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Statements – Suppression: Electronic Recording — Adults

State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis

Issue1Whether failure to electronically record Kramer’s interrogations requires suppression.

Holding1Although the supreme court exercised supervisory authority granted it under Wis. Const. Art. VII, § 7, to require recording of juvenile interrogations, State v. Jerrell C.J., 2005 WI 105, the grant of authority to court of appeals under Wis. Const. Art. VII, § 3, is not similarly worded and “Kramer fails to persuade us we have the authority to adopt the sort of sweeping new exclusionary rule he proposes,” ¶17.

The only address, then, for non-legislative extension of Jerrell C.J. to adult interrogations is the supreme court.

Issue2Whether due process requires that adult interrogations be recorded.

Holding2:

¶18      Kramer next argues that the failure to record an interrogation of an adult is a violation of due process under both the United States and Wisconsin Constitutions. [7] Kramer’s due process argument relies on three cases: JerrellState v. Scales, [8] and Stephan v. State. [9] The first two, Jerrell and Scales, provide no support for Kramer’s due process argument. Rather, both cases are examples of a state’s highest court adopting a rule in its supervisory capacity, an issue we address above.

¶19      The other case Kramer relies on is the Alaska Supreme Court’s decision inStephan. However, Kramer merely cites Stephan; he does not provide a due process analysis and he does not respond to the State’s detailed due process analysis. [10] Because Kramer’s argument is insufficiently developed, we do not address its merits.

Under § 972.115(2), which was enacted after Kramer’s interrogations and thus inapplicable to him, failure to record an interrogation on a felony entitles the defendant to a jury instruction that its absence may be considered in evaluating the interrogation and statement.

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