REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANN WALSH BRADLEY, J. The petitioner, State of
Wisconsin, seeks review of a published court of appeals decision reversing the
circuit court's judgment of conviction entered against the defendant, Stanley
Samuel, on charges of sexual assault, abduction, and interference with custody.
The State asserts that the court of appeals erred in concluding that the
same standard for suppressing a defendant's involuntary statement should also
apply when a defendant seeks to suppress an allegedly involuntary statement of
a witness.
¶2 We conclude that the standards are different and that when a
defendant seeks to suppress an allegedly involuntary witness statement, the
coercive police misconduct at issue must be egregious such that it produces
statements that are unreliable as a matter of law. In addition, we determine that when a defendant seeks to suppress
statements under this standard, the proper procedure to follow is set forth in State
v. Velez, 224 Wis. 2d 1, 589 N.W.2d 9 (1999). Finally, we apply the test we have identified to the witness
statements at issue and conclude that they properly were admitted into evidence. Accordingly, we reverse the court of
appeals.
I
¶3 In January 1996, Tisha L., then a minor, left Winnebago County
with Samuel, a 47-year-old friend.
Samuel and Tisha stayed in Milwaukee for about a week, then left
Wisconsin and traveled throughout several Midwestern states. In March 1997, 13 months after they left
Wisconsin, Samuel and Tisha were taken into custody by the State of Missouri.
¶4 Tisha was pregnant, and on March 10, the day after she returned to
Wisconsin, her baby was born. Two days
later, March 12, a hearing was held before a court commissioner at which it was
determined that Tisha would be placed with her father. Further discussion on the issue of placement
of Tisha's baby was left to an intake conference following the hearing. At the conference, Tisha was represented by
an attorney. Others present for all or
part of the conference included City of Oshkosh police officer Steven
Sagmeister, two social workers, Tisha's father, and Cathy Stelzner, his
girlfriend. Although accounts differ as
to what was said at the conference, at some time during or immediately
following the conference, Tisha was told to contact Sagmeister to give him a
statement with regard to "what had happened the previous year." After the conference, Tisha was allowed to go
home with her father and Stelzner, and the baby was temporarily placed in
foster care.
¶5 Tisha's father and Officer Sagmeister made arrangements for Tisha
to meet with Sagmeister on March 13, 1997.
On that day, Tisha gave a tape recorded statement to Sagmeister and one
of the social workers, Rod Schraufnagel, at the police station. She said that she and Samuel had been
sexually active in Winnebago County before they left the state. At the time of that sexual activity, Tisha
was under age 16.
¶6 The next morning, March 14, another hearing was held before the
court commissioner, at which Tisha's baby was returned to her. Following the hearing, Officer Sagmeister
asked Tisha if she would give a second statement because the tape from the
first day had not turned out very well.
Tisha and her father agreed, and Sagmeister and Schraufnagel conducted
another recorded interview with Tisha.
Again, Tisha indicated that she had sexual relations with Samuel in 1995
prior to leaving Winnebago County.
¶7 Tisha gave a third statement on March 21, when Officer Sagmeister
came to her residence. After
questioning Tisha, Sagmeister summarized her answers in a written statement
that Tisha signed. The written
statement shows that Tisha and Samuel first had sexual relations in the middle
of September 1995 and also had sexual relations twice in Milwaukee after
leaving Winnebago County in January 1996.
¶8 Samuel was formally charged with interference with custody,
abduction, and sexual assault of a child.
He moved in limine to suppress all of Tisha's statements. At the hearing on the motion, Samuel argued
that Tisha's statements should be suppressed because they were the result of
police threats or coercion. Tisha, her
father, her attorney, and Stelzner testified with regard to the circumstances
surrounding both the intake conference and the times at which Tisha gave her
statements.
¶9 The circuit court denied the motion, determining that Samuel was
without standing to assert that Tisha's statements were coerced in violation of
her constitutional rights. Instead, the
court concluded, it was for the jury to determine the credibility and weight of
Tisha's statements.
