3.Hearing and Ruling on February 27 Interview Statements
26 linesMR. FALLON: Excuse me, Your Honor, um, may Counsel and I approach?
THE COURT: You may.
(Discussion off the record.)
THE COURT: We'll excuse the jury at this point for a few minutes.
(Jurors out at 3:09 p.m.)
THE COURT: All right. Be seated. Uh, Mr. Fallon, you're anticipating, apparently, some questions that you may or may not find objectionable. Can we -- Can we ask you what it is that you, perhaps, will find objectionable and see, indeed, if those are going to be asked?
MR. FALLON: Yes. Thank you, Judge, for this, uh, consideration. Um, our concern is simply this, um, we would object to any attempt by the defense to introduce other, um, statements, arguably exculpatory, uh, given by the client, because the law is quite clear that only the party opponent may offer a statement of the opposing party, and, as such, we would object as being hearsay to the introduction of those statements.
Now, having said that, we recognized we at least alerted everyone, and the jury, so that they would have a better understanding of the March 1 statement, that the officers had, in fact, talked to Mr. Dassey on three occasions on February 27. Um, only one of those interviews was fully disclosed and testified to by Agent Fassbender.
So we don't have any objection to the defense asking general questions about you -- you talked to him on this day, and -- and things of that matter. That's certainly fair game. But any attempts to actually introduce the statements or the responses, uh, is hearsay, because it's not offered by a party opponent.
THE COURT: Mr. Fremgen or Mr. Edelstein, your response?
MR. FREMGEN: Judge, essentially, what we're, um, attempting to do is respond to what's already been somewhat opened by the State in their direct. The State referenced speaking -- or the witness reference -- referenced speaking with the defendant at Mishicot High School on the 27th of February. I believe he actually testified that, uh, he took an audiotaped in -- statement, not unlike the November 5 interview in Marinette, and that he even referenced the videotaped statement at Two Rivers Police Station.
Um, the witness was asked if he felt that Mr. Dassey had said everything he knew, and the witness said, no. And it -- Let me, I don't know, give a couple more examples and I'll, essentially, wrap it up.
Um, as -- The inference by the testimony to the officer is that Mr. Dassey was not truthful to them on the previous, uh, attempts to interview him or left things out.
For instance, the officer, specifically, testified that the defendant denied being involved in the offense on February 27. The officer indicated that he was con -- Well, I don't know if he said he was confident, but I think his testimony was, essentially, I didn't believe him. I think he was more involved than he was leading on.
In the May -- or the March 1 statement, or the video statement, there's references to specific questions or specific answers from the previous interviewers. For instance, um -- I believe the two pages I wrote down were page 556 of the transcript, and page 5 -- or page 604. One dealing with, um, the clothing, the color of the clothing, and the other, for -- I believe the officer said, well, on Monday you didn't say anything about threats from Steven.
So, essentially, what -- on direct, and through the March 1 video, the State has offered the fact that there had been two prior, more formalized, statements, other than the one that, uh -- that, uh, Agent Fassbender testified about at the Fox River's Resort, um, later in the evening, and there's been reference that these statements were not entirely accurate, raising the question of whether or not Mr. Dassey was truthful with them.
And I think what -- what it does is, essentially, leaves the jury with the -- with questions about the February 27 statements. I believe that we should be entitled to explore this avenue, sin -- since the State has opened the door, to offer a full explanation about the February 27 statement and why they were further discussing with the March l.
Otherwise, it's left -- Well, essentially, what's left is the State's been allowed to let the officer explain his role, the prior taped statements, or questioning, and offer his opinion about the prior taped statements, even though the best evidence is the actual statements, themselves.
So I -- I think we should be allowed to explore that, uh, for lack of a better argument, or back of a letter term, excuse me, that the State's opened that avenue or opened the door to those questions.
THE COURT: Well, other than the -- the, uh, remarks that you cite on page 556 and 604, are you suggesting that there are other statements that you wish to discuss?
MR. FREMGEN: Well, the general tone of the March 1 is that you weren't telling us the truth before. That was the testimony of the officer on direct. We weren't getting the truth from Mr. Dassey. He wasn't telling us everything. He was leaving things out. But the -- In essence, he's saying now, March 1 is the truth. Well, I think we should be allowed to explore those prior statements. What was left out? Why do you have the impression that something was missing? And I think part of that's going to be there were different stories or different, uh, answers to the same types of questions on March 1.
THE COURT: Mr. Fallon?
MR. EDELSTEIN: Your Honor, if I might add, just for the record, additionally, there was testimony -- uh, this jury was led to believe by the testimony that there were no promises made to Brendan. Now, I believe we're entitled to question whether or not there were promises made to him at any other interviews, including the 27th of March.
MR. FREMGEN: February.
MR. EDELSTEIN: Or, I'm sorry, February.
