the "not truthful" examinees were found guilty or entered into a plea negotiation (85.37%). Four were found to be not guilty (09.75%) and 2 had their cases dismissed (04.88%).
- Of the 12 "truthful" cases, charges were dismissed or the examinee was never charged (100%). In each instance, defense counsel shared the results with the prosecuting agency.
- Of the 55 responses to court admissibility of polygraph examinations, 39 respondents indicated yes (71%) and 16 no (29%).
- The fact that the examination was administered at the request of defense counsel (without the prosecuting agency's knowledge) had no correlation with the results. Of the 107 examinations that were fully completed, 78.50% of the opinions were "not truthful," 11.21% were "truthful" and 10.28% were "no opinion."
- Of the cases in which formal charges had been filed, there was an 85.37% correlation between the "not truthful" opinions with final disposition. There was a 100% correlation in the "truthful" opinions and final disposition.
- Even though attorneys may advise their clients that the "test is for our own use," and "if you fail that will not be shared with anyone without your permission," this admonishment did not appear to adversely affect the results. The notion that the examinee has nothing to lose when a defense attorney retains a polygraph examiner is shown to be inaccurate by these results. The fact that the examinee or defense attorney pays the fee has nothing to do with the results. The high correlation between polygraph results and final disposition, with or without a trial or contested hearing, indicates the utility for continued use of polygraph examinations within the criminal justice system.
What Can Be Learned From the Results of This Survey?
First, this survey clearly indicates the utility of polygraph examinations for innocent clients.
In the 12 surveys returned where the opinion of the examiner was that the individual being tested provided truthful answers or showed no indication of deception in the answers, 11 of the 12 were exonerated. Five were able to avoid criminal charges completely, and six had their charges dismissed. The other survey did not indicate what happened to the charges. In the remaining case, there was a plea to a different allegation that was not part of the examination. Thus, in 100% of the cases where the client passed the polygraph examination, the client received the benefits of the examination. In each of those cases, the results of the polygraph examination were shared with the prosecuting agency after the fact.
In the 40 cases in which the polygraph examiner's opinion was that the client was indicating deception during the examination:
- 20 of the attorneys engaged in plea negotiation;
- 2 still had their cases dismissed;
- 5 were never charged;
- 9 went to trial and were found guilty;
- 3 went to trial and were found not guilty; and
- 1 had his parole revoked.
- One questionnaire did not include disposition.
The results of this survey should indicate to any competent criminal defense attorney that polygraph examinations can be an extremely useful tool. Even under current Wisconsin law, particularly in cases involving sex offenses and allegations of sexual misconduct with children, the results of polygraph examinations can be particularly useful. If an attorney is retained soon enough, and is able to have the client pass a polygraph examination before a charging decision is made, the survey reveals that the filing of charges can be prevented.
Those of us who have been involved in cases in which people have been accused of sexual misconduct, particularly with children, know the enormity of the consequences of a mere allegation on a person's reputation within the community. Preventing that "smear" and allowing a client to avoid being charged is probably one of the most satisfying services we can provide for a client. In those cases where the client fails the examination, the results can still be extremely useful. Since the results do not have to be shared with the prosecutor as the work product of the attorney, they can serve a number of purposes. In some cases, the results assist the attorney with "client control." In those cases where a client fails the polygraph examination, it is often much easier to convince the client that the best approach to his or her case may be to negotiate a plea agreement rather than go to trial. In other cases, the results of the examination can be useful in a determination of trial strategy. The results are also invaluable in helping a client decide whether or not to be tested by a government polygraphist.
From the outset, both the attorney and the client are admonished that a polygraph examination is not a true "lie detector." As evidence presented in two different federal courts in 1995 showed, the majority of laboratory and field studies placed the accuracy rates of the results of a properly conducted comparison question polygraph examination in excess of 85%. See U.S. v. Krumby, 895 F. Sup. 1354, (District Court, Arizona, 1995) and United States v. Gulbreath, 908 F. Sup. 877, (District Court of New Mexico, 1995).