¶10 At trial, the State called Tisha as a witness, and she testified
that she and Samuel had a sexual relationship, but that they did not have
sexual intercourse until March or April 1996, which was months after she left
Wisconsin with Samuel. While Tisha was
still under direct examination, the State proceeded to impeach her with her
prior inconsistent statements:
Q Isn't it also
true, however, Tisha, that you have given three statements prior to this date
which indicated you became sexually active with Mr. Samuel in September of
1995?
A Yes, I think
I did.
The State showed Tisha her
March 21, 1997 written statement and asked her several questions about it. Tisha maintained that she did not remember
saying anything in the statement with regard to when, where, or how often she
and Samuel had sexual relations. She
later testified that the statements were not true, but that she had given them
because she felt pressured to incriminate Samuel at the intake conference.
¶11 Tisha's father, Stelzner, Officer Sagmeister, and Schraufnagel also
gave testimony relevant to the circumstances surrounding Tisha's
statements. Although the witnesses each
had different perceptions as to whether Tisha was improperly pressured, no one
recalled that she was expressly told she would lose her baby unless she
implicated Samuel.
¶12 The jury convicted Samuel on all three charges. Samuel brought a postconviction motion,
again arguing that Tisha's statements should have been suppressed because they
were coerced. The circuit court denied
the motion. The court determined that
regardless of whether Tisha's statements were coerced, Samuel had no standing
to challenge them, and the question of any witness coercion was best left to
the jury.
¶13 Samuel appealed, and the court of appeals reversed. Citing United States v. Gonzales, 164
F.3d 1285, 1289 n.1 (10th Cir. 1999), the court reasoned that police methods of
coercion that are "offensive when used against an accused do not magically
become any less so when exerted against a witness." Referring to the test for involuntariness set
forth in State v. Clappes, 136 Wis. 2d 222, 401
N.W.2d 759 (1987), the court of appeals concluded that the standard for
suppressing a defendant's involuntary statements should also apply to the
suppression of involuntary witness statements.
¶14 In Clappes, 136 Wis. 2d at 236, this court applied a
totality of the circumstances test in order to assess whether confessions are
involuntary. That test requires courts
to "balance the personal characteristics of the defendant against the pressures
imposed upon him by police in order to induce him to respond to the
questioning." Id. In determining whether a confession is
voluntary, the essential inquiry is whether the confession was procured via
police coercion. Id. at
235-36. The court of appeals remanded
Samuel's case for the circuit court to determine whether, under the Clappes
test, Tisha's statements were involuntary.
II
¶15 We are asked to determine the proper standard under which a
witness's involuntary statements must be suppressed at the trial of a criminal
defendant. Whether evidence should be
suppressed is a question of constitutional fact. See State v. Anderson, 165 Wis. 2d 441,
447, 477 N.W.2d 277 (1991); State v. Bermudez, 221
Wis. 2d 338, 346, 585 N.W.2d 628 (Ct. App. 1998). In reviewing questions of constitutional
fact, we uphold a circuit court's factual findings unless clearly erroneous,
but we independently determine whether those facts meet the constitutional
standard. State v. Dagnall, 2000
WI 82, ¶27, 236 Wis. 2d 339, 612 N.W.2d 680; State v.
Phillips, 218 Wis. 2d 180, 189-90, 577 N.W.2d 794 (Ct. App.
1998).
¶16 In making our determination of whether Tisha's statements should
have been suppressed, we consider in turn the standards advanced by the State
and Samuel. However, we conclude that
neither standard strikes the proper balance between the Fourteenth Amendment's
guarantee of due process and the fact that witness statements that are in some
sense compelled are frequently neither unreliable nor the product of egregious
police misconduct. In steering a course
between the positions advanced by the parties and using due process as our
guide, we recognize there are circumstances under which egregious police
misconduct deprives the defendant of a fair trial.
