YEAR 2005 CASE SUMMARIES

 

By
The Honorable Pat Garza
Associate Judge
386th District Court
San Antonio, Texas

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Wisconsin Supreme Court rules that all custodial interrogations of juveniles must be recorded. [In the Interest of Jerrell C.J.](05-3-25)

On July 7, 2005, the Wisconsin Supreme Court exercised its supervisory power to require that all custodial interrogation of juveniles be electronically recorded where feasible, and without exception when questioning occurred at a place of detention.

05-3-25. In the Interest of Jerrell C.J., No. 2002AP3423, 2005 WI 105, 2005 Wisc. Lexis 344 (Sup.Ct. Wisc., 7/7/05).

Overview: Defendant argued, inter alia, that his written confession to the police was involuntary under the totality of the circumstances. The supreme court agreed. Defendant's young age of 14 was a strong factor weighing against the voluntariness of his confession. His limited education and low average intelligence were additional reasons for why he was susceptible to police pressure. Defendant had been arrested twice for misdemeanor offenses prior to his interrogation for the armed robbery. In both instances, he answered police questions, admitted to involvement, and was allowed to go home. The police specifically denied defendant's requests to call his parents. Not only did the detectives refuse to believe defendant's repeated denials of guilt, but they also joined in urging him to tell a different "truth," sometimes using a "strong voice" that "frightened" him. Therefore, the written confession was involuntary under the totality of the circumstances. In addition, the supreme court exercised its supervisory power to require that all custodial interrogation of juveniles be electronically recorded where feasible, and without exception when questioning occurred at a place of detention.

Held: Judgment reversed.

Facts: ANN WALSH BRADLEY, J. The petitioner, Jerrell C.J., seeks review of a published decision of the court of appeals affirming a delinquency adjudication and the denial of a postdisposition motion. n1 Jerrell was adjudged delinquent for the commission of armed robbery, party to a crime.

n1 State v. Jerrell C.J., 2004 WI App 9, 269 Wis. 2d 442, 674 N.W.2d 607 (Ct. App. 2003) (affirming a delinquency adjudication and the denial of a postdisposition motion of the circuit court for Milwaukee County, Francis T. Wasielewski, Judge).

This case presents three distinct but related issues. First, Jerrell contends that his written confession to the police was involuntary. Second, he asks this court to adopt a per se rule, excluding in-custody admissions from any child under the age of 16 who has not been given the opportunity to consult with a parent or interested adult. Third, he asks this court to adopt a rule requiring police to electronically record all juvenile interrogations. n2

n2 Additionally, Jerrell asserts that (1) his written confession was not sufficiently corroborated to support his delinquency adjudication, and (2) he did not knowingly, voluntarily, and intelligently waive his Miranda rights. Because we conclude that his confession was involuntary, we do not address these issues.

We agree with Jerrell that his written confession to the police was involuntary under the totality of the circumstances. However, we decline to adopt his proposed per se rule regarding consultation with a parent or interested adult. Finally, we exercise our supervisory power to require that all custodial interrogations of juveniles in future cases be electronically recorded where feasible, and without exception when questioning occurs at a place of detention. n3 Accordingly, we reverse the decision of the court of appeals.

n3 We use the term "juvenile" in a manner consistent with the Juvenile Justice Code:

"Juvenile" means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, "juvenile" does not include a person who has attained 17 years of age.

Wis. Stat. 938.02(10m). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

I.

Shortly after midnight on Saturday, May 26, 2001, three young men robbed a McDonald's restaurant in Milwaukee. Each was wearing a ski mask and holding a gun. Two of the men went to the kitchen and ordered employees to lie down on the floor. The third went to the office, where the manager put $ 3590 in the robber's bag. All three men then left.

One person, an employee suspected of unlocking the door for the men, was detained by police later that morning. Three others were detained and arrested as suspects on Sunday evening. On Monday morning, at approximately 6:20 a.m., 14-year-old Jerrell was arrested at his home. He was taken to the police station, booked, and placed in an interrogation room.

In the interrogation room, Jerrell was handcuffed to a wall and left alone for approximately two hours. At 9:00 a.m., Police Detectives Ralph Spano and Kurt Sutter entered the interrogation room. The detectives introduced themselves, removed Jerrell's handcuffs, and asked him some background questions. Jerrell stated that he was 14 years old and in eighth grade. He also provided the names, addresses, and phone numbers of his parents and siblings.

