To: Wisconsin Criminal Justice Study Commission
From: Byron Lichstein, staff attorney
5-3-06
Draft of admissibility test for confession evidence obtained through use of deception
1) For custodial statements that are electronically recorded, if the defendant proves, by
a preponderance of the evidence, that the statements were made after a police interviewer
deceived the defendant about material evidence concerning the crime, then the statements
are presumed inadmissible unless the prosecution proves, by a preponderance of the
evidence, that the defendant’s recorded statements are reliable based on consideration of
two factors:
A) Whether the statements reveal knowledge, not disclosed to the suspect by
police or otherwise made public, of independently verifiable information
concerning the crime that would only be known by the true perpetrator or an
accomplice,
B) Whether the statements contain significant errors that do not fit with the
independently verifiable facts of the crime.
2) For custodial statements that are not electronically recorded, the trial court should
first conduct the analysis set forth in Wis. Stats. § 938.31 or § 972.115 (depending on
whether the case involves an adult or a juvenile) and determine if the failure to record
satisfies one of the statutory exceptions to the recording requirement.
A) If the failure to record does not satisfy one of the statutory exceptions to the
recording requirement1 and the defendant alleges that the police interviewer
deceived the defendant about material evidence concerning the crime, then the
defendant’s statements are presumed inadmissible unless the prosecution proves,
by a preponderance of the evidence, that:
i. The defendant’s statements led law enforcement to evidence concerning
the crime (other than the statement itself) of which the police were
previously unaware, and
ii. The statements are reliable based on consideration of two factors:
a) Whether the statements reveal knowledge, not disclosed to the
suspect by police or otherwise made public, of independently
verifiable information concerning the crime that would only be
known by the true perpetrator or an accomplice,
1
In juvenile cases, the failure to satisfy any of the exceptions to the recording requirement will result in the
statements being suppressed, and therefore no further analysis will be required under this section.
b) Whether the statements contain significant errors that do not fit
with the independently verifiable facts of the crime.
B) If the failure to record satisfies one of the statutory exceptions to the recording
requirement and the defendant proves, by a preponderance of the evidence, that
the police interviewer deceived the defendant about any material evidence
concerning the crime, then the statements are presumed inadmissible unless the
prosecution proves, by a preponderance of the evidence, that the statements are
reliable based on consideration of two factors:
i) Whether the statements reveal knowledge, not disclosed to the suspect
by police or otherwise made public, of independently verifiable
information concerning the crime that would only be known by the true
perpetrator or an accomplice,
ii) Whether the statements contain significant errors that do not fit with the
independently verifiable facts of the crime.