State v. Timothy E. Dobbs ( 2020 )

2020 WI 64
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP319-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Timothy E. Dobbs,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 388 Wis. 2d 144,930 N.W.2d 280
(2019 – unpublished)
OPINION FILED: July 3, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 1, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Clayton Patrick Kawski & Jill Karofsky
JUSTICES:
DALLET, J., delivered the majority opinion of the Court with
respect to Parts I, II, and III.C., in which all Justices
joined; the majority opinion of the Court with respect to Part
III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER,
and HAGEDORN, JJ., joined; and the majority opinion of the Court
with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA
GRASSL BRADLEY, and KELLY, JJ., joined. ZIEGLER, J., filed a
concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J.,
joined. KELLY, J., filed a concurring opinion, in which REBECCA
GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Michael D. Rosenberg and Community Justice, Inc.,
Madison. There was an oral argument by Michael D. Rosenberg.
For the plaintiff-respondent, there was a brief filed by
Michael C. Sanders, assistant attorney general; with whom on the
brief is Joshua L. Kaul, attorney general. There was an oral
argument by Michael C. Sanders.
An amicus curiae brief was filed on behalf of The Innocence
Projects, In., and the Wisconsin Innocence Project by Andrew T.
Dufresne, Sopen B. Shah, and Perkins Coie LLP, Madison; with
whom on the brief was Keith A. Findley and the Wisconsin
Innocence Project, Madison.
2
2020 WI 64
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP319-CR
(L.C. No. 2015CF1938)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUL 3, 2020
Sheila T. Reiff
Timothy E. Dobbs, Clerk of Supreme Court
Defendant-Appellant-Petitioner.
DALLET, J., delivered the majority opinion of the Court with
respect to Parts I, II, and III.C., in which all Justices
joined; the majority opinion of the Court with respect to Part
III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER,
and HAGEDORN, JJ., joined; and the majority opinion of the Court
with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA
GRASSL BRADLEY, and KELLY, JJ., joined. ZIEGLER, J., filed a
concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J.,
joined. KELLY, J., filed a concurring opinion, in which REBECCA
GRASSL BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA FRANK DALLET, J. The petitioner, Timothy E.
Dobbs, seeks review of the court of appeals' decision1 affirming
his judgment of conviction for homicide by intoxicated use of a
vehicle.
1State v. Dobbs, No. 2018AP319–CR, unpublished slip op.
(Wis. Ct. App. May 2, 2019).
No. 2018AP319-CR
¶2 Dobbs raises two issues on appeal. First, Dobbs
asserts that the circuit court improperly excluded the expert
testimony of Dr. Lawrence White.2 Second, Dobbs claims that the
circuit court erred in denying his motion to suppress statements
that he made to law enforcement because he was subject to
custodial interrogation and not read the Miranda warnings,3 or,
in the alternative, because his statements were not voluntarily
made.4
¶3 We conclude that the circuit court properly exercised
its discretion when it excluded Dr. White's exposition testimony
for a lack of fit with the facts of Dobbs's case. Additionally,
although we determine that several of Dobbs's statements should
have been suppressed because he was subject to custodial
interrogation and was not read the Miranda warnings, we conclude
that the error was harmless. We further conclude that all of
Dobbs's statements were voluntary.
¶4 We therefore affirm the decision of the court of
appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶5 On the morning of September 5, 2015, a vehicle crossed
several lanes of traffic and a median area, drove over a curb,
The Honorable Clayton P. Kawski of the Dane County Circuit
2
Court presided over the State's motion to exclude the testimony
of Dr. Lawrence White.
3 Miranda v. Arizona, 384 U.S. 436 (1966).
The Honorable David T. Flanagan of the Dane County Circuit
4
Court presided over Dobbs's motion to suppress.
2
No. 2018AP319-CR
and struck a pedestrian. The vehicle left the scene. Several
blocks from the scene, Madison Police Officer Jimmy Milton
noticed a vehicle with a completely deflated tire and exposed
wheel rim on the front driver's side that matched the witnesses'
description of the vehicle involved in the hit and run. Officer
Milton positioned his squad car to prevent the driver, later
identified as Dobbs, from leaving.
¶6 With his hand on his service weapon, Officer Milton
instructed Dobbs to show his hands and exit the vehicle. Dobbs
was immediately handcuffed and placed in the squad car. Officer
Milton told Dobbs he was "being detained" for an ongoing
"accident investigation" and that he was suspected of striking a
pedestrian. Shortly after placing Dobbs in the squad car,
Officer Milton learned that the pedestrian had died.
¶7 At 7:30 a.m., Officer Milton started questioning Dobbs
while he remained handcuffed in the backseat of the locked squad
car. The audio from Officer Milton's microphone did not start
recording until 7:34 a.m.5 At 7:34 a.m., Officer Milton asked
Dobbs his date of birth and questions about his vehicle's
registration. At 7:36 a.m., Officer Milton said to Dobbs "I
smell alcohol." Over the course of the next hour, Officer
Milton talked to Dobbs about a variety of topics and asked him
numerous questions, including:
Officer Milton testified that he asked Dobbs his name,
5
address, where he had been coming from, where he was headed, and
other "identifying" information during this time.
3
No. 2018AP319-CR
 "Do you have any medical issues other than that splint
that you were wearing?"
 "Do you take medications for depression and anxiety?"
 "Do you have any injuries from the collision with the
curb?"
 "So [those bruises and scratches on your face] are all
old?"
In response to Officer Milton's comments, Dobbs stated that he
had not slept in 40 hours and had not taken his medication that
morning. Dobbs told Officer Milton that "he was adjusting his
arm in the sling, and he lost control of the vehicle and he hit
the curb, and that's what caused the damage to his front
driver's side tire."
¶8 About 30 minutes into the questioning, Dobbs said "I
take it I'm going to jail." Officer Milton never responded to
Dobbs's statement, but he made several subsequent comments that
there was an ongoing investigation and that was why there were
up to three other officers on the scene at a time, including a
K-9 unit.
¶9 During the questioning, Officer Milton exited the
squad car several times to observe the exterior and interior of
Dobbs's vehicle, alongside two other officers. Officer Milton
saw "impact damage" to the front end and hood of Dobbs's
vehicle, including two dents and a tree branch that was lodged
in the vehicle's hood. Officer Milton also observed a can of
4
No. 2018AP319-CR
air duster6 in plain view in the front center console, which was
within reach of the driver's seat.7 Officer Milton described the
vehicle's damage in detail to Dobbs and made comments like "it's
obvious you hit something because your wheel is damaged."
¶10 After about an hour, Officer Milton removed Dobbs's
handcuffs and he was escorted out of the locked squad car to
perform field sobriety tests. Dobbs displayed no signs of
intoxication during the tests, but Officer Milton asked him to
submit to a blood test. Dobbs agreed and was subsequently
transported to a nearby hospital.
¶11 Dobbs arrived at the hospital at approximately 9:08
a.m. Additional officers arrived at the hospital, including
Officer Nicholas Pine, who began a drug recognition evaluation
at approximately 9:45 a.m.8 As part of that evaluation, Dobbs
was given a preliminary breath test, which revealed that Dobbs
did not have any alcohol in his system. Nearly three hours
after Dobbs was first handcuffed and placed in the locked squad
car, at 10:19 a.m., Officer Pine first read Dobbs the Miranda
warnings. Dobbs waived his Miranda rights and was questioned by
Officer Pine.
The can of air duster was referred to by a variety of
6
names during the suppression hearing and the jury trial,
including DustOff, Ultra Duster, air duster, duster, and
compressed air. For ease of reference, we will refer to it as
"air duster" throughout this opinion.
During a search of Dobbs's vehicle, Officer Timothy Frey
7
found a Menards receipt for air duster dated the morning of the
accident.
8 There is no audio or visual recording of this evaluation.
5
No. 2018AP319-CR
¶12 Dobbs was then formally placed under arrest, informed
that the pedestrian had died, and read the Miranda warnings for
a second time by Officer Milton. Dobbs again waived his Miranda
rights and agreed to answer questions. Dobbs eventually
confessed that he had taken a puff of the air duster while he
was driving, passed out, swerved, and then drove away from the
scene.
¶13 Dobbs was transported to the City County Building
garage where Officer Paul Fleischauer continued to question him.
Dobbs confessed to Officer Fleischauer that he had been huffing
for pain management, in addition to taking an antidepressant and
prescribed pain medication. Dobbs said he had inhaled the air
duster while driving, likely striking the pedestrian after he
lost consciousness.
¶14 Dobbs was driven to another hospital to receive
medical clearance to be booked into the jail. While at that
hospital, Officer Van Hove heard Dobbs say twice, unprompted,
that he had "taken a puff of Dust-Off and had killed a man" with
his vehicle. Officer Van Hove did not ask any follow-up
questions in response.
¶15 Shortly thereafter, Dobbs indicated he wanted to call
his father, despite being warned that anything he said on the
phone could ultimately be used in court. Officer Van Hove
overheard Dobbs tell his father that he went to Menards to buy
air duster, took a puff on his way home, and then drove over a
curb and "killed a man." He also heard Dobbs say "he understood
6
No. 2018AP319-CR
his rights and wanted to be honest." Later that night, Officer
Bryan Dyer heard Dobbs spontaneously repeat the same story.
¶16 The next morning, despite Officer Dean Baldukas's
reminder to Dobbs that he was under arrest "and still had rights
associated with that," Dobbs blurted out, unprompted, that he
had taken a puff of the air duster. Additionally, Officers
Linda Baehmann and Bryan Dyer overheard similar spontaneous
comments from Dobbs regarding huffing air duster.
¶17 Dobbs was ultimately charged with one count of
homicide by intoxicated use of a vehicle and one count of hit
and run resulting in death.
¶18 Prior to trial, the circuit court heard a number of
motions, two of which are relevant to this appeal. The first
was Dobbs's motion to suppress his statements on the grounds
that: (1) he was not read the Miranda warnings despite being
subject to custodial interrogation; and (2) all of his
statements were not voluntarily made due to his mental and
physical condition. The circuit court denied Dobbs's motion to
suppress, concluding that the "first interrogation that would
have required a Miranda warning, had the defendant been in
custody, was the interview by [Officer] Pine," at 10:19 am, when
Officer Pine first read Dobbs the Miranda warnings. Further,
the circuit court concluded that "[e]ach of the statements made
by the defendant to Officers Milton, Pine, Kleinfeldt, Van Hove,
7
No. 2018AP319-CR
Dyer, Baldukas, and Baehmann has been demonstrated to have been
voluntary and not the product of coercion in any degree."9
¶19 The second pre-trial motion relevant to this appeal
was the State's motion to exclude the testimony of Dobbs's
proffered experts, including Dr. Lawrence White. The defense
had named Dr. White to testify generally about the phenomenon of
false confessions, as well as the interrogation techniques and
dispositional characteristics that make false confessions more
likely. The State argued Dr. White's testimony would not be
relevant because there was no link between his testimony and the
facts surrounding Dobbs's confessions. The State further argued
that Dr. White's testimony would confuse the jury, invade the
province of the jury as the ultimate assessor of credibility,
and re-litigate the voluntariness of Dobbs's statements. In
response, Dobbs alleged that Dr. White's testimony would assist
the jury by dispelling a common misbelief that an innocent
person would never confess to a crime he or she did not commit.
¶20 At the Daubert10 evidentiary hearing, the State
stipulated to Dr. White's qualifications. Dr. White testified
that he saw his role as a jury educator, lecturing about the
social science and legal scholarship on false confessions and
the general psychology behind interrogation techniques and
confessions. He detailed the interrogation techniques that
9Dobbs filed a motion for reconsideration on his motion to
suppress, which was denied.
10 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
8
No. 2018AP319-CR
could make an innocent person confess: isolation, confrontation
with inculpatory evidence, police indifference to claims of
innocence, being in custody for over six hours, persistent
questioning, minimization of the accused's culpability or the
consequences, and implying lenient treatment would be given in
return for a confession. Dr. White further described the
dispositional characteristics that make a person more vulnerable
to confessing falsely when subject to these coercive
interrogation techniques, including: youth (under 25 years
old), low intelligence, a suggestible or compliant
predisposition, mental disorders like anxiety or depression,
sleep deprivation, and physical exhaustion. Dr. White affirmed
that he did not review any reports or the specific facts of
Dobbs's case, and that he would not offer an ultimate opinion on
the truthfulness of Dobbs's confessions.
¶21 The circuit court ruled that Dr. White's testimony
would not assist the jury because he never reviewed Dobbs's case
and therefore could not explicitly apply his expertise to the
specific facts of the case. The circuit court determined his
proffered testimony was a "lecture" at the "highest level of
generality" which could not satisfy the requirement in Wis.
Stat. § 907.02(1) (2017-18)11 that "the witness has applied the
principles and methods reliably to the facts of the case."
All subsequent references to the Wisconsin Statutes are
11
to the 2017-18 version unless otherwise indicated.
9
No. 2018AP319-CR
¶22 Dobbs moved for reconsideration. The circuit court
affirmed its original ruling but articulated a second rationale
for excluding Dr. White's exposition testimony: it did not
"fit" the particular facts surrounding Dobbs's confessions.
