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The Supreme Court of Wisconsin has issued a series of decisions in its 2004-2005 term which significantly changed that court’s interpretation of the Wisconsin Constitution in the area of criminal law. 

In two cases the court announced that after many decades it would no longer necessarily interpret similarly-worded provisions in the federal and state constitutions in concert. Rather, the majority of the state supreme court adopted an approach termed the “new federalism,” which encourages state courts interpreting state constitutional provisions to view them more broadly than federal constitutional provisions using similar or identical language. 

In the first case, the court limited the use of “show-up” identifications, in which a suspect is presented singly to a witness for identification purposes.1 Police detained the defendant within minutes after an armed robbery. The victim viewed the defendant as he sat in the rear of a police squad car. The victim said he was “98% sure” that the defendant was the robber. At a second “show-up” of the defendant at the police station the victim again identified the defendant. Shortly thereafter, the victim identified the defendant a third time as the perpetrator, this time in a “mug shot.” 

Although the trial court and the state appeals court denied the defendant’s motion to suppress his identification, the supreme court held that evidence obtained from an out-of-court “show-up” is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. In its ruling the court relied on social science studies which concluded that “show ups” were inherently suggestive. The court found that a “show-up” was not necessary unless the police lacked probable cause to make an arrest, or as a result of other exigent circumstances could not have conducted a line-up or photo array. The court found that the admission of out-of-court identification evidence denied the defendant a right to due process under the Wisconsin state constitution.

The justices in dissent referenced the many previous Wisconsin decisions which had ruled that the almost identical language of the state and federal constitutional “due process” provisions resulted in identical interpretations, and how this case’s result was a departure therefrom. The dissenting justices were troubled by the majority’s reliance on social science studies to justify departure from stare decisis. One justice wrote: “It is not the function of this court to create what it considers good social policy based on data from social science ‘studies.’ That is the province of the legislature.”2 Another dissenting justice cited other social science theory on the subject of identifications to the contrary of that relied on by the majority.3

In a second case, the supreme court ruled that physical evidence obtained after police violated a suspect’s Miranda warnings may not be considered at a trial.4 A police detective asked the defendant, a suspect in a homicide, what the defendant had been wearing the previous evening when he was seen with the victim. The defendant pointed to a pile of clothing on the floor, within which was a bloody sweatshirt. The detective posed the question before he read the defendant the Miranda warnings.

The trial court denied the defendant’s suppression motion, but the Supreme Court of Wisconsin reversed, concluding that physical evidence obtained as the direct result of a Miranda violation should be suppressed when the violation was an intentional attempt to prevent the suspect from exercising his Fifth Amendment rights. The state petitioned for a writ of certiorari in the Supreme Court of the United States, which was granted, and that Court vacated the Wisconsin court’s decision for further consideration in light of United States v. Patane, 542 U.S. 630 (2004), which held that the fruit of the poisonous tree doctrine does not extend to derivative evidence discovered as a result of a defendant’s voluntary statements without Miranda warnings.

On remand, the Supreme Court of Wisconsin ruled that the “fruit of the poisonous tree” doctrine does apply to this case’s circumstances under the Wisconsin state constitution. The court found the police conduct in the case “particularly repugnant and requiring deterrence” (2004 WI 127 at paragraph 75), and asserted that the judicial system “is systemically corrupted” when law enforcement takes unwarranted investigatory shortcuts to obtain convictions.5 Accordingly, it applied the exclusionary rule to bar physical evidence obtained from a deliberate Miranda violation.

The dissenting justices in these opinions took issue with the state supreme court’s reliance on the “new federalism” as substantial deviations from past precedent and violations of the principle of stare decisis. “When legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results,” one justice wrote.6 To another, the majority had not advanced the necessary extraordinary showing which the court had demanded to overrule one of its precedents.7 One dissenting justice wrote that “[w]e should not suddenly change our well-settled manner of interpreting [the state constitution] simply to avoid the impact of the United States Supreme Court’s recent decision in Patane.”8

In a third case, the Supreme Court of Wisconsin relied on an old state constitutional provision in a new way. The court adopted a rule requiring police to record electronically all interviews of juveniles.9 To so rule the court relied on the “superintending and administrative authority” clause in the Wisconsin Constitution.