At 9:10 a.m., Detective Spano advised Jerrell of his Miranda rights. n4 The detectives then began to question Jerrell about the armed robbery at McDonald's. Jerrell denied his involvement. The detectives challenged this denial and encouraged Jerrell to be "truthful and honest" and "start standing up for what he did." Jerrell again denied his involvement. The detectives again challenged this denial.

n4 Under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), persons facing custodial interrogation must be warned that they have the right to remain silent, that anything they say may be used against them in court, that they have the right to an attorney, and that an attorney will be appointed for them if they cannot afford one.

At times in this exchange, Detective Spano raised his voice. He later explained, "I'm raising my voice short of yelling at him . . . there were points I needed to make, and I needed to make them with a strong voice. But not yelling." Jerrell described the "raised voice," stating, "I'm not quite sure but it's like he was angry with me. That sort of tone in his voice." Jerrell indicated that it made him feel "kind of frightened."

During the questioning, Jerrell was afforded food and bathroom breaks. He was kept in the interrogation room until lunchtime. At lunch, he was placed in a bullpen cell for about 20 minutes where he ate. The questioning resumed about 12:30 p.m. In the interrogation room, Detective Spano said Jerrell "started opening up about his involvement and everybody else's" somewhere between 1:00 and 1:30 p.m.

It is undisputed that "several times" during the interrogation, Jerrell asked "if he could make a phone call to his mother or father." n5 Each time Detective Spano said "no." Detective Spano later testified that he "never" in 12 years allowed a juvenile to contact parents during interrogation because it could stop the flow or jeopardize it altogether. He explained:

If I don't have any control about what he can say over the phone or what he can do when he has got the phone in his hand, I don't think it is prudent or proper to let him do that.

n5 It is unclear from the record whether Jerrell asked for his parents before or after he started opening up about his involvement in the crime. However, the issue of timing is irrelevant, as Jerrell is not seeking to suppress any oral statements he made to police. Rather, he is seeking to suppress his written confession that came at 2:40 p.m., well after his attempts to talk to his parents.

At 2:40 p.m., over five-and-a-half hours after interrogation began, and eight hours after he was taken into custody, Jerrell signed a statement prepared by Detective Spano. In it, he admitted his involvement in the McDonald's robbery.

Jerrell subsequently moved to suppress his written confession, claiming that it was involuntary, unreliable, and a product of coercion. The circuit court denied the motion. Jerrell was then tried with a co-defendant and adjudged delinquent for committing armed robbery, party to a crime.

After his adjudication, Jerrell filed a postdisposition motion seeking a new trial on the basis that his confession was unreliable, untrustworthy, and involuntary. The motion focused on inconsistencies between Jerrell's statement and that of eyewitnesses and other participants. Again, the circuit court denied the motion. It found the discrepancies between Jerrell's statement and the other evidence were not material. Additionally, it concluded that the statement, under the totality of the circumstances, was voluntary.

On appeal, Jerrell maintained that his confession was involuntary. He asserted that the police officers should have granted one of his several requests to call his parents, which were all made prior to the signing of the written statement. The court of appeals affirmed the circuit court, concluding that it did not err in denying Jerrell's motion to suppress the written statement. In doing so, however, the court of appeals cautioned that "a juvenile's request for parental contact should not be ignored." State v. Jerrell C.J., 2004 WI App 9, P1, 269 Wis. 2d 442, 674 N.W.2d 607 (Ct. App. 2003).

Finally, the court of appeals wrote separately to express its grave concern with the issue of false confessions made by juveniles during custodial interrogation. Id., PP24-32. Its opinion concludes with a call for action:

It is this court's opinion that it is time for Wisconsin to tackle the false confession issue. We need to take appropriate action so that the youth of our state are protected from confessing to crimes they did not commit. We need to find safeguards that will balance necessary police interrogation techniques to ferret out the guilty against the need to offer adequate constitutional protections to the innocent. Id., P32.