Specifically, the circuit court found that Dobbs had made no
showing that the police employed the types of coercive
techniques that Dr. White would testify about.
¶23 At Dobbs's jury trial, Officers Milton, Dyer,
Baldukas, Baehmann, and Van Hove all testified to Dobbs's
confessions that he inhaled air duster prior to the accident.
Dobbs took the witness stand and denied huffing any air duster
while driving on the day of the accident. A jury ultimately
found Dobbs guilty of homicide by intoxicated use of a vehicle.12
Dobbs was sentenced to 20 years imprisonment, consisting of 12
years of initial confinement followed by 8 years of extended
supervision.
¶24 Dobbs appealed, challenging the circuit court's
decisions granting the State's motion to exclude Dr. White's
testimony and denying his motion to suppress his statements.
¶25 The court of appeals affirmed the judgment of
conviction in an unpublished, per curiam decision. It
determined that the circuit court "reasonably concluded that
[Dr. White] would not assist the trier of fact unless [he] also
applied his knowledge about false confessions to the specific
The jury found Dobbs not guilty on the second count of
12
hit and run.
10
No. 2018AP319-CR
circumstances in Dobbs's case." State v. Dobbs, No. 2018AP319–
CR, unpublished slip op., ¶7 (Wis. Ct. App. May 2, 2019).
Further, it affirmed the circuit court's decision on Dobbs's
motion to suppress based on its determination that Dobbs was not
entitled to Miranda warnings because he was not in custody when
he was "first placed in the squad car." Id., ¶¶11-14.
Additionally, the court of appeals rejected Dobbs's argument
that his statements were not voluntarily made. Id., ¶¶15-17.
¶26 Dobbs petitioned this court for review, which we
granted. Additionally, we asked the parties to brief the
following issue: "Whether the court of appeals' decision is
consistent with State v. Morgan, 2002 WI App 124, 254
Wis. 2d 602, 648 N.W.2d 23, and if not, whether Morgan should be
overruled."
II. STANDARD OF REVIEW
¶27 It is within the circuit court's discretion whether to
admit proffered expert testimony. State v. Pico, 2018 WI 66,
¶15, 382 Wis. 2d 273, 914 N.W.2d 95. We review the circuit
court's decision under an erroneous exercise of discretion
standard and therefore we will not reverse a circuit court's
decision if the decision "had a reasonable basis," and "was made
in accordance with accepted legal standards and in accordance
with the facts of record." Id. (internal quotation marks
omitted) (quoting State v. LaCount, 2008 WI 59, ¶15, 310
Wis. 2d 85, 750 N.W.2d 780).
¶28 In evaluating a circuit court's decision on a motion
to suppress, we uphold the circuit court's findings of fact
11
No. 2018AP319-CR
unless they are clearly erroneous. State v. Eason, 2001 WI 98,
¶9, 245 Wis. 2d 206, 629 N.W.2d 625. However, we independently
apply constitutional principles to the facts as found by the
circuit court to ensure that the scope of constitutional
protections do not vary from case to case. State v. Turner, 136
Wis. 2d 333, 344, 401 N.W.2d 827 (1987). Whether Dobbs was in
custody for purposes of Miranda is a question of law that we
review de novo. State v. Mosher, 221 Wis. 2d 203, 211, 584
N.W.2d 553 (Ct. App. 1998).
¶29 Finally, in assessing the circuit court's decision on
the voluntariness of Dobbs's statements, we independently apply
the constitutional principles of due process to the facts as
found by the circuit court. See State v. Hoppe, 2003 WI 43,
¶34, 261 Wis. 2d 294, 661 N.W.2d 407. Whether Dobbs's
statements were voluntary is a question we review de novo. Id.
III. ANALYSIS
¶30 We first address whether the circuit court reasonably
exercised its discretion in excluding Dr. White's expert
testimony. Next we consider whether any of the statements Dobbs
gave before he was read the Miranda warnings should have been
suppressed because he was subject to custodial interrogation,
and if so, whether admission of those statements was harmless
error. Finally we consider the voluntariness of Dobbs's
statements in light of his mental and physical condition.
12
No. 2018AP319-CR
A. The circuit court properly excluded Dr. White's exposition
testimony on the grounds that it did not "fit" the facts of the
case.
¶31 Dobbs sought to admit the expert testimony of
Dr. White, who would have testified generally about
interrogation techniques and dispositional factors that can lead
an innocent person to falsely confess without directly opining
on whether those techniques and factors led Dobbs to give a
false confession. We refer to an expert witness testifying in
the form of an educational lecture on general principles as
exposition testimony. See Daniel D. Blinka, Expert Testimony
and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev.
173, 219 (2006) ("Expository testimony consists of a lecture or
explanation on a specialized subject such as economics,
accounting, engineering, medicine, or psychology.").
¶32 The circuit court excluded Dr. White's testimony after
determining that it would not assist the trier of fact for two
reasons: (1) Dr. White did not know, and thus could not apply
his expertise to, the specific facts of the case, contrary to
the language of Wis. Stat. § 907.02(1) that the expert witness
"appl[y] the principles and methods reliably to the facts of the
case"; and (2) Dobbs made no showing that Dr. White's exposition
testimony would fit the facts of the case. We will not overturn
the circuit court's exercise of discretion if the decision had a
"reasonable basis" and was made in accordance with the proper
legal standard and the facts in the record. Pico, 382
Wis. 2d 273, ¶15. We accept the circuit court's findings of
13
No. 2018AP319-CR
fact unless they are clearly erroneous. Metro. Assocs. v. City
of Milwaukee, 2018 WI 4, ¶25, 379 Wis. 2d 141, 905 N.W.2d 784.
¶33 The admission of expert testimony is governed by Wis.
Stat. § 907.02. As originally enacted, § 907.02 permitted
expert testimony in the form of an opinion or otherwise as long
as the expert witness was qualified, the evidence assisted the
trier of fact, and the evidence was relevant. § 907.02 (1973-
74); Seifert v. Balink, 2017 WI 2, ¶52, 372 Wis. 2d 525, 888
N.W.2d 816 (lead opinion). This court initially interpreted
§ 907.02 to permit exposition testimony without requiring an
expert to "apply[] those factors to the concrete circumstances
of th[e] case" or "stat[e] to the jury his own opinion."
Hampton v. State, 92 Wis. 2d 450, 458, 285 N.W.2d 868 (1979).
This court's reading of § 907.02 was consistent with the federal
interpretation of the identical language as set forth in Federal
Rule of Evidence 702 ("Rule 702").13 See Kopf v. Skyrm, 993
F.2d 374, 378 (4th Cir. 1993) ("An expert on the stand may give
a dissertation or exposition of scientific or other principles
relevant to the case, leaving the trier of fact to apply them to
13 Rule 702 and Wis. Stat. § 907.02 both read:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
Pub. L. No. 93–595, 88 Stat. 1926, 1937 (1975); Wis. Stat.
§ 907.02 (1973-74).
14
No. 2018AP319-CR
the facts." (quoting Fed. R. Evid. 702, Advisory Committee
Notes14 to 1972 Proposed Rule 702)).15
¶34 In 2000, Rule 702 was amended to codify the
reliability standard articulated in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993), and its progeny.16 In 2011,
the Wisconsin legislature followed suit, renumbering Wis. Stat.
§ 907.02 to § 907.02(1) and amending it to expressly "adopt the
Daubert reliability standard embodied in Federal Rule of
14 As Justice Shirley Abrahamson explained in Seifert:
Under the Rules Enabling Act, 28 U.S.C. § 2072, the
United States Supreme Court is authorized to
promulgate rules of practice and procedure for the
federal courts. This authority is exercised by the
Judicial Conference of the United States. The
Conference promulgates and changes rules of practice
and procedure in the federal courts subject to
oversight by the Court. For the Federal Rules of
Evidence, the Judicial Conference is aided in its
rule-making powers by the Evidence Advisory Committee;
the members of and reporter to this Committee are
appointed by the Chief Justice of the United States
Supreme Court.
Seifert v. Balink, 2017 WI 2, ¶55 n.13, 372 Wis. 2d 525, 888
N.W.2d 816 (lead opinion) (citing Paul R. Rice and Neals-Erik
William Delker, Federal Rules of Evidence Advisory Committee: A
Short History of Too Little Consequence, 191 F.R.D. 678, 679
(2000)).
Rule 702 served to expressly "encourage the use of expert
15
testimony in non-opinion form when counsel believes the trier
can itself draw the requisite inference," as opposed to having
an expert witness opine on hypotheticals before the jury.
Hampton v. State, 92 Wis. 2d 450, 459, 285 N.W.2d 868 (1979)
(quoting Fed. R. Evid. 702, Advisory Committee Notes to 1972
Proposed Rule 702).
See General Electric Co. v. Joiner, 522 U.S. 136 (1997);
16
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
15
No. 2018AP319-CR
Evidence 702." State v. Kandutsch, 2011 WI 78, ¶26 n.7, 336
Wis. 2d 478, 799 N.W.2d 865; see also State v. Jones, 2018 WI
44, ¶7, 381 Wis. 2d 284, 911 N.W.2d 97 ("These changes [to
§ 907.02] adopted the federal standard, which incorporates the
analysis promulgated in Daubert . . . .") (citing Seifert, 372
Wis. 2d 525, ¶6); 2011 Wis. Act 2, Wis. S. Amend. Memo, 2011
Jan. Spec. Sess. S.B. 1 ("This language [in § 907.02(1)] is
identical to the language of Rule 702 of the Federal Rules of
Evidence."). Section 907.02(1) now reads:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
2011 Wis. Act 2, § 34m (emphasis added to signify added
language).
¶35 Whether the Daubert reliability standard expressly
adopted in Wis. Stat. § 907.02(1) altered Wisconsin's long-
standing practice of allowing expert exposition testimony is a
question of first impression. In answering this question, we
begin with the text of § 907.02(1). State ex rel. Kalal v. Cir.
Ct. for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. We interpret the statutory language in the context
in which it is used, not in isolation, and we consider prior
case law in this inquiry as it "may illumine how we have
16
No. 2018AP319-CR
previously interpreted or applied the statutory language."
Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶16, 359
Wis. 2d 385, 856 N.W.2d 874 (quoting Belding v. Demoulin, 2014
WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d 373). Since § 907.02(1)
is identical to the language of Rule 702, we also look to the
federal interpretation of Rule 702 for guidance. See State v.
Poly–America, Inc., 164 Wis. 2d 238, 246, 474 N.W.2d 770 (1991)
("When a state statute is modeled after a federal rule, we look
to the federal interpretation of that rule for guidance and
assistance."). Lastly, although not dispositive, we consider
how other state courts have interpreted analogous state laws.
See Seifert, 372 Wis. 2d 525, ¶55 (lead opinion).
¶36 The text of Wis. Stat. § 907.02(1) permitting an
expert to testify "in the form of an opinion or otherwise"
remains unchanged by the addition of the Daubert reliability
standard. See Wis. Stat. § 907.02(1). As we recognized in
Hampton, the phrase "or otherwise" signifies that expert
testimony may take a form other than an opinion, which courts
should encourage when the trier of fact can itself draw the
17
No. 2018AP319-CR
requisite inference from the facts of the case.17 Hampton, 92
Wis. 2d at 459; see also Hagenkord v. State, 100 Wis. 2d 452,
463, 302 N.W.2d 421 (1981) ("Testimony by experts is not limited
to giving opinions or to the stating of facts derived from
specialized knowledge."). A reading of § 907.02(1) that
requires an expert to apply his or her expertise to the facts of
the case would result in an expert always providing some type of
Circuit courts need this flexibility to limit otherwise
17
relevant and reliable expert testimony that, if given in the
form of an opinion, would invade the prerogative of the finder
of fact. See Hampton, 92 Wis. 2d at 458 (holding that the
circuit court did not erroneously exercise its discretion by
limiting an eyewitness identification expert to only provide
exposition testimony rather than rendering an opinion on the
reliability of any of the eyewitnesses' identifications in the
case); 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 608.3, at 560 (4th ed.) ("Indeed, the supreme court
has encouraged the use of expert evidence in non-opinion form
because such expository testimony assists the jury while
minimizing the risk that the jury will surrender its autonomy to
the expert. A judge reluctant to introduce Jensen evidence may
nonetheless permit exposition to assist the jury without
sacrificing the record." (footnote omitted) (citing State v.
Jensen, 147 Wis. 2d 240, 256, 432 N.W.2d 913 (1988))).
18
No. 2018AP319-CR
an opinion about the matter18 and would render the phrase "or
otherwise" inoperative. Such a reading would violate this
court's interpretive canon "to give reasonable effect to every
word" in a statute. Kalal, 271 Wis. 2d 633, ¶46.
¶37 There is a reasonable reading of Wis. Stat.
