*1 рolicy under the and in the allowance of attor- ney’s action. fees in this
By Judgment affirmed. Court. — alleged J.G., delinquent In the Interest child age J.G., Appellant, under the of 18:
v. Wisconsin, Respondent-Petitioner. State
Supreme Court Argued No. 83-266. March June 1984.—Decided 1984.
(Also reported 668.) in 350 N.W.2d *2 petitioner argued For the by Sally the cause was L. Wellman, attorney general, assistant with whom on the general. briefs was Bronson Follette, attorney C. La appellant For the was a brief L. there Tfiomas Collins, argu- Milwaukee, Miller and Brennan & oral ment Mr. Miller.
HEFFERNAN, C.J. This a review a decision appeals (In of the court of J.G., Interest 114 Wis. 2d (Ct. 1983)), July 11, App N.W.2d 508 filed 1983, which (chil reversed order of the circuit court division) dren’s court county, for Milwaukee Leander Foley, Judge, waiving jurisdiction J. Circuit over transmitting juris the case to the criminal diction of the circuit court. The court of re manded the case to the children’s court division for question further on the stating: 48.18(4), Stats., under sec. *3 entirely the here evidence consists almost “[W] of con-
fessions, hearing this court holds that a to determine the the reliability of these confessions must be held before issue of merit is At 222. determined.” Because we conclude that failed to make showing merely a unreliable, that his confession was but conclusionary a asserted manner that the confession involuntary, was obligated the court was not to conduct hearing. Accordingly, a we reverse the decision of the court of and direct that the cause be transferred to the adult court for trial in with accordance the waiver order of the children’s court division the circuit court. alleged delinquent respect
J.G. was to be to numer- petitions adjudge delinquency ous incidents. Three and, correspondingly, petitions three for waivеr to the by attorney. adult court were filed the district controversy The centers about the second filed, peti- and issues raised in other two by tions principal are subsumed in the issue raised petition. second delinquency petition
The accused J.G. of first second degree police It was based on murder and of arson. investigation reports of the of the murder and arson given by importantly, and, most on confessions scenes Sunday, January 16, 1983, a.m., at after on about J.G. religious out of services inter- J.G. had been called rogation. custody days hаd for ten when the J.G. been given. attorney appointed He confession was had premises public on defender who had been facility daily basis but was not there the children’s on appropriate Miranda ad- Sunday. given on J.G. was and, police interrogation, then, pursuant monitions to the murder.1 confessed accompanying petition
The for waiver of children’s years jurisdiction J.G. was recited that seventeen It murder arson crimes with which old. described the and stating charged, pen- maximum he was as well as alleged that, alties. It stated due thе nature offenses, public the best interest of J.G. and was jurisdiction. its that children’s court waive hearing A held the children’s waiver was testimony be taken court. Defense counsel asked probable judge on a determination before the made hearing, prosecutive merit. At the held cause and requested February counsel hearing manner as an adult conducted same be therefore, testimony that, should preliminary taken. be judge only petitions to the he needed to look stated *4 reliability quality and the for the factors of
themselves obligated an evi- was not to conduct of the evidence and dentiary hearing.2 1 violation of taken in It is not asserted that prosecutve determining merit.
Miranda not be used in could 2 applicable extremely evidentiary guidelines to The liberal Stats., hearings 48.18, are forth in sec. waiver under sec. set 48.299(4) (a), (b):
752 respect Particularly to second —murder argued: counsel
and arson —defense requesting evidentiary hearing “I’m an there be separate evidence cause and reliability from this to determine the prior determining probable whether there . . merit. .” court, relying re T.R.B., The on In Interеst (1982), Wis. 2d ruled that it could N.W.2d respect make its decision in merit on the petitions rejoinder basis of the alone. The of defense that, particularly counsel was to the murder- petition, reliability statement, arson of that because taken, of the conditions under which the statement was seriously in were doubt. He asserted that there was “a big cloud” over that confession.
He then recounted circumstances under which the statement was taken. We have set them forth He above. again asserted that the of the confession was stating: question, “Unreliability has to do with of a the involuntariness among things, statement and other involuntariness has to question, got attorney, course, do with the I but of you’re going your attorney to waive and talk to be- us right answers, now, cause we’re and here we want some I policemen think the Court needs to have those hearings “48.299 Procedures at “(4) (a) Chapters govern presentation 901 to shall fact-finding hearings evidence at under ss. and 48.42. 48.31 “(b) statutory Neither common law nor rules of are evidence binding at a waiver under s. 48.18 .... At those hear- ings, testimony having pro- the court shall admit all reasonable value, immaterial, unduly bative 'but shall exclude irrelevant or repetitious testimony. Hearsay may has evidence be admitted if it guarantees demonstrable circumstantial of trustworthiness. give recognized shall privilege effect rules of law. apply The court shall principles materiality relevancy, the basic probative proof questions Objections value to of all of fact. evidentiary proof offers and offers evidence not admitted may be made and shall be noted in the record.