The 85% figure helps the defense attorney keep in mind that failure of a polygraph examination does not necessarily mean that the client is lying about guilt or innocence. Given the context of an examination, the phrasing of a question may impact whether or not the client passes the examination. This author has been involved in cases in which a client was unable to pass a polygraph examination when a question was phrased in one fashion, then in a later examination, when questions were re-phrased or clarified for the client, the client passed the examination. In still other cases, it was discovered that something besides the ultimate issue caused an indication of deception.
These situations emphasize the importance for the attorney, when possible, to observe the polygraph examination, or at least the pre-test interview between the examiner and the client. When the examiner is as experienced and careful as the co-author of this article, an observer almost invariably learns facts about the case, the allegations, or the background and history of the client that would never otherwise come to the surface. Through gentle but thorough questioning, the examiner can also uncover nuances in the facts of a case that allow the attorney to develop other theories of defense. This also helps the attorney and the examiner to formulate good questions.
Thus, the defense attorney has to keep in mind that even in those cases where there is evidence of deception and the client does not "pass" the polygraph examination, the client may still be telling the truth about the ultimate charge; the examination may simply be inaccurate, and/or the questions are causing a problem. Given the accuracy rate, however, attorneys are well advised to think carefully about the client's version of events, why the client showed deception in the answers to the particular questions, and the plausibility of the client's story in light of the results. It has been a common experience that when a client does not pass the polygraph examination and the attorney and the client have a thoughtful and reasoned discussion about what the client says about the allegations and how and why that story does not make sense or lacks some plausibility, a new level of communication can be reached between the client and the attorney. A reasoned discussion about the results of the examination and a reasoned discussion about the reasons for the evidence of deception can lead to either fruitful plea discussions or further investigation that can reveal why the client may fail the examination, yet be innocent of the particular charges lodged against him or her.
In this day and age when police agencies, the federal government, the military, employers, and many other entities regularly use the results of polygraph examinations to determine truthfulness in areas as diverse as sex offenses, the reliability of spies, the truthfulness of F.B.I. and C.I.A. agents, and employee theft, defense attorneys should never take the approach I recently heard from a young new defense attorney: "I never use polygraphs; they are not admissible. District Attorneys don't believe in them, and they never help".
As this survey of one year's experience shows, polygraph examinations not only help, they can sometimes do as much as your skill and talent to protect the innocent from a miscarriage of justice.
U.S. Supreme Court to Hear Police Search Case
The Supreme Court said Friday it would clarify when police can enter a home without a search warrant, in a case involving Utah officers who watched a fight through a window. (For full story follow this link: http://www.law.com/jsp/article.jsp?id=1136541911756&rss=newswire )
Wisconsin Court of Appeals Upholds Per Se Drug Laws As Set Forth in Wis. Stat § 346.63(1)(am)
On November 9, 2005, the Court of Appeals issued its ruling in State v. Smet, 2005 WI App. _______. In its opinion, which has been recommended for publication, the court upheld the ban on operating a motor vehicle with any detectable amount of a restricted controlled substance in one's blood.
Overview
On June 1, 2004, Smet was arrested on suspicion of operating a motor vehicle while intoxicated. A blood test indicated a detectable amount of delta-9-THC (the primary active ingredient in marijuana) and 11-hydroxy-THC and carboxy-THC (two metabolites of THC). Smet was charged with operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, contrary to Wis. Stat. § 346.63(1)(am).
Smet moved to dismiss the complaint on the grounds that Wis. Stat. 346.63(1)(am) is unconstitutional because it exceeds the legislature's police power and violates his rights to due process, fundamental fairness, and equal protection. The trial court rejected his arguments, and Smet was ultimately found guilty. He appeals from the resulting judgment of conviction.
Smet argues that because Wis. Stat. 346.63(1)(am) requires only proof of " a detectable amount" of a banned substance rather than actual proof of impairment, it is an unconstitutional overstep by the Wisconsin Legislature in the exercise of its police power. Therefore, he submits that prosecution under that statute violates his rights to due process and fundamental fairness.