II

In reviewing the voluntariness of a statement, we examine the application of constitutional principles to historical facts. State v. Hoppe, 2003 WI 43, P34, 261 Wis. 2d 294, 661 N.W.2d 407. We defer to the circuit court's findings regarding the factual circumstances surrounding the statement. Id. (citing Arizona v. Fulminante, 499 U.S. 279, 287, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); State v. Clappes, 136 Wis. 2d 222, 235, 401 N.W.2d 759 (1987)). However, the application of constitutional principles to those facts presents a question of law subject to independent appellate review. Id.

III.

Opinion: The first issue presented for our review is whether Jerrell's written confession to police was constitutionally voluntary. If his confession was involuntary, its admission would violate Jerrell's due process rights under the Fourteenth Amendment of the U.S. Constitution and Article I, Section 8 of the Wisconsin Constitution. Id., P36 (citing Rogers v. Richmond, 365 U.S. 534, 540, 5 L. Ed. 2d 760, 81 S. Ct. 735 (1961); State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989)). It is the State's burden to prove the voluntariness of a confession by a preponderance of the evidence. Id., P40 (citing United States v. Haddon, 927 F.2d 942, 945 (7th Cir. 1991); State v. Agnello, 226 Wis. 2d 164, 182, 593 N.W.2d 427 (1999)).

The principles of law governing the voluntariness inquiry are summarized in Hoppe, 2003 WI 43, 261 Wis. 2d 294, 661 N.W.2d 407. There, the court observed that a defendant's statements are voluntary "if they are the product of a free and unconstrained will, reflecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the State exceeded the defendant's ability to resist." Id., P36 (citing Clappes, 136 Wis. 2d at 236; Norwood v. State, 74 Wis. 2d 343, 364, 246 N.W.2d 801 (1976); State v. Hoyt, 21 Wis. 2d 284, 308, 128 N.W.2d 645 (1964)).

A necessary prerequisite for a finding of involuntariness is coercive or improper police conduct. Id., P37 (citing Colorado v. Connelly, 479 U.S. 157, 167, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986); Clappes, 136 Wis. 2d at 239). However, police conduct need not be egregious or outrageous in order to be coercive. Id., P46. "Rather, subtle pressures are considered to be coercive if they exceed the defendant's ability to resist. Accordingly, pressures that are not coercive in one set of circumstances may be coercive in another set of circumstances if the defendant's condition renders him or her uncommonly susceptible to police pressures." Id.

The voluntariness of a confession is evaluated on the basis of the totality of the circumstances surrounding that confession. Id., P38 (citing Clappes, 136 Wis. 2d at 236); Theriault v. State, 66 Wis. 2d 33, 41, 223 N.W.2d 850 (1974). This analysis involves a balancing of the personal characteristics of the defendant against the pressures and tactics used by law enforcement officers. Hoppe, 2003 WI 43, 261 Wis. 2d 294, P38, 661 N.W.2d 407 (citing Clappes, 136 Wis. 2d at 236). The Hoppe court explained:

The relevant personal characteristics of the defendant include the defendant's age, education and intelligence, physical and emotional condition, and prior experience with law enforcement. The personal characteristics are balanced against the police pressures and tactics which were used to induce the statements, such as: the length of the questioning, any delay in arraignment, the general conditions under which the statements took place, any excessive physical or psychological pressure brought to bear on the defendant, any inducements, threats, methods or strategies used by the police to compel a response, and whether the defendant was informed of the right to counsel and right against self-incrimination. Id., P39 (internal citations omitted).

When applying this test to a juvenile interrogation, we note that "the Supreme Court in the past has spoken of the need to exercise 'special caution' when assessing the voluntariness of a juvenile confession, particularly when there is prolonged or repeated questioning or when the interrogation occurs in the absence of a parent, lawyer, or other friendly adult." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (citing In re Gault, 387 U.S. 1, 45, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967); Gallegos v. Colorado, 370 U.S. 49, 53-55, 8 L. Ed. 2d 325, 82 S. Ct. 1209 (1962); Haley v. Ohio, 332 U.S. 596, 599-601, 92 L. Ed. 224, 68 S. Ct. 302 (1948)).

With the above principles in mind, we turn to the present case. Here, Jerrell argues that the police exploited his age, lack of comprehension, and other personal characteristics to overbear his will. He contends that the police improperly denied his requests to telephone his parents during questioning. Additionally, he asserts that the length of his custody along with the interrogation techniques used by the police were unfairly coercive.