III
¶17 The State contends that a defendant's right to due process is
offended only where witness statements are extracted by "extreme coercion
or torture." United States v.
Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984). It argues that absent such extreme circumstances, it is the
jury's role to weigh and assess credibility.
Samuel asserts that involuntary witness statements should be subject to
the same rule of suppression as a criminal defendant's involuntary
confession. See Clappes,
136 Wis. 2d at 222. He argues that a
defendant's Fourteenth Amendment due process right to a fair trial bars the
admission of all involuntary witness statements that are the product of police
coercion.
¶18 With due process as our touchstone, we turn first to the standard
advanced by the State. We are not
convinced, as the State asserts, that a defendant's right to due process will
be offended only where the witness statements used against the defendant derive
from police conduct that amounts to extreme coercion or torture. The "blood of the accused is not the
only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S. 199,
206 (1960); see also Raphael v. State, 994 P.2d 1004, 1008 (Alaska
2000). Although the United States
Supreme Court in Blackburn was referring to the defendant, we similarly
decline to hold that the blood of a witness is a necessary hallmark of an
unconstitutional trial. Instead, we
determine there are circumstances where witness statements derived by egregious
police misconduct short of extreme coercion or torture must be suppressed in
order to uphold fundamental fairness to a defendant. In short, we reject the State's test as setting the bar too high
to satisfy due process.
¶19 Next, we turn to the standard advanced by Samuel, that witness
statements should be suppressed based on the same test as applied to a
defendant's confession. We begin by
examining the rights protected along with the purposes served by the
suppression of involuntary confessions.
It is well established that confessions by criminal defendants must be
voluntary in order to be admitted as evidence at trial. See State v. Hunt, 53
Wis. 2d 734, 740, 193 N.W.2d 858 (1972); see also Lynumn
v. Illinois, 372 U.S. 528, 534 (1963).
¶20 The rule requiring suppression of involuntary confessions has long
been grounded in the defendant's due process rights. See Brown v. Mississippi, 297 U.S. 278, 286
(1936). In addition, in Malloy v.
Hogan, 378 U.S. 1, 7 (1964), and Miranda v. Arizona, 384 U.S. 436,
464 n.43 (1966), the Supreme Court linked the rule to the Fifth Amendment right
against self-incrimination.
¶21 Several related purposes have been cited in support of the
rule. These include the
"deep-rooted feeling that the police must obey the law while enforcing the
law," Arizona v. Fulminante, 499 U.S. 279, 293 (1991); the notion
that the government should be required to produce evidence against the accused
"by its own independent labors rather than by the cruel, simple expedient
of compelling it from his own mouth," Miranda, 384 U.S. at 460;
and, a concern that statements that are the product of coercion are more likely
to be inherently untrustworthy than voluntary statements, Spano v. New York,
360 U.S. 315, 320 (1959).
¶22 These rights and purposes do not all apply when a defendant seeks
to suppress involuntary witness statements.
See LaFrance v. Bohlinger, 499 F.2d 29, 33-34 (1st Cir.
1974); State v. Vargas, 420 A.2d 809, 814 (R.I. 1980). A nondefendant witness's right against
self-incrimination generally is not in play at the trial of the defendant. "When the defendant seeks to exclude
the fruit of the coerced statement of another . . . the
policy of protecting the defendant from being compelled to aid the state in
convicting him is not at stake." People
v. Badgett, 895 P.2d 877, 886 (Cal. 1995).
Likewise, the idea that the government must produce evidence by its own
independent labors rather than by compelling it from the mouth of the accused
does not seem to justify the suppression of statements by those other than the
accused.
¶23 Therefore, we disagree with Samuel that the Clappes test
governing involuntary confessions can alone dictate the standard for
suppression of involuntary witness statements. Because the rights protected and the purposes served by
suppression of a defendant's confession do not all apply when considering the
suppression of a witness's statement, something additional is needed before a
witness's statement will be suppressed.