§ 907.02(1) that gives effect to both the language "or
otherwise" and the condition that "the witness has applied the
principles and methods reliably to the facts of the case." If
the expert is testifying in the form of an opinion, he or she is
applying the principles or methods to the specific facts of the
case and must therefore do so reliably. If, however, the expert
is testifying in a form other than an opinion, such as an
exposition, then the expert would not be applying principles or
18For example, in this case, if Dr. White applied the
principles and methods to the facts of the case, he would be
giving an opinion on whether or not Dobbs's dispositional
factors combined with the police interrogation techniques could
have resulted in Dobbs falsely confessing. It is important to
recognize that if Dr. White offered such an opinion, it would
invade the province of the factfinder as the sole determiner of
credibility. Cf. State v. Kleser, 2010 WI 88, ¶104, 328
Wis. 2d 42, 786 N.W.2d 144 ("The essence of the rule prohibiting
vouching testimony is that such testimony invades the province
of the fact-finder as the sole determiner of credibility."
(citing State v. Haseltine, 120 Wis. 2d 92, 95-96, 352
N.W.2d 673 (Ct. App. 1984))). Even if Dr. White had simply been
asked whether any of the factors he described in his exposition
testimony related to Dobbs's case, his response would be
offering his view about whether his exposition testimony relates
to the particular facts in Dobbs's case. This is the very
definition of an opinion. See "Opinion," Merriam-
Webster Online Dictionary (2020), https://www.merriam-
webster.com/dictionary/opinion ("[A] view . . . formed in the
mind about a particular matter.").
19
No. 2018AP319-CR
methods to the facts of the case and it would be nonsensical to
require him or her to do so reliably.
¶38 A reading of Wis. Stat. § 907.02(1) permitting
exposition testimony is consistent with the intent of the
drafters of Rule 702, as evidenced by the Advisory Committee
Notes to the 2000 Amendment. See Guertin v. Harbour Assur. Co.
of Bermuda, 141 Wis. 2d 622, 628–29, 415 N.W.2d 831 (1987) ("The
'written comments of legislatively created advisory committees
are relevant in construing statutes and ascertaining the
legislative intent of statutes recommended by such committees.'"
(quoting Champlin v. State, 84 Wis. 2d 621, 625, 267 N.W.2d 295
(1978))). The Advisory Committee Notes to the 2000 Amendment
clarify that the amendment was not intended to alter the
established practice of admitting exposition testimony without
requiring an expert to apply those principles to the facts of
the case.
If an expert purports to apply principles and methods
to the facts of the case, it is important that this
application be conducted reliably. It might also be
important in some cases for an expert to educate the
factfinder about general principles, without ever
attempting to apply these principles to the specific
facts of the case. For example, experts might
instruct the factfinder on the principles of
thermodynamics, or bloodclotting, or on how financial
markets respond to corporate reports, without ever
knowing about or trying to tie their testimony into
the facts of the case. The amendment does not alter
the venerable practice of using expert testimony to
educate the factfinder on general principles.
Fed. R. Evid. 702, Advisory Committee Notes to the 2000
Amendment (emphasis added). The drafters of Rule 702(d)
20
No. 2018AP319-CR
intended it to mean that if the expert gives opinion testimony,
then the expert must reliably apply the principles and methods
to the facts of the case.
¶39 Federal courts of appeals also uniformly interpret
Rule 702 to continue to permit the admission of exposition
testimony without an expert applying general principles to the
specific facts of the case. For example, "[t]he federal courts
uniformly hold . . . that government agents or similar persons
may testify as to general practices of criminals to establish
the defendants' modus operandi." United States v. Mejia-Luna,
562 F.3d 1215, 1219 (9th Cir. 2009); see also United States v.
Skyers, 787 F. App'x 771, 774 (2d Cir. 2019) (summary order)
(upholding admission of a detective's expert testimony that
"generally explained" a drug trafficking circle because it "was
relevant to helping the jury understand the general nature of
international narcotics trafficking organizations"); United
States v. Reed, 788 F. App'x 903, 906 (4th Cir. 2019)
(unpublished per curiam) ("Rule 702 did not require [the expert
witness] to explicitly link his testimony to the specific facts
of [the] case."); United States v. Galatis, 849 F.3d 455, 462
(1st Cir. 2017) (holding a Medicare-fraud investigator could
describe the applicable regulatory regime without ever applying
the regulations to the facts of the case or suggesting that any
actions had violated the law); Lapsley v. Xtek, Inc., 689
F.3d 802, 809 (7th Cir. 2012) ("As the Rule 702 committee
notes . . . make clear, an expert may . . . 'give a dissertation
or exposition of scientific or other principles relevant to the
21
No. 2018AP319-CR
case, leaving the trier of fact to apply them to the facts.'"
(quoting Fed. R. Evid. 702, Advisory Committee Notes to 1972
Proposed Rule 702)).
¶40 Federal courts acknowledge that an expert need not
even know the specific facts of the case to satisfy the
requirements of Rule 702. See United States ex rel. Miller v.
Bill Harbert Int'l Const., Inc., 608 F.3d 871, 893-96 (D.C. Cir.
2010) (per curiam) (upholding the admission of an expert witness
who had no direct knowledge of the facts in the case, but whose
testimony on how bid-rigging cartels work in general was
sufficiently connected to the facts to be relevant and helpful
to the jury); see also United States v. Warren, 774
F. App'x 778, 780-82 (4th Cir. 2019) (unpublished per curiam)
(concluding that a FBI agent, "who acknowledged that he had no
information regarding the facts of [the] case," could
permissibly "testif[y] generally about human trafficking" to put
the case into context for the jury); United States v. Brinson,
772 F.3d 1314, 1319-20 (10th Cir. 2014) (rejecting the argument
that an expert without knowledge of the specific case facts was
unreliable because he testified generally "about characteristics
of the prostitution trade" rather than "about case-specific
facts").
¶41 State supreme courts faced with this issue have
likewise interpreted state statutes modeled after Rule 702 to
allow for the admission of expert exposition testimony. The
Arizona Supreme Court was recently faced with a claim that the
same statutory language——"the expert has reliably applied the
22
No. 2018AP319-CR
principles and methods to the facts of the case"——necessitates
that the expert have knowledge of, and apply his or her
expertise to, the particular facts of the case. State v.
Salazar-Mercado, 325 P.3d 996 (Ariz. 2014) (interpreting Ariz.
R. Evid. 702). Citing federal case law and the Advisory
Committee Notes, the Arizona Supreme Court held that its expert
testimony rule "does not bar admission of 'cold' expert
testimony that educates the trier of fact about general
principles but is not tied to the particular facts of the
case."19 Id. at 997-99, 1001. The South Dakota Supreme Court
likewise reached the same conclusion. See State v. Johnson, 860
N.W.2d 235, 247-48 (S.D. 2015) ("[A]n expert's testimony may be
admissible [pursuant to S.D. Stat. § 19-19-702] even if the
expert's sole function is 'to educate the factfinder about
general principles, without ever attempting to apply [those]
principles to the specific facts of the case.'" (alteration in
original) (quoting Salazar-Mercado, 325 P.3d at 999)); see also
In a similar vein, the Utah Supreme Court recognized that
19
its state's adoption of the Rule 702 language resolved the
"Catch-22" expert witnesses faced when testifying to eyewitness
reliability. State v. Clopten, 223 P.3d 1103, 1106-07, 1114
(Utah 2009) (interpreting Utah R. Evid. 702 (2009)). Under
Utah's prior rule, eyewitness experts whose testimony was too
specific would be excluded for invading the province of the
factfinder, while experts whose testimony was too general would
be excluded for lecturing rather than dealing with the specific
facts of the case. Id. The Utah Supreme Court concluded that
the recent amendment to its own expert witness rule adopting the
language of Rule 702 now permitted an eyewitness expert to
"'give a dissertation or exposition' of factors found in the
case that are understood to contribute to eyewitness
inaccuracy." Id. at 1114.
23
No. 2018AP319-CR
State v. Marshall, 596 S.W.3d 156, 160-62 (Mo. Ct. App. 2020)
(interpreting Mo. Stat. § 490.065.2(1)).
¶42 We conclude that Wis. Stat. § 907.02(1) continues to
permit an expert witness to testify in the form of an opinion
"or otherwise," including exposition testimony on general
principles without explicitly applying those principles to, or
even having knowledge of, the specific facts of the case. If an
expert testifies in the form of an opinion, then the expert must
apply the principles and methods reliably to the facts of the
case.
¶43 Our inquiry does not end there, however, because the
admissibility of exposition testimony pursuant to Wis. Stat.
§ 907.02(1) is not automatic. "[T]he trial judge stands as a
gatekeeper to prevent irrelevant or unreliable testimony from
being admitted." Lapsley, 689 F.3d at 809; see also Jones, 381
Wis. 2d 284, ¶¶31-32 ("[T]he heightened standard under the
amended Wis. Stat. § 907.02(1) does not change this gatekeeping
function."). When expert testimony is proffered in the form of
an exposition on general principles, the circuit court, as
gatekeeper, must consider the following four factors:
(1) whether the expert is qualified; (2) whether the testimony
will address a subject matter on which the factfinder can be
assisted by an expert; (3) whether the testimony is reliable;
24
No. 2018AP319-CR
and (4) whether the testimony will "fit" the facts of the case.20
7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 702.4032, at 673-74 (4th ed. 2017) (citing Fed. R.
Evid. 702, Advisory Committee Notes to the 2000 Amendment). The
party proffering the expert testimony bears the burden of
satisfying each of these preliminary questions by a
preponderance of the evidence. Wis. Stat. § 901.04; see also
This four-part inquiry is consistent with how federal
20
courts analyze exposition testimony. See, e.g., United States
ex rel. Miller v. Bill Harbert Int'l Const., Inc., 608 F.3d 871,
894-96 (D.C. Cir. 2010) (per curiam); Burton v. Am. Cyanamid,
362 F. Supp. 3d 588, 601-02 (E.D. Wis. 2019); Emblaze Ltd. v.
Apple Inc., 52 F. Supp. 3d 949, 959-61 (N.D. Cal. 2014); Konikov
v. Orange Cty., 290 F. Supp. 2d 1315, 1317 (M.D. Fla. 2003);
Magistrini v. One Hour Martinizing Dry Cleaning, 180
F. Supp. 2d 584, 612 n.30 (D.N.J. 2002), aff'd, 68 F. App'x 356
(3d Cir. 2003); TC Sys. Inc. v. Town of Colonie, 213
F. Supp. 2d 171, 175, 178-79 (N.D.N.Y. 2002); see also Fed. R.
Evid. 702, Advisory Committee's Notes to 2000 Amendments; 32
C.J.S. Evidence § 801 (2020); Daniel D. Blinka, Expert Testimony
and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev.
173, 219 & n.215 (2006). State courts with an expert
evidentiary rule modeled after Rule 702 similarly recognize this
test as the proper one for exposition testimony. See State v.
Johnson, 860 N.W.2d 235, 248 (S.D. 2015); State v. Marshall, 596
S.W.3d 156, 160-61 (Mo. Ct. App. 2020).
These considerations differ slightly from the
considerations to admit opinion testimony of an expert:
(1) whether the scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue; (2) whether the expert
is qualified as an expert by knowledge, skill, experience,
training, or education; (3) whether the testimony is based upon
sufficient facts or data; (4) whether the testimony is the
product of reliable principles and methods; and (5) whether the
witness has applied the principles and methods reliably to the
facts of the case. State v. Jones, 2018 WI 44, ¶29, 381
Wis. 2d 284, 911 N.W.2d 97.
25
No. 2018AP319-CR
Seifert, 372 Wis. 2d 525, ¶58 (lead opinion) (citing Daubert,
509 U.S. at 593); Blinka, supra, § 702.403, at 672.
¶44 Fit "goes primarily to relevance," Daubert, 509 U.S.
at 591, and is tied to the gatekeeping function the circuit
courts perform under Wis. Stat. § 904.01. Whether expert
testimony "fits" a case turns on whether it is "sufficiently
tied to the facts of the case" such that "it will aid the jury
in resolving a factual dispute." Daubert, 509 U.S. at 591
(quoting United States v. Downing, 753 F.2d 1224, 1242 (1985)).
"[E]xpert testimony is helpful to the jury," or fits, "if it
concerns a matter beyond the understanding of the average
person, assists the jury in understanding facts at issue, or
puts the facts in context." United States v. Welch, 368
F.3d 970, 974 (7th Cir. 2004), judgment vacated on other
grounds, 543 U.S. 1112 (2005). Establishing the fit of
exposition testimony is particularly important because, unlike
opinion testimony, exposition testimony does not in and of
itself explicitly connect the witness's expertise to the
particular facts of the case. See Trout v. Milton S. Hershey
Med. Ctr., 576 F. Supp. 2d 673, 677 (M.D. Pa. 2008)
("Generalized expert testimony that is factually disconnected
from the case is inadmissible because it does not assist the
jury in rendering a verdict based on the material facts in
issue.") (citing Elcock v. Kmart Corp., 233 F.3d 734, 755 n.12
(3d Cir. 2000)).