753 hearing tоday proceeds any the or before this stand agree reliability, the I with the to test because further go- are at crux of what’s Court that those admissions ing the . . .” on here. hearing judge evidentiary and The circuit denied an prosecutive contents of there was merit based on the held “reliability delinquency petition the that was there quantity required prosecutive within the that is merit.” respect each of
He reached the same conclusion hearing, petitions proceeded waiver and then hearing, After which was taken. the waiver еvidence by specific finding proved that the state court made a convincing personality J.G. had clear and evidence juvenile system defect, in the was for which treatment the crimi- case ordered transferred to limited. The was question raised in court. No nal division circuit stage proceedings waiver these second stage hearing hearing. objection find- to the first ing prosecutive involuntary of con- merit on the basis incorporated delinquency petitions. fession discretionarily by Appeal permitted court was stay waiving jurisdic- appeals. A of the order entered, appeal tion was heard the court was appeals, circuit court’s order and which reversed the reliability of a remand ordered for a question proffered evidence before merit is determined. argument was based court to the
J.G.’s
193, 200-01,
304 N.W.2d
D.E.D.,
2d
re
Wis.
D.H.,
re
turn,
upon In
(Ct.
1981),
App.
which, in
relied
for the
(1977),
2d
sion wаs clearly judge might in- trial consider was also discretionary not, matter. The tended to be a test D.H., sufficiency whether, under but facts, D.H.’s under the there was an of discretion. abuse discretionary ap- discussion of the nature of evidence propriate pro- with the a waiver is consistent directing juvenile “court visions of sec. 48.299 that a testimony having probative shall admit all reasonable value . . . .” appeals took
Thus, appear that the court of it would when justified precedents of this court position not D.H., relying 3, that: D.E.D., p. n. it stated exists and dеciding whether “In may con- jurisdiction, whether to waive sider reliable evidence illegally allegedly ob- which is is demon- may evidence which tained but not consider strably given police unreliable, as a statement such or indicating given it was others under circumstances voluntarily. in- (b), Stats.; 48.229(4) In interest Sec. D.H., (Em- 2d at at 204.” 76 Wis. N.W.2d phasis supplied.)
Thus, appeals the court of in D.E.D. concluded involuntary equated It in- confession was unreliable. unreliability. voluntariness with It therefore would ex- involuntary confession, clude as unreliable the whether not, permit or of a true but would use taken without Miranda admonitions. D.E.D., footnote 3 in the court of also relied C.J.S., Law, 817(2) (a), pp. 164-65 Criminal sec.
(1961). However,
Corpus
when that citation to
Juris
examined,
rely
Lang
it will
to
Secundum is
be found
State,
(1922),
v.
178
is
victions for crime.”
sustain
Lang
at 123.
Lang,
relied,
has
case
which C.J.S.
Wisconsin
being
repudiated
the rea-
been
a correct statement of
as
holding
involuntary
inadmissible
сonfession
son for
an
in evidence. This court
stated:
has
course,
question
is,
not di
“The
of voluntariness
and
of the statement
rected to the trustworthiness
credible,
rather
but
is true and
whether the statement
whether it was
it
circumstances
under such
obtained
or
represents
whether
uncoerced,
the declarant
free will of
ability
deprived
him of
circumstances
State,
Roney
44
2d
v.
Wis.
to make a rational choice.”
522,
(1969).
532-33, 171
400
N.W.2d
668, 679, 178
also,
Bergenthal,
2d
v.
47 Wis.
See,
State
denied,
(1971);
(1970), cert.
State Wis. N.W.2d analyzes (1978). this court a confession deter When “ question voluntary, mine whether it is ‘The is whether repre it was obtained under such circumstances the uncoerced free will of the declarant or whether sents ability deprived make a him of the circumstances ” Wedgeworth, choice.’ State v. 100 2d rational Wis. 514, 524, See, also, (1981); Norwood v. 302 810 N.W.2d State, 343, 364, (1976), 246 74 2d 801 Wis. N.W.2d (1977). denied, cert. 430 949 U.S. Supreme said in Jackson v.