The State, meanwhile, maintains that the factors identified by Jerrell are not enough to render his confession constitutionally suspect. It submits that the circuit court found sufficient facts based upon competent evidence to conclude that Jerrell's confession was not coerced. Accordingly, the State asks this court to hold that Jerrell's custodial statement was constitutionally voluntary.

In assessing the totality of the circumstances, we first examine Jerrell's relevant personal characteristics. Here, these include his age, education and intelligence, and prior experience with law enforcement. We then consider the pressures and tactics used by the police such as the refusal of Jerrell's requests to talk to his parents, the length of the custody, and the psychological techniques applied to Jerrell.

Courts have long recognized the importance of age in determining whether a juvenile confession is voluntary. For example, in Haley, 332 U.S. at 599, the juvenile's "tender and difficult age" of 15 was a significant factor favoring the Supreme Court's suppression of his confession. Likewise, in Hardaway, 302 F.3d at 764, the Seventh Circuit Court of Appeals recognized that "the difficulty a vulnerable child of 14 would have in making a critical decision about waiving his Miranda rights and voluntarily confessing cannot be understated."

We agree with the case law's recognition that "youth is more than a chronological fact." Eddings v. Oklahoma, 455 U.S. 104, 115, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). While not necessarily dispositive, "youth remains a critical factor for our consideration, and the younger the child the more carefully we will scrutinize police questioning tactics to determine if excessive coercion or intimidation or simple immaturity that would not affect an adult has tainted the juvenile's confession." Hardaway, 302 F.3d at 765. Simply put, children are different than adults, and the condition of being a child renders one "uncommonly susceptible to police pressures." Hoppe, 2003 WI 43, 261 Wis. 2d 294, P46, 661 N.W.2d 407. n6 We therefore view Jerrell's young age of 14 to be a strong factor weighing against the voluntariness of his confession.

n6 Scholarly research supports this. For example, one commentator has observed that juveniles may be more susceptible than adults to making false confessions for a number of reasons. See Jennifer J. Walters, Comment, Illinois' Weakened Attempt to Prevent False Confessions by Juveniles: The Requirement of Counsel for the Interrogations of Some Juveniles, 33 Loy. U. Chi. L.J. 487, 504-05 (2002). Because their intellectual capacity is not fully developed, children are less likely to understand their Miranda rights. Id. Additionally, minors are more likely to want to please and believe police officers because they are authority figures. Id. at 505. Finally, because juveniles are incapable of fully realizing the consequences of their decisions, they may confess because they believe it is the only way to end a psychologically coercive interrogation. Id.

See also Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post DNA World, 82 N.C. L. Rev. 891, 944 (2004) (documenting 40 proven false juvenile confessions, including five from the infamous Central Park Jogger case); Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 Harv. C.R.-C.L. Rev. 105, 131 (1997) ("Empirical data suggest that suspects who are especially vulnerable for other reasons such as youth, brain damage, or compliant personalities may be similarly prone to give false confessions.").

Another factor weighing against the voluntariness of Jerrell's confession is his education and intelligence. At the time of the interrogation, Jerrell was in eighth grade and earning a 3.6 grade point average. Although such academic achievement is usually consistent with a high degree of aptitude, postdisposition standard IQ testing revealed that Jerrell had an IQ of 84, indicating a low average range of intelligence. The reliability of the IQ test is supported by Jerrell's previous school records, showing average to failing grades, as well as testing completed by the Ethan Allen School. Accordingly, we consider Jerrell's limited education and low average intelligence as additional reasons for why he was susceptible to police pressure.

Finally, we examine Jerrell's prior experience with law enforcement. In cases where courts have found that prior experience weighs in favor of a finding of voluntariness, the juvenile's contacts with police have been extensive. See, e.g., Hardaway, 302 F.3d at 767 (noting that the juvenile was arrested 19 times for crimes as serious as robbery and attempted sexual assault and had appeared in juvenile court with appointed counsel seven times); Fare v. Michael C., 442 U.S. 707, 710, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979) (citing the juvenile's record of several previous offenses, his more than four years of probation, and his term in a youth corrections camp).

