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  • WisBar News
    April 10, 2017

    Convicted Burglar was Not Compelled to Be a Witness Against Himself

    Joe Forward

    Supreme Court chamber in Wisconsin State Capitol  

    April 10, 2017 – Police arrested Brian Harris after finding him in a vacant residence with copper piping and the tools to remove it. In jail, a detective asked Harris if he wanted to make a statement. Harris said, “They caught me man, I got nothing else to say.”

    Harris argued that allowing the statement to be used at trial was the equivalent of compelling him to testify against himself, in violation of the U.S. and Wisconsin constitutions, because the detective did not give him any Miranda warnings.

    Recently, in State v. Harris, 2017 WI 31 (April 7, 2017), the Wisconsin Supreme Court (5-2) ruled that the state did not compel Harris to be a witness against himself because the detective was not “interrogating” Harris when he asked about making a statement.

    In a majority opinion, Justice Daniel Kelly said Harris’s statement must be suppressed only if the question qualifies as an interrogation through “express questioning,” or its functional equivalent, which are questions designed to elicit incriminating admissions.

    “Detective Buchanan’s question did not constitute express questioning because it sought nothing that could be potentially incriminating,” Justice Kelly wrote. “Although his question was certainly designed to obtain a response, the only information it sought was whether Mr. Harris would like to make a statement; it did not seek the statement itself.”

    Functional Equivalent

    Even in the absence of expression questioning, Kelly noted, police can create the potential for self-incrimination through techniques of persuasion in a custodial setting.

    “In determining whether Detective Buchanan’s dialogue with Mr. Harris is the functional equivalent of an interrogation, we consider more than just the bare words with which he formed his question,” Justice Kelly wrote.

    “We must construct – as near to verisimilitude as possible – the entire context within which the dialogue took place. Then … we ask whether a reasonable observer would conclude that the suspect in the vignette would understand the officer’s words and actions as reasonably likely to elicit an incriminating response.”

    The majority opinion retraced the circumstances of the arrest leading up to the detective’s questioning, noting police found Harris at the abandoned property after a neighbor complained of noise. Harris then told officers that he was homeless and often broke into vacant homes to sleep and steal materials to sell, like copper piping.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The officers were not questioning Harris when he began a narrative about his criminal activity, which occurred before he received Miranda warnings. In addition, Harris did not appear intoxicated or overly tired, and offered his narrative without police prompting.

    When the detective arrived to interview Harris, a jail corrections officer brought Harris to the main floor without handcuffs. The detective asked Harris if he wanted to make a statement. They were located in a common area, outside the interview rooms.

    “[E]ven if he subjectively understood it otherwise, a reasonable observer would not expect this question, presented in this setting, to convey to Mr. Harris that he was being asked to immediately provide incriminating information,” Justice Kelley wrote.

    The majority rejected Harris’s claim that his emotional state made him particularly vulnerable to police questioning, and the detective should have known this because Harris had provided incriminating information to the arresting officers on scene.

    “Inasmuch as Mr. Harris has not identified any characteristic making him particularly susceptible to law enforcement officers’ persuasion tactics, we will not infer one for him just because he is loquacious,” Justice Kelly wrote.

    Concurrence / Dissent

    Justice Annette Ziegler, joined by Justice Michael Gableman, concurred in the lead opinion’s conclusion with respect to the issue presented. But Ziegler wrote separately “to clarify that the court’s additional writing beyond the narrow question to be answered should not be read to change the law relating to Goodchild inquiries. …”

    Goodchild inquiries, Ziegler noted, examine whether a statement was involuntary, not whether a statement was obtained in custodial interrogation without a Miranda warning.

    “At times, the majority opinion could be read to deviate from the relevant analysis and dabble with considerations relevant to voluntariness, conflating the analysis,” Justice Ziegler wrote. “I join this opinion only if it is read to answer the question of whether this was interrogation, leaving untouched the body of case law which otherwise addresses Miranda and Goodchild.”


    Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley, concluding that Harris was compelled to be a witness against himself.

    First, the dissent was unsure whether a decision could or should be reached when the detective’s precise words were not known. The detective made conflicting statements about the precise words that he used when he met with Harris at the jail.

    “Not knowing what the Detective said to Harris renders the court’s analysis in the instant case weak,” Justice Abrahamson wrote.

    However, the dissent examined the various words noted in the record to conclude it was a violation of Harris’s constitutional rights to let his statement come in at trial.

    “The Detective was well aware that Harris was a very garrulous repeat offender who had already made numerous admissions to the arresting officer,” Abrahamson wrote.

    “Thus the objective observer was on alert that Harris was ‘unusually susceptible’ to the coercive nature of police custody and questioning,” and he should have been Mirandized first. Justice Abrahamson would have remanded the case to assess whether a failure to suppress the evidence at the circuit court level was harmless error.

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