State ex rel. Kaczkowski v. Board of Fire and Police Com'rs of City of Milwaukee
| Decision Date | 11 April 1967 |
| Citation | 33 Wis.2d 488,149 N.W.2d 547 |
| Parties | STATE ex rel. Alfred KACZKOWSKI, Appellant, v. BOARD OF FIRE & POLICE COMMRS. OF the CITY OF MILWAUKEE, Respondent. STATE ex rel. Joseph E. NIEDZIEJKO, Appellant, v. BOARD OF FIRE & POLICE COMMRS. OF the CITY OF MILWAUKEE, Respondent. |
| Court | Wisconsin Supreme Court |
Louis J. Ceci, Milwaukee, for appellants.
No attorneys for respondents.
Petitioners, in their briefs in support of their motion for rehearing, contend that the admission into evidence at the hearing before the board of admissions made by them at the State Crime Laboratory interview preceding the taking of the polygraph tests violated their constitutional rights. This contention is grounded on the assertion that their admissions were induced by the threat of the chief of police that they would be discharged if they failed to answer Mr. Wilimovsky's questions.
Our review of the record negates this assertion. The police chief's threat was limited to the taking of the polygraph examination and did not encompass the preexamination interview. Not only did this interview take place in the presence of petitioners' attorneys, Ceci and Fritschler, and after consultation with them, but Wilimovsky specifically informed them of their constitutional right not to answer the questions to be propounded. We find that petitioners clearly understood that it was valuntary on their part whether or not they participated in the preexamination interview. In other words petitioners had the free choice of either taking the polygraph examination with or without this preexamination interview and they chose the former.
Petitioners place reliance upon the two recent cases of Garrity v. State of New Jersey (1967), 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, and Spevack v. Klein (1967), 385 U.S. 511, 87 S.Ct 625, 17 L.Ed.2d 574. We deem neither to be controlling here. Garrity is concerned with the use of admissions in a criminal prosecution which were induced by threat of discharge. Spevack held that the failure of a lawyer to produce certain of his records pursuant to a subpoena duces tecum could not be the basis of disbarment because he had the right to refuse to produce the records on the ground that they might incriminate him. Significantly, footnote 3, page 516 of 385 U.S., page 629 of 87 S.Ct., of the Spevack opinion states:
'Whether a policeman, who invokes the privilege when his conduct as a police officer is questioned in disciplinary...
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