¶45 In this case, the circuit court determined that
Dr. White's exposition testimony did not fit the particular
26
No. 2018AP319-CR
facts of Dobbs's case because Dobbs "made no showing that the
types of tactics that were employed in [his] case would
correspond to any of the generalized opinions that Dr. White
holds about false confessions and police interrogations." We
conclude that the circuit court applied the proper legal
standard for admission of exposition testimony in assessing the
fit of Dr. White's testimony to the facts of the case. We
therefore uphold its exercise of discretion so long as the
circuit court had "a reasonable basis," applying the proper
legal standard "in accordance with the facts of record." Pico,
382 Wis. 2d 273, ¶15 (quoting LaCount, 310 Wis. 2d 85, ¶15).
¶46 Dr. White testified that he would educate the jury on
police interrogation techniques that could make an innocent
person confess: isolation, confrontation with inculpatory
evidence, police indifference to claims of innocence, being in
custody for over six hours, persistent questioning, minimization
of the accused's culpability or the consequences, and implying
lenient treatment will be given in return for a confession.
Dr. White also testified he would educate the jury on
dispositional characteristics that, when combined with those
police interrogation techniques, make an accused person more
vulnerable to falsely confessing: youth (under 25 years old),
low intelligence, a suggestible or compliant predisposition,
mental disorders like anxiety or depression, sleep deprivation,
and physical exhaustion.
¶47 According to Dobbs, Dr. White's testimony would have
assisted the jury in assessing the truthfulness of Dobbs's
27
No. 2018AP319-CR
confessions to police by correcting a common misbelief that
innocent people do not confess to crimes they did not commit.
Dobbs further argues that he established a "fit" with his
circumstances and Dr. White's testimony based on his
dispositional factors——anxiety, depression, and sleep
deprivation——combined with the police using the interrogation
technique of confronting him with evidence suggesting his guilt.
¶48 We acknowledge that the circuit court could have found
this narrow overlap provided a sufficient fit between
Dr. White's testimony and the facts of Dobbs's case.21 This is a
matter of circuit court discretion, however, and therefore our
role on review is to "search the record for reasons to sustain
the circuit court's exercise of discretion." Pico, 382
Wis. 2d 273, ¶15 (quoting LaCount, 310 Wis. 2d 85, ¶15).
The Innocence Project, Inc. and The Wisconsin Innocence
21
Project, as amicus curiae, argue that once the presence of even
one of the recognized risk factors is shown, the Daubert
threshold for fit is satisfied and at that point the circuit
court loses any discretion in the matter. A circuit court, in
its discretion, might reasonably decide that the testimony is
not beyond the understanding of the average person, does not
assist the jury in understanding facts at issue, or does not put
the facts in context. United States v. Welch, 368 F.3d 970, 974
(7th Cir. 2004), judgment vacated on other grounds, 543 U.S.
1112 (2005).
Additionally, the circuit court may always exclude expert
testimony, "if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence." Wis.
Stat. § 904.03.
28
No. 2018AP319-CR
¶49 The circuit court found that Dobbs was not subject to
most of the types of coercive interrogation techniques described
by Dr. White. Dobbs had not been in custody for over six hours,
was not persistently interrogated while in custody, nor was he
isolated for much of that time. The police did not attempt to
lessen his culpability or offer him leniency if he confessed.
The police did not fabricate incriminating evidence. The record
further contains at least six instances of Dobbs spontaneously
admitting to huffing the air duster absent any coercive police
tactics.
¶50 Additionally, our review of the record indicates that
Dobbs did not possess most of the characteristics that Dr. White
would testify may predispose an individual to falsely confess if
coercive interrogation techniques were used. Dobbs was not
younger than 25 years old and did not claim to be of low
intelligence or particularly suggestible.
¶51 The circuit court could have reasonably concluded that
Dr. White's exposition testimony regarding situational factors
that increase the likelihood of false confessions would not
assist the trier of fact to understand the evidence, especially
in light of the numerous spontaneous confessions introduced into
evidence. See United States v. Mamah, 332 F.3d 475, 477-78 (7th
Cir. 2003) (upholding the exclusion of expert testimony for lack
of fit where the defendant had previously been subjected to
coercive interrogation tactics, but the confession at issue was
made at a later point when the defendant was not subjected to
those tactics). We conclude that the circuit court properly
29
No. 2018AP319-CR
exercised its discretion in excluding Dr. White's testimony on
the grounds that it did not sufficiently fit the facts of
Dobbs's case.
B. Dobbs was subject to custodial interrogation without being
read Miranda warnings, but the admission of those statements was
harmless error.
¶52 Dobbs moved to suppress the statements he made from
approximately 7:30 a.m. to 10:19 a.m. on the grounds that he was
subject to custodial interrogation and not read the Miranda
warnings, violating his Fifth Amendment right against self-
incrimination. The Fifth Amendment to the United States
Constitution provides that "[n]o person . . . shall be compelled
in any criminal case to be a witness against himself."22 In
order to protect the rights secured by the Fifth Amendment, the
United States Supreme Court held that the government "may not
use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination." Miranda v.
Arizona, 384 U.S. 436, 444 (1966). Pursuant to Miranda, no
suspect may be subjected to custodial interrogation until he is
"warned that he has a right to remain silent, that any statement
The Wisconsin Constitution similarly provides that "[n]o
22
person . . . may be compelled in any criminal case to be a
witness against himself or herself." Wis. Const. Art. I, § 8.
This court has generally interpreted this provision consistent
with the United States Supreme Court's interpretation of the
Fifth Amendment to the federal Constitution. See State v. Ward,
2009 WI 60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.
30
No. 2018AP319-CR
he does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or
appointed." Id. Incriminating statements made in violation of
Miranda must be suppressed, id., unless the admission of the
statements was harmless error.
¶53 Since custody is "a necessary prerequisite to Miranda
protections," we must first resolve whether Dobbs was "in
custody," as that term is understood in the Miranda context.
State v. Lonkoski, 2013 WI 30, ¶23, 346 Wis. 2d 523, 828
N.W.2d 552. A person is in custody for Miranda purposes if
"there is a formal arrest or restraint on freedom of movement of
a degree associated with a formal arrest." State v. Bartelt,
2018 WI 16, ¶31, 379 Wis. 2d 588, 906 N.W.2d 684 (quoted source
omitted); see also California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam) ("Although the circumstances of each case
must certainly influence a determination of whether a suspect is
'in custody' for purposes of receiving Miranda protection, the
ultimate inquiry is simply whether there is a 'formal arrest or
restraint on freedom of movement' of the degree associated with
a formal arrest." (quoted source omitted)).
¶54 This objective test requires us to examine the
totality of the circumstances. See Bartelt, 379 Wis. 2d 588,
¶¶31-32; see also Thompson v. Keohane, 516 U.S. 99, 112-13
(1995). There are several factors we consider, including: "the
defendant's freedom to leave; the purpose, place, and length of
the interrogation; and the degree of restraint." State v.
Martin, 2012 WI 96, ¶35, 343 Wis. 2d 278, 816 N.W.2d 270
31
No. 2018AP319-CR
(quoting Morgan, 254 Wis. 2d 602, ¶12). When evaluating the
"degree of restraint," we consider "whether the suspect is
handcuffed, whether a weapon is drawn, whether a frisk is
performed, the manner in which the suspect is restrained,
whether the suspect is moved to another location, whether
questioning took place in a police vehicle, and the number of
officers involved." Morgan, 254 Wis. 2d 602, ¶12.
¶55 As the State conceded, in both its brief23 and at oral
argument,24 Dobbs was in custody at some point while he was being
questioned in the squad car and therefore Miranda warnings were
required well before Officer Pines first read them at 10:19 a.m.
While we accept that concession, we also explain why, under the
totality of the circumstances, a reasonable person in Dobbs's
position would have felt a restraint on his freedom of movement
of a degree associated with formal arrest and why he was
For example, the State conceded that "Dobbs's statements
23
in response to inquisitorial questions before he waived his
Miranda rights probably should have been suppressed because
Dobbs was probably in custody at some point while he was being
questioned."
As24 the assistant attorney general conceded at oral
argument:
At some point when you look at the [State v. Bartelt,
2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684] factors,
it would appear that at some point because he was
frisked, he was handcuffed, he was in the back of a
locked squad car, and he was asked some questions,
some of which were not inquisitorial and some of them
may have been. So I think at some point during that
hour, it is likely that it changed into a custodial
type situation.
32
No. 2018AP319-CR
therefore in custody for purposes of Miranda. But first, we
answer the question we presented to the parties: "Whether the
court of appeals' decision is consistent with State v. Morgan,
2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23, and if not,
whether Morgan should be overruled."
¶56 In Morgan, 254 Wis. 2d 602, ¶13, the court of appeals
emphasized that the analyses required by the Fourth Amendment
and Fifth Amendment are distinct, despite some lack of clarity
in the case law. See United States v. Smith, 3 F.3d 1088, 1096
(7th Cir. 1993) ("[O]ur inquiry into the circumstances of
temporary detention for a Fifth and Sixth Amendment Miranda
analysis requires a different focus than that for a Fourth
Amendment Terry25 stop."). The court of appeals in this case
fell prey to this confusion when it relied upon Blatterman, a
Fourth Amendment case, to resolve Dobbs's Fifth Amendment
claim.26 See Dobbs, No. 2018AP319–CR, ¶¶12-13 (per curiam)
(relying exclusively on State v. Blatterman, 2015 WI 46, 362
Wis. 2d 138, 864 N.W.2d 26).
25 Terry v. Ohio, 392 U.S. 1 (1968).
In her concurrence in Martin, then-Chief Justice Shirley
26
Abrahamson made a "cautionary point" that "[i]t is possible that
some past cases have cited Fourth Amendment cases while deciding
Fifth Amendment issues or cited Fifth Amendment cases while
deciding Fourth Amendment issues. Going forward, this court
should be cautious to avoid conflating closely related
constitutional standards and analyses." State v. Martin, 2012
WI 96, ¶¶72, 77, 343 Wis. 2d 278, 816 N.W.2d 270 (Abrahamson,
C.J., concurring).
33
No. 2018AP319-CR
¶57 We uphold Morgan and clarify that the Fourth Amendment
and Fifth Amendment protect different interests and involve
different inquiries. A claimed violation of a defendant's
Fourth Amendment rights involves balancing the government's
interest in crime prevention against an individual's right to be
free from government intrusion. See Morgan, 254 Wis. 2d 602,
¶14 (citing Terry v. Ohio, 392 U.S. 1, 19-27 (1968)). When
evaluating a Terry stop under the Fourth Amendment, this court
considers the totality of the circumstances leading up to the
stop and focuses on "the reasonableness of the officers' actions
in the situation facing them." State v. Miller, 2012 WI 61,
¶30, 341 Wis. 2d 307, 815 N.W.2d 349 (quoted source omitted).
¶58 The Fifth Amendment protects a different interest:
the right not to be compelled to incriminate oneself. Morgan,
254 Wis. 2d 602, ¶15. We require Miranda warnings to be given
based on the need to protect the fairness of a criminal
defendant's trial. Id. (citing Schneckloth v. Bustamonte, 412
U.S. 218, 240 (1973)). It is well-settled that at the point in
time where an individual's freedom of action is "curtailed to a
'degree associated with a formal arrest'" under the totality of
the circumstances, the safeguards of Miranda become applicable.
Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting Beheler,
463 U.S. at 1125).
¶59 A brief detention, such as a traffic stop, typically
does not rise to the level of "custody" for purposes of Miranda.
See Berkemer, 468 U.S. at 437-40. However, if under the
totality of the circumstances a detained motorist's freedom of
34
No. 2018AP319-CR
action is curtailed to a degree associated with a formal arrest,
he or she is entitled to the "full panoply of protections
prescribed by Miranda." Id. at 440 (citing Oregon v. Mathiason,
429 U.S. 492, 495 (1977) (per curiam)); see State v. Griffith,
2000 WI 72, ¶69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72 (noting that
the United States Supreme Court has "made clear that if a
detained motorist is treated in such a manner that he or she is
rendered 'in custody' for practical purposes, Miranda
protections are triggered."); State v. Gruen, 218 Wis. 2d 581,
594, 582 N.W.2d 728 (Ct. App. 1998) ("[T]he fact that a
defendant was detained pursuant to a Terry stop does not
automatically dispel the need for Miranda warnings.").
¶60 We therefore recognize the distinction between an
analysis of a violation of the Fourth and Fifth Amendment as
aptly described in Morgan, 254 Wis. 2d 602, ¶¶13-16. Having
clarified this framework and identified the court of appeals'
error in relying on Blatterman, 362 Wis. 2d 138, we return to
the facts of Dobbs's case.
¶61 We conclude that Dobbs was in custody for purposes of
Miranda protections because, under the totality of the
circumstances, a reasonable person would have considered himself
restrained to a degree associated with formal arrest. See
Martin, 343 Wis. 2d 278, ¶¶34-35. First, Dobbs was never free
to leave from the moment Officer Milton blocked Dobbs's vehicle
and handcuffed him in a locked squad car. In each of the
locations Dobbs was taken, he was either locked in, guarded by
armed law enforcement, or both. This was not like a routine
35
No. 2018AP319-CR
traffic stop where if Dobbs had successfully performed the field
sobriety tests, he would have been free to leave. See State v.
Swanson, 164 Wis. 2d 437, 452, 475 N.W.2d 148, abrogated on
other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742,
695 N.W.2d 277 ("A reasonable person would understand a request
to perform a field sobriety test to mean that if he or she
passed the test, he or she would be free to leave.").