The United States Court Denno, (1964) : 378 U.S. 376 “It is now axiomatic that a defendant in a criminal deprived process case is is of law if his conviction due found, involuntary part, upon in whole or in con- regard fession, falsity without for the truth or confession, Rogers Richmond, 534, and even v. 365 U.S. though ample from the there is evidence aside support York, Malinski v. New 324 the conviction. 181; Payne 401; California, v. v. U.S. Arkansas, constitutional Stroble U.S. Equally 560. clear is the defendant’s U.S. right stage proceedings at some object a fair to the of the confession to have use hearing the issue of a reliable determination on voluntariness, truth a determination uninfluenced falsity or of the confession.” Rogers Supreme v. Rich- United States Court mond, (1961), of a held that the U.S. *8 nothing It with its voluntariness. confession has to do involuntary in evi- be admitted stаted confessions cannot unlikely to be are dence “not because such confessions them offend true but because the methods used to extract underlying crim- principle of our an in the enforcement an in- and not inal law: that ours is an accusatorial Rogers v. Rich- quisitorial system Id. . . . .” at 540-41. that, many where state convictions mond cases noted used to obtain the methods were overturned because independent involuntary, corroborating confessions were evidence left little doubt of the truth of what was con- Despite reliability, fessed. this verification of these product confessions were found to be the of constitution- ally impermissible suppressed. methods and were As Alabama, said, Blackburn v. (1960), 361 U.S. “The Fourteenth Amendment forbids ‘fundamental un- ” fairness in the use of whether true or false.’
Thus, it is clear appeals that the court of erred when it stated in footnote 3 of D.E.D. that a is statement involuntary demonstrably perpetuated is unreliable. It when, case, that error in this it relied that footnote involuntary to assert that an prima confession was facie legal underpinnings unreliable. We conclude that the appeals the court of decision in the instant case were faulty. involuntary
An statement is for that un- reason equally clear, then, reliable. It is appeals that the court of was incorrect when it stated: entirely the evidence “[W]here consists almost of con-
fessions, hearing this court holds that a to determine the the reliability of those confessions must be held before issue of at 222. is determined.” 2dWis. holding of the court sweeping. It is broader than require, the facts of this case would for in the instant casе conclusionary there is at least the state- ment that involuntary. the confession If was we read all confessions— n appeals holding literally, court of involuntary evidentiary or not —must be tested before their can contents be con- sidered judge in the exercise of his discretion to determine merit. We think this holding incorrect; and even were we to limit it to the case, i.e., facts of this where the evidence consists of *9 758 involuntary, holding
confessions claimed to be is also erroneous. In P.A.K., We have held in the Interest released
today, 871, 119 2d (1984), Wis. 350 N.W.2d that the 677 provisions Code, require the Childrens ch. do not present the state to evidence addition to that petition even when prosecutive the issue of merit contested. holding reiterated therein We our in In the T.R.B., Interest 2d Wis. N.W.2d (1982), that, question prosecutive where the merit was contested, finding upon could be based the evi- petition dence contained in the alone.
The instant case is similar to P.A.K. in that re- solely liance the state is for de- linquency and the is contested. It is P.A.K., unlike prose- because the contest cutive merit is based principal on the claim that the evi- J.G., dence is confession of which it is asserted is involuntary. unreliable because haveWe demonstrated that involuntariness is not to be equated nonreliability with fact, or untrustworthiness. reliable, confession is special definition for it is a against kind of an Thus, admission interest. on its face it bears which, the indicia of nothing if more asserted, were would ap- afford some assurance for the propriate determining use of a confession in merit.