In this case, Jerrell's experience with law enforcement was more limited and may have contributed to his willingness to confess in the case at hand. Jerrell had been arrested twice for misdemeanor offenses prior to his interrogation for the armed robbery. In both instances, he answered police questions, admitted to involvement, and was allowed to go home. Significantly, he was never adjudged delinquent. We note the argument of Jerrell's counsel that such an experience may have taught him a dangerous lesson that admitting involvement in an offense will result in a return home without any significant consequences.

Having examined Jerrell's relevant personal characteristics, we now consider the pressures and tactics used by the police during the interrogation, beginning with the refusal of Jerrell's requests to talk to his parents. Thirty years ago this court rejected a per se rule requiring parental presence in juvenile interrogations. Theriault, 66 Wis. 2d at 44. In doing so, however, the court stressed the importance of parental presence in the totality of the circumstances analysis:

The failure to promptly notify [parents] and the reasons therefor may be a factor, however, in determining whether the confession was coerced or voluntary. If the police fail to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel, that would be strong evidence that coercive tactics were used to elicit the incriminating statements. Id. at 48.

Here, the police specifically denied Jerrell's requests to call his parents. Detective Spano later testified that he "never" in 12 years allowed a juvenile to contact parents during interrogation because it could stop the flow of, or jeopardize the interrogation. We are troubled by this tactic, as parents are often the very people children turn to for advice. Such an approach appears to circumvent the warning set forth in Theriault that "if the police fail to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel, that would be strong evidence that coercive tactics were used to elicit the incriminating statements." Id. Consistent with Theriault, we view the denial of Jerrell's requests to talk to his parents as strong evidence of coercive police conduct.

The length of the custody is also an important factor in evaluating police behavior. In Miranda v. Arizona, 384 U.S. 436, 476, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the Supreme Court warned that lengthy interrogation or incommunicado incarceration could be strong evidence of coercion:

Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.

In this case, Jerrell was handcuffed to a wall and left alone for approximately two hours. He was then interrogated for five-and-a-half more hours before finally signing a written confession prepared by Detective Spano. The duration of Jerrell's custody and interrogation was longer than the five hours at issue in Haley, 332 U.S. 596, 92 L. Ed. 224, 68 S. Ct. 302. Indeed, it was significantly longer than most interrogations. n7 Under these circumstances, it is easy to see how Jerrell would be left wondering "if and when the inquisition would ever cease." Woods v. Clusen, 794 F.2d 293, 298 (7th Cir. 1986). Thus, Jerrell's lengthy custody and interrogation is additional evidence of coercive conduct.

n7 In Inside the Interrogation Room, 86 J. Crim. L. & Criminology 266, 279 (1996), Richard A. Leo reported that more than 70 of the interrogations he observed lasted less than an hour, and only 8 lasted more than two hours. These figures were taken from a sample of 153 interrogations. Id.

The final factor we address is the psychological techniques applied. In A.M. v. Butler, 360 F.3d 787, 797 (7th Cir. 2004), an 11-year-old suspect's confession was suppressed after "he was questioned for almost 2 hours in a closed interrogation room with no parent, guardian, lawyer, or anyone at his side." The court expressed concern with the detective's behavior of continually challenging the juvenile's statement and accusing him of lying. Id. at 800. It warned that such a technique "could easily lead a young boy to 'confess' to anything." Id.

Like the suspect in A.M., Jerrell was subjected to a similar technique for multiple hours. Not only did the detectives refuse to believe Jerrell's repeated denials of guilt, but they also joined in urging him to tell a different "truth," sometimes using a "strong voice" that "frightened" him. Admittedly, it does not appear from the record that Jerrell was suffering from any significant emotional or psychological condition during the interrogation. Nevertheless, we remain concerned that such a technique applied to a juvenile like Jerrell over a prolonged period of time could result in an involuntary confession.

Weighing the above personal characteristics against the pressures and tactics used by the police, we determine that the State has not met its burden of proving that Jerrell's written confession was "the product of a free and unconstrained will, reflecting deliberateness of choice." Hoppe, 2003 WI 43, 261 Wis. 2d 294, P36, 661 N.W.2d 407 (citing Clappes, 136 Wis. 2d at 236; Norwood, 74 Wis. 2d at 364; Hoyt, 21 Wis. 2d at 308). Rather, we conclude that it was "the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the State exceeded the defendant's ability to resist." Id. Accordingly, we determine that the written confession was involuntary under the totality of the circumstances.