¶62 Second, as to the "place[] and length of the
interrogation," Martin, 343 Wis. 2d 278, ¶35, Dobbs was
initially questioned by Officer Milton in his parked, locked
squad car from 7:31 a.m. until 8:52 a.m., with a short break to
complete field sobriety tests. Dobbs was then subjected to more
questioning at the hospital by several armed officers. Unlike a
brief traffic stop, the place of interrogation did not expose
Dobbs to public view and would have caused a reasonable person
to feel completely at the mercy of police. See Berkemer, 468
U.S. at 437-40.
¶63 Ultimately, Dobbs was not read the Miranda warnings
until almost three hours after he was first handcuffed and put
in the backseat of a locked squad car. Three hours is
significantly longer than the 30 minutes of questioning in a
patrol car that the United States Supreme Court has implied
rises to the level of custody for purposes of Miranda. On
multiple occasions the Supreme Court has cited favorably to
Commonwealth v. Meyer, 412 A.2d 517 (Pa. 1980), which concluded
that a driver was in custody for purposes of Miranda when he was
detained for over 30 minutes, part of the time in a patrol car,
36
No. 2018AP319-CR
and subject to questioning. See Berkemer, 468 U.S. at 427
nn.7 & 8, 441 n.34; see also Pennsylvania v. Bruder, 488 U.S. 9,
11 n.2 (per curiam) ("[T]he motorist in Meyer could be found to
have been placed in custody for purposes of Miranda safeguards
because he was detained for over half an hour, and subjected to
questioning while in the patrol car.").
¶64 Lastly, we examine the degree of restraint, which
includes "whether the suspect is handcuffed, whether a weapon is
drawn, whether a frisk is performed, the manner in which the
suspect is restrained, whether the suspect is moved to another
location, whether questioning took place in a police vehicle,
and the number of officers involved." Morgan, 254 Wis. 2d 602,
¶12. A degree of restraint was used when Officer Milton
initially blocked Dobbs's car and ordered him out while holding
onto his service weapon. Dobbs was then frisked, handcuffed,
and locked in the backseat of Officer Milton's squad car while
being questioned for the first hour. Dobbs was not told "no"
when he asked whether he was going to be arrested and whether he
was going to jail. Cf. State v. Quigley, 2016 WI App 53, ¶¶36-
43, 370 Wis. 2d 702, 883 N.W.2d 139 (holding that the defendant
was not in custody for purposes of Miranda where he was told
numerous times during questioning in an unlocked room that he
was not under arrest and was free to leave). Dobbs was also
surrounded by multiple officers at all times on the scene and at
the hospital, as many as four officers at one time.
¶65 Unlike in Gruen, 218 Wis. 2d at 598, where the
defendant was not in custody for purposes of Miranda because he
37
No. 2018AP319-CR
was only held in a police van for 10-15 minutes without
handcuffs and asked "three short, general, common-sense
investigatory questions," Dobbs was initially questioned for an
hour while handcuffed in a locked squad car. Just as the
defendants in New York v. Quarles, 467 U.S. 649, 655 (1984), and
Morgan, 254 Wis. 2d 602, were determined to be in custody for
purposes of Miranda because they were surrounded by multiple
officers and handcuffed27 at the time of questioning,28 Dobbs's
freedom was restricted to the degree associated with formal
arrest.
¶66 Having concluded that, under the totality of the
circumstances, Dobbs was in custody for purposes of Miranda well
before 10:19 a.m., we must next ascertain whether he was subject
to interrogation. Custodial interrogation can take two forms:
express questioning or its functional equivalent. See State v.
Harris, 2017 WI 31, ¶15, 374 Wis. 2d 271, 892 N.W.2d 663; see
also Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("[T]he
term 'interrogation' under Miranda refers not only to express
While we have recognized that the use of handcuffs alone
27
"does not in all cases render a suspect in custody for Miranda
purposes," Martin, 343 Wis. 2d 278, ¶34, this case involves
other factors relevant to the degree of restraint.
These cases are distinguishable from Torkelson, where the
28
court concluded that a reasonable person in the defendant's
position "would not believe his freedom was restricted to a
'degree associated with formal arrest'" after being briefly
questioned by one officer in an area open to the public and not
handcuffed or physically restrained. State v. Torkelson, 2007
WI App 272, ¶20, 306 Wis. 2d 673, 743 N.W.2d 511 (quoted source
omitted).
38
No. 2018AP319-CR
questioning, but also to any words or actions on the part of the
police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.") (footnotes
omitted). "Express questioning" does not encompass every
inquiry that is directed to a suspect, it covers only those
"designed to elicit incriminatory admissions." Harris, 374
Wis. 2d 271, ¶16 (quoting Pennsylvania v. Muniz, 496 U.S. 582,
602 n.14 (1990)). Therefore, it is "the nature of the
information the question is trying to reach" that determines
whether a question is inquisitorial. Id., ¶17.
¶67 As the State concedes, Officer Milton's questions and
statements about the damage to Dobbs's vehicle, his depression
and anxiety, and injuries to his face were intended to illicit
incriminatory admissions and therefore were likely
inquisitorial.29 Accordingly, we conclude that under the
We need not determine which questions and statements were
29
intended to illicit incriminatory admissions. However, the
questions Officer Milton asked Dobbs included:
 Do you have any medical issues other than that
splint that you were wearing?"
 "Do you take medications for depression and
anxiety?"
 "Do you have any injuries from the collision with
the curb?
 "So [those bruises and scratches on your face]
are all old?"
39
No. 2018AP319-CR
totality of the circumstances, Dobbs was subject to custodial
interrogation for purposes of Miranda.30 Therefore, it was error
for at least some of Dobbs's pre-Miranda statements to be
admitted at trial. However, because we determine the error in
admitting Dobbs's statements was harmless, we need not resolve
precisely which statements should have been suppressed by the
circuit court.
¶68 Admitting Dobbs's pre-Miranda statements was harmless
error if it is "clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error."
Martin, 343 Wis. 2d 278, ¶45 (quoted source omitted).
Accordingly, the State must prove "that the error complained of
We also note that Officer Milton's comments "I smell
alcohol" and "its obvious you hit something" could also be
considered the functional equivalent to express questioning.
Rejecting the State's concession that Dobbs was subject
30
to custodial interrogation because she finds it "ill-advised,"
Justice Ziegler reframes this case in a way that was neither
briefed nor argued by the parties: "To me, the actual issue in
this case is whether law enforcement's investigatory detention
of Dobbs under Terry turned into custody under Miranda for
Fourth and Fifth Amendment purposes." Justice Ziegler's
concurrence, ¶101. Justice Ziegler further declares that "The
extent to which a stop can be reasonable under Terry for Fourth
Amendment purposes and, nonetheless, render the suspect in
custody under Miranda for Fifth Amendment purposes is an issue
subject to a federal circuit court split." Id., ¶99. Although
the discussion that follows demonstrates that a few circuits
simply frame the issue differently, as opposed to being "split,"
we focus only on whether Dobbs was in custody for purposes of
Miranda, which the State expressly concedes. See Springer v.
Nohl Elec. Prods. Corp., 2018 WI 48, ¶40, 381 Wis. 2d 438, 912
N.W.2d 1 ("[T]he court must always be careful not to
gratuitously address issues unnecessary to the resolution of the
matter before us").
40
No. 2018AP319-CR
did not contribute to the verdict obtained." State v. Mayo,
2007 WI 78, ¶47, 301 Wis. 2d 642, 734 N.W.2d 115 (quoted source
omitted).
¶69 All of Dobbs's incriminating statements about huffing
air duster before hitting the pedestrian were made to Officers
Milton and Fleischauer following Dobbs's waiver of his Miranda
rights, or were made to officers, hospital staff, and his father
spontaneously. To the extent that Dobbs's five pre-Miranda
statements introduced into evidence were incriminating, they
were also independently testified to by other witnesses or were
inconsequential to the crime of homicide by intoxicated use of a
vehicle, the only crime for which Dobbs was convicted.
¶70 First, Officer Milton testified that Dobbs told him
"he had gone to Menards and he was on his way home." This fact
was independently introduced by Officer Frey, who found the
Menards receipt for air duster dated the morning of the
accident. Second, Officer Milton testified that Dobbs "admitted
to having hit a curb," a fact that a witness to the accident
testified to at trial. Third, Dobbs told Officer Milton he "had
a few beers the previous evening," but the jury heard that there
was no alcohol detected in Dobbs's blood. Fourth, Dobbs told
Officer Milton that he "suffered from depression and anxiety and
he took medications for those conditions, as well as
painkillers." Dobbs testified at trial about his medical
conditions and his medications. Finally, the jury heard that
Dobbs said "none of the injuries on his face were as a result of
the accident." However, identifying when Dobbs received his
41
No. 2018AP319-CR
facial injuries was not relevant to proving he committed
homicide by intoxicated use of a vehicle. We therefore conclude
that any error in admitting Dobbs's pre-Miranda statements "did
not contribute to the verdict obtained," and was harmless.
C. All of Dobbs's statements were voluntary.
¶71 In the alternative, Dobbs moved to suppress his
statements both before and after he was read the Miranda
warnings because he alleged they were not voluntarily made. In
its written decision, the circuit court merely said: "Each of
the statements made by the defendant to Officers Milton, Pine,
Kleinfeldt, Van Hove, Dyer, Baldukas and Baehmann has been
demonstrated to have been voluntary and not the product of
coercion in any degree."
¶72 When a defendant challenges the voluntariness of the
statements he made to law enforcement the State bears the burden
of showing by a preponderance of the evidence that the
statements were voluntary. See State v. Moore, 2015 WI 54, ¶55,
363 Wis. 2d 376, 864 N.W.2d 827. We evaluate voluntariness in
light of all the circumstances surrounding the interrogation and
balance the defendant's personal characteristics against the
actions of law enforcement. See id., ¶56. We cannot properly
label a statement involuntary unless there is "some affirmative
evidence of improper police practices deliberately used to
procure a confession." Id. (quoting State v. Clappes, 136
Wis. 2d 222, 239, 401 N.W.2d 759 (1987). A defendant's personal
characteristics alone "cannot form the basis for finding that
the suspect's confessions, admissions, or statements are
42
No. 2018AP319-CR
involuntary." Moore, 363 Wis. 2d 376, ¶56; see Hoppe, 261
Wis. 2d 294, ¶37 ("Coercive or improper police conduct is a
necessary prerequisite for a finding of involuntariness."
(citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)));
Clappes, 136 Wis. 2d at 239.
¶73 Dobbs asks this court to conclude that his statements
to the police were involuntary without providing any evidence of
improper police conduct or coercion. Instead, he points solely
to his personal characteristics, namely his "physical and
emotional duress" on September 5, 2015, including:
 his swollen and infected hand that he had not taken
his painkillers or antibiotics for;
 his depression and anxiety;
 his failure to take his prescribed medication for his
depression and anxiety;
 his lack of sleep in 40 hours; and
 his emotional breakdowns throughout the day.
Additionally, Dobbs notes that he had minimal contact with law
enforcement prior to the day of the accident as he had no prior
adult or juvenile record and had never been on probation or
supervision.
¶74 However, Dobbs's failure to establish any improper
police practices is determinative. We decline Dobbs's
invitation to assess the voluntariness of his statements based
solely on the his physical and mental condition as it would
"effectively result in the establishment of a per se rule of
involuntariness (and inadmissibility) whenever an officer
43
No. 2018AP319-CR
questions a defendant who is suffering from serious pain and
undergoing medical treatment at the time the questioning takes
place." Clappes, 136 Wis. 2d at 242. We conclude that based
upon the lack of proof of any improper police practices, Dobbs's
statements were voluntary.
IV. CONCLUSION
¶75 We conclude that the circuit court properly exercised
its discretion when it excluded Dr. White's exposition testimony
for a lack of fit with the facts of Dobbs's case. Additionally,
although we determine that several of Dobbs's statements should
have been suppressed because he was subject to custodial
interrogation and not read the Miranda warnings, we conclude
that the error was harmless. We further conclude that all of
Dobbs's statements were voluntary.
¶76 By the Court.—The decision of the court of appeals is
affirmed.
44
No. 2018AP319-CR.akz
¶77 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion's analyses and conclusions regarding the
admissibility of Dr. White's expert testimony and the
voluntariness of Dobbs' statements to law enforcement. But I do
not join the majority's analysis or conclusions regarding
Miranda1 and custodial interrogation for two reasons. First, I
disagree with the majority's ultimate conclusion. Dobbs was not
subject to custodial interrogation at any time prior to
receiving his Miranda warnings on the day in question. Second,
I am concerned that the majority's analysis, though it addresses
the Fifth Amendment and Miranda, could seriously undermine
Fourth Amendment law regarding Terry2 stops and investigatory
detention. Accordingly, I write separately to clarify the
jurisprudence surrounding the intersection of Terry
investigatory detention and Miranda custodial interrogation. I
respectfully concur.