McCormick, (hornbook Evidence series, 1954), sec. 109, p. 225, interesting contains discussion on thе re- liability and points trustworthiness of confessions. It out typical that the unreliability factors of error memory, substantially observation or are minimized in the case of a professes “since the narrator participant have been himself the chief in the incident he recounts.” Id. at 225. recognizes possibility
While McCormick of false confessions, points he out: *10 ordinary “In a man circumstances will not acknowl-
edge carrying the penalties, commission of a crime serious guilty, self-protection even if ishe and this motive of will operate strongly prevent a hundred times more his acknowledging a crime of which he is innocent.” Id. at 226. danger points confessions,
The real he out, by duress, involuntary is the confession induced confession; and, course, why of that is is from it excluded out, points evidence at trial. McCormick however: may “It well doubted whether guilt, be confessions of they by pressure even where are extorted or force fear, reasonably trustworthy.” not are At 229. They are excluded from use at trial for reasons of public policy, they not trustworthy because are not or not does, however, reliable. The permit code any relevant, probative, use of trustworthy and еvidence purpose guilt limited determining, not or in- nocence, type best, but the of court which can from the viewpoint society juvenile, appropri- and the act most ately though confession, A circumstances. in- voluntary face, on its is reliable the sense that can, information therein in the exercise the court’s discretion, prosecu- be used to make a determination of tive merit.3
McCormick, (hornbook ed., 1972), Evidence series 2nd p. sec. which discusses the rules which have increasingly admissibility restricted in- of coerced and vоluntary confessions, states these rules have “their as primary purpose protection . . . other of interests presented than the accurate resolution issues of factual Thus, they case which confession is offered. 3 We, course, suggest involuntary not that an confession do trustworthy, may be admissible at trial. It be if used reliable despite merit, involuntariness, its to determine yet pro be excluded from at the criminal admission in evidence ceedings jurisdiction. that follow a waiver of
may properly privilege be classified as rules of rather incompetency.” Thus, than of edition of Mc- recognize Cormick, Evidence, pro- continues to excluding phylactic rules coerced confessions at trial are necessarily unreliability not based of the facts recited in those confessions. apparent is some which in-
It confessions are may enough voluntary reliable, not be but that, involuntary, if assert because a confession is even ipso true, that assertion it is not reliable. It is facto voluntary possible may that a be unre- also product it is or the of mental liаble the sense that false *11 illness.
Thus, question which must be answered we address the give guidance juvenile if is to this court to to courts and alleged put counsel in to what to must be issue juvenile question court the of whether an involun- tary confession is unreliable. is
First, emphasized the burden be that it should specific of the basis juvenile to inform the court of the out, unreliability pointed the As we have of a confession. involuntariness, proof, is not allegation or even its of reliability. Interest necessarily relevant of 1982), App. T.M.J., (Ct. 7, 2d 198 Wis. 327 N.W.2d 110 juvenile that, of the confessions wherе it clear made juvenile as- had not petition, included in the were question of on the a burden secure sumed his disputing grounds specific reliability he offered no where untrue.4 were statements reliability not claim his and did that, assertion there been had of intimated The court might a involuntary, have warranted that the statement that was statement demonstrated, not a correct hearing. is that As we have inadmissible clear makes it Code of the law. The Children’s helpful the exercise if informative appropriate discretion, used. judge’s and can bе is agree position that, with We asserted state primary when a which contains a a confession as establishing prosecutive appears basis merit reliable face, may on its court find it to be reliable specific allegation unreliability unless there a of allegation juvenile. An that a involun- tary proof which does not assert and offer untruthful, reliable, confession is and therefore not does require evidentiary hearing. conduct an agree position do not We with the defendant’s —that merit determination should be conductеd preliminary hearing just in the same as a manner be- — T.R.B., cause the court in In Interest 2d 109 Wis. of (1982), held that N.W.2d functionally finding probable was similar to a cause preliminary hearing in the course and not similar to complaint the determination of whether a was sufficient. contrary Pages 884, held to the in P.A.K. We 885. state, course, providing 'The has the initial burden of justify finding evidence sufficient prose- the court’s P.A.K., pages 885; supra, T.R.B., merit. at cutive supra at 190. showing
That initial
must
the state
include the evi-
dence that has about it the indicia of
or trust-
*12
worthiness,
e.g., petitioner’s personal
or
observations
reliability.
other factors which
of
demonstrate
The court
appeals
trustworthy
in D.E.D. defined “reliable” as
or
worthy
T.M.J.,
In
Interest
confidence.
(Ct.
1982).