IV

We turn next to the second issue in this case concerning whether this court should adopt a per se rule, excluding in-custody admissions from any child under the age of 16 who has not been given the opportunity to consult with a parent or interested adult. Jerrell asserts that such a requirement is critical to leveling the playing field between juveniles and the police in an interrogation.

According to Jerrell, the court's warning in Theriault, 66 Wis. 2d at 48, has been either ignored or overlooked by courts and law enforcement officers, as evidenced by the facts of this case. Therefore, he asks that we exercise our supervisory authority to adopt such a requirement for the admissibility of a juvenile confession.

The State, by contrast, does not question the merits of the proposed rule. Instead, it questions the court's authority or exercise of authority in adopting it. The State contends that such a change in law enforcement practices involving custodial interrogation of juveniles is properly a matter for the state legislature and not the court.

Article VII, Section 3 of the Wisconsin Constitution expressly confers upon this court superintending and administrative authority over all state courts. n8 This provision "is a grant of power. It is unlimited in extent. It is indefinite in character." State v. Jennings, 2002 WI 44, P13, 252 Wis. 2d 228, 647 N.W.2d 142 (quoting State ex rel. Fourth National Bank of Philadelphia v. Johnson, 103 Wis. 591, 611, 79 N.W. 1081 (1899)).

n8 Article VII, Section 3, subsection 1 of the Wisconsin Constitution states: "The supreme court shall have superintending and administrative authority over all courts."

We have previously described Article VII, Section 3 as establishing "'a duty of the supreme court to exercise . . . administrative authority to promote the efficient and effective operation of the state's court system.'" Id., P14 (quoting In re Grady, 118 Wis. 2d 762, 783, 348 N.W.2d 559 (1984)). While unquestionably broad and flexible, our supervisory authority will not be invoked lightly. Id., P15 (citing In re Phelan, 225 Wis. 314, 321, 274 N.W. 411 (1937)). Whether we choose to exercise our supervisory authority in a given situation is thus a matter of "'judicial policy rather than one relating to the power of this court.'" Id. (quoting Phelan, 225 Wis. at 320).

As indicated above, we are troubled by the tactic of ignoring a juvenile's repeated requests for parental contact. When a detective routinely refuses to call parents when their children are being interrogated, and a circuit court gives that factor little weight in the totality of the circumstances, we certainly take notice.

However, we decline to abandon the "totality of the circumstances" approach at this time in favor of Jerrell's per se rule regarding consultation with a parent or interested adult. Instead, we choose to reaffirm our warning in Theriault, 66 Wis. 2d at 48, that the failure "to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel" will be considered "strong evidence that coercive tactics were used to elicit the incriminating statements." Here, the juvenile was arrested at home. However, we remind law enforcement officials that Wisconsin law requires an "immediate attempt" to notify the parent when a juvenile is taken into custody. Wis. Stat. 938.19(2). n9

n9 Wisconsin Stat. 938.19(2) provides:

When a juvenile is taken into physical custody as provided in this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian and legal custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian and legal custodian of the juvenile are notified, or the juvenile is delivered to an intake worker under s. 938.20(3), whichever occurs first. If the juvenile is delivered to the intake worker before the parent, guardian and legal custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian and legal custodian of the juvenile are notified.

V

The final issue we consider is whether to adopt a rule requiring the state to electronically record all juvenile interrogations. To date, two states, Alaska and Minnesota, have mandated an electronic recording requirement by court decision. Stephan v. State, 711 P.2d 1156 (Alaska 1985); State v. Scales, 518 N.W.2d 587 (Minn. 1994). n10 Jerrell urges this court to follow suit. n11

n10 The State of New Jersey is also currently considering the matter. On August 10, 2004, its Supreme Court appointed a committee to study and make recommendations concerning electronic recording of custodial interrogations. The recently released report concludes that the New Jersey Supreme Court "should exercise its supervisory authority over the administration of criminal justice to encourage electronic recordation of custodial interrogations." See Report of the Supreme Court Special Committee on Recordation of Custodial Interrogations at 36 (April 15, 2005), at http://www.judiciary.state.nj.us/notices/n050505 .htm.

n11 Jerrell is joined in this request by the Children and Family Justice Center at Northwestern University School of Law's Bluhm Legal Clinic; Professor Emerita Marygold S. Melli; the Juvenile Justice Center; the Wisconsin Innocence Project of the Frank J. Remington, University of Wisconsin Law School; and 14 other Amici Curiae.

