State v. Jerrell C.J.

In thе Interest C.J., of Jerrell Age person of 17: Under Wisconsin,

State Petitioner-Respondent, C.J.,

Jerrell Respondent-Appellant-Petitioner. Court

Supreme 9, 2004. November argument Oral No. 2002AP3423. July Decided

2005 WI 110.) (Also in 699 N.W.2d reported respondent-appellant-petitioner were there For the by argument Hirsch, assistant oral Eileen A. briefs and public defender. state argued petitioner-respondent the cause was

For the attorney general, by Gregory Weber, with M. assistant Lautenschlager, Peggy attor- the brief was A. whom on ney general. by Drizin, Steven A. curiae was filed

An amicus brief Family Chicago, IL, of Children and on behalf University Law; School of Center Northwestern Justice Marygold Melli, Emérita, Madison, on S. Professor University School; Law and of behalf of Wisconsin Philadelphia, Levick, of the PA, on behalf Marsha L. Law Center. Juvenile Findley filed Keith A. curiae brief was

An amicus Pray, Madison, of the A. on behalf Wisconsin John Remington Project of Frank J. Center- Innocence University Barry Scheck, School; Law C. of Wisconsin deLone, NY, York, on Madeline New Neufeld, Peter Benjamin Project N. the Innocence behalf of University; Jonas, Julie of Cardozo School Law-Yeshiva Project Innocence of Paul, MN, on behalf St. University Law; Bill School Minnesota-Hamline Clinic Allison, TX, of the Innocence Austin, on behalf Clinic-University of Texas School Defense Criminal Jacqueline McMurtrie, WA, on Seattle, behalf Law; Clinic-University Project of Wash- Innocence NW ington Newman, Durham, A. Law; Theresa School Emily Innocence; on Actual NC, on behalf of Center Maw, Orleans, of the Innocence LA, on behalf New

Project Binny Washington, Orleans; New Miller, D.C., on behalf of the Criminal Justice Clinic-American Uni- versity, Washington College Law; Leo, Richard Irv- Department ine, Criminology, CA, on behalf of the Society-University Law and of California-Irvine; Dr. Flagstaff, Schehr, Robert AZ, on behalf of the Northern Project Department Arizona Justice of Criminal University; Justice-Northern Arizona State Andre City, Moenssens, IN, Columbia on behalf of the Univer- sity City; Wrongful Missouri-Kansas the Center on University Convictions-Northwestern Chicago, Law, School of Project IL; the Innocence of the National Capital Region-American University-Washington Col- lege Washington, Law, D.C.; National Association of Lawyers, Washington, Criminal Defense D.C.; and the Lawyers, Wisconsin Association of Criminal Defense Monona.

¶ 1. petitioner, ANN WALSH BRADLEY,J. The published Jerrell C.J., seeks review a decision of the appeals affirming delinquency adjudication court of a postdisposition and the denial of a motion.1 Jerrell was adjudged delinquent for the commission of armed rob- bery, party to a crime. presents

¶ 2. This case three distinct but related First, issues. Jerrell contends that his written confes- police involuntary. sion to the was Second, he asks this adopt per excluding court to in-custody a any rule, se age admissions from child under of 16 who has given opportunity not been parent to consult with a C.J., State v. Jerrell App WI 269 Wis. 2d (Ct. 2003) N.W.2d App. (affirming delinquency adjudica tion and the denial of a postdisposition motion of the circuit court County, Milwaukee Wasielewski, Francis T. Judge). adopt asks Third, he this or interested adult. juvenile electronically requiring police to record all rule interrogations.2 agree his written confes- with Jerrell that 3. We involuntary totality police under sion to the was adopt to his However, we decline circumstances. the proposed per regarding awith se rule consultation Finally, parent exercise our or adult. we interested require supervisory power that custodial interro- to all electronically juveniles gations future cases be exception and without when feasible, where recorded Accordingly, place questioning aat of detention.3 occurs appeals. reverse the decision of the court we Saturday, May midnight Shortly after on young men a restaurant 2001, three robbed McDonald's wearing a ski and Each mask in Milwaukee. holding gun. was the kitchen a of the men went to Two (1) confession Additionally, Jerrell his written asserts his delinquency sufficiently support not corroborated was (2) knowingly, voluntarily, and he not adjudication, and did rights. Because we conclude intelligently his Miranda waive involuntary, not these we do address that his confession was issues. "juvenile" in a manner consistent with use the term We Justice Code: Juvenile age, except person years of is less than 18 means a who "Juvenile" prosecuting person investigating purposes or who

that for any alleged law or civil or federal criminal have violated state person ordinance, "juvenile" municipal not include a or does law years age. has attained 17 who 938.02(10m). Stat- § to the Wisconsin Stat. All references Wis. unless noted. 2001-02 version otherwise are utes employees ordered to lie down on the floor. The third manager put office, went to the where in the $3590 bag. All three men then robber's left. person, employee suspected

¶ 5. an One of un- locking by police men, the door for the was detained morning. later that Three others were detained and suspects Sunday evening. Monday on arrested as On morning, approximately 14-year-old at 6:20 a.m., Jer- rell was arrested at his home. He taken to was police placed interrogation station, booked, and in an room. interrogation

¶ 6. room, In Jerrell was hand- approximately wall cuffed to a and left alone for two Ralph Spano a.m., hours. At 9:00 Police Detectives interrogation Kurt Sutter entered the room. The detec- themselves, tives introduced removed Jerrell's hand- background questions. cuffs, and asked him some Jer- years eighth grade. rell he stated that was 14 old and in provided phone names, He also the addresses, and parents siblings. his numbers of and Spano a.m., 7. At 9:10 Detective advised Jerrell rights.4 began of his Miranda The detectives then question robbery the Jerrell about armed at Jerrell McDonald's. denied his involvement. The detec- challenged encouraged tives this denial and Jerrell to standing up be "truthful and honest" and "start for what again he did." Jerrell denied his involvement. The again challenged detectives this denial. Arizona, (1966), Under Miranda v. persons U.S. 436

facing interrogation custodial they must be warned that have right silent, the anything say may to remain that they be used against court, they in them that have right attorney, the to an attorney appointed that an will be if they for them cannot afford one. exchange, Spano At in this times Detective my raising explained, "I'm He later his voice.

raised yelling points I at him... there were voice short a I to make them with make, needed to needed strong yelling." voice. But not Jerrell described stating, quite he voice," "I'm sure but it's like not "raised angry That tone voice." with me. sort of his was fright- that it made him feel "kind of Jerrell indicated ened." During questioning, Jerrell was afforded kept in interro- and bathroom breaks. He was

food placed gation he lunch, room lunchtime. At was until bullpen ate. The a cell for about minutes where he p.m. questioning In about 12:30 the interro- resumed Spano open- gation room, Detective said Jerrell "started everybody ing up involvement and else's" about his p.m. 1:00 between and 1:30 somewhere during undisputed ¶ 10. It that "several times" is interrogation, "if he could make Jerrell asked phone or Each time Detec- call his mother father."5 Spano Spano later said "no."Detective testified tive juvenile years "never" in 12 to contact he parents allowed during interrogation stop because it could altogether. explained: jeopardize He or it flow say he can over any If I don't have control about what got phone he can do he has phone or what when hand, proper it or to let prudent in his I don't think him do that. his It is from the Jerrell asked for unclear record whether up before after he started about his involve

parents opening or However, irrelevant, timing ment in the crime. issue made seeking suppress any is not to oral statements he Jerrell Rather, seeking his written confes police. suppress he is attempts to his p.m., that came 2:40 well after his to talk sion at parents. p.m.,

¶ 11. At 2:40 over five-and-a-half hours after interrogation began, eight hours after he was taken custody, signed prepared by into Jerrell a statement Spano. Detective In it, he admitted his involvement in robbery. the McDonald's subsequently suppress 12. Jerrell moved to his claiming involuntary,

written confession, it was product unreliable, and a of coercion. The circuit court denied the motion. Jerrell was then tried with a co- adjudged delinquent committing defendant and for robbery, party armed to a crime. adjudication, postdis- 13. After his Jerrell filed a

position seeking motion a new trial on the basis that his untrustworthy, unreliable, confession was and involun- tаry. The motion focused on inconsistencies between eyewitnesses Jerrell's statement and that of and other participants. Again, the circuit court denied the motion. discrepancies It found the between Jerrell's statement and the other Additionally, evidence were not material. it totality concluded that the statement, under the voluntary. the circumstances, was appeal, ¶ 14. On Jerrell maintained that his con- involuntary. fession police was He asserted that granted officers requests should have one of his several parents, prior to call his which were all made to the signing appeals the written statement. The court of concluding affirmed the circuit court, that it did not err denying suppress Jerrell's motion to the written doing statement. appeals so, In however, the court of juvenile's request parental cautioned that "a contact ignored." should not be C.J., State v. Jerrell 2004 WI (Ct. App ¶ 1, App. Wis. 2d 442, 674 N.W.2d607 2003). Finally, appeals sepa- the court of wrote

rately express grave its concern with the issue of juveniles during custodial made false confessions opinion interrogation. ¶¶ concludes with Id., Its 24-32. action: a call for time for Wisconsin that it is opinion

It this court's take need to issue. We tackle the false confession state are youth of our action so appropriate they did not com- confessing to crimes from protected that will balance safeguards to find mit. We need to ferret out techniques necessary interrogation police constitu- adequate need to offer guilty against the to the innocent. protections tional ¶ Id., 32. reviewing of a state In the voluntariness application of constitutional

ment, we examine Hoppe, WI 43, principles v. facts. State to historical defer to the 407. We 2d 661 N.W.2d 34, 261 Wis. findings regarding factual circum court's circuit (citing surrounding Arizona Id. the statement. stances (1991); v. Fulminante, State U.S. (1987)). Clappes, 222, 235, 2d 401 N.W2d 136 Wis. principles application of constitutional However, the subject question presents to inde of law those facts appellate pendent Id. review.

h-1I—! I—I presented review is for our The first issue police was con- written confession Jerrell's whether stitutionally voluntary. involun- If his confession was

tary, process its admission would violate Jerrell's due rights under the Fourteenth Amendment of the U.S. Constitution I, and Article Section 8 of the Wisconsin (citing Rogers ¶ Id., Constitution. 36 Richmond, v. 365 (1961); 534, U.S. McManus, 540 State v. 152 Wis. 2d (1989)). 113, 130, 447 N.W.2d 654 It is the State's prove by burden to the voluntariness of a confession preponderance (citing Id., ¶ of the evidence. 40 United (7th 1991); Haddon, States v. 927 F.2d 945 Cir. Agnello, State v. 226 164, 182, Wis. 2d 593 N.W.2d427 (1999)). principles

¶ governing 18. The of law the volun- inquiry Hoppe, tariness are summarized in 261 Wis. 2d There, the court observed that a defendant's state voluntary they product ments are "if are the of a free reflecting will, unconstrained deliberateness of opposed choice, conspicuously to the result of a unequal prеssures brought confrontation which the by representatives to bear on the defendant of the State ability exceeded the Id., ¶ defendant's to resist." 36 (citing Clappes, 236; State, 136 Wis. 2d at Norwood v. (1976); Hoyt, 343, 364, Wis. 2d 246 N.W.2d801 State v. (1964)). 21 Wis. 2d 284, 308, 128 N.W.2d645 necessary ¶ prerequisite finding 19. A for a improper police involuntariness is coercive or conduct. (citing Id., ¶ Connelly, Colorado v. 157, 167 479 U.S. 239). (1986); Clappes, police 136 Wis. 2d at However, egregious outrageous conduct need not be or in order to pressures ¶ Id., be coercive. 46. "Rather, subtle are they considered to be coercive if exceed the defendant's ability Accordingly, pressures to resist. that are not may coercive in one set of circumstances be coercive in if defendant's condi- of circumstances another set uncommonly susceptible to him or her renders tion pressures." police Id. is evalu of a confession The voluntariness totality of the circumstances the basis of

ated on Clappes, (citing surrounding Id., that confession. 236); 33, 41, State, 2d 66 Wis. at Theriault 2d 136 Wis. analysis a balanc involves This 223 N.W.2d ing personal of the defendant characteristics pressures law enforce against used and tactics (citing Hoppe, 2d 261 Wis. ment officers. 236). Hoppe court ex Clappes, 2d at 136 Wis. plained: the defendant personal characteristics

The relevant intelligence, age, education the defendant's include condition, experience prior and emotional and physical are characteristics personal enforcement. with law and tactics which pressures against police the balanced statements, as: the such to induce the used were arraignment, any delay length questioning, of the the statements under which general conditions psychological or any physical excessive place, took defendant, any induce- on the brought to bear pressure by police threats, strategies or used ments, methods was the defendant and whether compel response, to against right counsel and right of the informed self-incrimination. omitted). (internal citations

Id., juvenile inter- applying test to a this 21. When past Supreme "[t]he in the rogation, Court we note 'special when spoken caution' to exercise of the need has juvenile confession, assessing aof the voluntariness ques- repeated prolonged particularly or when there interrogation tioning in the absence occurs or when parent, lawyer, friendly Hardaway of a or other adult." (7th 2002) Young, (citing 757, v. 302 F.3d Cir. In re (1967); Gallegos Gault, 1, Colorado, 387 U.S. v. (1962); Haley Ohio, U.S. 53-55 332 U.S. (1948)). 599-601 principles

¶ 22. With the above in mind, we turn present argues police to the exploited Here, case. Jerrell that the age, comprehension,

his lack of and other personal characteristics to overbear his will. He con- police improperly requests tends that the tеlephone denied his parents during questioning. Additionally, his length custody along he asserts that the of his with the interrogation techniques by police used were un- fairly coercive. State, 23. The meanwhile, maintains that the by enough

factors identified Jerrell are not to render his constitutionally suspect. confession It submits that the upon compe- circuit court found sufficient facts based tent evidence to conclude that Jerrell's confession was Accordingly, not coerced. the State asks this court to hold that Jerrell's custodial statement was constitution- ally voluntary. assessing totality

¶ 24. In of the circum- personal stances, we first examine Jerrell's relevant age, Here, characteristics. these include his education intelligence, prior experience with law enforce- pressures ment. thenWe consider the and tactics used police requests such as the refusal of Jerrell's parents, length custody, talk to his and the psychological techniques applied to Jerrell. long recognized importance 25. Courts have age determining juvenile

of in whether a confession is voluntary. example, Haley, For 599, U.S. at juvenile's age" signifi- "tender and difficult of 15 was a favoring Supreme suppression cant factor Court's of Hardaway, Likewise, 764, confession. his F.3d at recognized Appeals the Seventh Circuit Court that "[t]he difficulty a vulnerable child of 14 would have in making waiving a critical decision about his Miranda rights voluntarily confessing cannot be under- stated." agree recognition

¶ 26. We with the case law's "youth chronological Eddings that is more than a fact." (1982). Oklahoma, v. necessarily dispositive, "youth 455 U.S. While not remains critical factor younger consideration, for our and the the child the carefully police questioning more we will scrutinize tactics to determine if coercion or intimida- excessive simple immaturity tion or that would not affect an juvenile's Hardaway, adult has tainted the confession." Simply put, 302 F.3d at 765. children are different than being adults, and the condition of a child renders one "uncommonly susceptible police pressures." Hoppe, 2d 46.6 261 Wis. We therefore view Jerrell's young age strong weighing against of 14 to be a factor the voluntariness his confession.