The Clappes test sets the bar for suppression of witness
statements too low. Although we agree
that the suppression of witness statements requires that those statements be
involuntary under Clappes, it also requires something more.
¶24 Often, witness statements that are in some sense compelled are
neither inherently unreliable nor the product of police misconduct. For example, we have held that, as a general
rule, a defendant's right to a fair trial is not violated by the admission of
testimony by a defendant's accomplice even where the State has expressly
granted concessions to the accomplice in exchange for the testimony. State v. Nerison, 136
Wis. 2d 37, 45, 401 N.W.2d 1 (1987).
"[C]ross-examination, not exclusion, is the proper tool for
challenging the weight and credibility of accomplice testimony." Nerison, 136 Wis. 2d at 45;
see also State v. Miller, 231 Wis. 2d 447, 465, 605
N.W.2d 567 (Ct. App. 1999).
¶25 A rule suppressing witness statements must recognize the
admissibility of evidence such as accomplice testimony and also protect a
defendant's due process right to a fair trial.
Although we have rejected Samuel's test as setting the bar too low, we
acknowledge that some of the purposes served by the suppression of involuntary
confessions apply equally in the context of involuntary witness
statements. Both the maxim that police
obey the law while enforcing the law and the need to avoid convictions based on
inherently unreliable evidence apply whether the statements at issue spring
from the mouth of the criminally accused or another. Although there is no "absolute parallel" between
involuntary confessions and involuntary witness statements, LaFrance,
499 F.2d at 35, there is a point at which some of the same considerations apply
to both.
¶26 In United States v. Merkt, 764 F.2d 266, 274 (5th Cir.
1985), the Fifth Circuit Court of Appeals acknowledged that the fact that
witnesses' statements were themselves unlawfully obtained was not alone
sufficient to necessitate suppression.
Instead, the Fifth Circuit determined that it was "egregious"
intimidation and coercion of witnesses that would prompt the suppression of
their statements. Id. at 275. Under such circumstances, "the
government's investigation methods result[] in a fundamentally unfair
trial." Id. at 274. In Merkt, the court discussed United
States v. Fredericks, 586 F.2d 470, 481 n.14 (5th Cir. 1978), in which it
had reasoned that the fundamental fairness essential to due process is
undermined when a witness's statement is obtained through "shocking and
intentional" police misconduct.
¶27 Likewise, this court has recognized that it is when police
misconduct rises to an "egregious" level that it offends due
process. State v. Hanson, 136
Wis. 2d 195, 211, 401 N.W.2d 771 (1987) (citing Moran v.
Burbine, 475 U.S. 412, 432 (1986)).
In Hanson, we concluded that when a suspect has not invoked his
Fifth Amendment right to counsel, police may withhold information that there is
an attorney available asking to see him.
However, we cautioned, as did the Supreme Court in Burbine, that
"on facts more egregious than those
presented . . . police deception might rise to a level of a
due process violation." Hanson,
136 Wis. 2d at 211 (quoting Burbine, 475 U.S. at 432).
¶28 Similarly, in Badgett, 895 P.2d at 887, the California
Supreme Court concluded that in order for defendants to assert violations of
their due process rights, they must allege that the coercive methods used to
obtain a witness statement were such that they would actually affect the
reliability of the evidence presented at trial. The court explained that "[t]estimony of third parties that
is offered at trial should not be subject to exclusion unless the defendant
demonstrates that improper coercion has impaired the reliability of the
testimony." Id.