According to Jerrell, a rule requiring electronic recording would provide courts with the best evidence from which it can determine, under the totality of the circumstances, whether a juvenile's confession is voluntary. He views the rule as critical to the integrity of the fact-finding process, as it is difficult to accurately recreate weeks or months later in a courtroom what transpired in a lengthy interrogation like his.

Again, the State does not take issue with the merits of Jerrell's proposal, but instead questions the court's authority or exercise of authority in adopting it. Additionally, it expresses concern with the court mandating a certain law enforcement practice. The State therefore maintains that the debate over electronic recording should occur in legislative chambers.

We are not persuaded by the State's arguments. Here, Jerrell is not asking this court to regulate police practice. Rather, he is requesting a rule governing the admissibility of a juvenile's confession into evidence. This would not make it illegal for police to interrogate juveniles without a recording. Instead, it would render the unrecorded interrogations and any resultant written confession inadmissible as evidence in court.

Plainly, this court has authority to adopt rules governing the admissibility of evidence. For example, we have previously fashioned rules governing the admissibility of polygraph evidence. E.g., State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628 (1981). We have also adopted recording as one of the criteria to consider before admitting hypnotically affected testimony. State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983).

Although the above decisions did not expressly rely upon this court's supervisory power, they make clear that this court can regulate the flow of evidence in state courts, including the nature of the evidence developed and presented by law enforcement. Today, we regulate the evidence of juvenile confessions resulting from custodial interrogations. Like the Minnesota Supreme Court in Scales, 518 N.W.2d 587, we do so pursuant to our supervisory authority.

Experiences in Minnesota, Alaska, and hundreds of other jurisdictions that now voluntarily record demonstrate that the benefits of such practice greatly outweigh the costs, both real and perceived. After surveying 238 law enforcement agencies nationwide, Thomas Sullivan, former United States Attorney for the Northern District of Illinois, observed that "[a] contemporaneous electronic record of suspect interviews has proven to be an efficient and powerful law enforcement tool. Audio is good, video is better. . . . Recordings prevent disputes about officers' conduct, the treatment of suspects and statements they made." See Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, 6 (Summer 2004), at http://www.law.northwestern.edu/depts./clinic/wrongful/documents/SullivanReport.pdf. Like Sullivan, we agree that electronic recording is an efficient and powerful tool in the administration of justice. We highlight some of these advantages here.

First, a recording requirement will provide courts with a more accurate and reliable record of a juvenile's interrogation. This will eliminate conflicts in evidence that are attributable to flaws in human memory. n12 It will also enable judges to conduct nuanced reviews to resolve admissibility issues. See, e.g., Hoppe, 2003 WI 43, 261 Wis. 2d 294, P27, 661 N.W.2d 407 (in reaching its conclusion about Hoppe's vulnerable mental state, the circuit court explained that "one only needs to listen to the audiotapes to note the impairment referred to by the doctors . . . .").

n12 Recent research on the accuracy of interviewers' recollections of interviews with children confirms that memory errors are significant:

Serious errors occur in recall of conversations and interviews with children. These errors are made by interviewers with various levels of training and also with various levels of familiarity with the child. The errors include the omission of details (forgetting) and the commission of details (inserting facts that were not stated), as well as misreporting the degree to which the child's answers were spontaneous or the result of suggestive techniques.

Stephen J. Ceci & Maggie Bruck, Why Judges Must Insist on Electronically-Preserved Recordings of Child Interviews, 37 Court Rev. 10, 11 (Summer 2000).

Second, an accurate record will reduce the number of disputes over Miranda and voluntariness issues for juveniles. Currently, courts spend an inordinate amount of time and resources wrestling with such slippery matters. This case alone generated four days of hearings based on Jerrell's postdisposition claim that his confession was involuntary. All of these hearings and the entire appellate process might have been avoided if Jerrell's interrogation had been electronically recorded. Not surprisingly, the circuit court twice remarked that it wished it had a videotape of the interrogation.

