Justice
Butler reviews last term’s criminal cases
By
David Ziemer
Wisconsin Law Journal
Sept.
28, 2005
|
“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 exceptions
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.
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.