¶29 As this court has observed in the context of involuntary
confessions, although they may in some cases be unreliable, in other cases they
are reliable. See State v. Agnello, 226
Wis. 2d 164, 173, 593 N.W.2d 427 (1999); J.G. v. State, 119
Wis. 2d 748, 760, 350 N.W.2d 668 (1984). The same can be said of involuntary witness
statements. Involuntary confessions are
suppressed regardless of the truthfulness of a confession in an individual
case. See Lego v. Twomey, 404 U.S. 477,
484-85 (1972); Agnello, 226 Wis. 2d at 173. However, because a defendant's right against self-incrimination
is not at issue with regard to statements by others, the suppression of those
statements at the defendant's trial demands a more rigorous standard.
¶30 With due process as our touchstone, we conclude that when a
defendant seeks to suppress witness statements as the product of coercion, the
police misconduct must be more than that set forth in Clappes. It must be egregious such that it produces
statements that are unreliable as a matter of law. The coercion must be egregious because, as we have shown, it is
typically "egregious" police misconduct that offends due
process. Our concern is with police
misconduct that, by its nature, undermines confidence in the reliability of a
witness's statements. Witness
statements obtained by police methods that induce lying have no place in our
system of justice because a conviction based on unreliable evidence undermines
the fundamental fairness of a defendant's trial. In short, due process demands that the State not marshal its
resources against an accused in a manner that results in a conviction based on
unreliable evidence obtained through egregious police practices.
¶31 Upon an examination of the case law and the parties' arguments, we
glean several factors to consider in determining whether police misconduct is
egregious such that it produces statements that are unreliable as a matter of
law. These factors include (1) whether
a witness was coached on what to say; (2) whether investigating authorities
asked questions blatantly tailored to extract a particular answer, see Gonzales,
164 F.3d at 1289; (3) whether the authorities made a threat with consequences
that would be unlawful if carried out, see United States v. Tingle,
658 F.2d 1332, 1335-36 (9th Cir. 1981);
(4) whether the witness was given an express and unlawful quid pro quo; (5)
whether the State had a separate legitimate purpose for its conduct, Tingle,
658 F.2d at 1337; and, (6) whether the witness was represented by an attorney
at the time of the coercion or statement, see Merkt, 764 F.2d at
269. The presence of the first four
factors weighs in favor of suppression while the presence of the second two
factors weighs against it. Application
of these and other relevant factors will help to ensure that it is unreliable
evidence that is suppressed. It will
also help to guarantee that the State does not obtain convictions based on
practices that offend fundamental fairness.
¶32 In cases where an application of the factors results in a
determination that witness statements at issue will not be suppressed, the
defendant nevertheless retains the ability to test the credibility of the
witness statements through, among other approaches, cross-examination before
the jury. See Nerison,
136 Wis. 2d at 45.
Cross-examination is an essential tool for "sifting the conscience
of the witness" and thereby protecting a defendant's rights at trial. State v. Bauer, 109
Wis. 2d 204, 208 n.3, 325 N.W.2d 857 (1982) (citing Mattox v.
United States, 156 U.S. 237, 242-43 (1895)). The jury, of course, has the duty to scrutinize and weigh the
testimony of witnesses and to determine the effect of the evidence as a
whole. See Hampton v. State,
92 Wis. 2d 450, 462, 285 N.W.2d 868 (1979); Wis JI——Criminal 300. These safeguards——cross-examination and the
jury's role in weighing the evidence——help ensure a fair trial where due
process does not require the suppression of witness statements.
IV
¶33 We next address the proper procedure for circuit courts and parties
to follow when a defendant wishes to assert that witness statements should be
suppressed under the standards we have identified. Both Samuel and the State refer to Velez, 224 Wis. 2d
1, as providing a model procedure. The
issue presented in Velez was whether a defendant is entitled to an
evidentiary hearing upon an allegation that the State intentionally
"manipulated the system" to avoid juvenile court jurisdiction and
charge a defendant as an adult. Id.
at 6. In Velez, as here, it was
the defendant's due process rights that were at issue. See id. at 14.