I. MIRANDA AND THIS CASE
¶78 The Fifth Amendment to the United States Constitution
states that "[n]o person" "shall be compelled in any criminal
case to be a witness against himself" or herself. Article 1,
section 8(1) of the Wisconsin Constitution affords the same
protection. State v. Bartelt, 2018 WI 16, ¶26, 379 Wis. 2d 588,
906 N.W.2d 684 (citing State v. Ward, 2009 WI 60, ¶18 n.3, 318
Wis. 2d 301, 767 N.W.2d 236). In Miranda v. Arizona, the
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 Terry v. Ohio, 392 U.S. 1 (1968).
1
No. 2018AP319-CR.akz
Supreme Court concluded that the Fifth Amendment requires law
enforcement to inform suspects of their rights prior to
conducting custodial interrogations.3 384 U.S. 436 (1966).
Miranda warnings are required because "'[t]he circumstances
surrounding in-custody interrogation can operate very quickly to
overbear the will of [the suspect.]'" Bartelt, 379 Wis. 2d 588,
¶27 (quoting Miranda, 384 U.S. at 469). Accordingly, Miranda is
rooted in a concern that custodial interrogation can "compel[]"
a suspect "to be a witness against himself" or herself. U.S.
Const. amend. V.
¶79 In this case, law enforcement did not inform Dobbs of
his Miranda rights until around 10:19 a.m., after he had already
made a series of statements. This concurrence focuses on the
narrow issue of whether Miranda required Dobbs' pre-warning
3 We summarized the content of Miranda warnings and
suspects' relevant rights in Bartelt as follows:
"[The suspect] must be warned prior to any
questioning that he has the right to remain silent,
that anything he says can be used against him in a
court of law, that he has the right to the presence of
an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning
if he so desires." Miranda, 384 U.S. at 479. If the
accused indicates that he or she wishes to remain
silent, questioning must stop. If he or she requests
counsel, questioning must stop until an attorney is
present. Id. at 474.
State v. Bartelt, 2018 WI 16, ¶27 n.6, 379 Wis. 2d 588, 906
N.W.2d 684.
2
No. 2018AP319-CR.akz
statements to be suppressed.4 Because only custodial
interrogation triggers Miranda protections, the court must
determine whether Dobbs was both in custody and subject to
interrogation prior to 10:19 a.m. On review, determinations of
custody and interrogation involve a two-step process. Bartelt,
379 Wis. 2d 588, ¶25; State v. Harris, 2017 WI 31, ¶9, 374
Wis. 2d 271, 892 N.W.2d 663. We review the circuit court's
factual findings and uphold them unless they are clearly
erroneous. Bartelt, 379 Wis. 2d 588, ¶25; Harris, 374
Wis. 2d 271, ¶9. We then apply constitutional principles
regarding Miranda custody and interrogation to the facts de
novo, but benefit from the analyses of the courts below.
Bartelt, 379 Wis. 2d 588, ¶25; Harris, 374 Wis. 2d 271, ¶9. The
parties do not dispute the circuit court's factual findings in
this case.
A. Custody
¶80 "The test to determine whether a person is in custody
under Miranda is an objective test." Bartelt, 379 Wis. 2d 588,
¶31 (citing State v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523,
828 N.W.2d 552). We look to the "totality of the circumstances"
to determine "whether there is a formal arrest or restraint on
freedom of movement of a degree associated with a formal
arrest." Id. (citing Lonkoski, 346 Wis. 2d 523, ¶27; California
4Dobbs does not challenge the sufficiency of law
enforcement's Miranda warnings, once he heard them, or the
validity of his waiver. Rather, he challenges the admissibility
of his post-Miranda warning statements as involuntary only. I
join the majority on the voluntariness issue, and so will not
address it here.
3
No. 2018AP319-CR.akz
v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam); and State
v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816 N.W.2d 270)).
See also New York v. Quarles, 467 U.S. 649, 655 (1984) ("'[T]he
ultimate inquiry is simply whether there is a "formal arrest or
restraint on freedom of movement" of the degree associated with
a formal arrest[.]'" (quoting Beheler, 463 U.S. at 1125)).
¶81 "We consider a variety of factors to determine whether
under the totality of the circumstances a reasonable person
would feel at liberty to [leave]." Bartelt, 379 Wis. 2d 588,
¶32. Those factors include: "the defendant's freedom to leave;
the purpose, place, and length of the interrogation; and the
degree of restraint." Martin, 343 Wis. 2d 278, ¶35 (citing
State v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602, 648
N.W.2d 23). Regarding degree of restraint, "we consider:
whether the suspect is handcuffed, whether a weapon is drawn,
whether a frisk is performed, the manner in which the suspect is
restrained, whether the suspect is moved to another location,
whether questioning took place in a police vehicle, and the
number of officers involved." Bartelt, 379 Wis. 2d 588, ¶32
(citing Morgan, 254 Wis. 2d 602, ¶12).
¶82 But the restraint-on-freedom-of-movement test does not
end the inquiry. Bartelt, 379 Wis. 2d 588, ¶33. Restraint on
freedom of movement, i.e., constructive arrest, is a necessary,
but not a sufficient condition to establish Miranda custody.
Id. "If we determine that a suspect's freedom of movement" is
restrained to a degree "such that a reasonable person would not
feel free to leave, we must then consider whether 'the relevant
4
No. 2018AP319-CR.akz
environment presents . . . inherently coercive pressures
. . . .'" Id. (quoting Howes v. Fields, 565 U.S. 499, 509
(2012)). Only then will Miranda's Fifth Amendment concerns
regarding compelled witness testimony be triggered. A person
may not always be free to leave circumstances such as those
present here, but that does not require a determination that
such person is in custody.
¶83 In this case, Dobbs was not in custody prior to
receiving the Miranda warnings. The circuit court determined
that Dobbs was not subject to custodial interrogation until
after 10:19 a.m. Similarly, the court of appeals concluded that
Dobbs was detained, but not in custody. State v. Dobbs, No.
2018AP319-CR, unpublished slip op., ¶¶11-14 (Wis. Ct. App. May
2, 2019). I agree. Under the totality of the circumstances,
Dobbs was not formally arrested or subject to a restraint on
freedom of movement to a degree associated with formal arrest
prior to receiving the Miranda warnings. Bartelt, 379
Wis. 2d 588, ¶31. The majority concludes otherwise only because
it seemingly changes the Bartelt test for Miranda custody.5 It
gives too much weight to particular factors at the expense of
the totality of the circumstances, and ignores the final inquiry
whether the environment included inherently coercive pressures.
The majority also relies on the State's concession in this
5
case that Dobbs was subject to custodial interrogation. See
majority op., ¶55. But we are not bound by the State's
concession. State v. Anderson, 2014 WI 93, ¶19, 357
Wis. 2d 337, 851 N.W.2d 760 ("[W]e are not bound by a party's
concession of law." (citing Bergmann v. McCaughtry, 211
Wis. 2d 1, 7, 564 N.W.2d 712 (1997))).
5
No. 2018AP319-CR.akz
¶84 Regarding Dobbs' "freedom to leave," Martin, 343
Wis. 2d 278, ¶35, the majority notes that Officer Milton blocked
Dobbs' vehicle, handcuffed him, and put him in the squad car.
Majority op., ¶61. The majority also notes that, while at the
hospital, Dobbs was guarded. Id. But during any traffic stop,
the suspect is not permitted to drive away, whether the vehicle
is blocked or not. Additionally, it is not unusual for law
enforcement to place a suspect in a squad car while they
investigate and control the scene or to guard a suspect. The
majority determines that Dobbs was not free to leave under these
circumstances. Id. That may be true. But even if a suspect is
not free to leave, that does not establish that he is in
custody. Not being free to leave, though a necessary condition
to conclude a suspect is in custody, is not itself sufficient to
conclude a suspect is in custody. See Quarles, 467 U.S. at 655
(describing the ultimate inquiry as "whether there is a 'formal
arrest or restraint on freedom of movement' of the degree
associated with a formal arrest"). If it was sufficient, then
any person temporarily detained for an ordinary traffic stop
would be in custody. While perhaps not actually "free to
leave," these people are not in Miranda custody. See Berkemer
v. McCarty, 468 U.S. 420, 436 (1984) ("Certainly few motorists
would feel free . . . to leave the scene of a traffic stop
without being told they might do so."). The record reflects
that Dobbs' case unfolded in a manner similar to an
investigation and detention incident to a traffic stop. Indeed,
Officer Milton repeatedly told Dobbs that there was an ongoing
6
No. 2018AP319-CR.akz
investigation. See majority op., ¶8. Dobbs may not have been
actually "free to leave," but that does not mean that he was in
custody.
¶85 Regarding the second factor, "the purpose, place, and
length of the interrogation," Martin, 343 Wis. 2d 278, ¶35, the
majority's analysis again distorts facts ordinarily associated
with a routine traffic stop into Miranda concerns. The majority
does not analyze the purpose of Officer Milton's questioning at
all, but notes that it occurred intermittently over the course
of three hours in the squad car and at the hospital. Majority
op., ¶¶62-63. There are several problems with this. First,
general on-the-scene questioning is not the same thing as
interrogation and does not raise Miranda concerns to the same
degree. Dobbs was not subjected to questioning of any
significant length and the type of conversation that occurred
did not amount to interrogation. Second, the place of Dobbs'
questioning was not of particular concern. Questioning suspects
in squad cars and hospitals, particularly incident to suspected
OWI or traffic accident cases, is a common, and often necessary,
law enforcement practice in order to control a scene or ensure
the health and well-being of a suspect. Regarding the purpose
of law enforcement's questions, Dobbs was asked who he was,
where he was coming from, where he was going, how he got his
injuries, and whether he had any other medical issues or took
any medications. Majority op., ¶7. These types of questions
are routine in traffic stops, traffic accidents, and suspected
OWI cases.
7
No. 2018AP319-CR.akz
¶86 Regarding "the degree of restraint," Martin, 343
Wis. 2d 278, ¶35, the majority notes that Officer Milton held
his service weapon, that there were other officers on the scene
and at the hospital, and that Dobbs was frisked, handcuffed, and
locked in the squad car. Majority op., ¶64. But again, during
a routine traffic stop, a frisk or the presence of multiple
officers is common in order to ensure officer safety.
Importantly, there is nothing in the record to suggest that
Officer Milton, though he had his hand on his service weapon,
ever pointed it at Dobbs. Simply holding a service weapon,
without pointing it at a suspect, is also appropriately related
to officer safety. Nor does the fact that Dobbs was handcuffed
pull the degree of restraint in this case into Miranda custody.
Martin, 343 Wis. 2d 278, ¶34 ("We recognize that the use of
handcuffs does not in all cases render a suspect in custody for
Miranda purposes."). Even as a whole, these facts did not
necessarily render Dobbs in Miranda custody. Martin, 343
Wis. 2d 278, ¶34 n.23 ("[D]rawing weapons, handcuffing a
suspect, placing a suspect in a patrol car for questioning, or
using or threatening to use force does not necessarily elevate a
lawful stop into a custodial arrest for Miranda purposes."
(quoting United States v. Leshuk, 65 F.3d 1105, 1109–10 (4th
Cir. 1995))).
8
No. 2018AP319-CR.akz
¶87 Accordingly, none of the Miranda custody factors favor
a determination of custody in this case.6 Dobbs was not formally
arrested or restrained to a degree associated with formal
arrest. Because I so conclude, my custody analysis ends here.
But, under Bartelt, since the majority concluded that Dobbs was
restrained to the degree associated with formal arrest, the
majority should have continued on to consider "whether 'the
relevant environment present[ed] . . . inherently coercive
pressures . . . .'" Bartelt, 379 Wis. 2d 588, ¶33 (quoting
Howes, 565 U.S. at 509.) For the sake of completeness, I note
that there was nothing inherently coercive or wrongful about law
enforcement's conduct in this case. There is nothing in the
record to suggest otherwise. Indeed, the majority notes the
utter lack of wrongful or coercive conduct in the record in its
6 This case is distinguishable from State v. Morgan, 2002 WI
App 124, 254 Wis. 2d 602, 648 N.W.2d 23. In that case, the
court of appeals concluded that Morgan was in custody where,
after police pointed their guns at Morgan, he tried to flee and
was chased and caught by police, was frisked, handcuffed and
placed in a squad car. Id., ¶¶3-4, 17. Dobbs never had a
weapon pointed at him and never tried to evade or escape law
enforcement. Under the totality of the circumstances, it is
clear that Dobbs was handcuffed and in the back of the squad car
for a very different reason from Morgan, and law enforcement
used significantly less force against Dobbs than Morgan.
Rather, this case is more analogous to State v. Gruen, 218
Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998). In that case,
Gruen was not in custody where, after a traffic accident, he was
stopped near the scene, frisked, placed in the back of a police
van, and questioned by law enforcement. Id. at 586, 597-98.
Just like Gruen, Dobbs did not have a weapon pointed at him, but
was stopped near the scene of a traffic accident, frisked,
detained in a police vehicle, and questioned. If Gruen was not
in custody, then Dobbs was not either.
9
No. 2018AP319-CR.akz
voluntariness analysis. Majority op., ¶¶73-74. Consideration
of the relevant environment further counsels against a
determination of Miranda custody in this case.
