Appeal from a judgment of the Circuit Court for Brown County, Donald R.
Zuidmulder, Judge. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This case is before
the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61
(2005-06). Keith A. Davis was charged
with first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (2003-04). Davis
sought to suppress all oral and written statements he provided to the Green Bay
Police Department on December 17, 2003.
The Brown County
circuit court judge, Donald R. Zuidmulder, denied Davis's motion to suppress. Davis
proceeded to trial and was convicted of first-degree sexual assault of a
child. He now requests that his judgment
of conviction be vacated and his case be remanded to the circuit court for a
new trial, which would exclude his inculpatory statement. We decline that request and affirm Davis's conviction.
¶2 This case requires us to decide whether Davis's statement was so closely associated
with the voice stress analysis that it must be suppressed. When a statement is so closely associated
with the voice stress analysis that the analysis and statement are one event
rather than two events, the statement must be suppressed. State
v. Greer, 2003 WI App 112, ¶¶9-12,
265 Wis. 2d 463,
666 N.W.2d 518. As is the case with
any statement, the statement must also survive constitutional due process
considerations of voluntariness.
¶3 We conclude that Davis's
statement was not so closely associated with the voice stress analysis as to
render it one event. Rather, the
examination and interview were two totally discrete events. Therefore, because his statement was given
voluntarily and at a totally discrete interview, we conclude that Davis's statement was
¶4 On November 21, 2003, Detective James Swanson of the Green Bay
Police Department went to the residence of Keith A. Davis to speak with him
about an alleged sexual assault of a juvenile, K.L.D., d.o.b. 12/14/96. Davis
invited the detective into the house.
The detective informed Davis
that he was not under arrest. Davis gave the detective
a "tour" of his residence in response to the detective's request to
look around for evidence. With consent,
the detective collected bedding from the alleged victim's room as well as a
shaving cream container from a bathroom.
It is unclear what else may have been said during that visit, but when
the detective asked Davis if he would be willing
to come down to the police department to talk about the incident, Davis said that he would
drive himself to the station later. The
detective left, and on that same date, Davis
drove to the Green Bay Police Department and talked with Detective Swanson in
the interview room. At the police
was informed again that he was not under arrest and was free to leave at any
time. At the station, Davis answered some questions but denied the
allegations. Several times during that
interview and before Davis
left, he offered to take a polygraph examination. At the conclusion of the interview, Detective
Swanson told Davis that he may follow up with
him with respect to Davis
taking a polygraph or voice stress analysis test.
¶5 On December 17, 2003, Detective Swanson returned to Davis's residence around
8:00 a.m. The detective asked Davis if he would further discuss the alleged incident
regarding K.L.D. and whether Davis
was still willing to undergo a polygraph or voice stress analysis test. Davis
said that he would drive himself to the police station, but he wanted to shower
first. The detective then returned to
the police station.
¶6 Around 9:00 a.m., Davis left Detective Swanson a voice message
that his car would not start, so he would be walking to the Green Bay Police
Department and would be later than expected.
Due to the weather that day and the route Davis
would need to take in order to get to the police department, Detective Swanson
decided to get in his car and see if he could find Davis walking. The detective intended to offer Davis a ride. At around 9:15 or 9:20 a.m., as the detective
was driving south on Broadway, he saw Davis
walking on the sidewalk. Davis waved at Detective
Swanson. Detective Swanson made a
u-turn, pulled up along side Davis, and asked him if he wanted a ride. Davis
got in the front seat of Detective Swanson's unmarked squad car, and they
proceeded to the Green Bay Police Department.
¶7 Once at the police station, Detective Swanson and Davis went into
an interview room. Detective Swanson
explained to Davis
that he was not under arrest, did not have to talk with him, and could leave at
any time. Davis said that he understood. Detective Swanson told Davis
that he wanted to talk with him and have him take the voice stress analysis,
which they had discussed before, and Detective Swanson told Davis that someone else would conduct the
test. Davis was cooperative and wanted to talk.
¶8 Detective Swanson left the interview room and returned with
Detective Buenning, the officer who conducted the test. After being introduced to Davis,
Detective Buenning took Davis
to another room, referred to as the "family room," for the voice
stress analysis test. Detective Swanson
did not accompany Davis
to the "family room" for testing, nor was he present during the test.
¶9 Once in the room where Davis was to
undergo the voice stress analysis, Detective Buenning explained the test and
consent. Detective Buenning then asked Davis nine test
questions, which consisted of two relevant questions, five irrelevant
questions, and two control questions. Davis actually helped
formulate the following relevant questions: (1) "Did you put your
penis into [K.L.D.'s] vagina?"; (2) "Did you put your penis in
[K.L.D.'s] mouth?" Davis agreed that those were relevant
questions. For the test, Detective
Buenning used a laptop, and a lapel microphone was clipped onto Davis's collar. After the test, Davis went back to the original interview
room. Detective Buenning reviewed the
results, and then, pursuant to standard procedure, two other officers
independently evaluated the results. All
three officers separately concluded that Davis
was being deceptive. Outside the
presence of Davis,
and in a separate room, Detective Buenning discussed the results with Detective
Swanson. He told Detective Swanson that
he believed Davis
had been deceptive. Both detectives then
went to the original interview room and then brought Davis back to the "family room."