6 Scholarly supports example, research this. For one com juveniles may has more susceptible mentator observed be making than adults to false confessions for a number of reasons. Walters, Comment, Attempt See Jennifer J. Illinois' Weakened Requirement Prevent False Juveniles: The Confessions Juveniles, Loy. U. Interrogations Counsel Some Chi. 487, 504-05 their intellectual capacity L.J. Because fully developed, likely not children are to understand their less rights. likely Additionally, Miranda Id. minors are more to want they authority please police and believe officers because are Finally, juveniles figures. inсapable Id. at 505. because are fully realizing decisions, they may consequences of their they only way believe it to end a confess because is the interrogation. psychologically coercive Id. weighing against factor the volun- 27. Another and of Jerrell's confession is his education

tariness interrogation, intelligence. Jerrell At the time of the earning grade point eighth grade a 3.6 in was Although average. academic achievement is usu- such high degree aptitude, postdis- ally consistent with a testing position IQ revealed that Jerrell had standard average range indicating a of intelli- IQ 84, low an gence. reliability supported by IQ test is showing previous average records, school Jerrell's failing grades, testing completed by as well as Accordingly, Ethan Allen School. we consider Jerrell's average intelligence limited education and low why susceptible police he additional reasons for was pressure. Finally, prior experi-

¶ 28. we examine Jerrell's enforcement. In where courts have ence with law cases weighs finding prior experience in favor of a found that juvenile's police voluntariness, contacts with e.g., Hardaway, See, been extensive. 302 F.3d at have (noting juvenile that arrested 19 times for was robbery attempted sexual crimes as serious as appeared juvenile ap- had in court with assault and times); pointed C., 442 counsel seven Fare v. Michael (1979) juvenile's (citing U.S. record of Leo, See also Steven A. Drizin & Richard A. The Problem of World, L. False the Post DNA N.C. Rev. Confessions (2004) confessions, (documenting proven juvenile false case); including Jogger Park five from the infamous Central White, Welsh S. False and the Constitution: Confessions Safe- guards Against Untrustworthy Confessions, 32 Harv. C.R.-C.L. (1997) 105,131 suggest ("Empirical suspects Rev. data who youth, are for other reasons brain especially vulnerable such as damage, personalities may similarly prone be compliant or confessions."). give false previous years offenses, more several his than four probation, youth camp). and his term a corrections experience case, In this Jerrell's with law may enforcement was more limited and have contrib- willingness in uted to his to confess the case at hand. Jerrell had been arrested twice for misdemeanor of- prior interrogation robbery. fenses to his for the armed police questions, instances, In both he answered admit- go involvement, ted to and was allowed to home. Significantly, adjudged delinquent. he was never We argument note the of Jerrell's counsel that such an experience may taught dangerous him have a lesson admitting in in that involvement an offense will result any significant consequences. a return home without Having personal ¶ 30. examined Jerrell's relevant pressures characteristics, we now consider the by police during interrogatiоn, tactics used beginning the the requests with the refusal of Jerrell's to talk parents. Thirty years ago rejected per to his a this juvenile requiring parental presence se rule in interro- gations. doing Theriault, so, 2d 44. In 66 Wis. at importance parental however, the court stressed the totality analysis: presence in the of the circumstances notify The failure and the rea- promptly [parents] to may factor, however, determining sons therefor be voluntary. If whether the confession was coerced or police parents purpose depriv- fail to call the for the ing juvenile opportunity of the to receive advice and counsel, strong that that coercive would be evidence incriminating to elicit the statements. tactics were used Id. at 48. police specifically Here, denied Jerrell's

requests parents. Spano call his Detective later to years juvenile in 12 testified that he "never" allowed during interrogation parents it could because contact interrogation. jeopardize stop We are of, or the flow very parents tactic, are often the this as troubled people approach Such an children turn to for advice. warning appears in Theri- set forth circumvent the parents police "[i]f for the fail to call the that ault juvenile opportunity purpose depriving of the strong evi- counsel, that would be receive advice elicit the tactics were used to dence that coercive incriminating Theri- Id. Consistent with statements." requests to talk to ault, denial of Jerrell's we view the police strong parents con- evidence coercive his duct. custody impor- length an is also 32. The evaluating police In Miranda v. behavior.

tant factor (1966), Supreme Arizona, Court 384 U.S. lengthy interrogation or incommunicado warned strong of coercion: incarceration could be evidence testimony the authorities as to waiver Whatever the accused, lengthy interroga- rights by an the fact of incarceration before a state- tion or incommunicado the accused did strong ment is made is evidence that the validly rights. his In these circumstances not waive eventually made a statement is fact that the individual compelling consistent with the conclusion interrogation finally him to do influence of the forced any voluntary a It is inconsistent with notion of so. privilege. relinquishment to a wall case, In this Jerrell was handcuffed approximately He alone for two hours. was and left interrogated for more hours before then five-and-a-half finally signing prepared Detec- a written confession custody Spano. inter- The duration of Jerrell's and tive rogation longer in the five hours at issue was than longer Haley, significantly Indeed, it was 332 U.S. interrogations.7 than most Under these circumstances, easy wоndering it is how Jerrell see would be left "if inquisition when would ever cease." Woods v. (7th 1986). Clusen, 293, 298 Thus, 794 F.2d Cir. Jerrell's lengthy custody interrogation is additional evi dence of coercive conduct. psycho-

¶ 34. final The factor we address logical applied. techniques Butler, In A.M. v. 360 F.3d (7th 2004), 11-year-old suspect's 787, 797 Cir. an con- suppressed questioned fession was after "he was for interrogation in a almost hours closed room with no parent, guardian, lawyer, anyone side." or at his expressed concern with behavior detective's continually challenging juvenile's statement and accusing lying. him of Id. at It that such 800. warned technique easily young boy "could lead a to 'confess' to anything." Id. suspect A.M., 35. Like in was Jerrell sub-

jected technique multiple to a similar hours. Not only did the detectives refuse believe Jerrell's re- guilt, they peated joined urging denials but also using "strong him to tell a different "truth," sometimes "frightened" Admittedly, voice" that it him. does not appear suffering from the record that was from Jerrell any significant psychological emotional or condition during interrogation. Nevertheless, remain con- we applied juvenile technique cerned that such a ato like prolonged period Jerrell over a of time could result involuntary an confession. Room, Interrogation Inside the In Crim. L. 86 J. & (1996),

Criminology 266,279 A. reported Richard Leo that more interrogations than 70% of the observed less than he lasted an hour, only lasted figures 8% more than two hours. These Id. sample interrogations. taken from a were of 153 Weighing personal ¶ 36. the above characteristics by police, against pressures we used the the tactics not met burden the State has its determine that prod- proving "the confession was that Jerrell's written reflecting will, deliber- of a free and unconstrained uct (citing Hoppe, ¶ 2d of choice." 261 Wis. ateness Clappes, Norwood, 2d at 236; 2d at 136 Wis. Wis. 308). Hoyt, Rather, 2d at we that 364; 21 Wis. conclude conspicuously unequal a confron- it was "the result of brought pressures in on the to bear tation which by representatives exceeded the defendant State ability Accordingly, deter- to Id. we defendant's resist." involuntary mine that was under the written confession totality circumstances. IV next in this case 37. turn to the second issue We concerning adopt per a se whether this court should excluding in-custody any child rule, admissions from age given the of 16 who has not been under opportunity parent to consult or interested with requirement adult. asserts that is critical Jerrell such juveniles leveling playing and the field between interrogation. police in an According warning Jerrell, the court's ignored

Theriault, at or 66 Wis. 2d has been either by officers, overlooked courts and law enforcement by Therefore, the facts of case. he asks evidenced this authority adopt supervisory we our exercise admissibility juvenile requirement such a for the of a confession. question State, contrast, does not proposed questions Instead,

the merits of the rule. it authority authority adopt- or court's exercise ing change it. The State contends that a such in law practices involving interrogation enforcement custodial juveniles properly legislature a matter for the state and not the court. VII, 40. Article Section 3 of the Wisconsin Con expressly upon superintend

stitution confers court this ing authority and administrative all over state courts.8 provision grant power. This "is a It is unlimited in Jennings, extent. It is indefinite in character." State v. ¶ 13, 2002 WI 44 252 Wis. 2d 142 647 N.W.2d (quoting State ex rel. Fourth National Bank Phila delphia Johnson, 591, 611, 103 Wis. 79 N.W. 1081 (1899)). previously ¶ 41. We have VII, described Article " establishing duty supreme

Section 3 as 'a of the court authority promote to exercise . . . administrative operation efficient and effective of the state's court system.'" (quoting Grady, Id., 14 In re 2dWis. (1984)). unquestionably 762, 783, 348 N.W.2d559 While supervisory authority and flexible, broad our will not ‍‌​​‌‌‌‌‌‌​‌​​‌​‌​​​​‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​‍be lightly. (citing Id., ¶ Phelan, invoked In re 225 Wis. (1937)). 314, 321, 274 N.W. Whether we choose to supervisory authority given exercise our in a situation " 'judicial policy is thus matter of rather than one relating (quoting to the of this court.'" Id. 320). Phelan, 225 Wis. at

¶ 42. above, As indicated we are troubled ignoring juvenile's repeated requests tactic of parental routinely contact. a When detective refuses to VII, Article Section subsection of the Wisconsin Constitution states: "The court superin shall have tending authority and administrative over all courts." interrogated, being parents children are their

call when weight gives in the little that factor and a circuit certainly totality notice. circumstances, take we of the "totality to abandon However, we decline approach in favor of at this time circumstances" regarding a per with consultation rule se Jerrell's parent reaf- Instead, we choose to adult. interested or warning Theriault, 48, that the 66 Wis. 2d at in firm our depriving purpose parents for the "to call the failure juvenile opportunity receive advice and to of the the "strong that coer- evidence be considered counsel" will incriminating state- the used to elicit tactics were cive juvenile How- arrested at home. Here, was the ments." officials law enforcement ever, remind we attempt" requires to no- "immediate an law Wisconsin custody. juvenile tify parent taken into is the when 938.19(2).9 § Stat. Wis.

V to consider is whether 44. The final issue we electronically requiring adopt record to the state a rule interrogations. juvenile date, states, Alaska To two all 938.19(2) § provides: Stat. Wisconsin custody provided physical in this juvenile is taken into When custody section, taking juvenile person into shall immedi- guardian legal notify parent, custodian of ately attempt and to person taking by practical juvenile means. The the most attempt parent, custody juvenile until the shall continue such intо notified, juvenile legal are or the guardian of the and custodian 938.20(3), juvenile an intake worker under s. is delivered to juvenile is delivered to the intake occurs first. If the whichever legal parent, guardian custodian are noti- and before the worker direction, worker, person fled, at his or her intake or another notify parent, guardian attempt until the shall continue the juvenile legal notified. of the are custodian Minnesota, have mandated an electronic recording State, requirement decision. Stephan (Alaska 1985); Scales, P.2d 1156 State v. 518 N.W.2d 587 (Minn. 1994).10 Jerrell urges this court to follow suit.11 According Jerrell, a rule elec- requiring tronic recording would provide courts with the best evidence from which it can determine, under the total- ity circumstances, whether a juvenile's confession is He voluntary. views the rule as critical to the integ- rity the fact-finding process, as it difficult accurately recreate weeks or months later a court- room what in a transpired lengthy like interrogation his. 46. Again, the State does not take issue with the

merits of Jerrell's proposal, but instead questions court's or authority exercise of authority it. adopting Additionally, it concern with expresses the court man- a certain dating law enforcement practice. The State Jersey The State of currently New is also considering the August 10, 2004, On matter. Supreme appointed its Court study committee to and make concerning recommendations recording electronic of interrogations. recently custodial report released concludes that Jersey Supreme the New Court "should exercise its supervisory authority over the administra justice tion of criminal encourage electronic recordation of interrogations." custodial See of Report Supreme Court Special Interrogations Committee on of Recordation Custodial 15, 2005), at 36 (April at http://www.judiciary.state.nj.us/ otices/n050505.htm. joined Jerrell in request by this the Children and Family Justice Center at University Northwestern School of Clinic; Legal Melli; Law's Bluhm Marygold Professor Emérita S. Center; the Juvenile Justice Project Innocence Wisconsin the Frank Remington, University School; J. of Wisconsin Law and 14.other Amici Curiae. over electronic that the debate

therefore maintains legislative recording in chambers. should occur argu- by persuaded ¶ the State's are not 47. We asking regulate court to Here, is not this ments. police practice. Jerrell requesting govern- a rule Rather, he is juvenile's admissibility ing confession into of a illegal police not make it evidence. This would recording. interrogate juveniles Instead, it without interrogations any render the unrecorded would in inadmissible as evidence resultant written confession court. authority adopt Plainly, has 48. this court admissibility governing For ex evidence.

rules governing ample, previously fashioned rules we have E.g., admissibility polygraph v. evidence. State (1981). Dean, 228, 307 We have 103 Wis. 2d N.W.2d recording adopted one of the criteria to consider also testimony. admitting hypnotically State affected before Armstrong, 110 Wis. 2d 329 N.W.2d Although did not ex the above decisions power, they pressly rely upon supervisory this court's regulate the make this court can flow clear including the nature of the courts, in state evidence developed presented law enforcement. evidence juvenile Today, regulate confessions we the evidence resulting interrogations. Like Min from custodial Supreme Scales, do Court 518 N.W.2d we nesota supervisory authority. pursuant so to our Experiences Alaska, and hun- Minnesota, voluntarily jurisdictions of other that now record dreds greatly practice that the benefits of such demonstrate outweigh perceived. After costs, both real and agencies surveying nationwide, 238 law enforcement Attorney for Sullivan, Thomas former United States "[a] that Illinois, the Northern District of observed contemporaneous suspect electronic record of inter- proven powerful an views has to be efficient and law good, enforcement tool. is . Audio video is better.. . Recordings prevent disputes conduct, about officers' they suspects treatment of and statements made." Experiences E Sullivan, See Thomas ing Police with Record- (Summer Interrogations, 2004), Custodial at http://www.law.northwestern.edU/depts./clinic/wrongful/ documents/SullivanReport.pdf. agree Sullivan, Like we recording powerful an that electronic efficient and justice. highlight tool in the administration We some advantages of these here. recording requirement provide First, a will

courts with a more accurate and of a reliable record juvenile's interrogation. This will eliminate conflicts evidence that are memory.12 attributable flaws human judges

It will also enable conduct nuanced admissibility e.g., Hoppe, See, reviews resolve issues. (in reaching 261 Wis. 2d its about conclusion Hoppe's state, vulnerable mental the circuit court ex- plained only audiotapes that "one needs to listen to the impairment by to note the referred to the doc- ."). tors . . . accuracy Recent research on the of interviewers' recollec memory

tions of interviews children confirms that errors with significant: are [S]erious errors occur in recall of and interviews conversations

with children. These errors are made with various interviewers training familiarity levels of and also with various levels of with (forgetting) the child. The errors include the omission of details (inserting and the commission of details facts were not stated), misreporting degree as well as to which the child's spontaneous suggestive techniques. answers were or the result of Bruck, Stephen Maggie Why Judges J. Ceci & Must Insist on Interviews, Electronically-Preserved Recordings Child (Summer 2000). 10, 11 Court Rev. ¶ record will reduce Second, an accurate 52. disputes Miranda and voluntariness over number Currently, spend juveniles. an courts inordi- issues for wrestling with such of time and resources nate amount days generated slippery alone four matters. This case postdisposition hearings claim that on Jerrell's based hearings involuntary. All of these his confession was might appellate process have been entire and the electronically interrogation had if been avoided Jerrell's surprisingly, re- the circuit court twice recorded. Not videotape of the inter- it had a marked that it wished rogation. recording protect the individual Third, 53. will wrongfully police im- accused of

interest of proper officers Suspects an be unable to contradict tactics. will interrogation. objective This is record of the because precisely and listeners see hear what "viewers and/or including suspects done, whether were was said and forthcoming changed events, their evasive, or version appeared or deceitful and and guilty." sincere and innocent Recording Experiences with

