2021 WI 63
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2220-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Adam W. Vice,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 392 Wis. 2d 754,946 N.W.2d 206
PDC No:2020 WI App 34 - Published
OPINION FILED: June 16, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 9, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washburn
JUDGE: John P. Anderson
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL BRADLEY, and
DALLET, JJ., joined, and in which HAGEDORN, J., joined except
for ¶25 and footnote 14. HAGEDORN, J., filed a concurring
opinion.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., withdrew from participation.
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Kara L. Janson, assistant attorney general; with whom on
the brief was Joshua L. Kaul, attorney general. There was an oral
argument by Kara L. Janson.
For the defendant-respondent, there was a brief filed by
Frederick A. Bechtold; Taylors Falls, Minnesota. There was an oral
argument by Frederick A. Bechtold.
An amicus curiae brief was filed on behalf of The Innocence
Project, Inc., The Center on Wrongful Convictions of Youth, and
the Wisconsin Innocence Project by Carrie Sperling, Keith Findley,
and University of Wisconsin Law School, Madison; with whom on the
brief was Lauren Gottesman; New York, New York.
2
2021 WI 63
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2220-CR
(L.C. No. 2014CF162)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner,
FILED
v. JUN 16, 2021
Adam W. Vice, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
KAROFSKY, J., delivered the majority opinion of the Court, in which
ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL BRADLEY, and DALLET,
JJ., joined, and in which HAGEDORN, J., joined except for ¶25 and
footnote 14. HAGEDORN, J., filed a concurring opinion.
ANN WALSH BRADLEY, J., withdrew from participation.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 JILL J. KAROFSKY, J. This case is about a post-
polygraph interview. We are tasked with deciding whether the
circuit court1 erred when it granted Adam Vice's motion to
The Honorable John
1 P. Anderson of the Washburn County
Circuit Court presiding.
No. 2018AP2220-CR
suppress, concluding that the statements he made during a post-
polygraph interview were involuntary. The court of appeals2
affirmed the decision of the circuit court, and now the State seeks
review.
¶2 We conclude that the statements Vice made during his
post-polygraph interview are admissible because: (1) the
interview was discrete from the polygraph examination; and (2) the
statements were not the product of police coercion, and therefore
were voluntary. Accordingly, we reverse the decision of the court
of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶3 On December 4, 2014, Investigator William Fisher of the
Washburn County Sheriff's Department——who was investigating child
sexual assault allegations in which a four-year-old girl reported
to her caregiver that Vice had sexually assaulted her——met with
Vice at Vice's workplace. During their meeting, Vice denied any
wrongdoing and discussed with Fisher whether "there was anything
[Vice] could do to clear [his] name." Fisher suggested that Vice
take a polygraph examination; Vice agreed to do so. Four days
later, Vice called Fisher to arrange the polygraph examination.
It was scheduled for 10:00 a.m. on December 11 at the Eau Claire
Police Department. Because Vice did not have his own
transportation, he accepted Fisher's offer of a ride to the
examination.
2 State v. Vice, 2020 WI App 34, 392 Wis. 2d 754, 946
N.W.2d 206.
2
No. 2018AP2220-CR
A. The Polygraph Examination
¶4 On December 11, Fisher arrived at Vice's residence in an
unmarked police car to find Vice waiting for him outside. At
Fisher's invitation, Vice sat in the front seat of the car. Fisher
reminded Vice that he did not have to take the polygraph
examination, and that his participation was voluntary. Vice was
not handcuffed. Vice and Fisher did not discuss the sexual assault
allegations or the upcoming polygraph examination during the
drive, which lasted slightly less than two hours.
¶5 Upon arriving at the police station, Eau Claire Police
Detective Ryan Lambeseder escorted Vice to the polygraph
examination room, while Fisher went to an observation room. Prior
to the start of the polygraph examination, Vice signed a "Waiver
of Rights" form that recited his Miranda rights.3 He also signed
a "Polygraph Examination Consent" form, which Lambeseder read
aloud to him, indicating that he "voluntarily: without threats,
duress, coercion, force, promises of reward or immunity, agree[d]
and stipulate[d] to submit to take a polygraph (truth verification)
examination."4
3 Miranda v. Arizona, 384 U.S. 436 (1966).
4 The form stated:
I fully realize that: I am not required to take this
examination, I may remain silent the entire time I am
here, anything I say can be used against me in a court
of law, I may first consult with an attorney or anyone
I wish to before either signing this form or taking the
examination, I may have an attorney present, if I cannot
afford an attorney and desire one, an attorney will be
appointed for me prior to any questioning, and I have
3
No. 2018AP2220-CR
¶6 Lambeseder also reviewed with Vice the Eau Claire Police
Department Polygraph Examination Data Sheet and wrote down Vice's
answers. Vice described his physical condition at the time as
"average" and stated that he:
was experiencing no discomfort;
had eaten in the last 24 hours;
had slept fairly for eight or more hours the night
before;
had no problems with high blood pressure or seizures;
had not consumed alcohol or drugs in the previous 24
hours;
had a high school education;
had been arrested once before; and
had never seen a psychologist or psychiatrist.
¶7 The polygraph examination lasted one hour and 45
minutes. During that time, Lambeseder never raised his voice,
threatened Vice, or made any promises to him, and Vice made no
admissions of wrongdoing. After the polygraph examination
concluded, Vice again signed the Polygraph Examination Consent
Form.5
the opportunity to exercise all these rights at any time
I wish to during the entire time I am here. Further,
that I can pick and choose the questions I wish to answer
and can stop the interview at any time I wish.