¶10 With Detective Swanson in the "family room," Detective
Buenning told Davis that his answers were deemed
deceptive and showed Davis
the results from the computer charts. Davis repeatedly said
that he did not do anything. Detective
Buenning then asked Davis,
"Well, if you told me yourself that her hymen was busted, wouldn't that
support the results of the test?" Davis
did not verbally respond but nodded his head up and down. Detective Buenning asked if he wanted to talk
about this and Davis
said "yes." Detective Buenning
asked Davis if
he preferred to talk with Detective Swanson.
indicated that he did. At that point, Detective Buenning stated,
"I'm finished here" and then he closed up his laptop and left the
room with all of the voice stress analysis equipment. Detective Buenning told Davis that he was finished with the test.
¶11 Detective Swanson and Davis were then alone in the "family
room." Detective Swanson stated,
"Keith, there's some things we need to talk about reference
[K.L.D.]." Davis nodded his head yes, and they then went
back to the original interview room.
Detective Swanson left Davis
in the interview room and then went to get statement forms. Approximately five minutes later, at about
11:00 a.m., Detective Swanson asked Davis
to explain what happened with K.L.D. As Davis gave a statement,
Detective Swanson wrote it on the statement form. While Davis
gave his statement, Detective Swanson did not mention or reference the voice
stress analysis test or the results. When Davis was
finished talking, the detective gave Davis
the written document to review. Davis read the statement
partly out loud and then to himself.
Detective Swanson had him read the beginning of the statement out loud
in order to make sure that Davis
could read the officer's writing.
Detective Swanson explained to Davis that
if anything was incorrect or needed to be changed, Davis should correct it. However, Davis made no corrections. After reading the statement, Davis signed both pages, and the statement
was completed at about 11:45 a.m.
¶12 After Davis signed the statement, he "kind of broke down"
and was crying. He stated that he
"felt like he wanted to die."
Around noon that day, Detective Swanson took Davis to the crisis center. Detective Swanson did not have further
contact with Davis
¶13 On February 16, 2004, Davis
was charged with one count of first-degree sexual assault of a child contrary
to Wis. Stat.
§ 948.02(1). On May 28, 2004, a
preliminary hearing occurred, and Davis
was bound over for trial. Davis was arraigned on an
information that charged him with one count of sexual assault. The information was amended on the day of
trial, September 29, 2005, to include three counts of first-degree sexual
assault of a child.
June 11, 2004, Davis
moved the circuit court to suppress all of his oral and written statements from
December 17, 2003. On March 29, 2005,
the circuit court conducted a hearing on the motion. On April 15, 2005, the circuit court issued
an oral decision and denied the motion.
The circuit court concluded that the statement was voluntarily given
and that Miranda warnings were not required because Davis was not in custody at the time of the
statement. The circuit court also
concluded that, under Greer, the statement was admissible because it was
distinct and separate from the polygraph or voice stress analysis. Relying on Greer, the circuit court
cited the following four factors: (1) where was the statement taken; (2) who
took the statement; (3) how soon after the polygraph examination was the
statement taken; and (4) what was the manner in which the statement was taken.
circuit court made a number of findings regarding the factors: First, it found
that two officers were involved. One
officer conducted the voice stress analysis and one officer secured the
statement from Davis. Second, it found that the voice stress
analysis had been completed when Davis
made his statement. The circuit court
stated, "in this case Mr. Davis was told that the polygraph or voice
stress test had -- had ended which is also a condition of Greer, that it
was over . . . ." In addition, the circuit court
found that Davis
made his statement in a separate room from where the test was conducted. Third, the circuit court found that while
there was a nominal period of time between the statement and the voice stress
analysis, under Greer and Johnson,
time is the least of the factors to be considered. The circuit court concluded that, under a
totality of the circumstances, the statements were admissible under Greer.
¶16 Davis proceeded to trial
on September 29, 2005. A jury convicted
him of all three counts of first-degree sexual assault of a child. On January 24, 2006,
he was sentenced to 20 years of initial confinement followed by 10 years
of extended supervision on each count to be served concurrent with each
¶17 Davis appealed his
conviction. The court of appeals
appeal to this court, and we accepted the certification. Specifically, the court of appeals stated,
"we believe the law on this topic is in need of re-examination or, at a
minimum, clarification." The court
of appeals "respectfully suggest[ed] that the supreme court either clarify
the rationale for the current rules or provide a new legal framework for analyzing
this kind of evidence."