Sullivan, Police Interrogations, at Custodial 6. requirement recording en- Fourth, a will juveniles. interrogations Po-

hance law enforcement report that"[Recordings permit detectives to focus lice taking copious suspect than notes of the on the rather recordings later review the interview. When officers they conduct often observe inconsistencies evasive they while the interview was which overlooked "recordings progress." Furthermore, deter Id. at 10. might engage improper who be inclined to officers said or done tactics or misstate what was suspect[.]" Id. at 16. rights Finally, protect such a rule will contemporaneous record of the accused. Without rely

interrogation, judges on the recollec- are forced to parties what occurred. to reconstruct tions of interested credibility between law contest result is often juvenile, en- which law officials and the enforcement invariably existence of an win.13The officials forcement objective, comprehensive, record will and reviewable by making juveniles' rights safeguard it constitutional misleading challenge possible or false them to for testimony. prompted the American

¶ have These reasons unanimously adopt a resolution Bar Association urging legislatures laws or rules courts to enact or entirety videotaping inter- "requiring of custodial of the precincts, suspects police rogations court- at of crime suspects places where centers, or other houses, detention videotaping questioning, or, where are held audiotaping require impractical, of such custo- County interrogations^]" Ass'n, N.Y. American Bar dial Lawyers' Reрort Section, to the Ass'n, Criminal Justice (Feb. 2004), http://www. Delegates at available House of abanet.org/leadership/2004/recommendations/8a.pdf. pro-

, adopting the rule that are mindful 57. We posed by met with some hesitation.14 Jerrell will be gave conflicting case, and Jerrell Spano Detective In this (1) including: interrogation, many testimony on accounts all; gave Jerrell Miranda warnings at Spano Detective whether (2) go Jerrell that he would promised Spano Detective whether that he did not detention, merely or stated night in after a home (3) Detective night; that whether happen after know what would did not in if he years prison Jerrell with Spano threatened (4) details of told Jerrell some confess; police whether differences all of these favor robbery. The circuit court resolved Spano. of Detective recording require may fear that a example, For some on techni based of confessions suppression lead to ment will re- however, require that note, jurisdictions calities. We agree appeals However, we with the court of that "it is time for Wisconsin to tackle the false confession issue" appropriate youth and "take action so that the of our protected confessing they are state from to crimes did C.J., 442, not commit." Jerrell 2dWis. 32. We are recording requirement than convinced an electronic is a means to that end. Supreme In the Minnesota Court in "supervisory

Scales, 518 N.W2d at exercised its justice." power to insure the fair administration of It required recording questioning electronic of all "where exception questioning feasible," and without "when place Today, occurs at a of detention." Id. we also supervisory power exercise our to insure the fair admin- justice. interrogation juve- istration of All custodial electronically niles future cases shall be recorded exception question- feasible, where and without when ing place Audiotaping occurs at a of detention. satisfy requirement; sufficient to our however, video- may taping provide complete picture an even more transpired during interrogation.15 what cording have excused the failure to record when that failure was by good occasioned faith error or equipment malfunction or where the violation not was substantial or the contents of the See, interrogation State, dispute. e.g., Bright were not in (Alaska 1992); Miller, P.2d App. 773-74 Ct. State v. (Minn. 661, 674-75 Schroeder, 1998); N.W.2d State v. 560 N.W.2d (Minn. 1997). 739, 740-41 Ct. App. 15por many agencies state, law enforcement in this this practice nothing will be argument, new. At oral the Assistant Attorney General indicated that there are approximately 50 law agencies enforcement in the that taping type state do of some under some set of circumstances.

VI agree sum, In we with Jerrell that his writ- involuntary police under the to the was ten confession totality decline to However, circumstances. we regarding per adopt proposed consultation se rule his Finally, parent interested adult. we exercise with a or power require supervisory that all custodial our juveniles interrogation electroni- exception in future cases be cally feasible, recorded where without place questioning Ac- at a of detention. occurs when ap- cordingly, of the court of the decision we reverse peals. appeals

By of the court the Court.—The decision is reversed. {concur- ABRAHAMSON,C.J. 60. SHIRLEY S. agree join majority opinion.

ring). I I involuntary and that the deci- was written confession appeals I should be reversed. of the court of sion requir- wholeheartedly join adopting rule the court in juvenile interroga- electronically ing police all to record tions. First, I reasons. write I write two superintending the court's state constitutional

discuss authority below, for more As I describe over all courts. history, years state constitutional than 120 Wisconsin broadly con- 1853 to from authority superintending to con- as a its strued legislature litigation in the courts. In 1977 trol presumably people aware Wisconsin, of the state judiciary history, amended the constitutional of this thereby giving constitution, of the Wisconsin article imprimatur constitutional to the court's broad their litigation. superintending Since the to control has contin- the court constitutional amendment ued to take a broad view of its superintending authority. I conclude that the Accordingly, majority opinion fits well within the court's constitutional powers.1 Second, unlike the I would a majority,

¶ adopt se rule per excluding in-custody admissions from any child under the of 16 age who has not given been the to consult with a opportunity or parent interested adult. 63. The court of appeals,2 defendant,3

Children and Family Justice Center at Northwestern University School of Law's Bluhm Legal Clinic,4 the Bradley, Crooks, Justices Ann Walsh N. Patrick and Lotus join B. only Butler Part I relating of this concurrence to the superintending authority, court's making Part I the decision of majority of the court regarding the nature of the court's superintending authority over all courts. C.J., 9, State v.Jerrell App 32, 2004 WI 442, 269 Wis. 2d action). (issuing

674 N.W.2d call for 3Brief and Appendix of Respondent-Appellant-Petitioner at 30-34. The defendant and the court of appeals suggest adoption E.T.C., (Vt. 1982). of the rule set forth in In re 449 A.2d 937 See C.J., Jerrell 269 Wis. 2d Supreme E.T.C., The Vermont Court in 449 A.2d at adopted following criteria juvenile for a voluntarily intelligently right against waive his right self-incrimination and to counsel: (1) (2) given opportunity adult; [H]e must be to consult with an only that adult genuinely must be one who is not interested in the juvenile completely independent welfare of the but from and prosecution, e.g., parent, disassociated legal guardian, with the (3) attorney reprеsenting juvenile; or independent rights interested adult must be informed and be aware of the guaranteed juvenile. to the 4 See Brief of Amicus Curiae Children Family & Justice

Center, Professor Marygold Melli, Emérita S. & The Juvenile Center. Law University Law of Wisconsin Center,5 and Law

Juvenile agree Marygold it is Melli6 all that S. Professor School youth protect of appropriate action to take time they confessing not com- did to crimes from our state mit. question of a the merits does not The State 64. argues of such

per the formulation rule,7 se but legislature, a matter of as left to the he rule should policy, just argues a rule of that formulation as it interrogations recording juvenile requiring of electronic legislature. reasons For same left to the be should concurring majority opinion and in this forth in the set opinion argument rejecting com- about the State's competence judicial-legislative re- parative institutional reject recording,81 lating the State's leave- to electronic parental approach it-to-the-legislature this issue. on I—I challenge The other concurrences' powers superintending in the of its court's exercise prompted cases and reexamine the me to case instant disagree of the impelled their views I with me to write. superintending powers. of I the exercise view court's controlling the powers a means of case as in the instant govern- litigation courts of this state in the course exercising its ing court's evidence;9 the admission policy, question not superintending here is power.

5 id. See id. See Majority op., ¶ 47-49. Majority op., ¶¶ 555, 329 110 Wis. 2d N.W.2d See, Armstrong, e.g., State v. admissibility hyp- (1983) regarding (altering the rules 66. The powers Wisconsin Court Supreme are defined in and have ways several diverse origins. are Some set forth in Article explicitly VII, Section 3 of original Wisconsin Constitution: appellate ju- risdiction and superintending administrative au- thority. Others are derived from the state constitutional separation powers doctrine, as well from the very existence, court's this court's especially being state, court highest the court of last resort. Indeed, "it is well established that this court has ex- press, inherent, implied and incidental powers"10 notically Dean, evidence); affected 228, State v. 103 Wis. 2d 307 (1981) inadmissible). 628 N.W.2d (polygraph evidence 10 Holmes, 31, 45, State v. 106 Wis. 2d 315 N.W.2d 703 agree

I with Justice Prosser's "[i]t concurrence that is not completely clear the court's 'superintending authority' how from the power, differs court's inherent for powers the two overlap." sometimes Justice concurrence/dissent, Prosser's grouped This court has implied inherent with powers incidental and has defined them as powers those necessary are "to judiciary accomplish enable its consti tutionally or legislatively mandated functions." State ex rel. 1, Friedrich v. Circuit County, 16, Court Dane 192 2dWis. for (1995) (quoting Holmes, 32 31, N.W.2d State v. 106 Wis. 2d (1982) 44, Cannon, 315 N.W.2d (quoting State v. 199 Wis. (1929))). 401, 402, 226 N.W.385 aFor discussion of the court's powers, see Com- ment, Inherent Power and Reform, Administrative Court 133, Marq. (1974); L. Rev. Gallagher, Comment, 135-36 Dennis Superintending Supreme Power the Wisconsin Court and of 1111; Disclosure Rules Judges, Financial 1977 Wis. L. Rev. Legislative Bureau, Wis. Reference The Powers the Wisconsin of (Res. 27-33). Supreme 76-RB-l, Court Bull. listing For a Wisconsin cases discussing and commentaries powers, court see judicial system operation manage the sound government. tripartite form of our implied, Superintending, and inci- inherent, ¶ 67. powers said, and as should, the court has often dental cautiously strongly and with "invoked believe, I be of conflicts reduce the risks of rhetoric to minimum govern- legislative and executive branches with the lightly superintending power not in- ment."11 Our voked.12 in the instant case concurrences The other powers cramped view the an erroneous and forth

set incomplete historical review on their of this based selectively chosen case law. done, Arneson v. all is said 69. When 225-26, 556 N.W.2d Jezwinski, 2d 206 Wis. (1996), approval quoted Hass v. in State ex rel. with Appeals, 2d 128, 248 Wis. 2001 WI Court Wisconsin (2001), the case summarizes 640, 636 N.W.2d authority interpreting superintending and sets our law long-standing present that view and forth the power authority superintending a to be is broad court's litigation controlling is and the course for exercised carry continuing necessity shaped this court that Arneson court.13 The function as out its as follows: court wrote County 192 Dane v. Circuit Court ex rel. Friedrich State (1995). 1, 16, 32 531 N.W.2d

Wis.2d 11 10, (citing John M. Con supra note at 1124 Gallagher, Management Tool or Rhe-. nors, Inherent Power Courts — (1973)). 63, System J. 65-68 Weapon?, torical 1 Justice 12 Jezwinski, 217, 226, 556 N.W.2d Arneson v. 206 Wis. 2d 721 13 99, 44, 12-16, 252 Jennings, 2002 WI also See State ¶¶ (The has 228, unquestionably court 142 2d 647 N.W.2d Wis.

177 grants The Wisconsin Constitution three separate and (1) jurisdiction distinct branches to this Court: (2) appellate jurisdiction; general superintending con- (3) courts; trol inferior original jurisdiction over at Const, proceedings certain at law and in equity. Wis. art VII, 3; Court, § Reynolds State ex rel. v. County 11 Wis. 560, 564, Brand, 2d (1960); 105 N.W.2d 876 In re 251 531, 536, denied, (1947), Wis. 30 N.W.2d238 cert. 335 802, 34, (1948); U.S. 69 S. Ct. 93 L. Ed. 359 State ex rel. Johnson, 591, Fourth 611-12, Nat'l Bank v. 103 Wis. 79 (1899) (hereinafter "Johnson"). N.W 1081 The consti- grants tutional superintending authority endow this power with a character, indefinite in unsupplied with means instrumentalities, and lim- only by ited justice. the necessities of Kading, In re 70 508, 519-20, 409, Wis. 2d 63, 235 N.W.2d 238 N.W.2d (1975); Reynolds, N.W.2d297 564-65, Wis. 2d at 876; Phelan, 105 N.W.2d In re 314, 320-21, 225 Wis. (1937); Johnson, N.W. 411 611, 103 Wis. at 79 N.W. addition, 1081. In this power enables the court to ordinary control the litigation course in the lower Phelan, courts of 320, Wisconsin. 225 Wis. at 274 N.W. 411; Johnson, 613, atWis. 79 N.W. 1081. As we stated, superintending have "The power is as broad and necessary flexible as to insure the due administra- justice tion of in the courts of Kading, this state." Wis. 2d at 235 N.W.2d409.

However, Phelan, we do not use such power lightly. 225 Wis. at indicated, 274 N.W.411. As we have "This court will not exercise its superintending power where there is adequate remedy, by another appeal or otherwise, for court, the conduct of the trial or where the conduct of the trial court does not threaten seri ously impose significant hardship upon a citizen." McEwen v. County, 256, 269-70, Pierce 90 Wis. 2d require appeals certify court of any to this court presenting case a conflict between our precedent and a decision Court.). of the U.S. Supreme

178 (1979) (citing v. Riverview Re N.W.2d 469 Newlander (1941); 225, 603 Co., 211, 298 N.W. State alty 238 Wis. Pollard, 232, 234, 87 N.W. rel. 112 Wis. ex Tewalt (1901)).14 1107 explain ¶ for the Arneson 70. Let me the basis authority. superintending precis A careful examina- of VII, the case law shows the Section and tion Article superintending development of the court's views about culminating power, amend- in the 1977 constitutional examined and reexamined The court has ment. years power superintending over the basis power. con- The court's and redefined the has defined super- began: ceptualization court's ends it The where necessary intending power to meet the is as broad as changing circumstances, and that needs judiciously. question The of this court's be exercised authority exercising superintending the courts over its power."15 litigation policy, not "is one of language analysis with the 71. The starts constitution, then VII, Section 3 of Article adoption 1977 constitutional considers 3, VII, and culminates to Article Section amendment grant interpreting constitutional recent cases with authority. superintending of the 1848 constitu- VII, 72. Article Section 3 regarding superintending as follows: control read tion court, provided except cases otherwise The supreme jurisdiction constitution, appellate in this shall have state; but in only, be coextensive with which shall by a supreme court shall a trial no removed to the case general court shall have jury be allowed. 14Arneson, at 206 Wis. 2d 225-26. WI 128, Appeals, State ex rel. Hass v. Wis. Court of 2d 636 N.W.2d Wis. courts;

superintending control over all it shall inferior mandamus, corpus, have writs issue habeas of certiorari, warranto, injunction, quo original and other writs, and remedial and to hear and determine the same added). (emphasis

After the 1977 amendment, constitutional grant superintending VII, 3(1), control in Article Section which case, instant reads as governs follows: simply Supreme

The superintending Court shall have authority administrative over all courts.16 73. The 1848 constitution's words "superintend- ing control over all inferior courts" are broad and unlimited. The 1848 Wisconsin constitutional docu- not in ments do help understanding us meaning "superintending control." We therefore turn contem- poraneous of the 1848 interpretations Constitution as source its meaning. legislative Contemporaneous or judicial interpretations the state constitution have special value.17 or legislators The judges who were on hand when constitution was have a adopted unique