5 The form stated:
This examination was concluded at 11:40 a[.]m[.] on
[December 11, 2014]. I completely reaffirm, in its
entirety, my above agreement. In addition, I knowingly
4
No. 2018AP2220-CR
B. The Post-Polygraph Interview
¶8 Once Vice signed the second form, Lambeseder escorted
him to a separate interview room. Vice sat at a small table,
facing the door with a wall behind him. Fisher and Lambeseder
joined him ten to 15 minutes later to commence the interview.
¶9 Over the course of the approximately 45-minute
interview, Fisher and Lambeseder made at least 11 references to
Vice's polygraph results.6 The first four references took place
immediately, when Lambeseder told Vice, "You didn't pass the exam."
Lambeseder continued: "[T]he questions regarding [the victim],
it's very clear, Adam, that you weren't telling the truth . . . .
And I can tell on that exam, okay?" The fifth reference occurred
soon after, when Vice asked if it was possible that he "blacked
out" and Lambeseder responded, "You do remember doing it, otherwise
you wouldn't react the way you did on the exam, okay?" The next
three references occurred intermittently over the next few
minutes, and referred to Vice's "reactions" without specifically
referencing the polygraph examination. For example, "It's not
blocked out . . . because you've reacted".
and intelligently continue to waive my rights . . . and
I willingly made all statements that I did make. I also
understand that any questions I may be asked after this
point in time, and any answers that I may give to those
questions, are not part of the polygraph examination.
6 The circuit court found that between the two of them, Fisher
and Lambeseder made a total of 11 references to Vice's polygraph
examination and to polygraph examinations generally. Vice, 392
Wis. 2d 754, ¶36. We accept this factual finding by the circuit
court.
5
No. 2018AP2220-CR
¶10 About a minute later (eight minutes into the interview),
Vice offered his first inculpatory statement in response to
Fisher's assurances that the criminal justice system would address
his case more leniently if the assault was "an isolated mistake"
and Vice "underst[ood] that he messed up." Vice's initial
statement admitting to the assault was responsive to Lambeseder
telling Vice to "[b]e truthful." Vice said, "It's going to sound
really shitty for me to say this right now, but I sexually
assaulted [the victim]." Two minutes later (ten minutes into the
interview) Vice stated, "I'll admit that I must have did it because
obviously the test says that I did it, but I don't physically
remember," in response to which Lambeseder made the ninth
reference: "Try, okay . . . . If we believe that you didn't
remember, we wouldn't be talking to you about this, you know?"
¶11 Vice then began making statements regarding his access
to the victim. About six minutes later (16 to 17 minutes into the
interview), Lambeseder made the tenth reference, stating, "it
shows on the test that you remember, okay?" Lambeseder then
informed Vice that the victim disclosed details about Vice's
conduct by both describing and physically demonstrating how he
assaulted her. Lambeseder urged Vice to tell the truth and to
take responsibility so that Vice and the victim could both get
help. The officers offered to ask Vice direct questions with "yes"
or "no" answers so that the interview would be easier for Vice,
and he accepted that offer. Vice then began providing details
about the sexual assault itself, over a period of about eight
6
No. 2018AP2220-CR
minutes, in response to the officers' specific questions and
without any reference to the polygraph examination.
¶12 Around 30 minutes into the interview, after Vice
provided numerous details about the assault, Fisher made the 11th
and final reference to the polygraph examination. He mentioned
Lambeseder's experience "working with the polygraph things" to
show Lambeseder's familiarity with "the techniques people use" to
avoid admitting responsibility for sexual assaults, but Fisher did
not mention Vice's polygraph results. While Vice repeatedly
claimed not to remember whether he had sexually assaulted the
victim, at no point during the interview did Vice deny outright
having done so.
¶13 For the last 12 minutes of the interview, neither officer
referenced the polygraph results as Vice continued to answer direct
questions about the assault. Vice responded with admissions and
details such as what the victim was wearing, that he had been
drinking and playing video games the night of the incident, and
how he committed the assault.
¶14 At no time during the post-polygraph interview did
either officer:
raise his voice or use a hostile tone when speaking to
Vice;
make any threats or promise any inducements in order to
elicit Vice's statements; or
inform Vice that polygraph results are inadmissible in
court.
7
No. 2018AP2220-CR
At the conclusion of the interview, Vice was not arrested; instead
Fisher drove him home and he once again sat in the front seat.
C. Procedural History
¶15 The day after the interview, the State filed a criminal
complaint charging Vice with one count of sexual contact with a
person under the age of 13, contrary to Wis. Stat. § 948.02(1)(e)
(2019-20).7 Vice filed a motion to suppress as involuntary all of
the statements he made during his post-polygraph interview,
arguing that the tactics used in that interview were coercive "for
one simple legal and factual reason[:] the detectives repeatedly
told [him] he failed the polygraph examination before getting the
statement they wanted." Vice never argued during the suppression
proceedings that the polygraph examination and the post-polygraph
interview were not discrete events.8
¶16 The circuit court suppressed Vice's statements, finding
that "the State made a number of references to a failed polygraph
at both times, and under certain circumstances, they created a
coercive environment . . . that becomes the fatal flaw in the
7While Vice was convicted based on conduct that occurred in
2014, the statutory provisions under which he was convicted have
not substantively changed. Therefore, we cite to the current
version of the Wisconsin Statutes. Unless otherwise noted,
subsequent references to the Wisconsin Statutes are to the 2019-
20 version.