¶34 Therefore, we agree with the parties that the procedures outlined
in Velez should be applied in this case. As the circuit court correctly observed in its decision on Samuel's
suppression motion, although the jury is normally the sole judge of the
credibility and weight given to witness statements,
[e]xceptions are made where a threshold finding is made
by the court, since presentation to the jury would expose them to evidence
which might be otherwise barred by constitutional principles.
The Velez procedures
will protect a defendant's due process rights while also preserving scarce
judicial resources by eliminating unnecessary evidentiary hearings. See 224 Wis. 2d at 12.
¶35 Under Velez, first the defendant must bring a motion to
suppress, alleging facts sufficient to show that a statement was involuntary
under Clappes and that the police misconduct at issue is egregious such
that it produces statements that are unreliable as a matter of law. See Velez, 224
Wis. 2d at 18. If the motion
alleges facts which, if true, would entitle the defendant to relief, then the
circuit court must hold an evidentiary hearing. Id.; see also State v. Bentley, 201
Wis. 2d 303, 310, 548 N.W.2d 50 (1996). However, if the motion does not allege
sufficient facts, the circuit court has the discretion to deny an evidentiary
hearing upon a finding that any one of the following circumstances is
present: (1) the defendant failed to
allege sufficient facts in the motion to raise a question of material fact; (2)
the defendant presented only conclusory allegations; or (3) the record
conclusively demonstrates that the defendant is not entitled to relief. Velez, 224 Wis. 2d at
17-18.
¶36 Even where the defendant has not met this initial burden of
production and the circuit court has the discretion to deny an evidentiary
hearing, in order to properly exercise that discretion, it must "carefully
consider the record, the motion, counsels' arguments and/or offers of proof,
and the law." Velez, 224
Wis. 2d at 17 (quoting State v. Garner, 207 Wis. 2d 520,
534-35, 558 N.W.2d 916 (Ct. App. 1996)).
Moreover, when there is a reasonable possibility that the defendant will
establish the factual basis at an evidentiary hearing, the circuit court must
provide the defendant with the opportunity to develop the record. Id. at 18.
¶37 In other words, there will be cases where the court cannot properly
exercise its discretion in denying an evidentiary hearing without first holding
a nonevidentiary hearing on the defendant's motion to suppress. See Velez, 224 Wis. 2d at
17. The facts that the defendant must
establish and the determinations the circuit court must make will be informed
by the standard and factors we have identified.
¶38 We must also address the question of who bears the burden of
persuasion once the defendant has established a factual basis necessitating an
evidentiary hearing. Samuel argues that
the burden of persuasion should lie with the State, but acknowledges that the
level of that burden is the preponderance of the evidence. We agree.
¶39 In Velez, this court suggested that due process was not
offended by placing a burden of production on the defendant because the State
bore the ultimate burden of persuasion with regard to the government misconduct
at issue. See 224 Wis. 2d at
16. Where a defendant makes a prima
facie showing that a confession is involuntary, the State bears the burden of
proving, by the preponderance of the evidence, that it is not. Agnello, 226 Wis. 2d at
179; State v. Williams, 220 Wis. 2d 458, 463, 583
N.W.2d 845 (Ct. App. 1998).
Although we have identified a different substantive test for the
suppression of witness statements, given Velez and the rule on the
burden of proof for confessions, we discern no need to inject a different rule
into our due process jurisprudence. The
burden of persuasion lies with the State, and the burden the State must meet is
a preponderance of the evidence.
V
¶40 As noted earlier, the question of whether evidence must be
suppressed under a constitutional standard is ultimately a question that this
court determines independently. Anderson,
165 Wis. 2d at 447. Upon an
examination of the record in this case, we conclude as a matter of law that
Tisha's statements should not have been suppressed. No reasonable view of the evidence can support the conclusion
that Tisha's statements were coerced by egregious methods that produced
statements unreliable as a matter of law.
