Oct. 15, 2021 – The impeachment exception to the hearsay rule does not allow the state to use a defendant’s voluntary statement, obtained in violation of Miranda v. Arizona, during its case-in-chief, under a recent state supreme court decision.

The Wisconsin Supreme Court’s 3-3 per curiam decision affirmed the Wisconsin Court of Appeals decision in State v. Garcia, 2020 WI App 71 (Oct. 7, 2020). Justice Brian Hagedorn withdrew from participation, which led to an equally divided supreme court.

Trial Court Worried Jury Would Be Misled

Manuel Garcia was convicted of first-degree reckless homicide in connection with the death of his girlfriend’s two-year-old son. The child died from blunt trauma to the abdomen.

Before he was interrogated by the police, Garcia signed a form waiving his Miranda rights. During the interrogation, he told the police that he had hit the child multiple times and thrown the child onto a mattress.

But the Racine County Circuit Court ruled that while Garcia’s waiver was voluntary, it was not knowing because English is not Garcia’s first language. The state requested to use Garcia’s statement during its case-in-chief but the court denied that request.

When the officer who investigated the child’s death testified at trial, he made no mention of Garcia’s incriminating statement. Garcia had told the officer that in the week leading up to the child’s death, the child had been injured after slipping on some stairs and after jumping out of a vehicle.

Garcia’s lawyer asked why the officer didn’t investigate any other sources for the child’s injuries. The state responded by moving to use Garcia’s incriminating statement to rehabilitate the officer, to explain why he didn’t investigate the stairs or vehicle incidents once Garcia confessed to battering the child.

The court granted the state’s request. The jury was likely to be misled by the cross-examination of the officer, the court ruled, if the state were not allowed to rebut the implication that the officer’s investigation had been incomplete.

After the jury viewed a video of a portion of Garcia’s statement, Garcia’s lawyer put him on the stand. Garcia testified that because he was not a native English speaker, he did not understand the difference between “punch” and “spank.”

Garcia said he spanked the child only as punishment, and only on the child’s back, buttocks, and side. He never touched he child’s abdomen and never hit the child with a closed fist, Garcia testified. The police officer then testified and said that Garcia never told him directly that he had touched the boy on the abdomen.

The jury convicted Garcia of first-degree reckless homicide. Garcia’s post-conviction motion was denied and he appealed.

Precedent Over Policy

On appeal, Garcia argued that the trial court’s decision to allow the prosecutor to introduce his statement during its case-in-chief to rehabilitate the police officer was unconstitutional.

The state argued that the holding in Harris v. New York, 401 U.S. 222 (1971), was sufficient grounds for the trial court to allow use of Garcia’s statement to rehabilitate the police officer.

In Harris, the U.S. Supreme Court held that the exclusionary rule created in Miranda did not bar the admission of a defendant’s statement to impeach the credibility of the defendant. To hold otherwise would convert the Miranda exception into a free pass to commit perjury, the majority wrote.

In 1990, the U.S. Supreme Court – in James v. Illinois, 493 U.S. 307, 313 (1990) – declined the opportunity to broaden the exception created in Harris to allow the use of a defendant’s statement to impeach a defense witness other than the defendant.

The threat of prosecution was enough to deter most witnesses committing perjury, the majority wrote. Moreover, extending the exception to allow the use of statements to impeach witnesses would discourage some defendants from calling witnesses, denying them the best – or in some cases their only – defense.

In Garcia, the three-judge appeals court panel relied on Kuntz v. McCaughtry, 806 F. Supp. 1373 (E.D. Wis. 1992), to hold that the use of Garcia’s statement by the prosecutor to rehabilitate the police officer was unconstitutional.

In Kuntz, the state used Kuntz’s illegally obtained statements to impeach a friend of Kuntz who was called to testify by the state. The Kuntz court relied on James to hold that the use of Kuntz’s statements was unconstitutional.

The appeals court in Garcia was not moved by the state’s arguments that other courts have expanded Harris and distinguished another case relied upon by the state in its brief, State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96 (1988).

In Brecht, the Wisconsin Supreme Court upheld a trial court decision to allow the state to elicit testimony from a police officer regarding the defendant’s silence before he was Mirandized after Brecht’s lawyer “opened the door” by mentioning the silence during cross-examination.

“We agree that ‘fairness’ is a concern, but we also recognize that Harris, James, and their progeny all considered ‘fairness’ in coming to the categorical conclusion that fairness and constitutional concerns dictated that the impeachment exception may only be used against the defendant when the defendant testifies contrary to his or her inadmissible but voluntary statement,” Appeals Court Judge Paul Reilly wrote.

The state also argued that previously excluded evidence should be deemed admissible so long as the admission passed a four-factor test: (1) the evidence was reliable; (2) admitting the evidence provided adequate assurance against misconduct by the government; (3) the admissibility of the previously excluded evidence turned on factors within the defendant’s control; and (4) admitting the evidence aided the court in fact finding.

“The State’s policy arguments have merit, but we are obligated to follow precedent rather than make new law,” Judge Reilly wrote. “We are an error-correcting court, not a policy-making court.”

The Wisconsin Supreme Court’s 3-3 split affirms the appeals court decision – reversing the conviction against Garcia – without deciding on the merits.