¶18 We uphold the trial court's factual findings unless they are
clearly erroneous. Greer, 265 Wis. 2d 463, ¶9. However, the application of constitutional
principles to evidentiary or historical facts is a question of law that we
review de novo. Id. Here, we review the voluntariness of the
statements considering the principles of due process. State v. Hoppe, 2003 WI 43, ¶¶34-36, 261 Wis. 2d 294, 661 N.W.2d 407. In addition, statutory interpretation is also
an issue of law, which we review de novo.
Megal Dev. Corp. v. Shadof, 2005 WI 151, ¶8, 286 Wis. 2d 105,
705 N.W.2d 645.
¶19 Similar to polygraph testing, a voice stress analysis is based upon
the theory that an individual undergoes certain physiological changes when
being deceitful. Thomas R. Malia, Admissibility
of voice stress evaluation test results or of statements made during test, 47
A.L.R.4th 1202 (1986). As a result, when
being subjected to voice stress analysis, these changes can presumably be
monitored and interpreted. Id. Voice stress analysis and polygraph testing have
been used by law enforcement for many years.
¶20 Principles applicable to polygraph testing are equally applicable
to voice stress analysis. See Wis. Stat. § 905.065(1);
7 Daniel D. Blinka,
Evidence § 5065.1
(2d ed. 2001) (concluding that there is little reason to treat the forms of
honesty testing mentioned in § 905.065
differently, "at least under the present state of the scientific art"). We see no reason at this time to treat these
two methods of "honesty testing" differently.
¶21 Our analysis, as detailed below, primarily requires us to determine
whether a defendant's statement was given at an interview totally discrete from
the voice stress analysis. If the
defendant's statement was given at an interview that was totally discrete from
the voice stress analysis test, its admission is not automatically
precluded. The statement, however, is
also subject to ordinary principles of voluntariness. Therefore, if the statement is given at an
interview that is totally discrete from the voice stress analysis test and the
statement is voluntarily given, the statement is admissible.
argues that "the administration of a voice stress analysis cannot be
performed without it being unduly coercive." As a result, Davis argues that "any
inculpatory statement given post-examination[,] which is determined to be
closely related to the testing, must also then be excluded as being unduly
coercive and involuntary." Davis argues that his
post-examination statement must be excluded because, under Greer, his
statement was closely associated with the voice stress analysis he took that
day. The State, on the other hand,
argues that under Greer, the post-examination interview was not closely
associated with the voice stress analysis so as to render it one event. The State asserts that under the totality of
the circumstances, the statement was admissible. The State goes further to argue that a
voluntary confession should always be admissible regardless of whether it was
given before, during, or after a voice stress analysis.
¶23 Under the totality of the circumstances, we conclude that Davis's
statement was not so closely associated with the voice stress analysis test so
as to render it one event; rather, the statement and voice stress analysis were
two totally discrete events. Whether a
statement is considered part of the test or a totally discrete event is largely
dependent upon whether the voice stress analysis is over at the time the
statement is given and the defendant knows the analysis is over. Greer, 265 Wis. 2d 463, ¶12. To make this determination, the following
factors should be weighed and considered: (1) whether the defendant was told
the test was over; (2) whether any time passed between the analysis and the
defendant's statement; (3) whether the officer conducting the analysis differed
from the officer who took the statement; (4) whether the location where the
analysis was conducted differed from where the statement was given; and (5)
whether the voice stress analysis was referred to when obtaining a statement
from the defendant. See id.,
and applying these principles).
¶24 This test has its origins in McAdoo v. State,
but in State v. Schlise
the factors were more clearly articulated.
The factors were more recently applied in State v. Johnson,
193 Wis. 2d 382, 535 N.W.2d 441 (1995) and Greer.
¶25 In McAdoo, the defendant challenged the admission of his
statement asserting that it was not given voluntarily because it was given
immediately after a polygraph examination.
McAdoo v. State, 65 Wis. 2d 596,
608-09, 223 N.W.2d 521 (1974). This
court concluded, "the polygraph can hardly be considered a strategy of the
police officers since 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. The defendant underwent the first series of
polygraph testing at 10:45 a.m., a lunch break was taken, and a second round of
testing began at 2:00 p.m. Id. at 603. At 2:25 p.m., the defendant decided to
discontinue the testing. Id. Due to that request, the testing equipment
was removed from the defendant, turned off, and taken away. Id. After the examination's conclusion, the
examiner proceeded to continue with questions.
Id. The defendant "freely answered and
talked for about forty-five minutes."
Id. During the course of this discussion, the
defendant admitted guilt. Id. The court concluded that, under Goodchild,
the defendant's statement was voluntary and therefore admissible. Id.
¶26 In Schlise, we excluded statements made during a
post-polygraph interview. State v.
Schlise, 86 Wis. 2d 26,
42, 271 N.W.2d 619 (1978). The
statements were excluded because no Stanislawski
stipulation had been effected. Id. Immediately following that conclusion,
however, we stated that "[t]his is not intended to suggest that all
post-examination interviews between a subject and the examiner will be subsumed
into the special category of polygraph evidence and fall within Stanislawski." Id. The court concluded that Schlise was
distinguishable from McAdoo on its facts. Id.