8In his August 2015 motion to suppress, Vice argued only that
his statements were involuntary. At the September 2015 suppression
hearing, Vice's counsel conceded discreteness, stating that "the
police got it half right. You're supposed to take the polygraph
[examination] and [interview] separate. They did that right."
8
No. 2018AP2220-CR
totality of the circumstances of this confession." The State
appealed.
¶17 For the first time on appeal, and contrary to his
argument to the circuit court at the suppression hearing, Vice
argued that his post-polygraph interview should be suppressed
because his polygraph examination and post-polygraph interview
were not discrete events. The court of appeals ruled that Vice
was judicially estopped from arguing that the interview and the
preceding polygraph examination were not discrete events.
Additionally, it determined that the circuit court erroneously
concluded that the references to Vice's failed polygraph
examination alone rendered his statements involuntary. The court
of appeals instructed the circuit court to make sufficient factual
findings on the record to support a totality-of-the-circumstances
analysis regarding the voluntariness of Vice's statements. State
v. Vice, No. 2015AP2558-CR, unpublished slip op., ¶¶1, 21, 26-27
(Wis. Ct. App. Sept. 13, 2016).
¶18 On remand, the circuit court balanced factors weighing
for and against the voluntariness of Vice's statements and
determined that Vice was "overwhelmed by the somewhat coercive
pressuring nature of the overt references to the failed test and
[Lambeseder's] participation in that." The circuit court
concluded that Vice's statements were involuntary because of the
officers' multiple references to his polygraph results.
¶19 The State again appealed. The court of appeals exercised
its discretion to consider the merits of Vice's discreteness
argument despite its conclusion that judicial estoppel applied,
9
No. 2018AP2220-CR
and determined that the polygraph examination and subsequent
interview were discrete events. State v. Vice, 2020 WI App 34,
¶¶45-46, 48, 392 Wis. 2d 754, 946 N.W.2d 206. The court of appeals
also affirmed the circuit court's decision to suppress Vice's post-
polygraph statements as involuntary, concluding that although
neither Vice's personal characteristics nor the circumstances
surrounding the interview rendered Vice's statements involuntary,
the officers': (1) multiple references to the polygraph results;
(2) assertions that those results indicated that Vice remembered
committing the offense; (3) failure to contradict Vice's statement
that he must have committed the assault because the polygraph
results indicated that he had; and (4) failure to inform Vice that
the polygraph results would be inadmissible in court were coercive
methods used to overcome Vice's ability to resist. Id., ¶¶60,
80.9
¶20 The State petitioned this court for review, which we
granted.
II. STANDARD OF REVIEW
¶21 We review the court of appeals' decision affirming the
circuit court's decision to suppress Vice's statements. In
reviewing a motion to suppress, we ordinarily apply a mixed
standard of review, upholding any findings of fact unless clearly
erroneous, but independently considering whether those facts show
The dissent disagreed with the majority's conclusion that
9
the totality of the circumstances established that Vice's
statements were involuntary, concluding that the officers did not
use coercive or improper police tactics. Vice, 392 Wis. 2d 754,
¶96 (Hruz, J., dissenting).
10
No. 2018AP2220-CR
a constitutional violation. State v. Young, 2006 WI 98, ¶17, 294
Wis. 2d 1, 717 N.W.2d 729. Because this case does not challenge
any factual findings, but presents only whether Vice's statements
were voluntary, our review is de novo. Id.
III. ANALYSIS
¶22 We begin our analysis by discussing the law as it relates
to statements made during post-polygraph interviews and the use of
polygraph results during those interviews. Next, we address
whether Vice's post-polygraph interview was discrete from his
polygraph examination. We then review the general standards for
establishing whether statements are voluntary, focusing on the
issue of coercion or improper police conduct——a prerequisite for
involuntariness. We then apply that voluntariness analysis to the
specific facts in this case and examine the four police tactics
Vice contends, and the court of appeals concluded, rendered his
statements involuntary. We finish by assessing the circumstances
surrounding the post-polygraph interview to determine if the
officers engaged in any other coercive practices that would render
Vice's statements involuntary.
A. Use of Polygraph Results in Post-Polygraph Interviews
¶23 Polygraph results themselves, as well as statements made
by suspects during polygraph examinations, are generally
inadmissible in court. Wis. Stat. § 905.065(2). Despite this
general rule of inadmissibility, both suspects and law enforcement
officers place reliance on polygraph examinations. Suspects
voluntarily submit to polygraph examinations in an effort to lift
the cloud of suspicion. State v. Greer, 2003 WI App 112, ¶9, 265
11
No. 2018AP2220-CR
Wis. 2d 463, 666 N.W.2d 518. Law enforcement uses polygraph
examination as an investigative tool in criminal cases. See, e.g.,
Wyrick v. Fields, 459 U.S. 42, 43-46 (1982); Maryland v. Shatzer,
559 U.S. 98, 101-102 (2010).10
¶24 Statements made during a post-polygraph interview are
admissible into evidence when they satisfy the two-part test we
established in State v. Davis, 2008 WI 71, ¶21, 310 Wis. 2d 583,
751 N.W.2d 332.11 The first part of the test is determining whether
the post-polygraph interview was a discrete event from the
polygraph examination. Id., ¶21. That is, whether the post-
polygraph interview is "so closely associated with the [polygraph
examination] that the [examination] and statement[s] are one event
Law enforcement——particularly in the context of child
10
sexual exploitation investigations——identifies polygraph
examinations as an important tool in helping to uncover crimes of
sexual abuse. Jason Scheff, Disproving the "Just Pictures"
Defense: Interrogative Use of the Polygraph to Investigate Contact
Sexual Offenses Committed by Child Pornography Suspects, N.Y.U.