16The 1977 amendment removed reference to writs supreme from the superintending power. court's Writs are 3(2) VII, referred to Article Section "The supreme follows: court appellate jurisdiction has may all over courts and hear original proceedings. actions and The may court issue necessary all jurisdiction." writs in aid of its Beno, 122, The court in 136-37, State 116 Wis. 2d (1984), cases, N.W.2d668 and in other has recognized that when- the plain meaning helpful of words is not in constitutional interpretation, authority contemporaneous is the next best interpretive interpretation tool. Constitutional involves (1) (2) plain meaning used; The of the words in the context analysis

historical of the constitutional debates and of what practices may were in existence which reason- ably presume were known to also the framers of the 1848 consti- They ought perspective. to know what the constitution superintending of the court's On the issue means. judicial interpreta- contemporaneous power, we have a given great interpretation should be tion weight. years adoption after the In five writing Smith, Adam Constitution, Justice Wisconsin Attorney Blossom, 1 in The Wis. the court General for (1853), "superin- meaning [*317] addressed the of involving power tending in the court's to control" a case quo Blossom, like a of warranto. cases issue writ superintend- the relation of follow, ing concerned with was specified in the the writs constitution. control to Writing court, a unanimous Justice phrase "superintending interpreted the control Smith grant power as a of to the all inferior courts" broad over power supreme wrote, he would, The court's be court. interpreted years to court to fulfill over the enable the in the state.18 role the of last resort its court (3) by tution; interpretation of the The earliest this section passed following legislature in the law the as manifested first omitted.) (Citations adoption the constitution. of wrote as Justice Smith follows: obvious, then, framers of the constitution It is that when the court, they speak supreme convey of of the idea the a intended highest judicial department government. in of tribunal the the supreme general superintending . . shall . "The have courts." control over all inferior courts," period. The "inferior there is a After the words complete independent as is first sentence is as sentence jurisdiction speaks appellate of the court. which of the Although Justice Smith viewed the constitutional "su- perintending" language as he grant power, asserted that the clause have may unnecessary been because this be arrived at power might by implication.19 76. To weight add to his persuasive reasoning, justice Justice Smith reminded his readers that a court joining his had been a opinion member judiciary committee that reported the article judiciary at constitutional convention.20 Justice Smith's broad interpretation court's superintending power was echoed 21 later years Chief Justice Edward in Ryan, Attorney General Cos., v. Railroad 425Wis. Chief Justice Ryan a prominent was member of the 1846 constitutional grant power. This sentence contains a clear We not will say grant, undertake to that without this would be not necessary question. in the It is court. not to discuss that We are endeavoring proper arrive at construction of written law. grant power. It is a It is unlimited extent. It is undefined unsupplied character. It is with means and instrumentalities. The wholly constitution leaves us dark the as to the means of clear, exercising unequivocal grant power. gives, indeed, this of It jurisdiction, pretend the but does not to intimate its instruments agencies.... or Blossom, Attorney The v. [*317], General 1 277Wis. 281-83 (1853). [*322-25] 19Blossom, 1 Wis. at 284 [*326]: very terms, supreme court; comprehending, The of force the naming, instituting highest, judicial the dernier tribunal to, recognized by law, necessarily known and the common carries writs, instrumentalities, powers with agencies it all provided by complete the common law for the convenient and superintending say exercise of such control. It is idle to that mentioned, supply enumeration of such as writs are made to were superintending such means control. 20Blossom, 1 Wis. at 289 [*332].

182 a unani- Ryan, writing Chief Justice convention.21 wrote that court, constitutional supreme mous grant significance state, full supreme court of the in the

to the Blossom; v. given Attorney that term General general judicial oversight of the state designed to have court, interests, To this public private. in all its such, given general appellate jurisdiction are and su- throughout all control over other courts perintending state, judicial are to the because these essential 22 ordinary litigation all court in ... supremacy appellate, origi- Ryan explained Chief Justice had jurisdiction of the court all nal, and superintending indeed "to make this underlying policy: one a court state; over the whole judicial tribunal under the consti- judicial questions resort on all of last ,"23 and laws of the state .. . tution Justice Ryan's Justice Smith's and Chief in the superintending authority interpretation broad and the Railroad Cos. cases became the ac- Blossom other meanderings judicial along view after cepted of which I discuss below. one paths, 21 Court, The Wis Portraits Justice: Supreme Wisconsin (2d 2003), 16 First 150 Years ed. Supreme consin Court's http://wicourts.gov/about/pubs/supreme/ online at available portraitsofjustice.pdf. docs/ Cos., Attorney v. Wis. General Railroad Cos., at Railroad 35 Wis. Johnson, Although rel. Fourth Bank State ex Nat'l (1899) 611-12, court's limited the Wis. 79 N.W. errors, later power correcting jurisdictional superintending judicial State extended to errors. cases clarified that the (1908) (Marshall, Helms, 432, 450-52 136 Wis. Umbreit v. ex rel. J., concurring). meandering 79. One ‍‌​​‌‌‌‌‌‌​‌​​‌​‌​​​​‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​‍such was Justice Winslow's opinion

unanimous for the court in State ex rel. Fourth Philadelphia National Bank Johnson, v. 103 Wis. (1899). 591, quoted 79 N.W. 1081 Justice Winslow interpretations Blossom's and Railroad Cos.' broad superintending spin control but added a to these cases. (as English Justice Winslow looked to law had Justice Blossom)24 Smith in and seemed to take a narrower superintending emphasizing view of control, the use of specified superintеnding writs in the exercise of control keep jurisdiction compel courts within their jurisdiction.25 action when courts failed to exercise opinion Justice Winslow's seems to make a distinction using superintending power between to correct jurisdictional using errors of lower courts and superintending power judicial to correct other errors. following 80. A second case path the Johnson State, was Seiler (1901), Wis. 87 N.W.1072 Roujet which Justice D. Marshall wrote for the court. Although the Seiler court stated that the nature of superintending control was decided the Blossom, Cos., Railroad cases, Johnson Justice Marshall's opinion Seiler seems to follow the theme of the Johnson limiting superintending case English pract control to ice.26

24Justice Smith England's discussed King's Bench in order light to shed on the history of writs specified in original Blossom, VII, Section 3. See version of Article 1 Wis. at 277-280 [*318-21], 25 See John The Power Wickhem, D. Superintending Control Court, the Wisconsin Supreme Wis. L. Rev. 164-65. State, Seiler v. 293, 299-301, Wis. 87 N.W. 1072 apparently- The and Seiler cases 81. Johnson King's misinterpreted discussion of the Justice Smith's suggest powers of the to that the Bench in Blossom superintending pow- King's English Bench defined the justices supreme returned, ers the state court. of repudiating principles Blossom, the the however, to King's path, Bench in State ex Johnson-Seiler narrower Helms, 136 Wis. 118 N.W. rel. Umbreit scope regarding the of the court's The views power are forth in concurrences of Helms set way superin- essentially the court has its this viewed tending power Helms, In since that case. superintending control asked to its

court was exercise judge by directing circuit to his order court set aside dismissing complaint. quashing and a criminal Justice unnecessary writing court, for the declared it Kerwin, meaning superintending con- on to write much took trol. Marshall and Chief Justice Winslow Justice concurring opinions express opportunity in their attempt superintending control in an to settle views on interpretive they festering as a issue. what viewed lengthy concurring opinion his- In a with synopsis, Seiler, Marshall, Justice the author of torical meaning "superintending sought put to rest the power."27 the Blossom Justice Marshall endorsed adopting cases, their broad view of su- Cos. Railroad perintending power he than the narrow view rather express appeared did in Seiler.28 Justice Marshall 27Helms, (Marshall, J., concurring). 136 Wis. at 442 28Helms, (Marshall, J., concurring): 136 Wis. at many comprehensive emphasized was at Its broad and character being prominent points, that the instrumentalities the idea made be, invented, or if exercise were to be discovered need for its efficiency any given power not to fail of situation because itself ordinary any upon particular or the use of writ restrictions however, not, view the case as narrowing Johnson of the Blossom and Railroad scope interpretations. Cos. Winslow, Chiеf Justice the author of the case, also Johnson concurred Helms. Al- separately he though interpreted Johnson holding superin- control meant the En- tending exercised Bench and not to all glish King's extending cases judicial error, Chief Justice Winslow backed graciously away from this view in order to as he achieve, wrote, court unanimity. Chief Justice Winslow as wrote follows: majority brethren, my however, that, The of hold even (which my English they

if rule be view correct do concede), not still in the this court first Johnson Case ground took a much broader .... Upon mature reflec- tion and with I yielded some hesitation have to this view, not because I have become of error in convinced my conclusion, chiefly first but because it has seemed to eminently me that a question desirable troublesome has been frequently presented which us of to late writs; grant "compact constitutional was both and con- gruous itself," group analogous in with its own "uniform of ways many objects, to be remedies" exercised in of its own "on in great variety suggestion up point of detail."... No is found to this concept makers, by that the of the constitution as understood this court, upon any any based or was model idea other that to than so supreme judicial authority any round out as to in afford a means given preventing justice. circumstances of a denial of Wickhem, John D. See also The Power Superintending Court, Supreme Control the Wisconsin 1941 Wis. L. Rev. at (J. expressly 165-66 Marshall held that power superin- tending judicial error; control field of extends into C.J. Winslow governed deferred to court's conclusion that the case is Johnson, although as an original proposition he would not have superintending review; extended the to power judicial cases of J. Dodge took the view that superintending power, as it in existed Bench, King's power included the all preliminary review questions needing to be an decided before inferior court could case). consider the merits of great clearly with as definitely and settled be should unanimity possible. constitution conferred that the supposed

It is not to be control on this court be power superintending ordinary appellate an addition to the a sort of used as an litigation, but rather as ordinary in jurisdiction wisely only in cases extraordinary to be used power involving miscarriage justice there has been where widely extended great or rights important public interests.29 private the ques- court in Helms resolved Thus the in control of superintending of the interpretation

tion in of the power expressed the broad view favor of Blossom. case tena- the instant concurrences view of superintending on the limited hang

ciously En- on relying in Johnson and Seiler expressed author of the Winslow, the law, even Justice though glish superintending limited view of Bench English King's narrow inter- Johnson, from this away backеd control pretation. the D. summarized John Wickhem Justice following the using in a review article

case law law the court used words, similar those very words Arneson, above: recently quoted the purpose of constitutional principal first and The rights persons the of of grant protection is to insure litigants. lightly en- [is] not superintendence of field

[T]he tered .... (Winslow, C.J., concurring). Helms, 464-65 136 Wis. at

Many question elements enter into the whether the any given ought court in instance power. exercise that The of each must in light merits case be considered of objectives the grant necessary of the and the limita- upon tions its exercise.

The later an cases hold that exercise the of court's superintending may justified control be spite fact of duty determination the the of inferior the the scope petitioner's rights may of present questions difficult and close of law.

[Tjhere [in cases] were serious differences of opin- rationale, ion tendency as to but that of the court was to liberalize the rule.30 inherent, 87. Using or implied, superintending or a power, thereof, combination the court has in the latter of the 20th part century exercised its power over courts, judges, and attorneys protect state, public, the litigants, and the due administration of justice. For the court example, unified adopted bar of payment fees,31 compelled and has promul- gated32 and enforced a Code of Judicial Ethics.33 Power Wickhem, D. Superintending John Control of Court, Supreme Wisconsin 1941 Wis. L. Rev. at 162-66. Bar, Integration In re Wis. 25 N.W.2d 500 (1946). 32 In Promulgation the Matter a Code Judicial Ethics, 2dWis. 153 N.W.2d 873

188 Against inher the contention that court's attorneys regulation power and the is limited to ent regula physical operation and not the of the courtroom (and judges, three his tion of Chief Justice Wilkie upheld colleagues) Ethics in the court's Code of Judicial (1975), Kading, 2d 235 N.W.2d 409 In re 70 Wis. harkening Cos. cases to the Blossom and Railroad back power by stating of this court is that the "inherent continuing usage, by shaped, by prior neces not but sity carry as a that this court out its function power using superintending aas court."34In the court's justification adoption and enforcement for the concluded Ethics, of Judicial Chief Justice Wilkie Code power "superintending as is as broad and that that the necessary administration of as to insure the due flexible justice in state." Chief Justice Wilkie the courts this wrote: strictly

If limited to the situations power this were is, Judge Kading applied [that previously which it was contended, parties in matters between to control courts since litigation], superintending, it cease to be to a would continuing definitely ongoing, contemplates this word changing needs and circum- supervision response not superintending control should power stances. The of its unduly interpretation an restrictive he ossified extent.35 the Code Justice asserted Chief superintend- litigants.

proteсts rights "If the of all particular parties ing protect to a can be used to Kading, In 2d 235 N.W.2d re Wis. at 519. Id. at 520. Id. particular litigation, surely then it can be used to protect rights litigants general."36 the in Kading disagreed

¶ 90. The dissenters in with the superintending power, relying court's view of its on the English King's superintend- discarded Bench version of ing in control Seiler and Johnson.37 A law student by Gallagher, relying repudi- comment Dennis on the erroneously gives ated case, Seiler credence to the position.38 Kading dissenters' The in dissent is better objection policy understood as an as a matter of to the superintending powers use of the court's inherent and adopt a Code of Judicial Ethics rather than as a persuasive power. discussion of the court's pertaining 91. To summarize the cases to the superintending power through court's the 1970s: The superintending 1853 Blossom court declared that the power necessary litigation is as broad as to control rights litigants; the grant the writs named in the third power in the constitutional article are not necessarily only exercising superintend- means for ing power. appear The Johnson Seiler cases to have superintending power limited the court's control to the 36 Id. Id. at (Hansen, J., 537-40 dissenting). 38 Gallagher, supra 10, note at 1120.

One problem Gallagher's with comment stems from his view that when it Ethics, instituted a Code of Judicial gone beyond court had superintending its powers to control "all judiciary, members only not lawyers as but 'judicial also as officers in system a court constituting judicial supra government... branch of the state Gallagher, .'" Ethics, at 1119 (citing Code 10, Judicial note 252, 36 Wis. 2d (1968)). 153 N.W.2d The court's action should be seen instead controlling as litigation course of in inferior courts, well within superintending its authority. by English King's court of the Bench. The used concurring opinions (including in one Helms Justice Johnson) to the Winslow, who authored returned views expressed interpreted in Blossom and the Johnson case majority broadly. Kading of the court case enforcing the Code of Judicial Ethics followed broad interpretation superintending power of the court's first enunciated 1853 in the Blossom case. judiciary

¶ 92. The article of the Wisconsin Con- supreme in stitution was amended superintending 1977. The court's authority placed in a was one-sentence separated grant- from subsection the other subsections ing original jurisdiction separated appellate and and 3(1) any VII, from reference to writs. Article Section regarding simply the amendment reads as follows superintending powers: "The the court's authority superintending and shall have administrative all over courts." presumably

¶ in Thus, 93. aware of the interpreting historical case law the 1848 constitution superintending power and the court's exercise of to adopt Ethics, and enforce the Code of Judicial the decoupled legislature people and the state superintending authority all state cоurt's over courts specified in and from the writs the 1848 constitution thereby gave imprimatur their to the court's historical interpretation language attributing of the 1848 to the superintending power court broad constitutional to litigation. Thus, control the 1977 constitutional amend- expli- implemented ment Adam broad Justice Smith's superintending power in cation of the court's set forth opinion the Blossom case and Chief Justice Wilkie's Kading. to this Thereafter, 94. this court has adhered understanding superintending power. of its Thus inter- and Hass cases follow broad

recent Arneson superintending pretation author- of the constitutional subsequent ity cases and in Blossom enunciated amendment. in the 1977 constitutional embodied present within the historical case fits grant superin- understanding of the constitutional tending power this court and the 1977 constitutional to my balancing all the is, in view on amendment and equities, prudent of the court's a exercise litigation in courts of this the course of control state.