The court of appeals upheld the trial court's ruling, explaining that regulating the safety of Wisconsin roadways is a proper exercise of the police power, and that 346.63(1)(am) bears a reasonable and rational relationship to that goal and is not fundamentally unfair; therefore, there was no due process violation. The court also held that 346.63(1)(am) does not offend principles of equal protection because Smet did not establish that the statute either interfered with a fundamental right or operated to the peculiar disadvantage of a suspect class.
Minutes of June 7, 2005, Criminal Law Section Board Meeting
Marriott Hotel, Waukesha, Wisconsin
Present: Cohen, Birdsall, Mowris, Hertel, Donohoo, Hersh, O'Meara, Findley, Koschnick, Buting, Smith (BOG liaison), Garcia, Sybell. Dall'Osto excused.
Board Member Hersh will take notes and act as Secretary pro tem for this meeting at the request of Dall'Osto, who is away on his thirtieth wedding anniversary.
Meeting commences at 6:30 p.m.
- Introduction. By
Chairperson
Cohen.
- Minutes. The minutes of
the
February 28, 2005, Board meeting are distributed for review by Chairman
Cohen. Corrections are noted as follows: Board of Governors handout was
from Deb Smith not Deb Sybell; Justice Committee administrator is Byron
Lichstein and Judge Fred __________ is also on the Steering Committee.
After these corrections, the minutes are approved.
- Treasurer's Report.
Financial report given by Hersh. Discussion of raise in Bar dues to
offset losses in interest revenue from IOLTA.
- Section CLE Program. Bob
Donohoo has sent copies of the handouts from the CLE at the Bar
Convention. Feedback was very positive. Bob noted that there were not
too many people who practiced criminal law at the convention.40-60
people were in the room for the Section's CLE program. Buting will be
temporary Program Chair for CLE at 2006 Bar Convention. Discussion on
the possibility of coming up with an idea for the showcase program at
the 2006 Convention, like the Section did with the DNA program in
2001.
- Old Business.
- Newsletter. Table of
contents for next newsletter was passed out. It was noted that when the
electronic newsletter is up, it will take around two weeks from
submission to sending out the newsletter. Notices have been sent out to
the approximately 165 Section members for which the Bar does not have
an email address. The newsletter will be exclusively in electronic
format. Next newsletter will come out approximately September 15. The
Chairperson and editor are trying to get volunteers to submit articles.
Various ways of presenting information to Section members through the Section newsletter in shorter than article form were discussed. The Board also discussed sending links to LLAN Capital Updates of pertinent legislation of interest to Section members.
Bob Donohoo routinely prepares summaries of new laws and can make those available for the newsletter.
- Legislation. Lisa Roys
introduced herself to the Section. She is the new lobbyist for the
Section from the State Bar. Lisa would like to get results and
responses from her emails to the Section Board members (input) within
one week when the Legislature is in session and two weeks when out at
session. If there is no response by a sufficient number of Board
members, no action will be taken. The Bar and Section are no longer
using the plus or minus numeric system. Instead the three options now
are: no position, support or oppose in principal, active support or
opposition.
- Section Leaders Committee (SLC). Cohen
will be the Section's representative to SLC and Buting will be his
alternate.
- Avery Task Force. Report
by
K. Findley. The Task Force has drafted and approved proposed
legislation to provide funding to record felony in-custody
interrogations. This would be policy after 2009 and, if no recording of
interrogation is done by police, a defendant can ask for and may get a
curative instruction for the jury. Avery Task Force has now completed
its work and is in final stages of editing draft of proposed
legislation for submission to Legislature at its Fall session. The
Justice Commission Steering Committee has met and is finishing plans to
form the Commission.
- Board of Governors (BOG) Report. Presented
by D. Smith and handout provided to Section Board members. Smith was
reelected to be Criminal Law Section liaison to BOG for another year.
See handout for minutes.
- New Business.
Motion made by Hersh and seconded by Buting to thank
outgoing Chairperson Cohen for his services.
- Section
Board meeting adjourned. Buting to get new
dates
for future Board meetings over the next year out to Board members in
the coming months.