Third, recording will protect the individual interest of police officers wrongfully accused of improper tactics. Suspects will be unable to contradict an objective record of the interrogation. This is because "viewers and listeners see and/or hear precisely what was said and done, including whether suspects were forthcoming or evasive, changed their version of events, and appeared sincere and innocent or deceitful and guilty." Sullivan, Police Experiences with Recording Custodial Interrogations, at 6.

Fourth, a recording requirement will enhance law enforcement interrogations of juveniles. Police report that "recordings permit detectives to focus on the suspect rather than taking copious notes of the interview. When officers later review the recordings they often observe inconsistencies and evasive conduct which they overlooked while the interview was in progress." Id. at 10. Furthermore, "recordings deter officers who might be inclined to engage in improper tactics or misstate what was said or done by the suspect[.]" Id. at 16.

Finally, such a rule will protect the rights of the accused. Without a contemporaneous record of the interrogation, judges are forced to rely on the recollections of interested parties to reconstruct what occurred. The result is often a credibility contest between law enforcement officials and the juvenile, which law enforcement officials invariably win. n13 The existence of an objective, comprehensive, and reviewable record will safeguard juveniles' constitutional rights by making it possible for them to challenge misleading or false testimony.

n13 In this case, Detective Spano and Jerrell gave conflicting testimony on many accounts of the interrogation, including: (1) whether Detective Spano gave Jerrell Miranda warnings at all; (2) whether Detective Spano promised Jerrell that he would go home after a night in detention, or merely stated that he did not know what would happen after that night; (3) whether Detective Spano threatened Jerrell with 65 years in prison if he did not confess; and (4) whether police told Jerrell some details of the robbery. The circuit court resolved all of these differences in favor of Detective Spano.

These reasons have prompted the American Bar Association to unanimously adopt a resolution urging legislatures or courts to enact laws or rules "requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to require the audiotaping of such custodial interrogations[.]" American Bar Ass'n, N.Y. County Lawyers' Ass'n, Criminal Justice Section, Report to the House of Delegates (Feb. 2004), available at http://www.abanet.org/leadership/2004/recommendations/8a.pdf.

We are mindful that adopting the rule proposed by Jerrell will be met with some hesitation. n14 However, we agree with the court of appeals that "it is time for Wisconsin to tackle the false confession issue" and "take appropriate action so that the youth of our state are protected from confessing to crimes they did not commit." Jerrell C.J., 2004 WI App 9, 269 Wis. 2d 442, P32. We are convinced than an electronic recording requirement is a means to that end.

N14 For example, some may fear that a recording requirement will lead to suppression of confessions based on technicalities. We note, however, that jurisdictions that require recording have excused the failure to record when that failure was occasioned by good faith error or equipment malfunction or where the violation was not substantial or the contents of the interrogation were not in dispute. See, e.g., Bright v. State, 826 P.2d 765, 773-74 (Alaska Ct. App. 1992); State v. Miller, 573 N.W.2d 661, 674-75 (Minn. 1998); State v. Schroeder, 560 N.W.2d 739, 740-41 (Minn. Ct. App. 1997).

In 1994, the Minnesota Supreme Court in Scales, 518 N.W.2d at 592, exercised its "supervisory power to insure the fair administration of justice." It required electronic recording of all questioning "where feasible," and without exception "when questioning occurs at a place of detention." Id. Today, we also exercise our supervisory power to insure the fair administration of justice. All custodial interrogation of juveniles in future cases shall be electronically recorded where feasible, and without exception when questioning occurs at a place of detention. Audiotaping is sufficient to satisfy our requirement; however, videotaping may provide an even more complete picture of what transpired during the interrogation. n15

n15 For many law enforcement agencies in this state, this practice will be nothing new. At oral argument, the Assistant Attorney General indicated that there are approximately 50 law enforcement agencies in the state that do taping of some type under some set of circumstances.

VI

In sum, we agree with Jerrell that his written confession to the police was involuntary under the totality of the circumstances. However, we decline to adopt his proposed per se rule regarding consultation with a parent or interested adult. Finally, we exercise our supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible, and without exception when questioning occurs at a place of detention. Accordingly, we reverse the decision of the court of appeals.

Conclusion: The decision of the court of appeals is reversed.

Concurring and dissenting opinions omitted.

 

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