HH1—1 why separately explain I also write holding presence majority opinion's that an adult's is a totality significant circumstances factor under the adopt per go enough. far I se rule test does not would in-custody any excluding from child under admissions given opportunity age has not been of 16 who my parent adult. Here are consult with or interested (interrelated overlapping) adopt- top reasons for ing per se rule: per 1. A 97. Reason No. se rule should be

adopted law enforcement officers because Wisconsin warning years have not heeded the this court issued 30 ago State, 33, in Theriault v. 66 Wis. 2d 223 850 N.W.2d (1974), juvenile's that law enforcement's failure to call a "strong parents be viewed as evidence that coer would incriminating cive were used to elicit the statem tactics In in Theri- ents."39 addition to our admonishment County ault, in 1981 a Milwaukee circuit court "berated State, Theriault v. 33, 48, 2d 223 N.W.2d 850 Wis. police department notifying [Milwaukee] not parents give opportu- in order an defendant's them during nity present police questioning."40 to be As long-time practice present demonstrates, the case police parents Milwaukee interrogation officers to exclude from the juveniles Despite has continued. The- County and the riault Milwaukee circuit court's admon- practice excluding parents during juve- ishment, the interrogation apparently widespread throughout nile the state.41 County

¶ 98. and the Theriault Milwaukee Cir- obviously changed cuit Court's have not admonishment practices, police to think and there is no reason a second re-announcing clarion call this Theriault's totality change police of the circumstances rule will practices, especially leading interrogation police awhen interrogate police suspects that manual recommends privacy рossible.42 whenever per

¶ 99. Reason 2. A rule should No. se be adopted not because Wisconsin courts have heeded this warning court's from Theriault law enforcement's juvenile's parents to call failure would be viewed C.W., In re 1980AP1844, slip op. No. at 2 unpublished 1981). (Wis. 7, App. May Ct. 41 See, e.g., (14r-year-old, case present Milwaukee C.W., (Wis. In re County); 1980AP1844, slip op. unpublished No. 7,1981) State v. App. May (12-year-old, County); Ct. Milwaukee (Wis. Campbell, 1980AP2136-CR, unpublished slip op. No. Ct. 1982) 16, State v. (17-year-old, County); March App. Forest Glotz, (Wis. 1983AP1792-CR, slip op. No. unpublished App. Ct. 1984) State, R.E.W. v. County); (17-year-old, Dec. LaCrosse (Wis. 1986AP471, slip op. App. Ct. Oct. unpublished No. 1986) (14r-year-old, County). Rock See Interrogation Criminal al., et Fred E. Inbau (4th 2001). 51-56, ed. Confessions

193 coercive tactics were used evidence that "strong have incon- statements."43 Courts incriminating elicit of circumstances test sistently totality applied only exclude the most have tended to haphazardly A fair of the reading obtained confessions.44 egregiously courts cases demonstrates that Wisconsin Wisconsin court) do not consider law enforcement's (including this an adult juvenile's call a or interested parents failure to or even some evidence of coercive tactics.45 strong 43Theriault, 66 2d at 48. Wis.

44 Barry Feld, Bad Kids 118-19 See C. (Kan. 1998), In re 955 P.2d 1302 in which the See adopted per court se rule because the Kansas gave only lip trial in that service to prosecution and case totality test. the factors of circumstances cases, at haphazard pattern For the Wisconsin see cases 45, note infra. 45 giving short to Theriault appeals For court of cases shrift see, mentioning "strong language, its evidence" without even G., 2000AP1435, op. unpublished slip v. Michael No. e.g., State (Wis. 2000) ("[P]arental 3, presence only Oct. is one App. at Ct. v. prerequisite."); factor to consider and is not an absolute State (Wis. Rea, 1994AP2460-CR, slip at 4 Ct. unpublished op. No. 1996) ("[P]resence attorney parent of a or an is App. April Glotz, juvenile's waiver."); v. required not to validate a State (Ct. 1984) 519, 523, App. (noting that Wis. 2d N.W.2d 179 language apply in Theriault does not expectation" "reasonable finding juvenile confessed because and that circuit court's reasonable); identify him State police said witnesses could was 1980AP2136-CR, op. at Campbell, unpublished slip No. 1982) (Wis. ("The but parent March absence of a is App. Ct. circumstances."); making totality up one of the factors (Wis. C.W., 1980AP1844, slip op. at Ct. unpublished In re No. 1981) ("[T]he attorney May 7, presence parents or an App. 12-year-old] for the requirement [a not an absolute minor silent."). validly right waive his to remain 100. There is no reason to think a second by clarion call this court re-announcing Theriault's totality of the circumstances will test court change practices. 101. Reason 3. A No. se rule per should be

adopted juveniles because do not have the decision- and of making capacity understanding Emerg- adults. ing studies demonstrate the area of the brain governing making decision and the of risks weighing and rewards to continues into the late develop teens and the early twenties.46 Further studies show that

For a of appeals carefully case analyzing all the facts including and circumstances grandmother of a absence during interrogation suppressing and the confession of a State, 14-year-old, 1986AP471, see R.E.W. v. No. unpublished (Wis. 1986) 16, slip op. Ct. App. (14-year-old, Oct. Rock County).

For a Supreme Wisconsin Court case which the court to at determining failed consider Theriault all in whether months) juvenile's years, 16 (aged right waivers to counsel right were, remain totality silent under circumstances, knowing, intelligent, voluntary, see State v. (1984). Woods, 701, case, 2d 117 Wis. 345 N.W.2d 457 In that police Woods' mother went to the station and asked see police permission Woods. The being denied because he was interrogated. The case by was overruled Circuit Seventh Clusen, name, of Appeals Court under a different Woodsv. (7th 1986). F.2d 293 Cir. Bendlin, Compare 1998AP426, State v. No. unpublished (Wis. slip Bendlin, op. App. 1986), Ct. Oct. with Woods. In appeals suppressed 17-year- the court of statements made Miranda, old as including violative a reference to Theriault's language requiring "greatest assessing validity care" in of a juvenile's confession.

46See, al., e.g., Elizabeth R. Sowell et Mapping Continued Gray Brain Growth and Density Matter Reduction in Dorsal than adults age capable are less children under their Miranda have a rights,47 pro- understanding and are less than capable to confess pensity police,48 As the United decisions.49 making long range adults of years ago, adult Court observed over Supreme States Relationships during Inverse Postadolescent Frontal Cortex: Maturation, 21 J. Brain Neurosci. juvenile development brain is available Information about Juvenile Justice Center's website at on the ABA's http://www.abanet.Org/crimjust/juvjus/resources#brain. 47See, Tobey, & Ann E. When Police e.g., Barbara Kaban Question 1 Adequate?, Are J. Ctr. for Children: Protections Barry Field, (1999); Competence,Culpabil Cts. 151 C. Child. & Atkins and ity, Implications Executing and Punishment: for of (Winter Juveniles, 463, 32 Sentencing Hofstra L. Rev. 530-535 Huang, Unequal Footing: Per 2003); David T. Less State Courts' During Interrogations and the Se Rules Juvenile Waivers for 437, Implementation, Rev. For Their 86 Corn. L. Case (2001); McGuire, Proposal Strengthen A to Robert E. Juvenile Rights: Requiring Parental Presence Custodial Miranda (2000); 1355, L. Rev. 1381-82 Thomas Interrogation, Vand. Grisso, Capacities Rights: Miranda An Juveniles' Waive 1134, Analysis, 68 L. 1160-61 Empirical Cal. Rev.

48See, Goodman, Taking e.g., Allison D. Redlich & Gail S. Age an Act Not Committed: The Responsibility Influence for 141, Suggestibility, (April Law & Human Behavior 152-53 47; Walters, 2003); Tobey, Jennifer J. supra Kaban & note Comment, Attempt Illinois' Weakened to Prevent False Confes The the Interro Requirement sions Juveniles: Counsel for Juveniles, 487, gations Loy. Some U. Chi. L. J. 504-05 1381-82; (2002); McGuire, supra Maggie & note at Brack Ceci, Suggestibility Memory, J. The Children's Stephen Crime, (1999); Bach, Amy True False Psychol. Ann. Rev. Nаtion, 8, 1999, Confession, Feb. at 49 See, Steinberg, e.g., Elizabeth Blam S. Scott & Lawrence (Feb. 2003). Youth, L. ing 81 Tex. Rev. 814-15 See Wis. abortion, finding (requiring parental § consent Stat. 48.375 put juvenile unequal footing "on advice would a less interrogators."50 [or her] with his using totality ¶ 102. Courts of circumstances have test not considered this evidence and have not weighed uniquely factors that make-children vulner- interrogation.51 during able per

¶ 103. Reason 4. A se No. rule should be adopted prevent Although it false confessions. many difficult for of us to understand what leads an person especially crime, innocent to confess to a felony, serious researchers have documented that false leading wrongful confessions are "a cause of the convic- tions the innocent in America."52 against suspects, ¶ 104. When used vulnerable police interrogation techniques especially standard are apt to lead false and the confessions.53 Juveniles mentally are retarded the most vulnerable to modern psychological interrogation techniques.54 It follows that juveniles "appear regularity with some false confes- sion cases."55 ability fully "[i]mmature minors lack the often to make

informed choices that take account of both immediate long-range consequences"). 50 (1962). Colorado, Gallegos 49, v. 370 54 U.S.

51 45, See No. 2 at supra. Reason and cases discussed note 52 Leo, Drizin Steven A. & Richard A. The False Problem of World, 891, Post-DNA 82 N.C. L. Rev. 906 Confessions (2004). 53See, White, e.g., Welsh S. False and the Confessions Safeguards Against Untrustworthy Confessions, Constitutional (1997). 105, 32 Harv. L. C.R.-C.L. Rev. 120 54 Leo, 52, Drizin supra & note at 919. 55 Associates, John Reid E. False Cases— Confession Issues, The at http://www.reid.com/educational_info/ available r_tips.html?serial=1080839438473936&print.

197 quantify Although ¶ the exact it is difficult to appeals juvenile confessions, the court of number of false two-year period study a one in which over referred to juveniles who in the United almost a dozen States committing subsequently were murder confessed majority acknowledges opinion proven The innocent.56 jogger rape Park and notes the Central false confessions youths ages (interrogated in five 14 to 16 case which rape.57 parents) falsely of their confessed to the absence Supreme accepted ¶ that has U.S. Court protections parental are advice crucial counsel and juveniles during police against and intimidation coercion analy- interrogation and are crucial the voluntariness "greatest urged Supreme care sis. The Court has volun- must that the admission was be taken assure tary,"58 juvenile a lean on and that needs someone to overpowering presence law, he knows "lest the may it, not crush him."59 state have concluded 107. At least two courts parent deliberately

that rogation excluded from inter- when invariably juvenile, of a almost confession suppressed.60- be will

56 C.J., supra 442, 30, Walters, Jerrell citing 269 2d Wis. 48, note at 489. 57 majority op., See 26 n.6. For of the Central discussions Justice is case, see, e.g., When Sydney Schanberg, H. jogger Park Journey Through Tangled a Game: A Case the Central Park 36; Jogger, Village Voice, 20-26,2002, at Rivka Gewirtz Nov. Lives Five Members Little, Changed Among Family Central Park Street, 2002, Across Voice, 6-12, 39; Dasun 110th Village at Nov. Innocent, Voice, 11-17, Alah, Guilty Until Proven Village Sept. 2002, at 24.

58 Gault, (1967). 1, In re 387 55 U.S. Ohio, Haley v. 332 U.S. Farrell, ‍‌​​‌‌‌‌‌‌​‌​​‌​‌​​​​‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​‍(N.H. State v. State 1057, 1062 2001); A.2d (N.J. 2000). Presha, A.2d

198 juve- ¶ 108. Given the limited mental abilities of heightened susceptibility suggestion, niles and their per se rule is needed to increase the likelihood that a guilty verdict will not be based on a false confession and appeal. per be overturned on A se rule thus fosters the justice. fair administration of per

¶ 109. A Reason No. 5. se rule should be adopted protect parental family and values. One of liberty recognized by the oldest fundamental interests Supreme parents the U.S. Court is that of to direct the upbringing care, control, and of their children.61 This protection parents' right constitutional extends to to be potentially consulted decisions that have traumatic permanent consequences.62 ¶ 110. This court's failure to mandate that a parent present during juvenile or interested adult be interrogation constitutionally protected offends —and societally accepted concepts parental rights. — per

¶ 111. Reason No. 6. A se rule should be adopted comports legislative because it with Wisconsin policy requiring par- evidenced in numerous statutes guardians say variety ents or significant to have a in a affecting

decisions their children.63 61 Granville, 57, See Troxel v. (2000); 530 U.S. 65 Prince v. Massachusetts, 158, (1944); 321 U.S. 166 Pierce v. Society Sisters, 510, (1925); Nebraska, 268 U.S. Meyer 534-35 262 (1923). 390, U.S. Matheson, H.L. v. 450 U.S. C.J., See Jerrell 269 Wis. 2d (citing state laws requiring parental marriage, buying car, consent for leasing or purchasing alcohol or products, name, tobacco changing one's abortion). having an par- a mandate that failure to court's 112. This juvenile during present adult be

ent or interested legislatively protected interrogation soci- offends —and rights. etally accepted parental — per rule should be A se Reason No. 7. proven adopted well other to function it has because According England. commentator, to one states legislative by adopted, or case law states have thirteen per parental consultation a se form of action, some supreme court65 reviewed Kansas In 1998 the rule.64 court-imposed Missouri,67 Massachusetts,66 rules from Florida71 and Vermont,70 and Indiana,69 York,68 New adopted per a se rule. Evi- Police and Criminal Britain's 114. Great Practice for the a Code of Act 1984 details

dence Questioning of Persons Treatment, and Detention, years including persons under 17 those Officers, Police "appropriate age. adult" have an must Juveniles 64 Questions v. Wald, Note, Asked! State No Thomas J. Von Interrogаting Per Rule When A Se Proposition Horse: for (2002-03). Juveniles, 164 n.237 48 S.D. L. Rev. 65 re B.M.B., (Kan. 1998). Counsel 955 P.2d 1302 In statutory restric following have argued that the states B.M.B. admissibility juvenile statements: of unadvised tions on Carolina, Montana, Okla Connecticut, Iowa, North Colorado, homa, Virginia. id. at 1310. and West See 66 (Mass. MacNeill, 502 N.E.2d 938 v. See Commonwealth 1987). 67 (Mo. 1973). K.W.B., App. In 500 S.W.2d 275 re 68 D., 290 935 In re Aaron N.Y.S.2d See (Ind. State, 1972); v. Sevion 288 N.E.2d Lewis v. 1993). (Ind. State, App. n.1 620 N.E. 2d (Vt. 1982); E.T.C., Piper, v. 449 A.2d 937 State In re See 1983). (Vt. 468 A.2d 554 (Fla. 1979). State, App. 2d 538 366 So. J.E.S. present during interrogation. "appropriate An adult" is parent guardian, defined as a or ifor, the child is under authority, representative authority. a local of that custody, Once a child is taken into authorities must practicable. inform this adult as soon as Police are required to inform the child that an adult is there to right her, advise him or and that he or she has the privately any During with the consult adult at time. police interview, the must advise the adult that expected merely adult is not to function an observer, present but is to the child, advise assure that properly fairly interview conducted, is and and "facili- parties. tate communication" between the per ¶ 115. Reason No. A8. se rule should be adopted right, just, because such a rule is the and fair way operate judicial system. the Wisconsin may