A handout was passed out regarding certain pending legislation and what has happened to it. The Board voted to support the District Attorney's Association proposal on OAR legislation, approving a motion which was made by Buting and seconded by Hersh. This approval occurred after a discussion of the impact of the various OAR bills on the State Public Defender budget.
Minutes of September 28, 2005, Criminal Law Section Board Meeting
Marriott Hotel, Waukesha, Wisconsin
Present: Cohen, Dall'Osto, Hersh, Shapiro, Vishny, Schaefer, Koschnick, Buting, Smith (BOG liaison), Garcia, Roys, Dirden. Birdsall, Findley, Vaudreil and Mowris excused.
Meeting commences at 6:00 p.m.
- Introduction. By
Chairperson
Buting.
- Minutes. The minutes of
the
June 7, 2005, Board meeting were reviewed. Cohen moves to approve
minutes, motion seconded by Koschnick. Motion approved by voice vote
with no dissents, and minutes are approved.
- Treasurer's Report and Section Finances.
Financial report of August 31, 2005, distributed. Discussion on the
need to appoint new Section treasurer. Dall'Osto agrees to undertake
both Section Treasurer and Secretary positions. Discussion of raise in
Section dues and lobbying expense contribution.
- $30/member goes to Section
- $8.50/member for lobby fees
- $10.25/member for admin. services
- Section Membership and Goals. Buting
talks about goals of Section and need for membership growth in the next
two years. There is a move to tax sections for lobbying costs on a per
capita basis per the amount of use. Dall'Osto notes that this seems to
contradict the compromise reached on this issue by SLC in early 2000s.
Garcia reports that Criminal Law Section membership has dropped from 648 in 2004 to 599 in 2005. 20 of 26 State Bar sections lost members from 2004 to 2005 and the trend is disturbing and unaccounted for. Garcia discusses proactive ideas for membership increases other sections have utilized and urges Board to develop a plan for such to counteract the drop in membership.
Elder Law has grown to 1000 members and Labor &Employment has grown too. Both of these sections have developed and made available forms and "how to's" to make members' law practice better. Garcia notes a recent bar interest survey that shows that while 2900 bar members noted criminal law as one of the top three areas of their interest and practice, the Criminal Law Section has only 600 members. The focus should be on how to appeal to this larger group of potential members to join the Section.
Garcia then discussed how many sections utilize advisors (previous officers, etc.) to assist the section board versus only sitting board members. Gerry Mowris and Waring Fincke informally serve in this capacity already, Buting noted, and it is an idea worth pursuing. Improvements to the listserv were discussed, including better definitions of topics and focus. Vishny and Smith said that the Section should not duplicate what WACDL, SPET and the SPD do on their listservs.
Buting discussed having a longer range plan for CLE programs, including some not connected with annual meeting. The legislative focus has been a strong suit for the Criminal Law Section and this should be emphasized to potential members. Smith urges more bench/bar focus and attention of the Section to increased budget cuts and constraints on the judiciary and criminal justice system. Dall'Osto suggests pressing a theme of defending all components of the criminal justice system from ill-thought out funding cuts, lack of respect to the courts as in Milwaukee due to the county executive's budget cuts, etc. Hersh points out the appalling situation at the Milwaukee County Courthouse when compared to any other court facility in the state. Buting joins in this concern.
Cohen suggests appointing a committee to develop Section focus on membership and recruitment. Buting and Hersh will work with Garcia to develop a plan.
- Newsletter. Buting notes
that
the last Section Newsletter produced by Angela Dirden is just what he
had hoped for. Buting inquires if notice went out to members about the
Newsletter. Garcia will check as to what percentage of the membership
got the Newsletter via the internet and which did not receive a copy.
Koschnick suggests having an opt-out for notice and sending all members
the Newsletter. Dall'Osto urges regular postal mailings of the
Newsletter to those Section members who do not have (or do not accept)
the Newsletter over the internet.
Buting says that Dirden is frustrated that Section Board members have not as was anticipated. Buting and Hersh will mandate article assignments. Dirden wonders whether Newsletter format should be changed. Discussion is had on more frequent shorter version versus longer articles. Hersh is given responsibility to the Newsletter, which will come out in January, April, July and October. Hersh distributes list of article assignments.
