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Juvenile interrogations must be recorded

The Wisconsin Supreme Court on July 7 adopted a rule requiring police to electronically record all juvenile interrogations.

In doing so, the court reversed a published decision of the court of appeals, In the Interest of Jerrell C.J., 2004 WI App 9, 269 Wis.2d 442, 674 N.W.2d 607.

In 2001, three young men robbed a McDonald’s restaurant in Milwaukee. 14-year-old Jerrell C.J. was arrested in connection with the offense, taken to the police station, booked, and placed in an interrogation room.

In the room, Jerrell was handcuffed to a wall and left alone for approximately two hours. At 9 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.

Jerrell was advised of his Miranda rights, and the detectives then began to question Jerrell about the armed robbery. 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.

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.

Several times during the interrogation, Jerrell asked if he could make a phone call to his mother or father. 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.

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, admitting his involvement in the robbery.

The state filed a delinquency petition, and Jerrell moved to suppress his written confession. The circuit court denied the motion. Jerrell was then tried with a co-defendant and adjudged delinquent.

Jerrell appealed, but the court of appeals affirmed in a published decision.

The Supreme Court granted review and reversed, in a decision by Justice Ann Walsh Bradley, holding that the confession was involuntary. The court also exercised its supervisory powers to order that all future juvenile interrogations be electronically recorded.

The court cited a number of Jerrell’s personal characteristics in determining that his confession was involuntary. First, he was only 14 years old. Second, his education and intelligence suggest it was involuntary. Postdisposition standard IQ testing revealed his IQ to be only 84, and he was only in the eighth grade.

Finally, the court looked at his prior experience with law enforcement. Although he had been arrested twice for misdemeanor offenses, on both occasions, he admitted to involvement, and was allowed to go home, without being adjudged delinquent. The court wrote, "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."

Coercive Tactics

Turning to the pressures and tactics used by the police, the court found them coercive. The court noted that, although parental presence is not required in juvenile interrogations, the denial of repeated requests by Jerrell to talk to his parents is a factor strongly weighing in favor of finding coercion.

The court also noted the length of the interrogation: two hours handcuffed to a wall, followed by five-and-a-half hours of interrogation. The court wrote, "Under these circumstances, is easy to see how Jerrell would be left wondering ‘if and when the inquisition would ever cease.’ (cite omitted)."

Finally, the court cited the psychological pressures employed by police: "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."

Accordingly, the court held the confession involuntary. However, the court declined to adopt a per se rule that would bar custodial admissions from any child under the age of 16 who has not been given the opportunity to consult with a parent.

The court did, however, adopt a per se rule requiring the state to electronically record all juvenile interrogations.

What the court held

Case: In the Interest of Jerrell
C.J., No. 2002AP3423

Issue: Is a 14-year-old boy’s confession voluntary when he was repeatedly denied requests to speak to his parents, handcuffed to a wall for two hours, and then interrogated for five-and-a-half hours?

Must a juvenile suspect be permitted to speak to his parent whenever he requests to do so?

Must all juvenile interrogations be electronically recorded?

Holding: No. Under the totality of the circumstances test, the confession was not voluntary.

No. A juvenile’s request to speak to a parent is just one factor in the test.

Yes. The court exercises its supervisory power to require recording of future interrogations.

Counsel: For petitioner, Eileen A. Hirsch; For respondent, Gregory M. Weber.

The court noted that two states, Alaska and Minnesota, have mandated an electronic recording requirement by court decision. The State did not dispute the merits of the rule, but argued it was a legislative prerogative that the court should not usurp.

The court rejected the State’s contention that such a rule would regulate police practice, but concluded it was only rendering unrecorded interrogations inadmissible as evidence, no different from rules it has adopted governing the admissibility of polygraph evidence and hypnotically affected testimony.

The court added, "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."

The court emphasized several benefits from requiring recording.

First, the court found, "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. It will also enable judges to conduct nuanced reviews to resolve admissibility issues."

Second, the court concluded the rule will reduce the number of disputes over Miranda and voluntariness issues for juveniles, finding, "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, the court found that recording will protect the individual interest of police officers wrongfully accused of improper tactics.

Fourth, the court found the rule will enhance law enforcement interrogations of juveniles, because detectives will be able 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." Also, recording will deter improper police tactics.

Finally, the court concluded the rule will protect the rights of the accused. The court wrote, "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. 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."

The court concluded, "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."

The Concurrences

Chief Justice Shirley S. Abrahamson wrote a separate concurrence for two reasons: to defend the court’s exercise of its superintending authority to impose the recording rule; and to state that she would 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.

Justices Bradley, N. Patrick Crooks, and Louis B. Butler, Jr., joined only the first part of that concurrence.

Abrahamson wrote, "Wisconsin must do more than apply the ‘totality of the circumstances’ rule to protect children and families and tackle the problem of false confessions. Mandating electronic recording of juvenile interrogations is a very important step, but it is only one step. I would have the court fashion a rule requiring the participation of an interested adult in the interrogation process of juveniles. Other jurisdictions provide good working models. Such a rule will provide desperately needed procedural safeguards to protect children and families and to ensure the validity of confessions and the sound administration of justice."

Justice Butler wrote a concurring opinion, asserting that Jerrell’s right against self-incrimination was violated by the detectives’ continuing to interrogate him after his request to speak to his parents.

Butler wrote, "Jerrell invoked his privilege against self-incrimination under the Fifth Amendment when he asked the detective to call his parents during the interrogation. He clearly asked for help when he repeatedly asked for his parents, and at his age, those requests must be construed as requests to remain silent until he had an opportunity to speak with his parents. While a parent may not have the special ability of a lawyer to protect legal rights of a child, a parent is certainly the protector of that child in all other respects, and certainly could be counte
d upon to give proper advice to his or her child. In view of the recently recognized constitutional underpinnings of Miranda, a juvenile should be entitled to at least the same constitutional protections as an adult. When a juvenile asks for help, help should be provided."

Justice David T. Prosser wrote separately, agreeing that Jerrell’s confession should be suppressed because it was involuntary, but dissenting from the rule that all future custodial interrogations of juveniles be recorded.

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Arguing that the court "should have recommended legislation instead of legislating from the bench," Prosser wrote, "By its action, the court is attempting to dictate the practices of law enforcement agencies under the guise of ‘superintending’ state courts. This is not an appropriate role for the judiciary in our system of government.

From the imposition of this new rule, I respectfully dissent."

Prosser added, "If the majority opinion represents a proper use of the court’s ‘superintending … authority,’ then, logically, there is no practical reason why the court could not dictate any aspect of police investigative procedure that is designed to secure evidence for use at trial. The people of Wisconsin have never bestowed this kind of power on the Wisconsin Supreme Court."

Justice Patience Drake Roggensack also wrote separately, disagreeing with the electronic recording rule. Roggensack wrote, "it would benefit both juveniles and law enforcement if the legislature were to enact the tape recording requirements set out in the majority opinion. My sole concern is that in stretching our constitutional powers to achieve a goal I believe to be good for Wisconsin, we set up a mechanism without checks and balances. Over the long term, judicial restraint better serves the people of Wisconsin than the concentration of power the majority opinion employs."

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David Ziemer can be reached by email.



  2. Can a juvenile refuse to allow recording of the interview?

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