¶27 Specifically, in Schlise, no evidence existed to suggest
that the defendant was informed or was aware that the polygraph examination had
While the defendant was not still connected to the machine, the court
determined that this was not conclusive because the defendant was not connected
to the machine during a pre-testing interview and that interview was considered
part of the polygraph examination. Id. The officer used and referenced the charts
and tracings generated from the polygraph examination. Id.
at 43. The court found that even the
polygraph examiner thought that the "post-polygraph" examination was
a continuation of the test. Id. The examiner considered the subsequent
interview to be the second part of a unified procedure. Id. Based on those facts, the court concluded
that the post-mechanical interview was so closely associated with the
mechanical testing, "both as to time and content," that it must be
considered one event. Id.
¶28 In Johnson, the police officer conducted the polygraph
examination, and then, the same police officer escorted the defendant to
another room for questioning. Johnson,
193 Wis. 2d at 386. The court of appeals concluded that because
the statements were made voluntarily and separately from the polygraph
examination, the statements were admissible.
at 388-89. The court reasoned that the
defendant was no longer attached to the equipment, was interviewed in a
separate room from where the examination took place, and the police officer did
not refer back to the polygraph examination or tell the defendant that he
failed the test during post-examination questioning in order to elicit an
incriminating statement. Id. While the court of appeals acknowledged the
short amount of time between the examination and interview, it nonetheless
concluded that a distinct break occurred between the two events. Id.
¶29 In Greer, the court of appeals stated that "[t]he
touchstone of admissibility is whether the interviews eliciting the statements
are 'found to be totally discrete from the examination which precedes
them.'" Greer, 265 Wis. 2d 463, ¶10 (citation omitted). Citing to McAdoo, Schlise, and Johnson,
it identified two "core factors" to be considered when making this
determination: whether the defendant made the statements after the test was
over and whether the defendant was told the test was over. Id.,
¶12. In consideration of these "core
factors," the court of appeals found that prior to his confession, the
defendant was told orally and in writing
that the polygraph examination was over, and he was disconnected from the
equipment, moved to another room, and one hour elapsed between the polygraph
examination and the start of interrogation.
¶14. In addition, one police officer conducted the
polygraph examination and a different officer conducted the post-examination
Based on these facts, the court of appeals concluded that the
examination and interview were two totally discrete events, and therefore,
suppression was not required. Id., ¶¶14-16.
¶30 In the case at hand, the voice stress analysis and the interview
were totally discrete events: Two different officers were involvedone conducted the
examination and the other conducted the interview. Before any statement was made, Detective
Buenning stated, "I'm finished here," closed up his laptop, and left
the room with all the voice stress analysis equipment. The interviewing officer did not refer to the
polygraph examination or its results during the interview, and the examination
and interview took place in different rooms.
¶31 While here, very little time passed between the examination and
interview, time alone is not dispositive.
For example, in McAdoo, the examination and interview were
virtually seamless. However, in McAdoo,
as in the case at hand, the interviewer never referred back to the polygraph
examination or results, and the equipment was removed from the defendant. Even if little time passes between the two
events, the statement may still be admissible so long as two totally discrete
events occurred. See Johnson,
193 Wis. 2d at 389 (concluding that
neither Barrera v. State
nor Schlise proscribe a bright-line rule of timing and instead look to
the totality of the circumstances).
"[W]here there is a distinct break between the two events and the
post-polygraph interview does not specifically relate back to the . . . test, the events
are sufficiently attenuated." Johnson,
193 Wis. 2d at 389. Unlike the case at hand, in Schlise the
interview and examination were conducted by the same person, in the same room,
and even the test examiner considered the procedure one event. Schlise, 86 Wis. 2d at 43.
¶32 Davis argues that the examination
was not over when Detective Buenning, in the presence of Detective Swanson,
told Davis that he failed the test and then
that he should give a statement.
However, the facts here reflect that the examination was complete when
Detective Buenning talked with Davis about
making a statement even if Davis
had not been told the examination was over and the equipment had not been put
away. That fact, however, does not
subsequent statement to Detective Swanson, at an interview totally discrete
from the voice stress analysis, inadmissible given our totality of the
¶33 First, while Detective Swanson was present in the "family
room" when Davis
indicated he wanted to talk, precedent clearly holds that the same officer may
conduct both the examination and the interview so long as the two events are
separate. See McAdoo, 65 Wis. 2d at 603, 608-09; Johnson,
193 Wis. 2d at 386, 388. Therefore, even though Detective Swanson was
present in the "family room" when Davis said he wanted to talk, this does not
preclude the subsequently made statement from being admitted. Second, Davis
only agreed to give a statement when he was in the "family room" with
both detectives, he did not begin giving a statement until he returned from the
"family room" to the original interview room and five minutes had
passed. Therefore, there is no concern
began giving a statement to both detectives when he was confronted with his
untruthfulness and as a result locked himself into a particular set of facts
that he could not change once he began giving a statement to Detective
Swanson. Third, so long as the
examination and interview are two totally discrete events, "letting the
defendant know that he or she did not pass the examination, or letting the
defendant so conclude, does not negate that the examination and the
post-examination interview are, as phrased by Schlise, 'totally
discrete' events rather than 'one event.'"
