The SCOW docket: Police lies not coercive

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

​The case: State of Wisconsin v. Adam W. Vice
 
Majority/Lead Opinion: Justice Jill J. Karofsky (27 pages), joined by Justices Annette K. Ziegler, Patience Roggensack, Rebecca Grassl Bradley, and Rebecca F. Dallet;  joined in part by Justice Brian Hagedorn.

Justice Ann Walsh Bradley withdrew from participation.

Concurrence: Hagedorn (3 pages)

Karofsky

The Upshot

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.

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Background

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. . . . 

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Upon (Vice) 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. 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."

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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.

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.

Over the course of the approximately 45-minute interview, Fisher and Lambeseder made at least 11 references to Vice's polygraph results. 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".

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". . . .

Vice then discussed his access to the victim, and Lambeseder urged Vice to tell the truth and take responsibility. Vice answered some “yes/no” questions and eventually provided details about the sexual assault.

Vice was charged with one count of sexual contact with a person under the age of 13. He filed a motion to suppress the statements made during his post-polygraph interview, arguing that they were involuntary due to coercion by the officers’ repeatedly telling him he failed the polygraph examination.

The circuit court granted Vice’s motion to suppress, finding that Vice was “overwhelmed by the somewhat coercive pressuring nature of the overt references to the failed test.” The court of appeals affirmed, finding that the officers’ multiple references to the polygraph results and the test indicating that Vice committed the offense, while failing to inform Vice that the test results were not admissible in court, were coercive and rendered Vice’s statements involuntary. WJI reported on the court of appeals decision here. 

The guts

Polygraph results themselves, as well as statements made by suspects during polygraph examinations, are generally inadmissible in court. 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. Law enforcement uses polygraph examination as an investigative tool in criminal cases.

Statements made during a post-polygraph interview are admissible into evidence when they satisfy the two-part test we established in State v. Davis. The first part of the test is determining whether the post-polygraph interview was a discrete event from the polygraph examination. That is, whether the post-polygraph interview is "so closely associated with the [polygraph examination] that the [examination] and statement[s] are one event rather than two events." The second part of the Davis test is whether the post-polygraph statements are voluntary under ordinary constitutional due process considerations. 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. 

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In applying the (pertinent) 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 10 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. Based upon the totality of the circumstances pursuant to these points, we conclude that Vice's polygraph examination and post-polygraph interview were discrete events. 

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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." 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. We held in Davis that making such references is not per se coercive. To hold otherwise "would be an unjustifiable restriction on reasonable police questioning."

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​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.

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 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." Said differently, ignoring Vice's polygraph examination in his post-polygraph interview would be like ignoring an elephant in the room. 

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Further, it is settled law that police may engage in active deception, including lying to a suspect, without rendering that suspect's statements involuntary. 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. 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.

"It is settled law that police may engage in active deception, including lying to a suspect, without rendering that suspect's statements involuntary." – Justice Jill Karofsky

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." 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. 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," 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.

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. We do not deem an omission such as this to be coercive when compared with the outright deception that the Due Process Clause permits. We therefore conclude that none of the four tactics singled out as problematic by the court of appeals were coercive.
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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 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. ​

Hagedorn

Concurrence

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.

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; (State v.) 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. 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. 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 majority attempts to make sense of an isolated sentence in Davis, and in doing so, subtly changes the law.

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.

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