Indeed, the circuit court at the postconviction motion hearing, after
hearing all of the evidence, opined that Tisha's statements were not the
product of police coercion. The circuit
court stated:
[A]nd in this case, in all honesty, the Court wouldn't
be able to even find coercion. This is a totally different type of
circumstance than say a witness comes in and she's a mother and the police say
if you don't tell us what we want to hear, we're taking your child.
This is a case in which the
mother was a minor on the run, who gave birth while on the run and was
subsequently returned. It was her acts for which the child was initially
taken into custody . . . it was her acts beforehand which
led to originally there being an issue as to whether the child would remain
with her or not. And in light of the fact as well that she was not told
what to say but just to cooperate here, doesn't to this court say that it's
been inferred that she has to say what they want her to say or she won't get
her child back.
¶41 Nonetheless, we apply the factors we have identified, ultimately
arriving at the same result as the circuit court. We first note that there is little if any
credible evidence that Tisha was specifically coached on what to say or that
the authorities' questions were blatantly tailored in order to compel her to
implicate Samuel. On the contrary,
Tisha's father testified that neither Officer Sagmeister nor the social worker,
Schraufnagel, told Tisha that she needed to say anything in particular in order
to get her baby back. Tisha's testimony
focused on the fact that she was repeatedly told she had to "cooperate"
in general. Although at one point in
her testimony she indicated that someone said she would not get her baby back
until she implicated Samuel, when pressed, she could not remember who had said
this or whether those were the exact words the speaker had used.
¶42 Similarly, the record does not show that authorities ever expressly
threatened Tisha with the loss of her baby, although that was a possibility
regardless of whether Tisha implicated Samuel.
Stelzner testified that she thought there was "blackmail"
involved, but was unable to explain in any detail why she so believed. The record does not show that anyone
presented Tisha with an illegal quid pro quo, such as a promise that she would
be able to keep her baby if she agreed to implicate Samuel. In addition, the factor of representation by
counsel does not weigh strongly in favor of either Samuel or the State. Although Tisha was represented by an
attorney at the intake conference, she was not represented at other times in
which Samuel alleges she was coerced.
¶43 Finally, and perhaps most convincingly in this case, the
authorities involved had a separate legitimate purpose for questioning Tisha
with regard to Samuel. They needed to
determine the proper placement of her baby, which depended on an assessment of
whether she was a flight risk and whether she could be trusted to care properly
for her newborn child. Although we
recognize there may be cases where a legitimate purpose for questioning a witness
is transformed into an illegitimate pretext for a criminal investigation, the
record in this case does not support such a conclusion.
VI
¶44 In sum, the test for the suppression of witness statements is a Clappes-plus
test. The court, in Clappes,
applied a totality of the circumstances test when assessing whether a
defendant's confession is voluntary.
The Clappes test requires a court to look at both the defendant’s
response as well as the police misconduct, and to "balance the personal
characteristics of the defendant against the pressures imposed upon him by the
police in order to induce him to respond to the questioning." 136 Wis. 2d at 236.
¶45 Because the rights protected and the purposes served by suppression
of a defendant's confession do not all apply when considering the suppression
of a witness's statement, something more is needed before a witness's statement
will be suppressed. That something more
is the degree of police misconduct.
¶46 Thus, as in Clappes, a totality of circumstances test is
applied when considering the suppression of a witness statement. The personal characteristics of a witness
must be balanced against the conduct of the police in pressuring a witness in
order to induce a response. However, we
determine that when a defendant seeks to suppress witness statements as
involuntary, the coercive police misconduct must be greater than that necessary
under Clappes for the suppression of a defendant's confession: it must be egregious such that it produces
statements that are unreliable as a matter of law.
¶47 In addition, we determine that where the defendant seeks to
suppress witness statements, the parties must follow the procedure set forth in
Velez. Finally, we conclude that
on the record before us, Tisha's statements were not derived from egregious
police misconduct that would produce statements unreliable as a matter of law. Accordingly, we reverse the court of
appeals.
By the Court.—The decision of the court of
appeals is reversed.