Greer, 265 Wis. 2d 463, ¶16. Fourth, at no time during the interview did
Detective Swanson relate back to or rely on the voice stress evaluation or its
¶34 Under the totality of the circumstances and applying the Greer
test, the voice stress analysis and Davis's
statement were two totally discrete events.
As a result, the statement is admissible under these facts so long as it
¶35 Even if the examination and interview are totally discrete from one
another, a statement must still be deemed admissible considering ordinary
principles of voluntariness and constitutional principles of due process. See Schlise, 86 Wis. 2d at 44-45 (stating that
voluntariness need not be considered here because the statement was excluded
under Stanislawski); Johnson, 193 Wis. 2d
at 389 (stating that "general rules of admissibility apply to the
post-polygraph interview"); see also 9 Christine M. Wiseman, Nicholas
L. Chiarkas & Daniel D. Blinka, Criminal Practice and Procedure § 20.42, 673 n.3 (1996)
(discussing post-polygraph confessions).
¶36 "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." Hoppe, 261 Wis. 2d 294, ¶36; see generally State
ex rel. Goodchild v. Burke, 27 Wis. 2d 244,
133 N.W.2d 753 (1965); 9 Wiseman, Chiarkas & Blinka, supra, § 20.42. We must then inquire whether the statements
were the result of coercion or otherwise improper conduct by law
enforcement. Hoppe, 261 Wis. 2d 294, ¶37. If neither coercion nor other improper
conduct was used to secure the statement, it is deemed voluntary. Id.
¶37 This court applies a totality of the circumstances standard to
determine whether a statement was made voluntarily. Id.,
¶38. We must balance the personal characteristics
of the defendant, such as age, education, intelligence, physical or emotional
condition, and prior experience with law enforcement, with the possible
pressures that law enforcement could impose.
¶¶38-39. Possible pressures to consider include the
length of questioning, general conditions or circumstances in which the
statement was taken, whether any excessive physical or psychological pressure
was used, and whether any inducements, threats, methods, or strategies were
utilized in order to elicit a statement from the defendant. Id.,
¶38 In the case at hand, we conclude, as did the circuit court, that
the defendant's statement was voluntary.
The record contains no evidence that would give rise to any concerns
regarding his personal characteristics. Davis, at the time this
occurred, was 43 years old. While the
defendant's brief indicates that Davis only
possesses a middle school level education, we must defer to the trial court's
judgment that Davis
was not at such an educational disadvantage to render his personal characteristics
¶39 We also do not find evidence that law enforcement used coercion or
other forms of improper conduct in order to elicit Davis's incriminating statement. The duration of questioning was not lengthy, no
physical or emotional pressures were used, and no inducements, threats,
methods, or strategies were employed to ascertain an incriminating statement
from the defendant.
¶40 Davis's participation was voluntary
in every way: Davis
agreed to talk and take the voice stress analysis when he was in his own
home. Davis came to the police station on his own
terms including when and how he intended to get there. He received a ride from law enforcement when
his car would not start. Davis waved at the
officer and rode in the front passenger seat of the police car. Once at the police station, he was told he
was not under arrest and he was free to leave at any time. After the voice stress analysis, Davis said he wanted to
talk, and he chose which officer he was going to talk with and give his
statement. In short, Davis set the timing and the circumstances of
coming to the police station, taking the test, and to whom he would ultimately
give his statement.
¶41 Davis argues that Detective Buenning
told Davis that
he failed the voice stress analysis and referred to that information to
"undermine the defendant's will to resist the official
accusation." However, the record
does not support that conclusion. In a
very brief amount of time, Davis was told that
the analysis indicated Davis was being
deceptive, he was asked a question regarding his truthfulness, he was asked if
he wanted to talk, and Davis
said that he wished to speak with Detective Swanson. Compare with Schlise, 86 Wis. 2d at 40-41. Separately, he gave a statement to Detective
Swanson, which he read and approved.
¶42 Merely because one is administered a voice stress analysis or
polygraph test does not render a subsequent statement per se
coercive. The proper inquiry is not only
whether a test was taken, but rather, whether a subsequent statement was given
at a distinct event and whether law enforcement used coercive means to obtain
the statement. An important inquiry
continues to be whether the test result was referred to in order to elicit an
incriminating statement. See Johnson,
193 Wis. 2d at 389. Here, Davis
did not make a statement to Detective Buenning, the tester. There is no question that the test was
over. Davis had gone from one room to another
room. In addition, the interviewer,
Detective Swanson, never referenced the examination or its results during the
time Davis gave
his statement. No coercive measures were
used to elicit the statement.
statement was voluntary.
its certification to this court, the court of appeals expressed concern that no
underlying rationale existed for excluding statements during or closely related
to a polygraph examination or voice stress analysis. In its brief, the State also asserted that no
justifiable reason existed for excluding statements made during a polygraph
examination or voice stress analysis.