¶ 116. Police and law television dramas lead interrogations using psychological us to believe that (including trickery) tactics lead to sound and reliable reality. may confessions.72 not Television is What be (as compelling good entertainment we cheer for the guys applaud capture prosecu- and and successful guys) complica- tion of the far bad removed from the sadly of the real tions world that includes unreliable and false confessions. apply

¶ 117. do Wisconsin must more than "totality protect of the circumstances" rule to children problem and families and tackle the of false confessions. Mandating juvenile recording interroga- electronic trickery, is, The court held that misrepresenta has an during interrogation juvenile, tions of a is considered on a case-by-case part totality basis as of the of the circumstances determine whether the misrepresentation pressure created Woods, sufficient to suspect's overcome a free will. State v. 701, 726, Wis. 2d 345 N.W.2d 457 only step. step, very important I one it is but is a tions requiring the a rule court fashion have the would participation interrogation adult of an interested good jurisdictions provide juveniles. process Other desperately provide working a rule will models. Such protect safeguards procedural children and needed validity confessions and to ensure families justice. administration the sound join major- forth, I reasons set 118. For the separately ity opinion concur. but also ANN I to state that Justices am authorized CROOKS, and BRADLEY, PATRICK N. WALSH join only Part I of this concur- BUTLER, JR. B. LOUIS rence. (concurring). I BUTLER, JR., B. J. 120. LOUIS

join I of the cоurt. While and mandate the decision many Justice concerns stated Chief share join concurring opinion, I Part in her Abrahamson proceed opinion, with I that we should conclude of that By adopted. light have of the new rule we caution interroga- recording requiring of custodial electronic juveniles in- feasible, in future cases where tions for exception questioning cluding occurs at when without already may place the addressed detention, we have of by important Chief Justice concerns identified the any concurring opinion. case, In we II her Part of certainly of electronic evaluate the effectiveness should deciding recording should whether this court before supervi- pursuant protections to our additional create necessary protect rights sory powers of the that are today eliminates conflicts If rule we create children. the memory, in human to flaws in evidence attributable disputes the voluntariness of over reduces the number wrongfully police protects ac- confessions, officers of interrogations improper tactics, enhances cused juveniles, rights protects accused, the then problems persist, go however, no further. If we need including problem children, of false confessions agree I with the Chief Justice that another then would per requiring presence of an look at a se rule is warranted. "interested adult" separately ¶ 121. I nonetheless write because rights were violated in another Jerrell's constitutional interrogation, During manner. police Jerrell asked parents. if he could call his Each several times requests requests constituted time his were denied. His against privilege Fifth Amendment an invocation his parents, he asked for his all self-incrimination. Once given interrogation he an should have ceased until was opportunity with them. to consult (1966), Arizona, U.S. 436 In Miranda v. pro- Supreme Court announced the the United States admissibility for the of state- cedures to be followed during interrogation. ments obtained requirement custodial warnings import here. is is not of What happens suspect or when a invokes his relevant is what privilege: her manner, any any at time

If an individual indicates during that he to remain prior questioning, to or wishes silent, he interrogation point must cease. At he his Fifth Amend- has shown that intends exercise any person taken after the privilege; ment statement product privilege cannot be other than the invokes If the subtle or otherwise. ... individual compulsion, attorney, interrogation that he wants an states attorney present. an must cease until Id. at 473-74. on the The rule in Miranda centered ability help preserve

lawyer's special Fifth a client his rights caught Amendment once the client was in the adversary process lawyer's and also on the role as "the protector legal rights person of that in his dealings pоlice with the and the courts." Fare v.Michael (1979). C., C., U.S. In Michael the United Supreme States Court declined to extend Miranda's implications requests 16-year-old juvenile to cover of a speak probation agent during to a interro- custodial gation.1 premised The Court its conclusion on the fact probation agent that a officer is an of the state that prosecute alleged seeks to offender. Id. at 720. A request speak probation officer, to a stated, Court might speak well be consistent awith desire to with the police. Id. at 724. separate declined 124. The Court to create a juveniles, stating totality-of-the-

waiver test for "the approach adequate circumstances to determine interroga- whether there has been waiver even where juveniles totality-of- tion of is involved." Id. at 725. The analysis, "take[s] the-circumstances wrote, the Court special present into account those concerns that are young persons, experience when often with limited judgment, education and with immature are involved." ultimately Id. at 725. The Court concluded that "[wjhere age juvenile experience of a indicate request probation parents that his for his officer or his right is, in fact, an invocation of silent, his to remain totality approach necessary will allow the court the flexibility making take this into account a waiver added). (emphasis determination." Id. yet The Court noted that it had "not held that Miranda

applies with full force to exclude evidence obtained violation proscriptions of its from juvenile consideration in proceedings." C., Fare v. Michael 442 U.S. 717 n.4 The Court assumed, deciding, without that Miranda applied. Id. regarding C., Michael the law the 125. Since against changed. privilege self-incrimination has Before involving police principal Miranda, in the issue cases interrogation not whether a defendant had waived was privilege against self-incrimination, but his or her voluntary. Michigan her whether his or statement was (1974). police Tucker, Tucker, In the v. 417 U.S. all of the Miranda failed to advise the defendant of warnings. procedural that The Court indicated safeguards created in Miranda were not themselves rights protected constitution, but were instead against compul- privilege measures to insure that the sory protected. was Id. at 444. self-incrimination police conduct at Court concluded that issue abridge the defendant's constitutional Tucker did not privilege against compulsory self-incrimination, but de- only prophylactic parted from the standards laid down safeguard privilege. in Miranda to Id. at 445-46. subsequent ¶ 126. Michael C. was decided to both not on such, Miranda and Tucker. As the focus was privilege, or an invocation of the but was instead waiver analysis. It was on the traditional voluntariness based that the Court clarified that Mirаnda not until later rule, and was not created announced constitutional supervisory powers. the Court's Dickerson v. under (2000). States, 428, time, Over United 530 U.S. recognize bases Court has come to two constitutional voluntary requirement that a confession be be right the Fifth Amendment admitted into evidence: against and the Due Process Clause self-incrimination Id. at 433-34. The of the Fourteenth Amendment. prior pro- came to the Court's decision Michael C. grounded in Dickerson that Miranda was nouncement light. upon in that constitution, and must be viewed consistently recognized ¶ 127. The has Court setting heightened the coerciveness of the custodial juvenile concern when a is under consideration. See Haley (1948); Ohio, v. 596, 332 U.S. see also Gallegos Colorado, 370 v. U.S. Constitu tional distinctions between minors and adults are rec ognized peculiar for at least three reasons: "the vul nerability inability children; their to make critical in an informed, manner; decisions mature and the importance parental rearing." role in child Bel (1979); Hardaway Baird, lota v. 443 U.S. (7th 2002). Young, 302 F.3d Cir. striking term, in Just this a decision down juvenile penalty offenders, death for the Court once

again recognized general three differences between juveniles Roper Simmons, under 18 and adults. U.S. recognized 125 S. Ct. First, _, Court maturity underdeveloped a lack of and an responsibility among young sense of that often impetuous result actions and decisions. Id. The recognition comparative immaturity and irre- sponsibility juveniles every has led to almost state prohibiting years age voting, those under 18 from serving juries, marrying parental on or without con- acknowledged juveniles Second, sent. Id. the Court that susceptible psychological are more to influence and damage. Accordingly,juveniles Id. control, have less or experience less control, with over their own environ- They ment. Id. lack the freedom that adults have to criminogenic setting. extricate Finally, from themselves a Id. recognized the Court that the character of a juvenile is not as well formed as that of an adult. Id. many

¶ 129. Our Chief Justice has cited reasons why young people decision-making capacity lack the understanding and Abrahamson, J., adults. C. concur- ring, ¶ a confronted with a difficult 101. When child is interrogation otherwise, or that situation, custodial help likely "mommy" "daddy" to or to child is more want jam. C., 442 at 730 out of a Michael U.S. that child (Marshall, dissenting). request That constitutes both J. general attempt advice and a invocation an to obtain right Id. at 729-30. to remain silent. majority agree I that we must with analysis totahty-of-the-circumstances apply Majority evaluating of a confession. the voluntariness majority properly op., ¶¶ I that the 20-21. conclude analysis applied I facts of this case. also to the privilege however, that Jerrell invoked his conclude, against Amendment under the Fifth self-incrimination during parents tо call his he asked the detective when clearly help interrogation. he when the repeatedly He asked age, parents, at those asked for his his requests requests to remain silent construed as must be parents. speak opportunity an with his until he had ability may special parent aof not have the While rights parent lawyer protect legal child, of a respects, protector certainly in all of that child other upon give proper certainly could be counted recently In view of the his or her child. advice to underpinnings recognized Miranda, a constitutional juvenile consti- at least the same be entitled to should juvenile protections a asks as an adult. When tutional help provided. help, confes- such, As his should be involuntary, suppressed it is sion should be because against privilege self- he invoked his because when he under the Fifth Amendment incrimination given opportunity parents, an was not asked for his but them. to consult with foregoing respectfully I reasons, 131. For the

concur. (concurring part, PROSSER, 132. DAVIDT. J.

dissenting part). agree majority's I with the conclu- involuntary sion that Jerrell C.J.'s confession was delinquency adjudication that his Having must be reversed. majority made that determination, however, the stop. require should Instead, it continues on to that all interrogations juveniles custodial electronically in future cases be feasible,

recorded where and without exception questioning place when at occurs of deten- legislation tion. The court should have recommended legislating instead of from the bench. By attempting action, its the court is practices agencies

dictate the of law enforcement under guise "superintending" state courts. This is not an appropriate judiciary system role for the in our government. imposition From the of this rule, new I respectfully dissent.

l-H questions ¶ 134. This case raises fundamental supreme power. power about of this court was opinion by addressed in in an then-Justice Abra- Holmes, hamson. State v. 106 Wis. 2d 315 N.W.2d The court stated: It is well established that this court has express, inherent, implied judicial and incidental power. Judicial power beyond extends the power adjudicate par- controversy ticular and encompasses regulate adjudication. matters related to grants [T]he constitution court power to adopt necessary measures for the due administration of justice state, in the including assuring litigants a fair sys- judicial and the trial, the courts protect used, to the is essential power, properly .... Such tem judiciary, a strong independent maintenance of a system government. necessary component of our Holmes, 44. 106 Wis. 2d at "super- on its case, the court relies 135. In this authority"

intending exclude all state courts to over juveniles the custodial from when most statements interrogations producing are not elec- statements

those authority" "superintending tronically is recorded. This 3 of express VII, Section embodied in Article an Constitution. the Wisconsin completely the court's clear how It not authority"

"superintending in- from.the court's differs overlap. powers power, sometimes for the two herent breathtaking to describe its for the court rather But it is authority" in extent" "superintending "unlimited putting See context. that notion into historical without police power majority op., ¶ is not the State's 40. Even in extent." "unlimited 3 of the 1848 constitu- VII, Article Section as follows:

tion read court, provided in cases otherwise supreme except constitution, jurisdiction appellate have in this shall state; with the but only, shall be coextensive which a trial supreme court shall no removed to the case general court shall have be allowed. The jury courts; it shall all control over superintending inferior mandamus, corpus, of habeas power to issue writs have certiorari, original warranto, and other injunction, quo writs, and determine and to hear and remedial same. added). (1848) Const, § (emphasis This VII, art.

Wis. it was 1977 when intact until section remained "(1) part: supreme in read, amended The court shall superintending authority have and administrative over all courts." changed

¶ 138. The 1977 amendment the term "superintending superintending "authority" control" to phrase authority." and added the "administrative I am persuaded changing "superintending not that control" "superintending. authority" . . was intended to alter specific grant power. the nature or extent of this If understanding correct, this view is original grant then an helpful interpreting would be in present constitution. If this correct, view is not there ought to be clear evidence that the framers of the 1977 substantially enlarged grant amendment intended a superintending power. nothing I have found in the legislative history support proposition. the latter original

¶ 139. The VII, version of Article Section appeared "superintending to tie the court's control" over inferior courts to the issuance writs, of various as provisions the two were included in the sentence, same by divided Nonetheless, semicolon. Attorney

tried to sever the in tie General v. Blos [*317] som, 1 Wis. 277 The court construed the "superintending" power very broadly, saying: "This sen grant power.... tence contains clear It is unlimited unsupplied in extent. It is undefined character. It is with means and instrumentalities. The constitution wholly leaves us exercising in the dark as to the means of unequivocal grant power." clear,

this Blos [*325]. som, 1 Wis. at 283 rhetorically 140. The court asked whether the

superintending power by was to be exercised means of corpus, quo the writs of habeas mandamus, warranto, injunction, question, and certiorari, and answered its exclusively." essence: "Not means, agen- then, and

What, are the instrumentalities Clearly is to exercised? by cies which this be law, or such as provided the common ordinary means very legislative enactment. The supplied by should be court; terms, supreme comprehending, force of the judicial instituting highest, the dernier naming, law, recognized by the common to, known and tribunal writs, it all instrumentali- necessarily carries with ties, by the agencies provided common law powers super- complete exercise such the convenient say is idle to enumeration intending control. It mentioned, supply made to were of such writs are superintending such means of control. [*325-26].

Id. at 284 evaluating analysis, ¶ it must In the court's 141. question in Blossom that the was be remembered original jurisdiction to court had the whether prerogative To writs. answer issue, hear, and determine language interpret question, of the had to the this court "superin- up Building the court's VII, Article Section 3. tending not to that it was limited the control" so helpful, prerogative if not essen- writs was issuance of had that the court tial, to its ultimate conclusion original jurisdiction. subsequent however, discussions, the In 142. circumspect power. It con this

court was more about superintending power is control the cluded: "The power of . litigation ordinary in 'control course of the by common law courts,' exercised at inferior specifi Kang's by the use of writs Bench, and cally and other writs mentioned in the constitution State, Seiler v. Wis. to or authorized." there referred 293, 299, 87 N.W.1072 frequently closely the more Seiler followed Bank rel. National

cited of State ex Fourth case Philadelphia Johnson, N.W. Wis.

(1899), in which the Blossom statement that the "su- perintending control" unlimited extent, is was Johnson But quoted. that put quote It perspective. provided an King's extensive discussion Bench:

[B]y the grant general constitutional "aof superintend- ing control all over inferior courts" [the Wisconsin Supreme] court with separate was endowed and jurisdiction, independent requires which enables and it proper in a case control the ordinary course of litigation courts, in such inferior and was also endowed all with applicable juris- common-law writs to that ... diction. That the makers of constitution used in question understandingly, words and with a specific meaning, not as a mere rhetorical flourish high sounding words, or form can admit noof doubt. Only a superficial knowledge growth and devel- opment English judicial system necessary determine meaning English what that was is. The king's court of superintending jurisdiction bench had a realm, over all the inferior courts of the it freely which exercised the use of very well-defined writs from early times.