In this decision, all seven justices agreed that the juvenile defendant’s confession was involuntary and that his conviction should be reversed. The court found that following the juvenile’s arrest, the failure of police to call the juvenile’s parents was strong evidence that coercive tactics were used to elicit incriminating statements. But a majority of the court then pronounced that all custodial interviews of juveniles in future criminal cases in Wisconsin must be recorded electronically when feasible, and without exception when questioning occurs within a detention facility. 

The court majority relied on the Supreme Court’s “supervisory and administrative authority” as the legal basis for its pronouncement. The court stated that it “has authority to adopt rules governing the admissibility of evidence,”10 and concluded that by this ruling it was “exercis[ing] our supervisory power to insure the fair administration of justice.”11 The decision makes any unrecorded interrogations and any written statements of a juvenile that are not accompanied by recorded interrogations inadmissible as evidence in court. 

The dissenting justices questioned the interpretation of this “superintending and administrative authority” constitutional provision in such a broad manner, as well as the court’s authority to make such a pronouncement.

One dissenting justice noted the separation of powers problem raised by the supreme court regulating how law enforcement, a part of the executive branch of government, accomplishes its official duties. “The court should have recommended legislation instead of legislating from the bench.” 12 “Somehow the court’s superintending authority over all courts has been transformed into broad authority to mandate desirable policy ostensibly related to judicial proceedings but extending far beyond the litigants in a specific case.”13

According to another dissenting justice, the Supreme Court of Wisconsin “has never before concluded that it had the power to suppress defendants’ statements in certain situations merely because it preferred a different law enforcement technique in the procurement of those statements.”14

These decisions represent the last word on these issues. By interpreting the state constitution in each case, and in the Knapp case resting its decision on “independent and adequate state law grounds,” the Supreme Court of Wisconsin precluded any further review by the Supreme Court of the United States.

Sidebars:

1. Massachusetts: In May 2005 the Massachusetts Supreme Judicial Court (“SJC”)

decided Commonwealth v. Martin, 444 Mass. 213 (2005). In that case the SJC rejected United States v. Patane, 542 U.S. 630 (2004), and held, under the state constitution, that evidence seized as a result of a statement obtained in violation of Miranda must be suppressed. Martin, 444 Mass. at 215. The SJC provided no real analysis why the state constitution differed from the federal constitution on this point, but instead relied on the fact that it had previously rejected U.S. Supreme Court precedent on Miranda.

In August 2004 the SJC decided Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). The SJC rejected creating a rule that untaped confessions would be inadmissible. Instead, it required a jury instruction whenever an un-taped confession was introduced where that confession was obtained either (1) during custodial interrogation or (2) in a place of detention. The instruction tells the jury that the “State’s highest court has expressed a preference that such interrogations be recorded whenever practicable” and warns the jurors to “weigh [them] with great caution and care.” The instruction was to apply to all further trials, even where the questioning occurred prior to the decision.

2. Wisconsin: Civil law decisions by the Supreme Court of Wisconsin have also generated controversy. The October 2005 issue of State Court Docket Watch describes in detail how product liability law was greatly expanded in Wisconsin in Thomas v. Mallett, 2005 WI 129, in which the court adopted a “risk contribution” theory of liability and ruled that a plaintiff injured as a result of ingesting lead paint chips and dust could sue various paint companies for manufacturing one of the raw materials formerly used in paint.

The state supreme court also struck down as unconstitutional Wisconsin’s cap on non-economic damages in medical malpractice cases not involving wrongful death of the patient.15 In this case the plaintiffs challenged the constitutionality of those statutory limits as violative of the equal protection guarantee of the Wisconsin constitution. In its review the court employed a new legal standard less deferential to the state legislature. As a result of the review, the majority concluded that “a rational relationship does not exist between the classifications of victims in the $350,000 cap on noneconomic damages and the legislative objective of compensating victims of medical malpractice fairly.”

The justices in dissent noted the separation of powers problem in the court’s change in its standard of review, and concluded that the majority’s “disproportionality” finding could apply to any cap. 

 

Endnotes

1 State v. Dubose, 2005 WI 126. 

2 Id at para. 66. 

3 Id at para. 90. 

4 State v. Knapp, 2005 WI 127. 

5 Id. at para. 81. 

6 Id. at para. 96 (citation omitted). 

7 Id. at para. 101. 

8 Id. at para. 102. 

9 State v. Jerrell C.J., 2005 WI 105. 

10 Id. at para. 48. 

11 Id. at para. 58. 

12 Id. at para. 132. 

13 Id. at para. 146. 

14 Id. at para. 162. 

15 Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.