Tuesday, April 01, 2008

One more thought about judicial activism

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.

3 comments:

Anonymous said...

"It's about the role of the judiciary"


I'm going with Gableman because he sharply contrast Butler in being fair and impartial. I do not believe Butler has been or cares that the courts are fair and impartial. That type of attitude ceratinly reflects in all a person does or does not do.

Terrence Berres said...

"There are a variety of issues to be concerned about in today's vote."

For example, here's Senator Feingold at a Milwaukee ACS event last year, yet the caption indicates he said nothing about the pressing need for more Scalias on the bench.

Brett said...

Activism? The Court previously established rules of evidence governing, for example, polygraph tests and hypnotic induced testimony. (See Jerrell C.J. at paragraph 48). And those Court imposed rules were set back in 1980, the revered heyday of purported non-judicial activism. It's activist to IGNORE these decisions, or, in Gableman's talismanic words, to refrain from giving a fair meaning tho the plain language of those decisions. Activism? Give me a break.