Ann. Surv. Am. L. 603, 605 (2013). The polygraph examination is
a particularly important tool with regard to sex offenders because
of the secrecy and denial that often accompany those offenders'
behavior. Id. at 631. It is often the case that disclosures of
these types of offenses only occur after a failed polygraph
examination. Id. at 626. And convicted sex offenders in Wisconsin
may be required to submit to polygraph testing as part of their
correctional programming or care and treatment. See Wis. Stat.
§ 301.132(2).
In Davis, we addressed a situation in which a suspect
11
consented to a voice stress analysis rather than a polygraph
examination prior to making an inculpatory statement, but we
determined that the same legal principles apply equally to both
types of examinations. State v. Davis, 2008 WI 71, ¶20, 310 Wis.
2d 583, 751 N.W.2d 332.
12
No. 2018AP2220-CR
rather than two events." Id., ¶2. The second part of the Davis
test is whether the post-polygraph statements are voluntary under
ordinary constitutional due process considerations. Id., ¶35.12
We will address each of these two parts in turn, first determining
whether Vice's post-polygraph interview was discrete from his
polygraph examination, and then whether the statements Vice made
during that interview were the result of impermissible police
coercion, and therefore involuntary.
B. Discreteness
¶25 We first determine whether Vice's post-polygraph
interview was a discrete event from his polygraph examination——
the discreteness prong of the two-part Davis test.13 When a post-
polygraph interview is so closely associated with the polygraph
examination that the examination and interview are "one event
rather than two events," the statements made during that interview
12We will refer to these issues as "discreteness" and
"voluntariness" for the remainder of this opinion.
13The parties dispute whether the issue of discreteness is
before this court. We note that Vice conceded the issue to the
circuit court in both his brief in support of his motion to
suppress and during the oral ruling on that motion. In his brief,
Vice acknowledged that "[T]he detectives got the first part of the
process right, they separated the polygraph test from the
interrogation." Additionally, during the oral ruling on the
suppression motion, Vice's attorney stated that "[T]he police got
it half right. You're supposed to take the polygraph exam and
interrogation separate. They did that right." Because Vice
conceded the issue twice to the circuit court, we conclude that he
waived the discreteness issue. However, waiver is a rule of
judicial administration and appellate courts may reach the merits
of an issue that has been waived. State v. Erickson, 227 Wis. 2d
758, 766, 596 N.W.2d 749 (1999). The court of appeals' decision
addressed discreteness; we elect to do so here as well.
13
No. 2018AP2220-CR
must be suppressed. Davis, 310 Wis. 2d 583, ¶2. Our determination
of discreteness "is largely dependent upon whether the [polygraph
examination] is over at the time the statement is given and the
[suspect] knows the [polygraph examination] is over." Id., ¶23.
We consider: (1) whether the suspect was told the test was over;
(2) whether any time passed between the polygraph examination and
the interview; (3) whether the officer who conducted the polygraph
examination differed from the officer who conducted the interview;
(4) whether the examination and interview were held in the same
location; and (5) whether the examination was referred to during
the interview. Id. "An important inquiry [is] whether the test
result was referred to in order to elicit an incriminating
statement." Id., ¶42. However, we look to the totality of the
circumstances in determining discreteness. Id., ¶32.
¶26 In applying the Davis factors, we conclude that: (1)
Lambeseder told Vice the examination was over and Vice signed a
form acknowledging that it had ended; (2) a period of ten to 15
minutes elapsed between the end of the examination and the
commencement of the interview; (3) while Lambeseder both
administered Vice's polygraph examination and conducted the
interview, Fisher participated only in the interview; (4) the
polygraph examination and post-polygraph interview took place in
different rooms; and (5) although the officers referred to the
polygraph results during Vice's interview, this factor alone does
not make the interview and the examination "one event" where, as
here, there is both a temporal and spatial differentiation between
the two events. Greer, 265 Wis. 2d 463, ¶16. Based upon the
14
No. 2018AP2220-CR
totality of the circumstances pursuant to these points, we conclude
that Vice's polygraph examination and post-polygraph interview
were discrete events.
C. Voluntariness and Coercion
¶27 Having established that Vice's post-polygraph interview
was a discrete event under the first part of the Davis test, we
turn to the second part——voluntariness. We begin by outlining the
law regarding voluntariness and coercion.
¶28 The Fourteenth Amendment of the Constitution and Article
I, Section 8 of the Wisconsin Constitution require a statement to
be voluntary in order to be admitted into evidence. State v.
Hoppe, 2003 WI 43, ¶36, 261 Wis. 2d 294, 661 N.W.2d 407; see also
Dickerson v. United States, 530 U.S. 428, 433 (2000). The
admission of an involuntary statement into evidence is a violation
of a criminal defendant's constitutional right to due process.
Hoppe, 261 Wis. 2d 294, ¶36.
