From my piece last fall in WI Interest
State v. Jerrell C.J.,involved an appeal from an adjudication of delinquency for armed robbery, party to a crime. The juvenile appellant argued that his confession was involuntary and the court agreed, ordering that it be excluded. But it did much more than that. Although not necessary to decide the case before it, the court decreed that, from now on, all custodial interrogation of juveniles be electronically recorded. Any evidence obtained from unrecorded custodial interrogations will be excluded.
Recording these interrogations may be a good idea. (I happen to believe that it is.) But the court based this new rule, not on the notion that unrecorded interrogations are unlawful or unconstitutional, but by exercising its superintending authority to “tackle” what it deemed to be the “false confession issue.”
The majority maintained that it was not mandating law enforcement practices, but fashioning a rule of evidence. In its view, the police presumably remain “free” to record or not record these interrogations as long as they do not insist upon actually prosecuting juveniles who confess to a crime.
Justifying such regulation because it is implemented through a rule of admissibility (and, therefore, can be called a rule “governing the courts”) establishes a principle with no obvious stopping point. Could the court, for example, exclude the admissibility of all consumer contracts unless they were formed with an array of extrastatutory “notices,” “cooling off periods” and court-mandated disclosures—justified as a “rule of evidence” on the proof of unconscionability or lack thereof? Might a more conservative majority adopt a rule excluding all uncorroborated allegations of racial discrimination in the interest of “tackling the false accusation” issue?
The bottom line is this: There are a variety of issues to be concerned about in today's vote. You can make it about campaign advertising. You can make it about resumes. You can make it about who is touger on crime.
But it is also about this. It's about the role of the judiciary.