The State, citing to a number of cases from other jurisdictions,
argues that Wisconsin
should adopt a voluntariness approach to statements made before, during, or
after any form of honesty testing.
some prior precedent from this court and the court of appeals may not have
clearly or perhaps even properly articulated the underlying rationale for
excluding statements made during honesty testing,
the underlying rationale is simply that our state legislature has generally
precluded such a scenario under the plain language of Wis. Stat.
§ 905.065. Wisconsin Stat. § 905.065(2)
states, "[a] person has a privilege to refuse to disclose and to prevent
another from disclosing any oral or written communications during or any
results of an examination using an honesty testing device in which the person
was the test subject."
the legislature has decided that statements made during honesty testing are
generally excluded, but if those statements are given at an interview that is totally discrete from the honesty testing,
under the factors articulated in this opinion, and the statement was given
voluntarily, then the statement is admissible.
However, if the statements and examination are not totally discrete events but instead are
considered one event, then the statements must be excluded by virtue of Wis.
Stat. § 905.065.
conclude that Davis's
statement was not so closely associated with the voice stress analysis as to
render it one event. Rather, the
examination and interview were two totally discrete events. Therefore, because Davis's
statement was given voluntarily and at a totally discrete interview, we
conclude that Davis's
statement was admissible.
court.The judgment of the circuit court is affirmed.
¶47 ANN WALSH BRADLEY, J. (dissenting). I agree with the majority that Davis's statements are admissible if the voice stress
examination and the post-examination interview in which Davis made the inculpatory statement are
totally discrete events. In addition, I agree with the majority that
determining whether they are totally discrete events requires an examination of
the totality of circumstances test, as explained in State v. Greer, 2003
WI App 112, ¶11, 265 Wis. 2d 463, 666 N.W.2d 518.
¶48 However, I disagree with the majority's analysis because it alters
the essential inquiry and misapplies the totality of the circumstances test.
The proper inquiry and application of the totality of the circumstances test
require the conclusion that the examination and the interview here were not
totally discrete. A review of our precedent further supports that conclusion. I
therefore respectfully dissent.
¶49 This is not a case in which the examination clearly took place in
one room and the interview clearly took place in another room. Rather it is a case where there was an
ongoing process with both the examination and the interview occurring in two
¶50 A review of the relevant facts here is helpful as a preface to the
analysis. While at the police station, Detective Swanson met with Davis in an interview
room. Swanson left and returned with Detective Buenning. Davis was escorted by Buenning to the family
room where the voice stress examination was conducted in Swanson's absence.
¶51 After the test, Davis
was returned to the interview room. Buenning told Swanson that he believed Davis had been deceptive.
Both detectives then escorted Davis
back to the family room.
¶52 While in the family room, with Swanson present, Buenning confronted
Davis and told
him that his answers had been deceptive, showing him charts of the test
results. Although Davis
protested that he had not done anything, Buenning continued to press him.
capitulated and acknowledged the results. Buenning then asked Davis if he wanted to talk. Davis responded "yes." Buenning
asked if Davis preferred to talk to Swanson, and
that he did. Then Buenning said "I'm finished here," closed his
laptop, and left the family room with the examination paraphernalia.
¶53 Next, Swanson spoke to Davis,
indicated that they needed to talk, and took Davis back to the interview room. He left the
room to retrieve forms, returning within five minutes. When Swanson returned, Davis made the statements
at issue here.
¶54 The majority states that the issue in the case is "whether Davis's statement was so
closely associated with the voice stress analysis that it must be
suppressed." Majority op., ¶2.
It asserts that a statement made during a voice stress analysis is generally
inadmissible by virtue of Wis. Stat. § 905.065,
id., ¶45, but
ultimately concludes that the statement at issue here was made after the
analysis was completed and that the statement is admissible.
¶55 According to the majority, the question of whether Davis's statement is admissible depends on
whether the statement and the voice stress examination were two discrete events.
¶23. In order to determine whether the examination and the statement are
totally discrete, the majority applies a totality of the circumstances test
based on Greer.
¶56 The majority concludes that there were discrete events. It bases
its conclusion on the facts that there were two officers involved, and that
Buenning stated that he was finished, closed his laptop, and left with the
examination equipment before Davis
made his statement. Id.,
¶30. Further, the
majority explains that Swanson did not refer to the examination or results
during the time that Davis made the statements,
and that the examination and Davis's
statements occurred in different rooms.