¶29 It is the State's burden to prove by a preponderance of
the evidence that a suspect's statements are voluntary. Id., ¶40.
"A defendant's statements are voluntary if they are the product of
a free and unconstrained will, reflecting deliberateness of
choice, as opposed to the result of a conspicuously unequal
confrontation in which the pressures brought to bear on the
defendant by . . . the State exceeded the defendant's ability to
resist." Davis, 310 Wis. 2d 583, ¶36 (quoted source omitted).
¶30 Over time, our due process inquiry has been refined into
one that "examines whether a defendant's will was overborne by the
circumstances surrounding the giving of a confession . . . [and]
15
No. 2018AP2220-CR
takes into consideration the totality of all the surrounding
circumstances." Dickerson, 530 U.S. at 434 (quoted sources
omitted). That analysis involves balancing the suspect's personal
characteristics, such as age, intelligence, physical and emotional
condition, and prior experience with law enforcement, against any
pressures imposed upon him by police. State v. Clappes, 136
Wis. 2d 222, 236, 401 N.W.2d 759 (1987).
¶31 Before we balance personal characteristics against
police pressures, we must first examine the threshold matter of
coercion. "The presence or absence of actual coercion or improper
police practices is the focus of the inquiry because it is
determinative" on the issue of voluntariness. Id.; see also
Colorado v. Connelly, 479 U.S. 157, 167 (1986) ("[C]oercive police
activity is a necessary predicate to the finding that a confession
is not 'voluntary' within the meaning of the Due Process Clause of
the Fourteenth Amendment."). If our analysis of the facts does
not reveal coercion or improper police pressures, there is no need
for us to engage in the balancing test between the suspect's
personal characteristics and those nonexistent pressures. State
v. Berggren, 2009 WI App 82, ¶30, 320 Wis. 2d 209, 769 N.W.2d 110.
¶32 While coercive or improper police conduct "may arguably
take subtle forms," Clappes, 136 Wis. 2d at 238, the protections
of the Due Process Clause are intended to safeguard against conduct
or circumstances that "destroyed [the suspect's] volition and
compelled him to confess." Connelly, 479 U.S. at 162. As a
result, establishing coercion is a high bar for a defendant to
surmount. Megan Annitto, Confessions and the Right to a Fair
16
No. 2018AP2220-CR
Trial: A Comparative Case Study, 35 Berkeley J. Int'l L. 181, 201
(2017).
¶33 To aid us in identifying coercive police conduct, we
review cases in which courts have analyzed various police tactics
to determine whether or not they were coercive. Such a review
reveals that this court has determined that police tactics were
not coercive where officers interrogated an injured and
intoxicated suspect in a hospital emergency room or exaggerated
evidence. Clappes, 136 Wis. 2d at 238 (suspect "appeared to be
coherent, though . . . in great pain"); State v. Lemoine, 2013 WI
5, ¶32, 345 Wis. 2d 171, 827 N.W.2d 589 (police informed suspect
that "extensive tests had been done and that it probably would not
look good for [him] when the results came in"). We have also
determined that even when police engage in outright deceit, they
may be "within the bounds of acceptable police practice." State
v. Albrecht, 184 Wis. 2d 287, 300, 516 N.W.2d 776 (Ct. App. 1994).
¶34 Our review also reveals cases in which courts have found
police tactics to be coercive, such as when officers engage in
physical violence to obtain a statement——that is per se coercive
and a violation of due process. Stein v. New York, 346 U.S. 156,
182, (1953) (physical violence is per se coercion), overruled on
other grounds by Jackson v. Denno, 378 U.S. 368, 381, (1964). In
addition to physical violence, the United States Supreme Court has
stated other factors indicative of coercion are an incapacitated
and sedated suspect, sleep and food deprivation, and threats.
Berghuis v. Thompkins, 560 U.S. 370, 387 (2010). The United States
Supreme Court has also determined that holding a suspect for more
17
No. 2018AP2220-CR
than 16 days, interrogating that suspect "extensively," feeding
him an "extremely limited" diet, and not permitting him to
communicate with the outside world were improper coercive tactics.
Davis v. North Carolina, 384 U.S. 737, 745-48 (1966).
¶35 It is important to note that even when a defendant
establishes coercive police tactics, the resulting statement is
not automatically rendered involuntary. A defendant must also
show that, as a result of those pressures, the statement was no
longer "the product of a free and unconstrained will, reflecting
deliberateness of choice, as opposed to the result of a
conspicuously unequal confrontation in which the pressures brought
to bear on the [suspect] by . . . the State exceeded the
[suspect's] ability to resist." Hoppe, 261 Wis. 2d 294, ¶36. In
short, without coercion, there is no involuntariness.
¶36 In this case, we must determine whether officers'
references to polygraph results in a post-polygraph interview were
not only coercive, but sufficiently coercive as to render a
suspect's statements involuntary. We begin by noting that the use
of polygraph results in an interview is not "inherently coercive."
Wyrick, 459 U.S. at 48-49. That is, simply because officers make
such references does not in itself mean the references were
coercive, absent a finding that they were used to elicit
involuntary statements. Police are free to let a suspect know
that he did not pass the polygraph examination or to let a suspect
draw that inference. Greer, 265 Wis. 2d 463, ¶16. We held in
Davis that making such references is not per se coercive. Davis,
18
No. 2018AP2220-CR
310 Wis. 2d 583, ¶42.14 To hold otherwise "would be an
unjustifiable restriction on reasonable police questioning."