Johnson, 103 Wis. at 613. for a court, Writing unanimous Justice

John B. Winslow quoted Blackstone as writing jurisdiction of the King's Bench "is high and very transcendent. It all keeps jurisdictions inferior within the bounds of their authority, may and either remove determined to be proceedings here, or prohibit their below." Id. progress at 614. Blackstone explained that Bench King's magistrates "commands and others to do their what duty requires, in every case where there is no other specific remedy." Jd1

1 1n her answer to Justice Roggensack's concurrence/dis concurrence/dissent, sent аnd this Chief Justice Abrahamson Wickhem summarized Justice John law on the of Wisconsin case years synthesized in a 1941 law review power" court's "superintending Power Superintending The Wickhem, D. article. John of Court, L. Supreme Control Wisconsin 1941 Wis. of He wrote: Rev. 153. over this control purpose ["superintending

The of legal jurisdiction protect courts"] is to inferior ordinary litigant of rights processes a when the of meet action, inadequate to appeal and review are situation, intervention and where there is need such or denial of these grave hardship complete to avoid Thus, will rights. it held that before the court is Helms, v. writings ex Wis. to in State rel. Umbreit points 432, (1908), Attorney a The vindication of 118 N.W. Blossom, (1853), repudiation a [*317] 1 Wis. 277 General v. Philadelphia Bank v. rel. Fourth National of State ex State, (1899), Johnson, and Seiler 103 Wis. 79 N.W. 1081 very Helms was The issue in 112 Wis. 87 N.W. authority under Supreme Court had the narrow: whether the all infe "general superintending control over its constitutional ordering a circuit court of mandamus rior courts" to issue writ the circuit court had complaint a criminal to reinstate power specific it had this The court determined that dismissed. it, unanimously it declined use under the constitution but the facts of case. saying justification no under there was Winslow, writing to the views separately, bowed Chief Justice colleagues power that the had "review" most his judicial where the error under circumstances a lower court's not done 136 Wis. at 464 Ring's have so. Court of Bench would well-mannered discus (Winslow, C.J., concurring). court's a writ to control" issue "superintending sion its light simply years fact judge in a situation specific circuit superintending power away concept that "The court's from the changing necessary to meet the needs circum is as broad as concurrence, Abrahamson's stances." See Chief Justice intervene, appear adequate it must that there is no remedy by appeal or of error. For example, writ inaction, order of the inferior court or its if is the to, thing objected may ofbe such character as not to be appealable, appeal judgment may or from the too come variously It late effective redress. is in the stated power cases that to warrant exercise of the there must right a clear legal part applicant; plain be on the a duty court; on the part remedy by the inferior appeal or writ error must be inadequate; there must exigency action; an calling be for prompt power is to be to perform not used the office appeal or writ of error and the result of a refusal to act and to exercise superintending grave hardship control must result in litigant. These represent attempts statements to state in whole in part policy or which both underlies the constitu- grant of supervisory tional control the court's exercise of a policy. it as matter of (citations omitted). Id. at 161-62 146. This description author- superintending ity, to control the course of ordinary litigation lower so courts as to avoid grave a hardship litigant, is very different from the incredibly power elastic the court now employs. Somehow the court's superintending au- over thority all courts been has transformed into broad authority mandate desirable policy ostensibly related to judicial proceedings but far extending beyond litigants The specific case. is employed being normal during appellate review, so that there is no intervention into lower court proceeding because of an exigency. is not protecting a clear legal rather, it is right; new are creating procedures that not even deemed "rights." It not because acting alternate grave hardship inadequate. requires It no are remedies adjudication delinquency of has Jerrell C.J.'s because its words, In other the court's use of reversed. been arguably authority superintending an desir- to effect every express policy principle of our but violates able power. limited constitutional in down this road 147. The court started sought uphold promulgation of ethical it the an

when to judges. Promulgation In re a Code code for See of of Ethics, 873, 2d 153 N.W.2d Judicial Wis. (1967). The court said: N.W.2d adopted a of twenty-three At least states have Code action, generally in by supreme Judicial Ethics recognized implied inherent and the exercise of their courts, judges, attor- supervision of over power judicial system. has been consid- neys power necessary generally be as broad as is ered protect or justice administration of as needed litigant. Our consti- public particular or the or a state given superintending has this court expressly tution power over courts. inferior implied has an inherent and an

We hold this court court, in the interest of justice, and establish administration of formulate inherent in power, the Code of Ethics .... This Judicial implied its ex- supremacy of the court and from power, grants supervisory em- pressed constitutional of judiciary. all members braces added). (emphasis Id. at 253-54 Kading County Judge Charles E. 148. When challenged County the Code a rule under Jefferson requiring him- assets held disclosure investment upheld 4-3 the Code rule on a or his the court wife, self vote, saying: reject "We this attack on the fundamental authority this court. Both the of the code adoption and the later of Rule adoption 17 are actions of this court performed under its inherent power to function as the supreme court and also performed carrying out the superintending control as expressly function of VII, set art. sec. the Wisconsin Constitu- forth tion." In re Honorable Charles E. Kading, Wis. 2d (1975) 508, 516-17, added). 235 N.W.2d 409 (emphasis 149. Speaking through Chief Justice Horace Wilkie, the court dеclared:

[W]e find an additional authority source of for this court's promulgation of the Judicial Code ... in the power which reasonably implied from this court's express authority constitutional general to exercise "a superintending control over all inferior courts." This power of superintending control is "unlimited in ex- tent . .. undefined in character.. . [and] unsupplied with means and instrumentalities."... Mr. Justice MARSHALL, ROUJET after a painstaking survey of this power[,] concluded in 1908 that it is "not limited other than by justice" necessities and that it necessarily "all. includes .. applicable means thereto and all power necessary to make such ... fully means adaptable for the purpose." The superintending power is as broad and as flexible necessary to insure the due justice administration in the courts of this state. If [superintending] this strictly were limited to the situations in which it was previously applied, it would cease to be superintending, since this word definitely contemplates ongoing, continuing supervi- sion in response to changing needs and circumstances. The power of superintending control should not be by unduly ossified an restrictive interpretation of its extent. Helms, Umbreit v. State ex rel.

Id. at 519-20 (citing (1908) J., con- (Marshall, 462, 118 N.W. 432, Wis. curring)).2 mem- four supported These paragraphs, in a case in which court, divided deeply

bers judicial a code of to promulgate inherent power court's sufficed, are source have surely would ethics are They power." "supervisory contemporary court's Law Review A writer the Wisconsin suspect. highly that, represented "These statements immediately noted prior interpretations from departure a considerable in- authority superintend constitutional the court's Power Gallagher, Superintending Dennis courts." ferior Disclo- and Financial Court Supreme the Wisconsin of sure L.Rev. Judges, Rules 1977 Wis. unprecedented action ‍‌​​‌‌‌‌‌‌​‌​​‌​‌​​​​‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​‍"an court's Calling that: contended id. at 1121, the writer development," in Seiler v. State opinion Roujet Marshall's Justice "general grant of the constitutional clearly that shows very lim- as a understood control" was superintending In the inferior courts. actions in authority over ited control superintending that the argument rejecting acts of authority to sustain used as clause could be origi- grant purporting legislation Kading, 70 E. Honorable Charles majority in In re (1975), the breadth overstated 2d 235 N.W.2d Wis. superintending characterization Marshall's Justice in power superintending discussed Justice Marshall power. litigation" and believed authority "to control of the court's light to further "nothing to be said had left that, the court as Umbreit v. ex rel. power." State superintending define the (1908) (Marshall, 447, 458, Helms, 118 N.W. 136 Wis. it to act holding required Kading court's J., concurring). defin[ing]" "further by Marshall's advice contrary to Justice "control[ling] unrelated in a matter power superintending litigation." jurisdiction

nal cases, certain criminal Justice Mar- shall stated that superintending control should be understood power as "the to 'control the course of ordinary litigation courts,' in inferior as exercised at by common King's Bench, law the court of and specifically use writs mentioned in the constitu- tion ... ." rejected Justice Marshall any extension of power beyond this its signification, common law such using it justify advisory opinions by supreme court. (citations omitted).

Id. at 1120 In a dissent, hard-hitting Justice Robert Hansen also quoted Roujet Marshall:

"While the true judicial limits of power jeal- must be ously guarded firmly maintained, it would be as dangerous to extend as to same, limit the by giving to the language jurisdiction in which the granted was meaning different from that which was in mind when grant was made. The of superintending control, as has been decided and indicated, before has to only do controlling with inferior courts in the exercise jurisdiction by their the use of instruments men- tioned specifically in the constitution or authorized thereby."

Kading, 70 Wis. 2d at 540 (Hansen, J., dissenting) Seiler, n.9). (quoting 112 Wis. at 300 152. As noted, Article VII, Section 3 of the constitution was amended in 1977 to new produce text: "The supreme court shall have superintending administrative authority over all courts." Constitu- tional revision gave the supreme court administrative authority over all courts and simultaneously provided 4(3): VII, Article Section "The chief justice of the shall be the administrative head of the judicial system and shall exercise this administrative adopted authority pursuant procedures the su- 4(3) Const, § (emphasis preme VII, art. court." Wis. added). authority" creates an "administrative 153. This hierarchy among giving

indisputable courts, au- state policies thority supreme court to establish to the judicial system. procedures I no entire see for the state's the 1977 amendments were evidence, however, that "superintending... alter and enhance the intended to super- authority" supreme The use of the court. proce- authority intending to dictate law enforcement superintending simply from the sort of dure is miles specific cases that over lower courts control framers intended.

I—I express, inherent, "court has 154. The judicial power." implied Holmes, 106 Wis. and incidental long power has been at 44. The court's inherent 2d (1874); recognized. Janitor, 410 In re 35 Wis. See County, 121 14, 140 Wis. N.W. v. Milwaukee Stevenson (1909); Cannon, 221 N.W.603 State v. 196 Wis. (1928); Cannon, 374, In 206 Wis. N.W. re (1932); Integration Bar, 273 Wis. 77 N.W.2d (1956); Laufenberg Geoffrey Lynn Remmen, Van & Court Reform, Power and Administrative Inherent (1975); my Gallagher, supra. Marq. It is not L. Rev. 133 power, try scope purpose of inherent to define necessarily agree "power except must that the court's enough performance expansive to facilitate the be Laufenberg Remmen, & Van mandates." constitutional supra, at 157. however, that neither obvious, It should be power nor "administrative au- inherent its

the court's reasonably employed thority all courts" can be over why case, circumstances of this the court upon amorphous "supervisory" power. has relied Majority op., an majority opinion repre-

¶¶ 3, If 58. proper "superintending. a sents authority," use of the court's . . logically, practical

then, there is no reason why any aspect police the court could not dictate investigative procedure designed that is to secure evi- people dence for use at trial. The of Wisconsin have never bestowed this kind of on the Wisconsin Supreme Court.

h-1 hH majority ¶ advantages 156. The outlines the it adopting interrogation sees a rule that custodial of a juvenile electronically must be recorded if the state any juvenile seeks use statement in court. Majority op., doing ¶¶ In so, 51-57. it cites an Ameri- urging can Bar Association resolution that such a rule apply interrogations suspects. to all custodial of crime obviously This formulation Id., ¶ includes adults. 56. Dylan put As Bob it, would "Youdon't need a weather way man to know which the wind blows."3 ¶ required by any 157. The court's new rule is not provision "absolutely constitutional and is not essen justice. Kading, tial" to the administration of See Wis. 2d at 518. Promises that "This court will not use its superintending power adequate where there is another remedy," Jezwinski, Arneson v. 2d Wis. (1996), replaced 4, 556 N.W.2d 721 have been with rejection leave-it-to-the-legislature

frank "the State's approach." Chief Justice Abrahamson's concurrence, ¶ 4. Blues, Subterranean Homesick on Bringing It Dylan, Bob (Columbia

All Back Home 1965). Records undeniably many rule leaves new interroga- questions is "custodial unanswered. What exceptions under the rule? Are the to what is tion" "interrogation" under Miranda "custodial" what is (1966), Arizona, still valid? How does U.S. principal's apply in a rule to student's interview school tiny portable recorders, In an era of when is office? subject recording electronic not "feasible"?Must interrogation that his words will be re- be notified subject recording? May corded? waive Does the "fruit apply poisonous to unrecorded tree" doctrine statements? majority's elec- I share the conclusion that recording juvenile confessions is a worthwhile

tronic policy goal. developing the of a rule is

However, details demanding legislature might not all work. The answer drafting questions court, in the better than this but try. legislation, minimum, a it would at least have to At delay implementation the of its new the court should agencies prepare give time to rule to law enforcement urge legislature promptly addition, it. In I to recording the issue of electronic of statements address juveniles by adults, that law enforcement will so guidelines clear to follow. have ROGGENSACK, DRAKE J. 160. PATIENCE dissenting 0concurring part part). in concur in —I majority opinion's in conclusion that Jerrell C.J.'s voluntary, and therefore his delin- confession was not Majority op., quency reversed. 59. conviction must be agree requiring tape I law enforcement also juveniles possible questioning record its wherever juvenile questioned at a and on all occasions when juveniles place and law detention benefit both would join I in court's However, cannot enforcement. juveniles tape mandate that unless interviews with are recorded, statements made those interviews will be suppressed Majority op., ¶ at trial. majority

¶ 161. The VII, claims that Article Sec- gives tion 3 of the Wisconsin Constitution power suppress court the statements taken con- Majority op., my travention of its directive. In superintending authority view,the court's under Article permit VII, Section 3 does not the court to interfere in practices practices of law enforcement unless those right violate either a constitutional or a law established legislature. Failing interrogations to record juveniles Accordingly, respectfully does neither. I dis- portion majority opinion. sent from that ¶ 162. This court has never before concluded that suppress it had the defendants' statements in merely preferred certain situations because it a differ- technique procurement ent law enforcement in the today. contrary, statements, those as it concludes To the suppression aof defendant's statement has been re- only quired when the law enforcement conduct at issue threatened an imminent loss of defendants' constitu- rights illegal.1Accordingly, step tional or was taken example, For it long has been held that in order to be trial, admitted at voluntary. defendant's confession must be Hunt, 734, 740, State v. (1972); Wis. 2d 193 N.W.2d 858 (1963). Illinois, Lynumn 528, v. 372 U.S. 534 requiring The rule suppression involuntary grounded confessions is in a Tucker, process right trial, defendant's due to a fair Michigan v. 433, (1974), 417 U.S. 441 and linked to the Fifth Amendment's right against self-incrimination, Arizona, Miranda v. 384 U.S. 436, (1966), 461 as well as the mirror of the Fifth Amendment I, in Article Constitution, Section 8 of the Wisconsin State v. Hanson, (1987). 195, 211, 136 Wis. 2d 401 N.W.2d 771 Suppres sion in concept is also bottomed the that law enforcement

222 majority opinion is a huge expansion VII, court's Article Section 3 powers. 163. As a to the preamble exercise of it what

describes as the court's supervisory powers in granted VII, Article Section Constitution, the Wisconsin majority declares: opinion VII,

Article Section 3 of the Wisconsin Constitution expressly upon confers superintending this court authority administrative over all state courts. This provision grant of power. "is It is unlimited in extent. It is indefinite in (citing character." State v. Jennings, 44, 13, 228, 2002 WI 252 Wis. 2d 647 N.W.2d 142 (quoting State ex rel. Fourth Philadelphia Nat'l Bank of (1899)). Johnson, 591, 611, v. 103 Wis. 79 N.W. 1081 Majority 40. While the in op., words used the quote from Johnson are accurately repeated, they are taken context, out of and in so doing, majority opinion them a gives meaning that is from completely different Johnson.2 expressed personnel obey law, must they even as enforce it. Arizona v. Fulminante, 279, 499 U.S. Miranda,