¶57 The problems with the majority's analysis begin with its statement
of the inquiry. In State v. Schlise this court determined that the
admissibility of statements made after a polygraph examination turns on whether
the interview in which statements are made is totally discrete from the
examination. 86 Wis. 2d 26, 42, 271 N.W.2d 619 (1978). Following Schlise,
the court of appeals in Greer stated that the admissibility turns on
"whether the interviews eliciting the statements are found to be totally
discrete from the examination which precedes them." 265 Wis. 2d 463, ¶10 (internal quotations
¶58 At several points in the opinion, the majority correctly states
that the inquiry is whether the examination and interview were two discrete
events. However, in the analysis section the majority alters the test set forth
in Schlise and Greer and instead asks whether the examination and
are discrete events. Majority op., ¶23.
¶59 By altering the test, the majority implies that the
post-examination interview commenced when Davis
began making his statement. That assumption is untenable. The majority
recognizes that the voice stress examination was over when Davis was unhooked from the voice stress
analysis equipment. See id., ¶9. What it fails to acknowledge, however,
is that when Buenning and Swanson escorted Davis to the family room and confronted him
with the test results, they were initiating the post-examination interview.
¶60 Schlise and Greer demand that we analyze whether Davis's statements
occurred during an interview that was totally discrete from the examination.
Thus, the proper analysis should focus on whether the interview, including the period during
which Davis was
in the family room with both Buenning and Swanson, is totally discrete from the
examination. Yet the majority does not examine the interview as including that
¶61 The majority opinion is also problematic in its application of the
test it sets forth. It sets forth five factors from Greer that are
relevant in determining whether the voice stress examination and the interview
are totally discrete:
(1) whether the defendant was told the test was over;
(2) whether any time passed between the analysis and the defendant's statement;
(3) whether the officer conducting the analysis differed from the officer who
took the statement; (4) whether the location where the analysis was conducted
differed from where the statement was given; and (5) whether the voice stress
analysis was referred to when obtaining a statement from the defendant.
Majority op., ¶23. As noted, in
Greer the factors refer to the "interview" rather than the
¶62 Rather than examining the five factors in a straightforward way,
determining whether each factor indicates that the events were totally
discrete, the majority lists several factors that indicate that the events are
¶30. When it reaches
the factors that indicate that the events are related, it discounts them on the
ground that the events are totally discrete.
¶63 A close analysis of factors, however, reveals that the examination
and the interview here were not discrete events. I examine each in turn.
1. Was the
defendant told the examination was over?
¶64 Buenning did not give Davis
any indication that the examination was over until well into the post-examination
interview, when he stated "I'm finished here." Moreover, Buenning's
statement that "I'm finished here" is equivocal. Both Buenning and
Swanson were in the family room at the time, Buenning had just asked Davis if he would prefer to talk to Swanson, and Davis had responded that
he would. Thus, Buenning's statement can be interpreted to mean that he was
finished, not that the examination was finished.
2. Did any time
pass between the examination and the interview?
¶65 The majority focuses on the five minutes between Buenning packing
up the voice stress analysis equipment and Davis giving his statement to Swanson.
Although it concedes that the short period of time is an indication that the
events are not discrete, the majority merely states that "time alone is
not dispositive." Id.,
¶66 The important point, however, is that after Davis agreed to give a statement, only enough
time passed for him to be escorted to a different room and for Swanson to
retrieve some paperwork. After the break, things picked up precisely where they
had left off, with Davis
agreeing to give the statement that had been elicited by Buenning in the family
room. It is incorrect to suggest that there are totally discrete events when
the break between them was so short and the subject of discussion (that Davis had previously not
told the truth and would now agree to give a truthful statement) was identical
before and after the break.
3. Was the
officer conducting the examination different from the officer conducting the
¶67 The majority maintains that different officers conducted the exam
and the interview. However, as noted, the interview began when both Buenning
and Swanson were in the family room with Davis.
Both were present when Davis
capitulated and conceded the results of the test, agreeing to give a statement.
¶68 Although only Swanson was present in the room when Davis
gave his statement, Swanson merely asked Davis
to give his statement after Davis
had already agreed to give it while they were in the family room. The interview
(that is, all of the discussion regarding Davis's
actions and the examination) took place in the family room with Buenning. Thus,
while there were two officers involved, both conducted the interview. Because
Buenning was involved in both the examination and the interview, the officer
conducting the examination was not different from "the" officer
conducting the interview.
4. Was the
location of the examination different from the location of the interview?
¶69 Although the post-examination interview began in the same room in
which the examination was conducted, Davis
was moved to the interview room to give his statement to Swanson. More
importantly, though, this is a case in which there was an ongoing process.
was at the police station for the purpose of the examination. He was moved back
and forth between the interview room and the family room several times. Davis had been in both
rooms with both officers. As noted above, this is not a case in which the
examination and the interview each clearly took place in a single room. Rather,
it is a case in which there was ongoing process, including an examination and
an interview, which occurred in two places.