Wyrick, 459 U.S. at 48-49.
¶37 Having established that statements made during a
discrete post-polygraph interview are admissible if they are
voluntary; that coercion is a necessary predicate to
involuntariness; and that referring to polygraph results during a
post-polygraph interview is not per se coercive, we must now apply
that law to the tactics the officers used during Vice's interview.
C. The Absence of Coercive Practices in Vice's Interview
¶38 To apply the voluntariness analysis explained above to
Vice's interview, we must begin with a review of the practices the
court of appeals determined and Vice argues were coercive, since
"[c]oercive or improper police conduct is a necessary prerequisite
for a finding of involuntariness." Hoppe, 261 Wis. 2d 294, ¶37.
Where there is no evidence of any coercive police practices, we
14The court of appeals in this case relied on but
misunderstood our statement in Davis that "[a]n important inquiry
continues to be whether the [polygraph examination] was referred
to in order to elicit an incriminating statement." Vice, 392 Wis.
2d 754, ¶42 (emphasis added). To clarify, our statement in Davis
regarding polygraph references as an important inquiry referred to
the discreteness analysis in that case, not the voluntariness
analysis. Id. The court of appeals' interpretation overlooks our
citation to State v. Johnson, 193 Wis. 2d 382, 389, 535 N.W.2d 441
(Ct. App. 1995), which ties that statement specifically to the
discreteness determination. The use of polygraph references in
post-polygraph interviews is an important inquiry in determining
discreteness, but it is only one of many relevant factors to
consider in determining voluntariness. Therefore, we do not afford
the polygraph references here any more weight than any other
relevant aspect of an interview.
19
No. 2018AP2220-CR
need not balance police pressures against the personal
characteristics of the suspect. Berggren, 320 Wis. 2d 209, ¶30.
We focus our analysis here, as the court of appeals did, on the
tactics the officers used during Vice's interview.
¶39 The court of appeals concluded that four tactics Fisher
and Lambeseder employed during Vice's post-polygraph interview
were sufficiently coercive as to render Vice's statements
involuntary: (1) their repeated references to Vice's polygraph
results during the interview; (2) their assertions that Vice
remembered the assault despite his claims not to remember;
(3) their failure to contradict Vice's statement that he must have
assaulted the victim because the polygraph results said that he
did; and (4) their failure to inform Vice that the polygraph
results were inadmissible in court. Vice, 392 Wis. 2d 754, ¶72.
We will address each in turn.
¶40 The first tactic that the court of appeals determined
was coercive was the officers' use of references to Vice's
polygraph examination. Vice, 392 Wis. 2d 754, ¶66. Fisher and
Lambeseder made at least 11 references to Vice's polygraph
examination over the course of his 45-minute interview. Id., ¶61.
While we have previously held that a single reference to polygraph
results does not constitute coercion, Davis, 310 Wis. 2d 583, ¶41,
this case requires us to determine whether multiple references
constitute coercion.
¶41 Contrary to the court of appeals' conclusion, we draw a
substantive parallel between the suspect's offer to take the
polygraph examination in Davis, and Vice's offer to Fisher to
20
No. 2018AP2220-CR
"clear [his] name" coupled with his subsequent agreement to take
a polygraph examination when Fisher suggested it. Vice agreed to
take the polygraph examination while at his own place of
employment, not at the police station. Vice himself initiated the
telephone call to Fisher to schedule the examination. A polygraph
"can hardly be considered a strategy of the police officers [when]
it was administered to the defendant upon his request, and the
statement was given after the test was over and the defendant knew
the test was over." Id., ¶25 (quoted source omitted).
¶42 While the number of references to the polygraph
examination and results during Vice's interview was greater than
the single reference we held uncoercive in Davis, the context and
nature of those references matter, notwithstanding their total
number. In this case, four of the polygraph references occurred
in close proximity to each other at the commencement of the
interview, and three of those references took place near the end
of the interview after Vice had already confessed. Vice's initial
incriminating statement, made eight minutes into the interview,
came in direct response to the officers telling Vice that if he
confessed to the single offense, he would be less likely to be
considered a "dangerous" habitual offender who could not be "in
the community." Vice provided statements regarding specific
details of the sexual assault throughout the interview without
referencing the polygraph results.
¶43 During the course of the 45-minute interview, the
polygraph references constituted only one component of the
dialogue between the officers and Vice. The officers used other
21
No. 2018AP2220-CR
tactics far more frequently and effectively during the interview,
and it was those tactics that led most directly to Vice making
statements against self-interest. The officers repeatedly urged
Vice to be truthful. They offered to ask Vice specific questions
to which he could answer "yes" or "no" rather than having him
describe the details of the sexual assault himself. They made
empathetic statements, and they offered to get Vice the help he
needed. Under these circumstances, we agree with the State that
the officers' references to the polygraph results did not
constitute coercive or improper conduct. In addition, it would be
"unreasonable" for a suspect in a post-polygraph interview to
"assume that [he] would not be informed of the polygraph readings
and asked to explain any unfavorable result." Wyrick, 459 U.S. at
47. Said differently, ignoring Vice's polygraph examination in
his post-polygraph interview would be like ignoring an elephant in
the room.
¶44 The second tactic the court of appeals considered
coercive was the officers' use of statements that the polygraph
examination showed that Vice remembered the assault. Vice, 392
Wis. 2d 754, ¶63. These statements did not constitute coercion.