B. Interrogation
¶88 For purposes of Miranda, interrogation includes
express questioning or its functional equivalent. Harris, 374
Wis. 2d 271, ¶¶16-17, 19-22. "Express questioning" includes
"only those questions 'designed to elicit incriminatory
admissions.'" Id., ¶16 (quoting Pennsylvania v. Muniz, 496 U.S.
582, 602 n.14 (1990)). "It is the nature of the information the
question is trying to reach, therefore, that determines whether"
the question triggers Miranda. Id., ¶17. If the desired
"information has no potential to incriminate the suspect, the
question requires no Miranda warnings." Id. (citing Doe v.
United States, 487 U.S. 201, 211 n.10 (1988) ("In order to be
privileged, it is not enough that the compelled communication is
sought for its content. The content itself must have
testimonial significance.")).
¶89 Miranda can also be triggered by the "'functional
equivalent' of an interrogation." Harris, 374 Wis. 2d 271, ¶19
(citing Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).
Functional equivalence is aimed at capturing law enforcement
"techniques of persuasion that, in a custodial setting, can
create the same potential for self-incrimination even in the
absence of an express question." Id. The functional
equivalents of interrogation include "'any words or actions on
the part of the police (other than those normally attendant to
10
No. 2018AP319-CR.akz
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.'"
Id. (quoting Innis, 446 U.S. at 301 (footnotes omitted)).
Functional equivalence is an objective inquiry; neither law
enforcement's underlying subjective intent nor the suspect's
subjective understanding is dispositive. Id., ¶¶20, 22.
¶90 Rather, we review law enforcement's actions from the
perspective of a "reasonable third-person observer and inquir[e]
into how such a person would expect the suspect to react to the
officer's words and actions." Harris, 374 Wis. 2d 271, ¶22. We
impute to the third-person observer "'[a]ny knowledge the police
may have had concerning the unusual susceptibility of a
defendant to a particular form of persuasion.'" Id., ¶21
(quoting Innis, 446 U.S. at 302 n.8). The test is:
"[I]f an objective observer (with the same knowledge
of the suspect as the police officer) could, on the
sole basis of hearing the officer's remarks or
observing the officer's conduct, conclude that the
officer's conduct or words would be likely to elicit
an incriminating response, that is, could reasonably
have had the force of a question on the suspect, then
the conduct or words would constitute interrogation."
Id., ¶22 (quoting State v. Cunningham, 144 Wis. 2d 272, 278-79,
423 N.W.2d 862 (1988)).
¶91 The majority concludes that Dobbs was subject to
interrogation. Majority op., ¶67. But, in so concluding, it
relies entirely on the State's ill-advised concession that
Officer Milton interrogated Dobbs. Because I conclude Dobbs was
not in custody, I need not analyze whether he was interrogated;
regardless, the Miranda protections are not triggered. See
11
No. 2018AP319-CR.akz
Innis, 446 U.S. at 300-01 ("[T]he Miranda safeguards come into
play whenever a person in custody is subjected to either express
questioning or its functional equivalent." (Emphasis added.)).
But I have reason to doubt the merit of the State's concession
in this case.
¶92 First, I note——and the majority seems to agree——that
at least some of Dobbs' statements were spontaneous and not
elicited in any way. See majority op., ¶¶15-16, 49, 69.
Second, I am unpersuaded that Officer Milton's questions were
express questions designed to elicit incriminating admissions.
As discussed above, Officer Milton's questions were routine
investigatory questions incident to ordinary traffic stops,
traffic accidents, or suspected OWI cases. General, on-the-
scene questioning of this sort is not interrogation. See United
States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988) ("[T]he
solicitation of information concerning a person's identity and
background does not amount to custodial interrogation prohibited
by Miranda . . . ."). Third, I am equally unpersuaded that this
case presents any functional equivalent concerns. I do not
readily see a basis for a reasonable third-party observer to
conclude that any officer's words or conduct "'could reasonably
have had the force of a question on'" Dobbs. Harris, 374
Wis. 2d 271, ¶22 (quoting Cunningham, 144 Wis. 2d at 279).
¶93 Thus, I disagree with the majority's ultimate
conclusion; Dobbs was not subject to custodial interrogation
under Miranda. But my disagreement with the majority does not
end there. I am also concerned that its analysis conflates the
12
No. 2018AP319-CR.akz
routine investigatory detention of Dobbs in this case with
custody and Miranda Fifth Amendment violations, thereby
undermining our Fourth Amendment jurisprudence.
II. THE INTERSECTION OF MIRANDA AND TERRY.
¶94 The Fourth and Fifth Amendments to the United States
Constitution protect different interests. As discussed above,
the Fifth Amendment and Miranda protect the right to be free
from compulsion to incriminate oneself. U.S. Const. amend V.
Relevant here, the test for Miranda custody is whether, under
the "totality of the circumstances," viewed objectively, "there
is a formal arrest or restraint on freedom of movement of a
degree associated with a formal arrest." Bartelt, 379
Wis. 2d 588, ¶31. Custody is analyzed in light of various
factors, including: "the defendant's freedom to leave; the
purpose, place, and length of the interrogation; and the degree
of restraint." Martin, 343 Wis. 2d 278, ¶35 (citing Morgan, 254
Wis. 2d 602, ¶12).
¶95 In contrast, the Fourth Amendment protects the right
to be free from unreasonable searches and seizures. U.S. Const.
amend. IV.; see also Wis. Const. art. 1, § 11. If law
enforcement conducts a traffic stop or "temporary investigative
stop," that is "a seizure within the meaning of the Fourth
Amendment . . . ." State v. Blatterman, 2015 WI 46, ¶17, 362
Wis. 2d 138, 864 N.W.2d 26. To comply with the Fourth
Amendment, the stop must be reasonable at its inception and in
its duration. Id., ¶¶19-20. "Pursuant to Terry v. Ohio, 392
U.S. 1, a police officer may, under certain circumstances,
13
No. 2018AP319-CR.akz
temporarily detain a person for purposes of investigating
possible criminal behavior even though there is not probable
cause to make an arrest." Id., ¶18 (citing Terry, 392 U.S. at
22; State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377
(1972). "The Wisconsin Legislature codified the Terry
constitutional standard in Wis. Stat. § 968.24." Id. Relevant
here, "an officer may conduct a temporary investigatory
detention when 'the officer reasonably suspects that [a] person
is committing . . . a crime.' § 968.24." Id., ¶19.
Accordingly, an officer may conduct an investigatory detention
so long as he has reasonable suspicion to do so and the
detention is reasonable in duration. See id., ¶¶19-20.
¶96 What starts as an investigatory detention can turn
into an arrest. If and when it does, the Fourth Amendment
requires that the arrest be supported by probable cause. See
Blatterman, 362 Wis. 2d 138, ¶29. The test whether a suspect is
arrested is "whether a 'reasonable person in the defendant's
position would have considered himself or herself to be "in
custody," given the degree of restraint under the
circumstances.'" Id., ¶30 (quoting State v. Swanson, 164
Wis. 2d 437, 447, 475 N.W.2d 148 (1991), abrogated on other
grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695
N.W.2d 277)). The similarities between Fourth Amendment arrest
analysis and Fifth Amendment custody analysis are readily
apparent. This case tees up questions surrounding the
intersection between the Fifth Amendment and Miranda custodial
interrogation on one hand, and the Fourth Amendment, Terry
14
No. 2018AP319-CR.akz
investigatory detentions, and arrests on the other. A Terry
investigatory detention can turn into an arrest. Miranda
custody occurs when a suspect is under arrest or restrained to a
degree associated with formal arrest. So can a Terry
investigatory detention turn into Miranda custodial
interrogation? If so, when and how?
¶97 In Morgan the court of appeals said that Miranda and
Terry are two different analyses designed to protect different
constitutional rights. Morgan, 254 Wis. 2d 602, ¶¶13-16.
Morgan was not the first time that Wisconsin courts noted the
intersection of Miranda and Terry. See also, State v. Griffith,
2000 WI 72, ¶69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72; Swanson,
164 Wis. 2d at 447-49; Gruen, 218 Wis. 2d at 593-94; and State
v. Pounds, 176 Wis. 2d 315, 322, 500 N.W.2d 373 (Ct. App. 1993).
In Griffith, a Fourth Amendment traffic stop case, we stated:
The United States Supreme Court has held that persons
temporarily detained in ordinary traffic stops are not
"in custody" and therefore not subject to the rule in
[Miranda]. Berkemer v. McCarty, 468 U.S. 436, 440
(1966); see also [Swanson, 164 Wis. 2d at 449].
However, the Court made clear that if a detained
motorist is treated in such a manner that he or she is
rendered "in custody" for practical purposes, Miranda
protections are triggered. Berkemer, 468 U.S. at 440.
Griffith, 236 Wis. 2d 48, ¶69 n.14.
¶98 In this case, the majority appears to draw a bright
line between Terry Fourth Amendment jurisprudence and Miranda
Fifth Amendment jurisprudence. See majority op., ¶57 ("We
uphold Morgan and clarify that the Fourth Amendment and Fifth
Amendment protect different interests and involve different
inquiries."); see also id., ¶60 ("We therefore recognize the
15
No. 2018AP319-CR.akz
distinction between an analysis of a violation of the Fourth and
Fifth Amendment as aptly described in Morgan, 254 Wis. 2d 602,
¶¶13-16."). In doing so, the majority oversimplifies the
analysis in this case, ignores an important issue in
constitutional law, and potentially undermines Fourth Amendment
law as an expense of its development of Fifth Amendment law.
¶99 The extent to which a stop can be reasonable under
Terry for Fourth Amendment purposes and, nonetheless, render the
suspect in custody under Miranda for Fifth Amendment purposes is
an issue subject to a federal circuit court split. The Second,
Seventh, Ninth, and Tenth Circuits conclude that the two
inquiries are entirely distinct. See United States v. Ali, 68
F.3d 1468, 1473 (2d Cir. 1995) (stating that whether a stop was
permissible under Terry is "irrelevant" to Miranda analysis,
because "Terry is an exception to the Fourth Amendment probable-
cause requirement, not to the Fifth Amendment protections
against self-incrimination"); United States v. Smith, 3 F.3d
1088, 1096-97 (7th Cir. 1993) (noting the "'vast difference
between those rights that protect a fair criminal trial and the
rights guaranteed under the Fourth Amendment'"; stating that its
"inquiry into the circumstances of temporary detention for a
Fifth and Sixth Amendment Miranda analysis requires a different
focus than that for a Fourth Amendment Terry stop"); United
States v. Kim, 292 F.3d 969, 976 (9th Cir. 2002) (stating that
"whether an individual detained during the execution of a search
warrant has been unreasonably seized for Fourth Amendment
purposes and whether that individual is 'in custody' for Miranda
16
No. 2018AP319-CR.akz
purposes are two different issues"); and United States v.
Perdue, 8 F.3d 1455, 1463–64 (10th Cir. 1993) (noting that "a
suspect can be placed in police 'custody' for purposes of
Miranda before he has been 'arrested' in the Fourth Amendment
sense"; holding that a gunpoint stop permissible under the
Fourth Amendment "created the 'custodial' situation envisioned
by Miranda and its progeny").
¶100 The First, Fourth, and Eighth Circuits conclude that
the two inquiries are not so distinct. See United States v.
Trueber, 238 F.3d 79, 92 (1st Cir. 2001) (stating, "As a general
rule, Terry stops do not implicate the requirements of Miranda
because Terry stops, though inherently somewhat coercive, do not
usually involve the type of police dominated or compelling
atmosphere which necessitates Miranda warnings") (internal
quotations omitted); United States v. Leshuk, 65 F.3d 1105,
1109-10 (4th Cir. 1995) (discussing Terry law in the course of
its Miranda analysis and stating, "From these standards, we have
concluded that drawing weapons, handcuffing a suspect, placing a
suspect in a patrol car for questioning, or using or threatening
to use force does not necessarily elevate a lawful stop into a
custodial arrest for Miranda purposes"); and United States v.
Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir. 2003)(rejecting the
defendant's "broad contention that a person is in custody for
Miranda purposes whenever a reasonable person would not feel
free to leave"); see also id. ("One is not free to leave a Terry
stop until the completion of a reasonably brief investigation,
which may include limited questioning. But most Terry stops do
17
No. 2018AP319-CR.akz
not trigger the detainee's Miranda rights."). See also
Katherine M. Swift, Drawing a Line Between Terry and Miranda:
The Degree and Duration of Restraint, 73 U. Chi. L. Rev. 1075,
1084-88 (summarizing this split of authority).
¶101 To the majority, the issue in this case is whether
Dobbs was in custody under Miranda. To me, the actual issue in
this case is whether law enforcement's investigatory detention
of Dobbs under Terry turned into custody under Miranda for
Fourth and Fifth Amendment purposes. I answer no, it did not.
The totality of the circumstances, viewed objectively,
demonstrate that Dobbs was subject to a reasonable investigatory
detention, but not in Miranda custody. The intersection of
Miranda and Terry is at the heart of this case. But the
majority fails to meaningfully address it. I am concerned that
the majority's analysis of Fifth Amendment Miranda law could
seriously undermine Fourth Amendment Terry law, and so I cannot
join it.