also,
App.,
See,
2d
It court, should be out that even specific without proof a assertion or offer of unreliability, proper must demonstrate the by making exercise of discretion an evaluation of the respect reliability, only state’s evidence re- for finding prosecutive liable evidence will sustain a merit. See, D.E.D., supra. Nevertheless, hearing ques- a on the reliability required only specific tion of if a there is nonreliability, i.e., assertion of for what reason is made, juvenile, If such reliable. assertion is in ac- 48.18(3) (b), Stats., with D.H. cordance and sec. which right D.H., present testimony codified “has the on his including testimony.” expert her Accord, or own behalf supra, P.A.K., at 886. juvenile challenges
Once the of a con- prosecutive fession a which for based and comes forward with some the state showing by preponderance has the burden of that the evidence confession is reliable. present case, applying propositions the above applicable prosecutive
of law we deem merit determina- tions, that, petitions we conclude to the two challenged being merit that were not even as In D.E.D. the court of made clear that only used in a merit need he reliable pointed admissibility application out that involved the of the rules D.E.D., evidence and constitutional restrictions. 2dWis. 193, 200-01. *13 involuntary confession, only duty based on an the court was necessity to evaluate the without the any hearing, reliability. of juvenile to determine the This judge clearly did, uphold and we his exercise of discre- respect January tion petitions 13, dated February 9, explicitly 1983. He stated his reasons finding petitions for the evidence in the two reliable and quantum of support finding prosecutive sufficient a of respect merit. reverse of We the court to its finding juvenile prose- decision to reverse the court’s petitions. cutive merit as to those two petition January 17, 1983, to the petition, posed question second which we con- which importance accepted petition sidered of we such that review, for we also reverse. juvenile court abuse did not its discretion when it hearing January 16,
refused to conduct a on J.G.’s confession, only contended that because J.G. confes- “involuntary” sion was a and did even assert reason why untrustworthy the confession was unreliable. or There no contention that was not a was confession assertion, though truthful An purporting one. even challenge reliability, sрecific only to a claim as predicate involuntariness a de- does not furnish for manding hearing. evidentiary summarize, obligation
To a court is under no to conduct a on the of a confession in although always petition, a the evidence must evaluate presented reliability. its event there is a chal- In the lenge by accompanied showing juvenile, by a unreliable, must his/her set it aside and determine whether there remains suffi- disputed content, cient confession, other than in the petition upon finding which merit. to make a remaining If contеnt of the is not sufficient finding merit, which base *14 764 obligated hearing
juvenile to conduct a at which court is possible, by prove, forward and if the state must come preponderance of the the the burden, to this reliable. If the state fails meet because is already juvenile court determined there was not suf- the finding upon which to make a reliable information ficient merit, juvenile may prosecutive the court not find of stage proceed to the second prosecutive merit and cannot juvenile If court finds proceeding. the of waiver reliable, сhallenged confession is waiver finding may proceed, hearing not afforded but is judicata juvenile a entitled to hear- res effect and the is ing admissibility the confession in anew on the of criminal court. conclusionary
Although objected a counsel J.G.’s reliability, he not a fashion did make to confession’s showing preliminary that the confession was false. The reliability juvenile of the confession court evaluated petition, of but was on the basis the information obligated conduct a to question. juvenile its court did not abuse discretion finding prоsecutive court merit. The of and cause is remanded to the circuit court reversed findings proceedings in with the for further accordance of court and its waiver jurisdiction.
By reversed; the Court. —Decision cause remanded the circuit court. ABRAHAMSON, (concurring). This
SHIRLEY S. J. only prosecutive sec. case raises the issue of merit under 48.18(5) (b). 48.18(4) Stats., not under sec. phrase point prosecutive merit
I out that the write may (4) 48.- 48.18 be used different senses in secs. 179, (5) T.R.B., (b). 18 See In Interest 109 2dWis. of Brief, ; 10, 185-86, (19.82) 325 State’s n N.W.2d P.A.K., 83-176, pp. 28-29, the Interest case no. at (1984). may, 119 Wis. 2d N.W.2d The state cases, produce have types some therefore different showing proof a to make merit under 48.18(4) 48.18(5) (b). under sec. sec. 48.18(4)
Under sec. the circuit court determines jurisdiction waive, finding whether it has and a functionally finding similar to a hearing. probable preliminary cause in the course of *15 petitions may Reliable information suffice. 48.18(5) Under sec. the circuit court determines whether it should exercise its discretion to waive. circuit court’s consideration of merit under (5) (b), (4), may subsection under unlike subsection in clude evaluation of the state’s chances success its prosecution the crime which the waiver based, including suppression the likelihood of of evi Policy Center, dence. Youth Inc., and Law Wisconsin Cf. Delinquency Juvenile Practice in Court and Status Of 9.11, p. (Melli 1978).* Cases sec. ed. fense * The Institute of Judicial Administration —American Bar As- Joint Commission on sociation Juvenile Justice Standards concludes adjudication that “evidence which could not be the for an basis Relating should not for be basis waiver.” Standards To Trans- Courts, Commentary B, pp. Between (1980). to sec. 2.2 38-39 fer Davis, Legal See also and Procedural Issues Related to the Waiver Process, Academy Contemporary Project, Major Problems Issues in Juvenile Justice Training, Readings Information and Policy, pp. (1981). Public 235-36