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A divided Wisconsin Supreme Court recently became the third state high court in the U.S. to impose a rule requiring the suppression of untaped statements made during custodial interrogations, but it limited its ruling to juveniles. In the case that engendered the Wisconsin rule, the court unanimously found that a 14-year-old’s confession to an armed robbery was involuntary. In the Interest of Jerrell C.J., No. 20002AP3423. “Youth is more than a chronological fact,” wrote Justice Ann Walsh Bradley for the majority, in overturning the court of appeals. “[Children are] uncommonly susceptible to police pressures.” Like Minnesota in a 1994 case, State v. Scales, 518 N.W.2d 587, Wisconsin found the authority in its inherent power to regulate the flow of evidence in state courts. Alaska, in 1985, based its rule on the due process requirements of its state constitution. ( Stephan v. State, 711 P.2d 1156). Legislative action? The three dissenters in the 4-3 Wisconsin vote agreed that the rule is necessary, but said that the court should have recommended that the Legislature adopt it. That is what the Illinois Legislature did in July 2003 when it required that all interrogations of murder suspects at in-state police stations be recorded. [NLJ, 10-4-03.] The Illinois rule went into effect in June. In these states, interrogations that are not recorded are inadmissible at trial. Where feasible, other than in Illinois, recording is required at interrogations at other locations such as the scene of a crime. Videotaping is the preferred method in all four states. There is legislation pending in Wisconsin that would require the recording of interrogations in places of detention for adults in all felony cases. But rather than suppression being the remedy for failure to record, a jury would get an instruction that the police had violated state policy. The jury could consider that fact when weighing its value, said Keith Findley, co-director of the Wisconsin Innocence Project, which was one of about two dozen amici in Jerrell. “The real hope is once they start recording in juvenile cases, they’ll embrace it,” said Findley, who is on the clinical faculty of the University of Wisconsin Law School. If passed, the law would mirror the high-court rule in Massachusetts. In May, a committee appointed by the New Jersey Supreme Court recommended that the court adopt a similar rule. Marla Stephens, Appellate Division Director for the Wisconsin State Public Defender, noted that an “accurate recording will answer questions about voluntariness and improper tactics, and will make it easier for judges to make decisions about reliability.” Wisconsin Attorney General Peggy A. Lautenschlager said the opinion will raise new questions. “Clearly, it will have great impact. [But the] introduction of a practice not in place before will create questions for which the court will have to further interpret the rule.”

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