III. CONCLUSION
¶102 I join the majority opinion's analyses and conclusions
regarding the admissibility of Dr. White's expert testimony and
the voluntariness of Dobbs' statements to law enforcement. But
I do not join the majority's analysis or conclusions regarding
Miranda and custodial interrogation for two reasons. First, I
disagree with the majority's ultimate conclusion. Dobbs was not
subject to custodial interrogation at any time prior to
receiving his Miranda warnings on the day in question. Second,
I am concerned that the majority's analysis, though it addresses
18
No. 2018AP319-CR.akz
the Fifth Amendment and Miranda, could seriously undermine
Fourth Amendment law regarding Terry stops and investigatory
detention. Accordingly, I write separately to clarify the
jurisprudence surrounding the intersection of Terry
investigatory detention and Miranda custodial interrogation.
¶103 For the foregoing reasons, I respectfully concur.
¶104 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK and Justice BRIAN HAGEDORN join this opinion.
19
No. 2018AP319-CR.dk
¶105 DANIEL KELLY, J. (concurring). There are many
reasons people grow frustrated with the law. It's language is
too arcane, it's written at such length that no normal person
can reasonably hope to comprehend even a small part of its
content, it spreads like a crazed spider web across innumerable
sections, subsections, paragraphs, and parts, it changes so
frequently it's impossible to stay abreast of it, etc. But for
those who actually make an effort to discover what the written
law requires, perhaps one of its most maddening features is
that, apparently, it sometimes doesn't mean what it so plainly
says. Or at least that's sometimes the case once we get our
hands on it, as we did today with Wis. Stat. § 907.02(1). No
tremors will spread through our republic because of our
treatment of this evidentiary rule. But the way we reached our
conclusion will alienate the people from their law just a
smidgen more, and will further encourage the perception that the
law cannot be understood without the priestly class of lawyers
and judges revealing their gnosis to those to whom the law
actually belongs.1
1The advent of a written code of law is one of the most
significant developments in the relationship between governors
and the governed. Some of the key attributes of a written code
include the following:
[I]t was important that the laws be stated in the
vernacular, not Latin, and be phrased in clear and
ordinary language, so that citizens could consult the
code and perfectly understand their rights and
obligations, without having to go to lawyers and
judges. The codes needed to be organized logically so
that people could readily find the relevant laws. And
the provisions ought to be short, so that people could
more easily remember them.
1
No. 2018AP319-CR.dk
¶106 Today, we made Wis. Stat. § 907.02(1) say something
that no reasonably capable English-speaker would understand it
to say. Our task was to determine whether the 2011 addition of
the Daubert2 standard for the admission of expert witness
testimony changed the standard for the admission of expert
witness testimony. Just to state the question suggests the
answer. The text of the statute confirms the answer cannot be
anything other than "yes." It's not a lengthy provision, so
I'll set it out in full with the text added by the 2011
"Daubert" amendment underlined for the sake of clarity:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
2011 Wis. Act 2, § 34m (emphasis added). Most of the preamble
in this provision addresses whether expert testimony would be
helpful to the jury and whether the proposed witness qualifies
as an expert. The part at issue today is the permission
granting clause, which provides that an expert witness "may
testify thereto [that is, his area of expertise] in the form of
an opinion or otherwise, if" the witness satisfies the
conditions that follow.
Peter Tiersma, The Rule of Text: Is It Possible to Govern Using
(Only) Statutes?, 6 NYU J.L. & Liberty 260, 270–71 (2011).
2 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
2
No. 2018AP319-CR.dk
¶107 I pause at this spot in the statute because this is
where the majority discovers some gnosis not accessible through
the words on the page. Ordinary folk like me see the "if" and
conclude that what precedes it is contingent on what follows.3
Thus, I understand this language to mean that the expert may
testify "in the form of an opinion or otherwise" but only if he
can meet the conditions following the "if."4 The court, however,
acting on a plane of understanding to which I apparently do not
have access, says that only testimony in the form of an opinion
is subject to the listed conditions. Testimony in the
"otherwise" category, for some reason, is not. The court
dedicates the bulk of its opinion on this subject to a detailed
discussion of testimony in the "otherwise" category——its type,
3 The Oxford English Dictionary defines "if" as
"[i]ntroducing a clause of condition or supposition" and as
meaning "[o]n condition that; given or granted that; in (the)
case that; supposing that; on the supposition that." If, The
Oxford English Dictionary (definition A. I. (conjunction)).
Merriam-Webster similarly defines "if" as meaning "in the event
that," "allowing that," "on the assumption that," and "on
condition that." See If, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/if.
4 We actually have a requirement that we read statutory
language the way everyone else does, with a narrow exception for
technical meanings and special definitions. "[S]tatutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation
omitted). We give that language "its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id., ¶45. There are no technical or
specially-defined words involved in the statute we are
considering today, so we should read it just like everyone else.
3
No. 2018AP319-CR.dk
its value, and our treatment of it prior to the 2011 Daubert
amendment. I have no quibble with this historical recitation,
but I can't figure out how it separates "opinion" from
"otherwise" such that testimony in the former category is
subject to the statute's Daubert conditions while testimony in
the latter is not. The actual words on the page flat-out
contradict the court inasmuch as they do not distinguish between
"opinion" testimony and "otherwise" testimony. They say an
expert "may testify thereto in the form of an opinion or
otherwise, if . . . ." In ordinary English, this means the "if"
applies with just as much force to "otherwise" as it does to
"opinion."5
5Part of the problem might be the court's apparent
understanding that an expert who applies his principles and
methods to the facts of a case must necessarily be offering an
opinion. It says "[e]ven if Dr. White had simply been asked
whether any of the factors he described in his exposition
testimony related to Dobbs's case, his response would be
offering his view about whether his exposition testimony relates
to the particular facts in Dobbs's case." Majority op., ¶36
n.18. The court does not explain why this is the only way Dr.
White could have been asked to connect his principles and
methods to the facts of this case, nor does it provide any
authority for the proposition.
4
No. 2018AP319-CR.dk
¶108 Although I'm highlighting the court's gnostic
understanding of Wis. Stat. § 907.02(1), the majority isn't
exactly hiding it, as a comparison between its framing of the
question and its answer makes plain. The majority says, and I
agree, that the issue before us is "[w]hether the Daubert
reliability standard . . . altered Wisconsin's long-standing
practice of allowing expert exposition testimony . . . ."
Majority op., ¶35. Before I get to the court's answer, a short
glossary: In this framing, "Daubert reliability standard" means
the requirements following the "if" in § 907.02(1), including
the requirement that the witness "applied the principles and
methods reliably to the facts of the case"; and the term
"exposition testimony" means testimony included in the
"otherwise" category. And now the court's answer: "[W]e
conclude that Wis. Stat. § 907.02(1) continues to permit an
expert witness to testify in the form of an opinion 'or
It's not hard to imagine exposition testimony that the
expert ties to the facts of the case without expressing an
opinion. Here, after providing his exposition about false
confessions, Dr. White could have been asked whether he examined
Mr. Dobbs, and what the observation or examination comprised.
And he could have been asked whether, pursuant to this
examination, he observed any of the factors he described in his
exposition as potentially disposing a person to confess falsely.
So long as Dr. White does not take the ultimate step of saying
whether he believed the presence of those pre-disposing factors
meant that Mr. Dobbs had confessed falsely, he would not have
rendered an opinion. But he would have applied his principles
and methods to the facts of the case. In fact, this is exactly
the type of connection the court describes as "fitness."
So it simply is not true that all expert testimony that the
witness ties to the facts of the case is necessarily opinion
testimony.
5
No. 2018AP319-CR.dk
otherwise,' including exposition testimony on general principles
without explicitly applying those principles to, or even having
knowledge of, the specific facts of the case." Majority op.,
¶42. So, although the words on the page say the legislature
made the admission of "otherwise" testimony contingent on the
expert having "applied the principles and methods reliably to
the facts of the case," we know——with our special knowing——that
this actually means the opposite, that the expert does not need
to have "applied the principles and methods reliably to the
facts of the case." And so today we reveal to the bench, bar,
and public that our special insight allowed us to see that the
Daubert reliability standard of § 907.02(1) applies to only one
of the listed categories, even though the actual text says it
applies to both.6
¶109 But that does not end our revelation. Having
discerned that the existing words do not mean what they so
obviously say, we further discerned that Wis. Stat. § 907.02(1)
contains a condition that is not actually there. The court says
that
[w]hen expert testimony is proffered in the form of an
exposition on general principles, the circuit court,
The majority cites other courts that have experienced
6
similar insight, as well as the Advisory Committee Notes to
Federal Rule of Evidence 702 (the federal analog to our expert
witness rule). The court's apparent goal is to create a sense
of authority out of nothing more than a multiplicity of sources
because none of the citations lend any additional explanatory
power to the court's gnostic insights. If other sources explain
why certain language doesn't actually mean what it appears to
say, I will be an attentive student. But a sea of others simply
ignoring the text of the law means nothing to me.
6
No. 2018AP319-CR.dk
as gatekeeper, must consider the following four
factors: (1) whether the expert is qualified;[7] (2)
whether the testimony will address a subject matter on
which the factfinder can be assisted by an expert;[8]
(3) whether the testimony is reliable;[9] and (4)
whether the testimony will "fit" the facts of the
case.[10]
Majority op., ¶43. From the footnotes I attached to each of the
elements in this quote, it is easy to see that one of them is
not like the others. Elements one through three each reiterates
a requirement contained in § 907.02(1). Element four, however,
has no counterpart in the statute and is instead a purely
judicial creation.
¶110 That we would add a condition not already present in
the statute is interesting enough. But what I find fascinating
is why the court grafted the condition onto the statute.
"Establishing the fit of exposition testimony is particularly
important," the court says, "because, unlike opinion testimony,
exposition testimony does not in and of itself explicitly
connect the witness's expertise to the particular facts of the
7This element echoes the statute's requirement that the
witness is "qualified as an expert by knowledge, skill,
experience, training, or education[.]" Wis. Stat. § 907.02(1).
8This is a restatement of the statutory requirement that
expert testimony is admissible only "[i]f scientific, technical,
or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue[.]"
Wis. Stat. § 907.02(1).
9This reflects one of the Daubert reliability standards,
that is, that "the testimony is the product of reliable
principles and methods." Wis. Stat. § 907.02(1).
This
10 element has no counterpart in Wis. Stat.
§ 907.02(1).
7
No. 2018AP319-CR.dk
case." Majority op., ¶44. Well, yes. But the explicit
connection is absent only because our gnosis revealed that the
statutory requirement that "the witness has applied the
principles and methods reliably to the facts of the case" does
not apply to exposition testimony, even though the text
obviously says it does. So now we are trying to patch a hole of
our own making.
¶111 It gets better. The "fitness" patch the court
engineered to cover the hole it created is uncannily similar to
the condition it excised.
Whether expert testimony "fits" a case turns on
whether it is "sufficiently tied to the facts of the
case" such that "it will aid the jury in resolving a
factual dispute." Daubert, 509 U.S. at 591 (quoting
United States v. Downing, 753 F.2d 1224, 1242 (1985)).
"[E]xpert testimony is helpful to the jury," or fits,
"if it concerns a matter beyond the understanding of
the average person, assists the jury in understanding
facts at issue, or puts the facts in context."
Majority op., ¶44 (emphasis added). There's a reason for the
similarity, and the court's Daubert cite should have tipped it
off to the irony of what it is doing here. The Daubert quote on
which the majority relies for its "fitness" requirement is
itself the inspiration for the Wis. Stat. § 907.02(1)
requirement that the witness apply his testimony to the facts of
the case. So let's take stock of where we are. Our legislature
wrote into § 907.02(1) the Daubert requirement that the expert
connect his testimony to the facts of the case, we took that
condition out and replaced it with a patch based on Daubert's
"fitness" concept, the very concept that inspired the condition
we removed, the removal of which created the need for the patch.
8
No. 2018AP319-CR.dk
This is dizzying and disorienting even for those trained in the
law. For everyone else, it just makes the law a hopeless
jumble.
¶112 One would hope that the end product of the court's
superior insight into the true meaning behind the words of Wis.
Stat. § 907.02(1) would yield something profound. But it
didn't. In fact, it produced just a few minor alterations to
the condition it removed. Whereas the statute requires that the
witness apply his testimony to the facts so that there is an
actual testimonial connection between the two, the court's
"fitness" requirement downgrades the connection from explicit to
implicit, and requires that the court make the connection as
part of its gate-keeping function rather than requiring the
witness to make it as part of his testimony. I don't think that
cake is worth the candle. And it's most definitely not worth
the statute-rending process necessary to get there.
¶113 Having said all this, I agree with the court's
conclusion that the circuit court did not err in not admitting
Dr. White's testimony. As everyone agrees, he not only did not
apply his testimony to the facts of this case, he did not even
know what they were. Consequently, he did not satisfy the Wis.
Stat. § 907.02(1) condition that the witness must "appl[y] the
principles and methods reliably to the facts of the case."
Therefore, I join the court's opinion except with respect to
Part III.A.
¶114 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
9
No. 2018AP319-CR.dk
1