In the United Supreme States Court instituted designed measures permit opportunity "to a full [for those custody] privilege against to exercise the self-incrimination." Miranda, 384 U.S. at 467. The Court deemed the Miranda protocols necessary "any understanding assurance of real intelligent privilege [against exercise of self- case, incrimination]." Id. at 469. In present majority recording requirement does not claim the necessary protect suspects' rights, constitutional recording but rather mandates it procedure because deems the beneficial. Jennings, 44, 252 State v. 2002 WI Wis. 2d 647 N.W.2d 142, repeats language the same from State ex rel. Fourth Johnson, Bank Philadelphia National 103 Wis. (1899), Jennings N.W. but declined to use it to stretch the currently has three VII, Section 3 Article jurisdic- supreme pertain to the court's sentences (1) authority superintending and administrative tion: (3) (2) appel- jurisdiction; original and courts; over all jurisdiction.3 in was the decision Johnson When late expressed in three 3 was made, VII, Article Section yet appeals not been had Because the court clauses. differently regard worded created, Section 3 was jurisdiction appellate However, as well. the court's authority superintending granted over had been court power the Johnson courts," and it was that all "inferior decision examined.4 question presented in Johnson was The superintending of the court's the exercise

whether power specific writs limited to the court's use was Johnson, The 103 Wis. at 610-11. in Section 3. listed power superintending anwas that the court concluded independent grant from that of constitutional require appeals the court of power to supervisory court's a direct appeals the court of is faced with certify cases in which Supreme of the United States Court conflict between a decision federal law. question court on a and a decision of this 2d 13-16. Jennings, 252 Wis. ¶¶ VII, states: Section 3 of the Wisconsin Constitution Article (1) superintending supreme and admin- court shall have The authority istrative over all courts. (2) jurisdiction supreme appellate all court has over The original proceedings. may The su- and hear actions and courts necessary jurisdiction. may preme in aid of its court issue all writs (3) may judgments supreme review orders may appeals appeals, from the court of the court of remove cases appeals. may accept on certification the court of cases decided, VII, Section 3 In 1899 Johnson was Article when general superin court shall have a provided: "the all inferior courts." Id. at 611. tending control over listed the writs clause of Section and that superintending power depen- exercise the was not dent on the use aof writ. Id. at 610-12. concluding, repeated In so the court superintending

words in used clause of Article VII, explained wording Section 3 and that the of that clause meaning grant was "unlimited in extent," that the power through did not have to be exercised the use of a following writ listed in the clause of Section 3. The wording court's statement that the of the clause was in "indefinite character" confirmed that the court сould power ways exercise in its other than that in accorded a concluding listed writ. The court in Johnson was not power granted superintending that the in the clause of Section 3 was unlimited in extent or indefinite char- only by power acter, that the means which that could be by exercised was not limited the writs clause of Section 3. explanation Id. After its of the lack of a limitation on the superintending means which control could be exer- lengthy cised, the described, court detail, that the superintending power power of the court was the to ordinary litigation control the course in all other explained courts. Id. at 612. The court that Section 3 power King's mirrored the of a court known as Bench English under common law when the Wisconsin Consti- King's tution was created. Id. at 612-14. Because power Bench had broader than the writs clause ofArticle VII, Section the court concluded that the Wisconsin Supreme power Court had that as well. Id. at 614—16. majority require- 167. The contends that juvenile's ment that a statements to law enforcement questioning cannot be used at trial unless the was accomplished required tape recording simply with the Majority op., rule of evidence. However, in order evidentiary supreme rule, an it to create

for the court give hearing. S. Ct. IOP notice and have See Wis. must 1996). (September There was no notice or III-A considering hearing a new rule of court was Additionally, is intended to the mandate evidence.5 practices. Majority op., law affect enforcement regulate legislature ¶¶ has 46-47. See, conducts official duties. how law enforcement its Young e.g., Shaw, 2d 276, ex 165 Wis. State rel. (Ct. 1991). App. Absent the 287-88, 477 N.W.2d 340 infringement necessity protect against an imminent rights or a violation of the of defendants' constitutional statute, or a not does constitution regulate authority enforcement, a have the part how law government, accom- of the executive branch plishes its official duties. Furthermore, first 168. this case is not the time superintend interpret to

that we have been asked ing our authority regulate proceedings to in another branch government. Thompson Nash, rel. of In State ex v. 27 (1965), 183, 2d 133 769 we were to N.W.2d asked Wis. permit interpret court, the circuit constitution superintending powers under then which had Article pro Constitution, 8 of VII, Section the Wisconsin procedures proceeding. used an administrative scribe concluding so, at 193. We declined to do that we have Id. interpreted superintending powers as sufficient never orderly operating procedures with of "to interfere showing agency in the of a an administrative absence process." of due Id. at 194.6 denial 5 view, herein, my court does not explained In have rule, even if requirement by to cause the same its rule-making procedures were followed.

6 Employment Relations Commis In Guthrie Wisconsin sion, 447, (1983), 2d 331 111 Wis. 331 N.W.2d we did establish a adopted recording ¶ 169. While we as one of the admitting hypnotically criteria to consider before af- testimony Armstrong, fected in State v. 110 Wis. 2d (1983), majority n.23, N.W.2d approach by merely takes this ing guidelines further here not outlin- admissibility type

for the of a certain instituting per evidence, but instead se on ban such prohibits admitting evidence. It circuit courts from evidence under such circumstances where the reliabil- ity voluntary testimony nature of the not could be challenged only and its "flaw" is it was not recorded. juveniles interrogations Likewise, differ polygraph Dean,

from the evidence at State v. issue (1981), 103 Wis. 2d N.W.2d where we adequate [an "the concluded that lack of standard for gauge reliability polygraph circuit courts evi dence] heightens our concern that the on the burden reliability stipulated polygraph trial court to assess the any may outweigh probative evidence value the evidence may longstanding Here, have." Id. at courts have in-custody which standards to assess whether an voluntary. knowing majority admission was per not does contend that unrecorded are admissions se unreliable, but instead chooses to institute a blanket prohibition simply on unrecorded admissions because it prefers this alternative. a

per judge proceedings se rule that in administrative must disqualify herself, or if judge himself the had acted counsel for Id. at 458. of parties one the the same action or proceeding. However, we did so a tenet of process because fundamental due is Id. at be, is, a decision who appears impartial. maker 457-58. opinion majority concentrates both judicial supreme power legislative in the and the

the By law has enacted a mandate, the court court.7 its (custodial juveniles tape questioning re- of must be exception if the feasible and corded where questioning without detention); place the court a of occurs at (if interpret question whether will its law a arises about by required tape recording is the circumstances punishment case); a mete and the court will out (exclusion if re- all made not violation statements majority out in the circumstances set corded under the opinion). power branch of one Concentration

government system government tripartite in a prevent system suspect was created because exactly Holmes, 42, 2d 31, State v. Wis. that. See permits Concentration one 315 N.W.2d 703 government proce- no to exercise with branch we, branch. As dural check or balance another repeatedly explained, ourselves, the Wisconsin have legislative separation of envisions a Constitution judicial majority powers. of the court Here, Id. says requisite power. Que- it has the constitutional ry: constitution, on If the bases its decision court say gone has far when the who is to the court too court is the final arbiter what constitu- tion means?

¶ 173. The concurrence of the Chief Justice dis- great length at a view of the extent of this court's cusses this court done This is not the first time term has rule-making petition, March, so. In as a result of a statute, 814.025, § Wis. Stat. "repealed" the frivolous action by the not legislature, rule enacted which was substantive 03-06, Supreme Court effective unconstitutional. Order No. July 2d_. 2005 WI 38,_Wis. authority

supervisory under Article VII, Section 3 of the Wisconsin In none of Constitution. the cases cited Supreme tangentially the has implied Wisconsin Court even supreme authority that the has court the to direct how law enforcement carries out its official majority opinion is Yet, duties. that the issue that the up suppress takes here: Can this court admission the by through enforcement, of statements obtained law contrary means that are neither unconstitutional nor to supervisory authority statute, virtue of the con- VII, in 3? tained Article Section ¶ also 174. The concurrence asserts that the "ex [of superintending court's] power ercise question the here is a power." policy, not Chief Justice concurrence, Abrahamson's 65. This Anewassumes supreme power regulate the that police court have the does that conduct is neither unconstitutional nor of a Adolative writings statute. This assertion is taken from the in

of Justice rel. Bablitch State ex Hass v. Appeals, Court 128, Wisconsin WI 248 Wis. 2d explains 636 N.W.2d where he that that question case, "The of whether the court will exercise superintending authority policy, power." its one of not Id., ¶ However, in was the Hass there no doubt that supreme power court have did direct the court of grant petitions interlocutory appeals appeal all where circuit court had denied the defense that the judgment. action was barred due to a final federal court presented Id., ¶ 10. The issue Hass was whether court should do so. Id. the issue Here, is whether power does, indeed, have the it has exercised. disagree early I with assertion that interpretations of Article Section VII, 3 were "broad." concurrence, Chief Justice contrary, 77. To the Abrahamson's adoption our earliest cases after the explained Wisconsin Constitution VII, related court's Article Section supervisory of state court's other supreme regulation to the only Blossom, Attorney General 1 Wis. 317 courts. In (1853), to how these could be sought powers we explain "What, means, then, exercised: are the instrumentali- this is to be exercised? by ties and which agencies power by the common provided means Clearly ordinary the enact- law, by legislative should be supplied or such as State, Seiler v. in Id. ment." at 325-26. And Wis. (1901) of 293, 87 we said: "The power N.W. to is the 'control the superintending power control courts,' inferior ordinary in as litigation course of Bench, the сourt of by Kang's exercised at common law in mentioned the by specifically and the use writs referred or autho- constitution and other writs there to 299. The court in Seiler then went on to rized." Id. at the constitutional terms were chosen and explain how at the the was meaning adopted: their time constitution "superintending The term control" then had a well- it, other, meaning, and defined none was carried by into the constitution the framers thereof. In order to meaning, correctly understand that we must view If standpoint from the of its framers. we constitution firmly anchored to the idea of were not common-law superintending of mere control one court extent another, distinguished appellate jurisdic- over as from tion, in respect should drift at once into confusion to we authority court. While the true scope of this guarded and judicial power jealously limits of must be maintained, firmly dangerous it be as to extend would same, language in by giving as to limit the to the which jurisdiction granted meaning different from was in The grant was mind when the was made. which control, has been decided power superintending controlling indicated, only and before has do with jurisdiction in .... inferior courts the exercise their Id. at 300. reader Certainly any will see from leap lower supervising courts to law enforce- supervising ment.8 following cases are listed in the they order which

are mentioned in the Chief Justice's concurrence. Several have nothing VII, to do with Article Section several examine only original jurisdiction whether the court given has circum stances: State ex rel. Friedrich v. Circuit Court Dane (1995) County, 192 Wis. 2d (addressing N.W.2d 32 whether the rates set for court-appointed attorneys must be those set the supreme by statute; court or set those Friedrich VII, 3); Jezwinski, never mentions Article Section Arneson v. (1996) 206 Wis. 2d 556 N.W.2d 721 (concluding that VII, court should use its Article Section 3 require the appeals grant court of all petitions for interlocu tory appeal where a claim of qualified immunity had been court); denied in the circuit State ex rel. Hass v. Wis. Court of 128, Appeals, 634, 2001 WI 248 Wis. 2d 636 N.W.2d 707 (concluding supreme that the court should not use its Article VII, power require Section 3 to grant the court of appeals to all petitions interlocutory appeal where the circuit court has denied a defense that the action before the court is barred a adjudication); final federal 44, State v. Jennings, 2002 WI 252 228, Wis. 2d 142 (concluding 647 N.W.2d that the supreme court VII, should not use power its Article Section 3 require the appeals certify court of appeals all where a prior decision of appears this court to conflict with United Supreme States Court precedent); Reynolds County State ex rel. v. Court Kenosha (1960) County, 560, 11 (concluding Wis. 2d 105 N.W.2d 876 that supreme the court has superintending power VII, under Article county Section 3 to the County restrain of Kenosha from court interfering liberty with the of the county sheriff and the purchasing agent because of arising proceeding matters out of a court); 531, that Brand County, v. Milwaukee 251 Wis. 30 (1947) N.W.2d 238 (concluding that no appeal lies from an order by judge made a in a special proceeding 51; under Ch. Brand did court); not involve the superintending authority of the Johnson (concluding that of the supreme superin- exercise court's

231 I conclude, began, by I Accordingly, law juveniles both it would benefit that stating the tape to enact were legislature if the enforcement limited to the use was not "inferior courts" tending over power 3); VII, In re Section in Article listed specific writs 63, 409, 238 508, 235 N.W.2d 2d N.W.2d Kading, 70 Wis. (1975) has the (concluding supreme court N.W.2d judge to file VII, require 3 to Article Section authority under Phelan, 314, statement); In re 225 Wis. financial disclosure (1937) supreme court would (concluding that 274 N.W. in the proceedings further to restrain prohibition a writ of issue of a similar action County because for Rock circuit court parties pending controversy and same involving the same 256, 279 County, 90 Wis. 2d court); v. Pierce McEwen federal (1979) though a circuit court order (concluding even N.W.2d author superintending supreme court's appealable, not was merits of the circuit it to reach the permits all courts ity over Blossom, 1 Wis. 277 decision); Attorney General v. The court's (1853) original juris supreme court had (concluding the [*317] VII, Section listed in Article the writs diction to issue warranto); v. Chi. & N.W. Attorney General including quo (1874) had Co., (concluding Ry. 35 Wis. 425 attorney by the entertain an action original jurisdiction to State against companies); railroad injunction general to issue an (1908) Helms, 432, 118 N.W. 158 136 Wis. v. ex rel. Umbreit writ to a trial court supervisory of a (denying the issuance there was another complaint because a criminal dismissed State, 87 N.W. 1072 Wis. remedy); Seiler adequate (1901) of the su (concluding superintending that the in the controlling ‍‌​​‌‌‌‌‌‌​‌​​‌​‌​​​​‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​​‌​​‌​‍courts other state court is limited preme Bar, Integration In re jurisdiction); their exercise of (1946) Bar (concluding the State 523, 25 N.W.2d 500 Wis. VII, integrated; Article should not be of Wisconsin Association mentioned); Promulgation In a Code re 3 is not Section N.W.2d 873, 155 Ethics, N.W.2d 2d Judicial 36 Wis. (1967) had inherent (concluding that the judicial enact a code of sufficient to supervisory powers implied ethics).

recording requirements majority opinion. out in the set My stretching sole concern that in our constitutional powers goal good I to achieve a believe to be up Wisconsin, we set a mechanism without checks and judicial long term, balances. Over the restraint better people serves the of Wisconsin than the concentration majority opinion employs. As Justice validity [principle] H. said, Robert Jackson "the of a depend gores." not does on whose ox it Wellsv. Simonds Co., Abrasive 345 U.S. I Accordingly, respectfully portion majority dissent from that of the opinion requires tape recording questioning of the juveniles suppression of quired recording. and mandates absent the re- I am authorized to state that Justice JON joins E WILCOX the discussion of VII, Article Section 3 Wisconsin Constitution this concurrence and dissent.

Case Details

Case Name: State v. Jerrell C.J.

Court Name: Wisconsin Supreme Court

Date Published: Jul 7, 2005

Citation: 699 N.W.2d 110

Docket Number: 2002AP3423

Court Abbreviation: Wis.