There is no dispute that Vice failed the polygraph examination;
the officers viewed that result as an indication that Vice did, in
fact, remember committing the assault. The officers' insistence
that Vice's reactions during the polygraph examination indicated
that he did remember were simply another way of characterizing
those results. And even if we assume without deciding that those
statements were outright falsehoods, they would not rise to the
22
No. 2018AP2220-CR
level of coercion absent being coupled with some other, more
coercive practice used on a particularly vulnerable suspect. See,
e.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (statement was
involuntary where a false promise of leniency was combined with
threats to remove suspect's children and welfare benefits along
with other factors).
¶45 Further, it is settled law that police may engage in
active deception, including lying to a suspect, without rendering
that suspect's statements involuntary. Lemoine, 345 Wis. 2d 171,
¶20 ("[U]sing deception in interrogation is common and generally
acceptable."). Misrepresentations by police are a relevant factor
in determining the voluntariness of a suspect's statements, but do
not necessarily make those statements involuntary when considered
in light of the totality of the circumstances of the interview.
State v. Ward, 2009 WI 60, ¶27, 318 Wis. 2d 301, 767 N.W.2d 236.
The officers' statements that Vice's polygraph examination failure
indicated that he remembered committing the assault were consonant
with this type of interview technique. We disagree with the court
of appeals and conclude that that this tactic was not coercive.
¶46 Third, the court of appeals reasoned that the officers'
failure to correct Vice's "stated misunderstanding" that "I'll
admit that I must have did it because obviously the test says that
I did it, but I don't physically remember" was a factor
contributing to the creation of a "coercive environment." Vice,
392 Wis. 2d 754, ¶63 & n.7. But, as the court of appeals noted,
interrogators have no absolute duty to inform a suspect during a
post-polygraph interview that polygraph examinations are fallible.
23
No. 2018AP2220-CR
Id. Additionally, the officers were not required to believe Vice's
claims that he did not remember, and it was not coercive for them
to question those claims during the interview. We cannot agree
that the officers used coercive tactics to "exploit [Vice's] lack
of memory," id., ¶67, when there is simply no evidence in the
record to indicate whether or not Vice was being truthful. This
lack of response is not the kind of affirmative coercive conduct
that would render Vice's statements involuntary.
¶47 Finally, the court of appeals determined that the
officers' failure to inform Vice that his polygraph results would
be inadmissible in any criminal proceedings against him was a
coercive act. Id., ¶64. We do not deem an omission such as this
to be coercive when compared with the outright deception that the
Due Process Clause permits. See Frazier v. Cupp, 394 U.S. 731,
739 (1969) ("The fact that the police misrepresented the statements
that [the suspect's accomplice] had made is, while relevant,
insufficient in our view to make [an] otherwise voluntary
confession inadmissible."). We therefore conclude that none of
the four tactics singled out as problematic by the court of appeals
were coercive.
¶48 We further determine that, even if none of the individual
tactics discussed above were coercive in and of themselves, they
likewise did not add up to coercion resulting in involuntariness
when considered together. Police may, and often do, engage in
multiple tactics and strategies in the same interview without
rendering coercive what would be permissible in isolation. We
conclude that the tactics employed by the officers during Vice's
24
No. 2018AP2220-CR
post-polygraph interview, both in isolation and in the aggregate,
were not coercive. Because a suspect's statements cannot be
involuntary absent police coercion, it is not necessary to balance
these tactics against Vice's personal characteristics; there is
simply nothing against which to balance them. Berggren, 320
Wis. 2d 209, ¶30.
¶49 Having determined that none of the polygraph-related
tactics used by the officers in Vice's interview, individually or
considered in the aggregate, were coercive, we turn to the rest of
the circumstances surrounding the interview to ensure that there
was no other coercive or improper activity at play. In our
examination of the police pressures or tactics employed during an
interview, we consider a number of factors, including:
the length of the interview;
the general circumstances under which the statements
took place;
whether any excessive physical or psychological pressure
was used;
whether any inducements, threats, methods, or strategies
were used to compel a response; and
whether the suspect was informed of the right to counsel
and against self-incrimination.
Hoppe, 261 Wis. 2d 294, ¶39.
¶50 As the court of appeals correctly concluded, none of
"the circumstances surrounding the interview convince us that
Vice's confession was involuntary." Vice, 392 Wis. 2d 754, ¶60.
The length of Vice's interview was short——only 45 minutes. See,
25
No. 2018AP2220-CR
e.g., Lemoine, 345 Wis. 2d 171, ¶3 (75-to-80-minute interview not
coercive); Davis, 310 Wis. 2d 583, ¶¶11, 39 (duration of 45-minute
interview "was not lengthy"). The circumstances of the interview
were similarly benign. Vice went to the police station
voluntarily. At no point was Vice restrained or physically abused,
and the room in which the interview took place was not
uncomfortable. The officers spoke to Vice in a calm tone of voice
throughout, made no threats, and offered no inducements to Vice.
Vice was informed of his right to counsel and his right against
self-incrimination15 before both his polygraph examination and his
post-polygraph interview.16
¶51 We also give weight to the fact that the polygraph
examination and post-polygraph interview took place on Vice's own
initiative. The United States Supreme Court has singled out this
factor in its holding that "the totality of the circumstances,
including the fact that the suspect initiated the questioning, is
The circuit court noted erroneously that the Miranda
15
warnings were "discussed before the polygraph but not before the
post-polygraph interview." In fact, Vice signed a form at the
conclusion of the polygraph examination stating that he "knowingly
and intelligently continued[d] to waive [his] rights, including
those [Miranda rights] listed . . . above."