- Legislation. Lisa Roys
notes the importance of prompt responses to legislative issues and
requests for input by legislators. Roys suggests that the Section
legislative committee consider changing to mirror what Elder Law
Section does, having small 3-4 member body to filter whether to put
bills out for consideration and vote on Section support or opposition.
Dall'Osto suggests going back to a smaller legislative committee as
well to weed out, prioritize and make recommendations to the Board.
Buting says hold for now and he will monitor with Roys.
In order to take a legislative position, a vote of 8/13 board members is required,
Roys reiterated, so prompt response to her emails is critical to be effective. Roys distributes legislative report which is discussed. A concern about compliance with ethics rules when lobbying was discussed and Garcia and Roys will seek further guidance on its applicability to board members who are government employees.
Rep. Kestell inquired to the Bar about domestic violence TRO abuses, and his inquiry was referred to both Family Law and Criminal Law Sections. Hersh, Vishny, Cohen and Shapiro will follow up on the issue and consult with Family Law Section. Several areas to be considered include: (1) bind the petitioner to the no contact terms of the TRO; (2) provide a defense if the petitioner violates the TRO; and (3) dissolve the TRO if the petitioner violates it.
Roys provides further updates on various bills. The expungement bill is stalled. Roys reviews the legislative proposals the Criminal Law Section has taken positions on. Discussion on recent amendments to the Criminal Justice Reform bill that originated in the Avery Task Force.
Consideration of legislation:
- AB 666 oppose in principle by 8-0 vote
- AB 669 oppose in principle, 6 for, 1 abstain and 1
against
(Schaefer)
- AB 708 tabled for later consideration
- Alibi filing amendment and OWI bills tabled
- AB 666 oppose in principle by 8-0 vote
- Section
Leaders Committee (SLC). Cohen discusses the debate
going on to tax and muzzle sections by imposing a per capita fee for
lobbying and not sharing expenses with all sections. Dall'Osto notes
that this was dealt with and, he recollected, resolved in a compromise
in the early 2000's and will try to find SLC documents on old debate.
Discussion to continue at next board meeting.
- Wisconsin Criminal Justice Commission. Buting
discusses the
composition and make-up of the newly formed commission. There are
several "outside of the box" thinkers on the commission. Topics that
came up initially are dealing with false confessions, crime lab fraud,
training and funding defense counsel for the indigent, the role of
prosecutors and how they make charging decisions and exercise
discretion. Discussion by Commission members was also had on the impact
of Department of Administration case and charge counting as being the
bureaucratic tail that wags the dog of issuing more charges and
overcharging, as well as tunnel vision in investigations and charging.
Buting notes that some prosecutors are concerned about the "CSI Effect" on juries, who expect definitive forensic tests and evidence in every case. A brief discussion ensued and Buting indicated that he will keep the Board apprised of the Commission's work.
- Resignation
of
Board Member Waring Fincke. Buting announced that Board
member and
past-Chairperson
Waring
Fincke has advised him that he is resigning from Section Board.
Fincke's term ends in June 2006. Hersh suggests Dean Strang as a
replacement. Vishny suggests Elliott Levine of LaCrosse. Buting will
talk with Strang and Levin, and with Board member Mutschler to see if
he still has the time and interest to serve on the Board as well. A
nomination and vote will be done by email for Fincke's replacement for
the balance of his term.
- New Business. Dall'Osto
submits articles on
Congressional attempts to further limit habeas corpus and urges Section
to take position opposing same.
The $743 debit noted on August 31, 2005, financial statement is because of an increase in bar administrative services charges approved by Section Leaders Committee (SLC). Discussion on need to increase section fees to $10.25/member versus the $8.25/member cost reflected in financial statement to stay even.
Current Section dues are broken down as:
Cohen moves to increase section admin. services contribution to $10.25/member, Shapiro seconds. Motion approved on voice vote with no dissents.
Adjournment. Section Board meeting adjourned at 9:15 p.m. Next meeting to be in Madison on November 17, 2005.
