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Justice Butler reviews last term’s criminal cases


“There is nothing illegal about not recording an interrogation. The statement is just not admissible. That is the gist of the Jerrell decision.”

Hon. Louis B. Butler Jr.
Wisconsin Supreme Court

Participants at the State Public Defender Conference in Milwaukee on Sept 23 got the rare opportunity to hear a review of the Wisconsin Supreme Court’s criminal cases from the last term by a member of that court, Justice Louis B. Butler Jr.

Butler’s discussion focused on the court’s recent decision to no longer interpret parallel provisions of the Wisconsin Constitution in lockstep with the U.S. Supreme Court’s interpretation of the U.S. Constitution.

In State v. DuBose, the court diverged from the U.S. Supreme Court’s methodology for determining when an out-of-court identification is unduly suggestive. The defendant was identified three separate times — at a show-up, at a line-up, and in a photo array.

Reviewing the history of the U.S. Court’s interpretation, Butler noted that, previously, the U.S. Supreme Court had held that the focus in determining suggestiveness should be on necessity. However, the court moved away from that, changing the focus to reliability in Manson v. Brathwaite, and adopting a five-factor test to determine reliability. The Wisconsin Supreme Court had followed suit.

In Dubose, however, the Wisconsin court went back to looking at necessity, citing new information raising questions about the reliability of eyewitness identifications.

Butler noted that the evidence indicates that incorrect eyewitness identifications are not just the single greatest source of wrongful convictions, but that they account for more than all other errors combined.

Finding that show-up identifications are inherently suggestive, the court held them inadmissible unless the procedure was necessary. Where probable cause to arrest is present, then police should take the suspect into custody, and either conduct a lineup, or show the victim a photo array.

Butler stated that, where no probable cause is present, then there may be a necessity for a show-up, to avoid dragging an innocent person downtown for a lineup. In Dubose’s case, the court remanded the case to the circuit court to determine if the identification was unduly suggestive under the new standards.

Defending the court’s decision from what the dissent in the case called, “an exercise of raw power,” Butler noted that, historically, Wisconsin had been in the forefront of expanding the rights of criminal defendants, and had adopted the exclusionary rule well before the U.S. Supreme Court.

Stating, “There is a split on the court that is very apparent, as to whether we should view the State Constitution independently,” Butler noted that the U.S. Court has consistently urged state courts to adopt their own interpretations.

In State v. Jerrell, as well, the court broke from lockstep interpretation, to require that juvenile interrogations be recorded.

The court was unanimous that the juvenile’s statement was involuntary in that case, and that interrogations should be recorded, but the court disagreed about the next step the court took —adopting the per se rule that they be recorded.

The court also considered whether to adopt a per se rule that juveniles be permitted to contact an adult, but only Chief Justice Shirley S. Abrahamson supported that rule.

Unlike DuBose, the court did not base the new rule on due process grounds, but on the court’s supervisory powers. Because the court used its supervisory authority to adopt only a rule concerning admissibility of evidence, Butler stated that the new rule provides no basis for civil suits.

“There is nothing illegal about not recording an interrogation. The statement is just not admissible. That is the gist of the Jerrell decision,” he explained.

Defending the decision, Butler stated that recorded statements are more accurate, more reliable, reduce Miranda issues, protect officers wrongly accused of improper tactics, and protect the rights of the accused, if the officer does cross the line.

For those wishing to read a history of the court’s exercise of its supervisory authority, Butler referred them to the Chief Justice’s concurrence.

In State v. Knapp, as well, the court departed from the U.S. Court’s jurisprudence concerning the admissibility of physical evidence obtained as a result of a deliberate Miranda violation.

The U.S. Supreme Court applies the exclusionary rule to statements of the accused that are the product of a deliberate Miranda violation, but not physical evidence.

The Wisconsin court in Knapp disagreed and held the exclusionary rule applicable to physical evidence, as well.

Noting that, since the U.S. Supreme Court decision in Dickerson, the Miranda warnings are now constitutional, the court decided to apply the exclusionary rule when the Miranda violation is deliberate.

For a history of state courts around the country adopting their own interpretations of parallel constitutional provisions, Butler referred the conference’s participants to Justice N. Patrick Crooks’ discussion of the “new federalism” in Knapp.

In the final case in which Wisconsin law and U.S. law are no longer lockstep, State v. Hale, the split was deliberately created by the U.S. Court in Washington v. Crawford.

In Ohio v. Roberts, the U.S. Court identified a narrow group of firmly rooted exception
s to the hearsay rule, for which admission of the hearsay would not violate the Confrontation Clause. In the ensuing decades, however, many courts interpreted “firmly rooted” very broadly, and Crawford presented an opportunity to reign those courts in.

The court in Crawford held that, where a witness is unavailable, and the statement is “testimonial,” there must have been a prior opportunity for cross-examination, or the statement’s admission violates the confrontation rights of the defendant.

However, the U.S. Court did not define “testimonial,” and left to the states to determine whether non-testimonial statements even implicate the Confrontation Clause.

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In addition, while the court criticized Roberts, it did not overrule it.

In the Hale case, the unavailable witness had testified previously at the trial of an alleged co-conspirator, and the co-conspirator’s attorney cross-examined the witness. The court rejected “cross-examination by proxy” and held admission of the prior testimony violated the Confrontation Clause.

However, the decision spawned six separate opinions on whether the error was harmless or not.

Returning to the question of what is a “testimonial” statement, Butler stated that, “at least for now,” the court has adopted the broadest interpretation, including: (1) prior testimony and statements made in custodial interrogations; (2) affidavits; and (3) statements made with a reasonable expectation they would be used in a future trial.

For non-testimonial statements, the court decided to retain the Roberts framework.

David Ziemer can be reached by email.

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