The court of appeals stated that the provision of those
16
warnings "contributes to our concern regarding the voluntariness
of his confession." Vice, 392 Wis. 2d 754, ¶65. However, our
case law indicates that it is the absence of Miranda warnings that
weighs against voluntariness. State v. Hoppe, 2003 WI 43, ¶¶29,
56, 261 Wis. 2d 294, 661 N.W.2d 407 (in a noncustodial interview,
absence of Miranda warnings were one of "certain behaviors of
police [which] constituted coercive pressures brought to bear on
[the suspect]").
26
No. 2018AP2220-CR
controlling." Wyrick, 459 U.S. at 48. In the absence of improper
or coercive tactics, there is "simply no foundation for reaching
a finding of involuntariness." Clappes, 136 Wis. 2d at 240. As
stated above, without any police coercion, and having considered
all conditions of the interview, we are unconvinced that Vice's
statements were not the product of a free and unconstrained will,
reflecting deliberateness of choice. Therefore, those statements
were voluntary and the circuit court erred in granting Vice's
motion to suppress.
III. CONCLUSION
¶52 We conclude that the statements Vice made during his
post-polygraph interview are admissible because: (1) the
interview was discrete from the polygraph examination; and (2) the
statements were not the product of police coercion, and therefore
were voluntary. Accordingly, we reverse the decision of the court
of appeals.
By the Court.——The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
¶53 ANN WALSH BRADLEY, J., withdrew from participation.
27
No. 2018AP2220-CR.bh
¶54 BRIAN HAGEDORN, J. (concurring). I agree with the
majority that the polygraph and post-polygraph interview were
discrete events and that Vice's statements were voluntary. I
disagree with the court's attempt to explain and then reinforce an
isolated and perhaps inartful sentence in Davis: "An important
inquiry continues to be whether the [polygraph] result was referred
to in order to elicit an incriminating statement." State v. Davis,
2008 WI 71, ¶42, 310 Wis. 2d 583, 751 N.W.2d 332. The majority
contends that the court of appeals misunderstood this sentence,
noting that it is followed by a citation to State v. Johnson, 193
Wis. 2d 382, 389, 535 N.W.2d 441 (Ct. App. 1995), where the issue
was discreteness, not voluntariness. Majority op., ¶36 n.14. The
majority then holds that whether the polygraph was referred to is
in fact "important" to the discreteness analysis, but "is only one
of many relevant factors to consider in determining
voluntariness." Id.
¶55 In fairness to the court of appeals, the statement in
Davis occurs in a section analyzing voluntariness, not
discreteness. The discreteness discussion in Davis occurs and
concludes in ¶¶23-34, while the "important inquiry" statement
appears in ¶42, the final paragraph in the court's voluntariness
discussion.1 310 Wis. 2d 583, ¶¶23-34, 42. It is not obvious to
me that the court of appeals misread our opinion. If there was an
error, it was in our opinion's imprecision.
1 The paragraph concludes, "Accordingly, Davis's statement
was voluntary." State v. Davis, 2008 WI 71, ¶42, 310 Wis. 2d 583,
751 N.W.2d 332.
1
No. 2018AP2220-CR.bh
¶56 My larger disagreement, however, is with the majority's
resolution of this solitary sentence from Davis.
¶57 I agree with the majority's conclusion that, with
respect to voluntariness, reference to polygraph results is merely
one factor in a totality of the circumstances analysis. And I
tend to think it is, at most, a relatively small factor. The
question for voluntariness is coercion, and I do not see anything
uniquely coercive with law enforcement references to inadmissible
evidence during questioning. As the majority points out, if law
enforcement can refer to non-existent evidence, I'm not sure why
reference to inadmissible evidence is unusually problematic. See
majority op., ¶45.
¶58 I part ways, however, with the majority's conclusion
that reference to a polygraph is an "important" component of the
discreteness analysis. Davis did not say this in its 12 paragraph
discreteness discussion; Johnson never declares this either.
Rather, Johnson describes the proper test as a totality of the
circumstances analysis, and discusses this as just one factor among
others. 193 Wis. 2d at 388-89. In practice, the majority opinion
does exactly the same thing even though it embraces the "important
inquiry" language. The majority concludes that temporal and
spatial differences show the post-polygraph interview was a
discrete event, and multiple references to the polygraph results
in the interview do not change that. Majority op., ¶26. I agree
wholeheartedly. The majority does not treat these polygraph
references as an important inquiry for discreteness because here—
—and I suspect in most instances——it's not. In effect, the
2
No. 2018AP2220-CR.bh
majority attempts to make sense of an isolated sentence in Davis,
and in doing so, subtly changes the law.
¶59 Rather than double down on one unclear phrase, we would
do better to simply clarify and reinforce what I think the law has
been up until this point: reference to the results of a polygraph,
for both discreteness and voluntariness, is only one potentially
relevant fact in a totality of the circumstances analysis. In
this case, this fact has very little impact on either the
discreteness or voluntariness analyses. For these reasons, I
respectfully concur.2
2 Other than ¶25 and footnote 14, I join the majority opinion.
3
No. 2018AP2220-CR.bh
1