No Unrecorded Juvenile Confessions in Wisconsin

Wisconsin police arrest a juvenile and interrogate him for several hours. They let him eat, drink, use the restroom, etc. but refuse him any access to his parents. At the end the kid signs a confession written by the officer.

The defense appeals three issues:

1. Was the confession voluntary?
2. Should all confessions made outside the presence of parents be thrown out?
3. Should all interrogations of minors be electronically recorded in order to be admissible?

The Wisconsin Supreme Court is particularly troubled by the purposeful refusal to contact parents (in contravention of Wisconsin law) and cites its own precedent holding that

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."

After addressing several other factors the Court finds

"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." 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." Accordingly, we determine that the written confession was involuntary under the totality of the circumstances."

The Court then refuses to adopt a per se rule that all confessions without parental presence be excluded. In so doing it reminds the courts that this is to weigh heavily against the prosecution and it reminds the police of their specific statutory requirement to contact parents ASAP.

Then the Court moves on to electronically recording of juvenile confessions. Invoking broad supervisory powers which it has under Wisconsin's Constitution and precedent it states that excluding confessions which are not electronically recorded does not stop the police from getting confessions in this manner. Thus the Court is not requiring the police to do anything, it is merely putting forth a rule of evidence. It's hair-splitting but technically correct.

The Court then goes through several paragraphs of reasons as to why this is a good rule and points to a call from the ABA to establish rules such as this. Personally, I think this weakens the Court's argument because it makes it look like the court is legislating. One wishes the Court had merely stated

We find that without an electronic record a court cannot determine whether a minor's confession is voluntary or not due to the presumed immaturity of the child. In all cases of uncertainty, the Court is required to decide the facts in favor of a defendant. As this case has shown this rule has not always been adhered to. Therefore, we rule that such confessions must be taped in order for the court to review their circumstances.

In the end the Court rules

"[W]e 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."

Thereafter follows numerous concurrences and dissents about this last issue (everyone agrees the confession was inadmissible because it was coerced). They go heavily into Wisconsin's Constitution and precedent. I must admit to having not read all that and I leave it to you to decide for yourself whether this was a valid exercise of the supervisory power of the Wisconsin Supreme Court or improper assumption of legislative powers.

In the Interest of Jerrell C.J., a person under the Age of 17:
Wisconsin v. Jerrell C.J.

ADDENDUM: And Tom comments here.