MR. FALLON: All right. I have now -- Now I have even more responses to make, both legally and practically. Let's start with the, um -- the trees, and then we'll move to the forest.
First, as, um, the March 1 interview revealed, the actual questions we previously referred to are identified and discussed in the interview, and this officer can be questioned about those specific responses on March 1. So that's one.
All right. Number two, um, when it comes to admissibility of statements, whether they're custodial or otherwise, the statements are taken at face value at the time and place in which they are given.
I'll give you an example. There's a case out of Racine called State v. Pischke, P-i-s-c-h-k-e, that deals with, um, um, re-interrogation of a custodial suspect. I cite that case just for one distinct proposition, because if the proposition holds in that circumstance, it clearly applies in this circumstance.
And in Pischke there was a series of custodial interrogations. The defense objected because on the last interrogation the defendant, um, confessed. The defendants floated the idea that the State was the grand initiator of all those previous discussions the two days beforehand. And the Court said, that's a great theory, but it doesn't hold water, because it's just about the statement which resulted in the inculpatory events or rendition.
I bring that up because that was a gentleman who was in custody, and it was a series of discussions over a two- or three-day period. There might have been -- There were several. And the Court said it was only who initiated the discussion at the time that led to the inculpatory statement in making the determination as to whether this was a proper re-interrogation, and since the defendant in that case had initiated it, it was a proper.
I bring that up by analogy here, because we have a two-day time lapse. The March 1 statement must be, and should be, analyzed individually as to the events of that day and the circumstances surrounding the giving of that statement.
So on that regard, I -- I don't accept, as a proposition offered by the defense, that what occurred on February 27 has much, if anything, to do with any inducements or promises with respect to what occurred on March 1.
Now, for the big picture. The forest. The reason behind the rule is to prohibit a -- a, uh, party from getting in an aversion of the events without having to take the stand. And that's why the rule is crafted and structured around. It's an admission by a party opponent. And only the opponent can offer the statements. Thank you.
THE COURT: Defense, do you -- do you suggest that Mr. Fallon's characterization of the rule is incorrect?
MR. FREMGEN: I -- I would say that the analogy is incorrect as far as this case is concerned. That -- that Pischke analogy that Mr. Fallon presents, essentially, would leave, uh, the State with every opportunity to make one attempt after another to interview an individual until they get what they want, and then just introduce that one statement without any reference to the past, even though, especially in this case, February 27 was certainly a primer to the March 1 statement. In particular, many of the questions, not all, but many of the questions were similar but with different answers.
THE COURT: Well, here, I -- we could probably discuss this well into -- well into the night. My understanding of the rule -- And -- And one of you cited a case a couple of days ago called State vs. Pepin at 110 Wis. 2d 431. And -- And here, in this case, let's be clear, we're not talking about a custodial interrogation on February 27. If I recall, the parties -- And this is -- this predated your involvement, Counsel, in the case. But the parties, uh, stipulated that it was not a custodial interrogation.
But, anyway, Pepin says that in instances, such as were faced here, that the State has a right to use the inculpatory statements under 9-0-8-0-1 (4b1), I believe is -- is the statute, admission by party opponents. But that the -- but that the defense does not have the right to use any exculpatory matter that may appear there unless the exculpatory matter is so entwined with the inculpatory matter that it bears the same trustworthiness or same guarantees.
I can't say that in this case. I -- I don't think that -- I don't think that situation, the trustworthiness of the exculpatory statements here, uh, stands out.
Thus, I'm going to -- I'm going to grant, uh, uh, the prosecution's motion here. With the exception, I believe, those were the matters on pages 556 and 604, you can go into those if you wish.
MR. EDELSTEIN: Your Honor, uh, if I could just -- before we bring the jury back, I want to make it quite clear that while I don't necessarily agree with the ruling, I can abide to it, uh, as to -- as to answers. But I fully intend to ask this officer about questions he asked this young man on that date. I'll stay away from the answers. I want him to tell this jury whether he asked him certain questions and the manner in which they were asked.
This defense -- We are entitled to present our defense. We have raised this as a matter of suggestibility. There -- This interview of the 27th is replete with conscious efforts, I believe, and it's ultimately up to this jury to decide whether or not these officers manipulated and suggested answers to the defendant.
Now, maybe they didn't get them on the 27th. Maybe they got them later on. But they have to decide that. And I can cite instance af -- And they weren't just generally speaking. They were very specific. Did you have anything to do with Teresa Halbach's um, death? Um, some of the other statements they made. The promises. They've led this jury to believe there's no promises.
THE COURT: Well, here -- I --
MR. EDELSTEIN: (Unintelligible.)
THE COURT: I -- I get it. I get it. And we'll cross that bridge when we come to it. I've made a ruling. Let's get the jury back in here and let's move on.
(Jurors in at 3:24 p.m.)
THE COURT: Be seated. Counsel, you may resume.
MR. EDELSTEIN: Thank you.