voluntariness inquiry in Wisconsin

2025State v. Vice, 2021 WI 63, ¶31 , 397 Wis. 2d 682 , 961 N.W.2d 1 .

2024A person’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 [person]’s ability to resist.” Id., ¶29 (quoting State v. Davis, 2008 WI 71, ¶36 , 310 Wis. 2d 583 , 751 N.W.2d 332 ). ¶28 A threshold question for the voluntariness analysis is whether the person’s statements have been obtained through the use of coercive or improper police practices.

2018Id. , ¶ 33.

1997Equally important to the voluntariness analysis is the fact that Kiekhefer was not informed of his right to withhold consent to search, particularly after the agents had searched "the area that he was in." See Schneckloth, 412 U.S. at 248-49 (subject's knowledge of a right to refuse is a factor to be taken into account).

2023Given the police conduct here, Harris’s “personal characteristics, while certainly relevant to our analysis, are simply not dispositive of the issue of voluntariness.” See State v. Clappes, 136 7 No. 2018AP2108-CR Wis. 2d 222, 239-40, 401 N.W.2d 759 (1987) (“While a defendant’s personal characteristics are relevant, they only become determinative in the voluntariness analysis when there is something against which to balance them.”).

2005There, the court observed that 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 representatives of the State exceeded the defendant's ability to resist." Id., ¶ 36 (citing Clappes, 136 Wis. 2d at 236 ; Norwood v. State, 74 Wis. 2d 343, 364 , 246 N.W.2d 801 (1976); State v. Hoyt, 21 Wis. 2d 284, 308 , 128 N.W.2d 645 (1964)). ¶ 19.

2024See State v. Moore, 2015 WI 54, ¶¶60-61 , 363 Wis. 2d 376 , 864 N.W.2d 827 (considering the juvenile suspect’s “ability to concoct and modify a story ‘on the fly’” in the voluntariness inquiry because it “suggests a level of sophistication and adaptability”).

2024See State v. Moore, 2015 WI 54, ¶¶60-61 , 363 Wis. 2d 376 , 864 N.W.2d 827 (considering the juvenile suspect’s “ability to concoct and modify a story ‘on the fly’” in the voluntariness inquiry because it “suggests a level of sophistication and adaptability”).

2021Where 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).

2021Id.

2009Dickerson, 530 U.S. at 444 ("The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry."); but see id. ("[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." (quoting Berkemer v. McCarty, 468 U.S. 420 , 433 n.20 (1984))). ¶ 33.

2009Dickerson, 530 U.S. at 444 ("The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry."); but see id. ("[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." (quoting Berkemer v. McCarty, 468 U.S. 420 , 433 n.20 (1984))). ¶ 33.

2007More recently, the factual basis requirement has been viewed as "distinct from the voluntariness requirement." White v. State, 85 Wis.2d 485, 491 , 271 N.W.2d 97 (1978); State v. Thomas, 2000 WI 13, ¶ 14 , 232 Wis.2d 714 , 605 N.W.2d 836 . [11] The dissent concludes that the statutory requirement that a circuit court establish an adequate factual basis for the offense charged amounts to a "new" procedure.

2007More recently, the factual basis requirement has been viewed as "distinct from the voluntariness requirement." White v. State, 85 Wis. 2d 485, 491 (1978); State v. Thomas, 2000 WI 13, ¶ 14 , 232 Wis. 2d 714 , 605 N.W.2d 836 .

1999See Roney v. State, 44 Wis. 2d 522, 534 , 171 N.W.2d 400 (1969).

1999See Roney v. State, 44 Wis. 2d 522, 534 , 171 N.W.2d 400 (1969).

1999Finally, we cannot fail to mention that the language of Agnello's objection comes directly from the United States Supreme Court: "The truth or falsity of the statement is not relevant to the voluntariness inquiry..." Lee v. Illinois, 476 U.S. 530 , 547 n.6 (1986); see also Twomey, 404 U.S. at 484 n.12 ("Whether [the confession] be true or false is irrelevant. . .").

1999Finally, we cannot fail to mention that the language of Agnello's objection comes directly from the United States Supreme Court: "The truth or falsity of the statement is not relevant to the voluntariness inquiry . . ." Lee v. Illinois, 476 U.S. 530 , 547 n.6 (1986); see also Twomey, 404 U.S. at 484 n.12 ("Whether [the confession] be true or false is irrelevant. . .").

1994See Fare v. Michael C., 442 U.S. 707 , *Page 131 725-26 (1979); Theriault v. State, 66 Wis.2d 33 , 47 , 223 N.W.2d 850 (1974).

1984In Frazier v. Cupp, 394 U.S. 731, 739 (1969), however, the court considered the effect of misrepresentations by police on the admissibility of a confession and held that the misrepresentations were insufficient to render an otherwise voluntary confession inadmissible.

1984In Frazier v. Cupp, 394 U.S. 731, 739 (1969), however, the court considered the effect of misrepresentations by police on the admissibility of a confession and held that the misrepresentations were insufficient to render an otherwise voluntary confession inadmissible.

1984In State v. Cooper, 217 N.W.2d 589, 597 (Iowa 1974), the Iowa Supreme Court discussed the effect of misrepresentation on the voluntariness of a waiver of rights and concluded: “Deception of any nature by representatives of the state cannot be condoned.

1984Nevertheless, deception becomes a factor to be considered in reviewing the totality of the circumstances in making the determination as to the voluntariness of the waiver even though the act does not per se produce exclusion.” The court also indicated that the test of voluntariness is whether the officers’ behavior was such as to overbear the defendant’s will and bring about a confession not freely self determined. 217 N.W.2d at 596 .

1978A factual basis must be established to: “. . . protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” McCarthy v. United States, 394 U.S. 459, 467 (1969).