5. Were the examination results used in obtaining the
¶71 There is no question that the results of the examination were used
to obtain Davis's
statement. The majority maintains that "so long as the examination and
interview are two totally discrete events, letting the defendant know that he
or she did not pass the examination . . . does not negate that
the examination and post-examination interview are . . . totally discrete
events." Majority op., ¶33. However, the use of examination results is a
factor to consider in determining whether there are two discrete events.
Discounting the factor on the ground that there are two discrete events just
begs the question.
¶72 The majority also maintains that "at no time during the
interview did Detective Swanson relate back to or rely on the voice stress
evaluation or its results." Id.
The reason is that Swanson did nothing but ask Davis
to recite the statement that Buenning had elicited from Davis a few minutes prior.
¶73 The factors cited by the majority therefore indicate that there
were not two totally discrete events. Whether Davis was told the exam was over is unclear;
there was essentially no time breaking up the events involved; both officers
were involved in the process and Buenning performed most of the interviewing;
the two rooms were each used for both the examination and the interview; and
the examination results were used during the interview to elicit Davis's statement.
¶74 Finally, a review of prior cases supports the conclusion that the
examination and the interview were not discrete events. This case closely
resembles Schlise, where an officer conducted a polygraph examination
and a post-examination interview that were both a part of a longer, seamless
process. That process included a lengthy pre-examination interview, the actual
polygraph examination, and the post-examination interview, all conducted by one
officer. 86 Wis. 2d at 42-43. The
post-examination interview involved the officer confronting the defendant with
the results of the test, thereby eliciting an incriminating statement. Id. at 40. This
court determined that the examination and the interview were so closely
associated in time and content that they had to be considered one event. Id. at 43.
¶75 The present case is similar. Davis
was given the voice stress examination, which was over when he was unhooked
from the equipment and escorted to the interview room. Swanson and Buenning
back into the family room and confronted him with the results of the test in a
post-examination interview. During the interview Buenning used the results of
the test to elicit a statement from Davis.
Davis was taken
back to a room he had been in and out of during the entire process so that he
could put his statement in writing.
¶76 Thus, as in Schlise, there was a single, ongoing process,
the post-examination interview was conducted by the officer that conducted the
examination, and the results of the test were used to elicit an incuplatory
statement. The primary difference between this case and Schlise is that
this case involved two officers, both of whom were involved in the entire
process. Further, while there were two rooms involved, each had been used
throughout the ongoing process.
¶77 This case is also different in important ways from Greer and
State v. Johnson, 193 Wis. 2d 382, 535 N.W.2d 441 (Ct. App. 1995), in
which the examinations and interview were discrete. In Greer, one
officer spoke to the defendant the day before the defendant was given a
polygraph examination. The examination was conducted by a different officer.
After it was completed, the defendant was told orally and in writing that the
examination was over. 265 Wis. 2d 463, ¶¶3-4. An hour passed and the
defendant was moved to a different room. There, the first officer conducted an
interview in which the defendant confessed. Id., ¶7. The court of appeals determined that the examination
and the interview were not totally discrete. Id., ¶16.
¶78 In Greer the statement that the examination was over was
clear, whereas here the statement was equivocal. The defendant in that case had
an hour to differentiate between the examination and interview, whereas Davis had only long
enough for Swanson to retrieve paperwork. The officers in Greer played
distinct roles, whereas both officers here were involved throughout the
process. Although this case involves two rooms, as did Greer, it is
distinct in that both rooms were used throughout the process. The Greer
court determined that the officer's use of the examination results during the
interview did not alone prevent the examination and interview from being
¶14. Nonetheless, it
recognized that using the results counts against a determination that the
events are totally discrete. Id.,
¶79 The court of appeals determined in Johnson that there were
discrete events even though there was only one officer conducting the
examination and the interview. 193 Wis. 2d 382, 389. It based the
determination on the facts that the defendant was moved to a different room,
there was a distinct break between the two events, and the officer did not
refer to the test results in order to elicit the inculpatory statement. Id. There is no indication that the interview
room had been used throughout the process, as is the case here. More
importantly, in this case it was the use of the test results that elicited Davis's statement.
statement to Swanson came directly after Buenning had induced him to give it,
with only enough time passing for Swanson to retrieve paperwork.
¶80 Because this case is similar to Schlise, and distinct from Greer
and Johnson, the case law favors the conclusion that the examination and
the interview were not discrete events.
¶81 In sum, the majority has altered the focus of the inquiry set forth
in Greer and Schlise. As a result of skewing the focus, it incorrectly assumes
that the post-examination interview commenced when Davis made his statement. Additionally, the
majority misapplies the totality of the circumstances test. I conclude the
proper inquiry and application of the totality of the circumstances test,
together with our prior case law, requires the conclusion that the examination
and the interview here were not discrete events. I therefore respectfully dissent.
¶82 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON
joins this dissent.