Since
Jensen I,
2007 WI 26, the U.S. Supreme Court decided two cases that addressed the definition of testimonial hearsay. Neither
Bryant,
562 U.S. 344 (2011), nor
Clark,
576 U.S. 237 (2015), altered the confrontation clause analysis set forth in
Crawford,
541 U.S. 36 (2004), and
Davis,
547 U.S. 813 (2006), in any way that undermined the reasoning in
Jensen I that certain hearsay statements were testimonial.
Bryant and
Clark represent developments in applying the primary purpose test, but neither is contrary to it. Rather, those decisions were efforts to “flesh out" the test first articulated in
Crawford and
Davis. State v. Jensen (
Jensen III),
2021 WI 27,
396 Wis. 2d 196,
957 N.W.2d 244,
18-1952.
Hemphill, 595 U.S. ___,
142 S. Ct. 681 (2022), held unconstitutional a rule that allowed evidence that would otherwise violate the confrontation clause to be admitted when the defendant “opened the door,” that is, when the defendant created a misleading impression that required correction with additional materials from the other side. The 6th amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by courts. In this case, the state claimed that DNA evidence contained in a crime lab report was reasonably necessary to correct a misleading impression created by the defendant's expert's testimony and that the defendant impliedly waived the right to confront the author of the crime lab report when that testimony contradicted the report's contents. But the state violated the defendant's rights under the confrontation clause when the state elicited testimony about DNA evidence contained in a crime lab report not in evidence without affording the defendant the opportunity to cross-examine the report's author. State v. Thomas,
2023 WI 9,
405 Wis. 2d 654,
985 N.W.2d 87,
20-0032.
In this case, an eight-year-old child's oral statements to an emergency room nurse and doctor in connection with their examination of the child in the hospital in relation to the alleged sexual assault from that day were all nontestimonial and, thus, did not implicate the confrontation clause because they were made for the primary purpose of medical treatment, not to gather evidence for the defendant's prosecution or substitute for testimony in a criminal prosecution. If the child's communications made directly to police officers at the hospital and the following day at the police station were testimonial, their admission was harmless. State v. Ramirez,
2023 WI App 63,
410 Wis. 2d 224,
1 N.W.3d 719,
21-1590.
When required by the right effectively to present a defense, the state, having authority to do so, in the exercise of sound discretion must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.
The confrontation clause does not require a showing of unavailability as a condition of admission of out-of-court statements of a non-testifying co-conspirator. United States v. Inadi,
475 U.S. 387,
106 S. Ct. 1121,
89 L. Ed. 2d 390 (1986).
The confrontation clause does not require the defendant to have access to confidential child abuse reports. Due process requires the trial court to undertake an in camera inspection of the file to determine whether it contains material exculpatory evidence. Pennsylvania v. Ritchie,
480 U.S. 39,
107 S. Ct. 989,
94 L. Ed. 2d 40 (1987).
Admission of a nontestifying codefendant's confession violates confrontation rights, even though the defendant's confession was also admitted. Cruz v. New York,
481 U.S. 186,
107 S. Ct. 1714,
95 L. Ed. 2d 162 (1987). See also Gray v. Maryland,
523 U.S. 185,
118 S. Ct. 1151,
140 L. Ed. 2d 294 (1998). But see Richardson v. Marsh,
481 U.S. 200,
107 S. Ct. 1702,
95 L. Ed. 2d 176 (1987); Samia v. United States, 599 U.S. ___,
143 S. Ct. 2004,
216 L. Ed. 2d 597 (2023).
The confrontation clause does not require that the defendant be permitted to be present at a competency hearing of a child witnesses as long as the defendant is provided the opportunity for full and effective cross-examination at trial. Kentucky v. Stincer,
482 U.S. 730,
107 S. Ct. 2658,
96 L. Ed. 2d 631 (1987).
If a state makes an adequate showing of necessity, it may use a special procedure, such as one-way closed-circuit television to transmit a child witness's testimony to court without face-to-face confrontation with the defendant. Maryland v. Craig,
497 U.S. 836,
110 S. Ct. 3157,
111 L. Ed. 2d 666 (1990).
The rights to be present at trial and to confront witnesses are not violated by a prosecutor's comment in closing argument that the defendant had the opportunity to hear all witnesses and then tailor his testimony accordingly. Portuondo v. Agard,
529 U.S. 61,
120 S. Ct. 1119,
146 L. Ed. 2d 47 (2000).
The 6th amendment confrontation clause demands unavailability and a prior opportunity for cross-examination. Whatever else the term testimonial covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to police interrogations. Crawford v. Washington,
541 U.S. 36,
124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004).
When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. “Testimonial statements" includes at a minimum prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to police interrogations. Crawford v. Washington,
541 U.S. 36,
124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004).
Statements are nontestimonial under
Crawford,
541 U.S. 36 (2004), when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. A conversation that begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements. Davis v. Washington,
547 U.S. 813,
126 S. Ct. 2266,
165 L. Ed. 2d 224 (2006).
A defendant does not forfeit the right to confront a witness when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial. The “forfeiture by wrongdoing" doctrine applies only when the defendant engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. The requirement of intent means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable. Giles v. California,
554 U.S. 353,
128 S. Ct. 2678,
171 L. Ed. 2d 488 (2008).
Under
Crawford,
541 U.S. 36 (2004), analysts' affidavits that certified that evidence was in fact cocaine were testimonial statements and the analysts were “witnesses" for purposes of the 6th amendment confrontation clause. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. Melendez-Diaz v. Massachusetts,
557 U.S. 305,
129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009).
For purposes of determining whether statements are testimonial for confrontation clause purposes, when an “ongoing emergency," as discussed in
Davis,
547 U.S. 813 (2006), extends beyond an initial victim to a potential threat to the responding police and the public at large, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat to the first victim has been neutralized because the threat to the first responders and public may continue. Michigan v. Bryant,
562 U.S. 344,
131 S. Ct. 1143,
179 L. Ed. 2d 93 (2011).
The confrontation clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification made for the purpose of proving a particular fact through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Bullcoming v. New Mexico,
564 U.S. 647,
131 S. Ct. 2705,
180 L. Ed. 2d 610 (2011).
Under U.S. Supreme Court precedents, a statement cannot fall within the confrontation clause unless its primary purpose was testimonial. When no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the confrontation clause. That does not mean that the confrontation clause bars every statement that satisfies the “primary purpose" test. The confrontation clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. The primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the confrontation clause. Ohio v. Clark,
576 U.S. 237,
135 S. Ct. 2173,
192 L. Ed. 2d 306 (2015).
Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, a categorical rule excluding them from the 6th amendment's reach is not adopted. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. Ohio v. Clark,
576 U.S. 237,
135 S. Ct. 2173,
192 L. Ed. 2d 306 (2015).
Statements by very young children will rarely, if ever, implicate the confrontation clause, and mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution. Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. Ohio v. Clark,
576 U.S. 237,
135 S. Ct. 2173,
192 L. Ed. 2d 306 (2015).
The confrontation clause does not bar the admission of a nontestifying codefendant's confession when: 1) the confession has been modified to avoid directly identifying the nonconfessing codefendant; and 2) the court offers a limiting instruction that jurors may consider the confession only with respect to the confessing codefendant. Samia v. United States, 599 U.S. ___,
143 S. Ct. 2004,
216 L. Ed. 2d 597 (2023).
The 6th amendment confrontation clause is not satisfied merely because the evidence offered by a defendant might be properly excluded under s. 904.03. The confrontation clause limits a trial court's ordinary discretion to limit cross-examination and demands careful scrutiny of the purported reason for limiting cross-examination. A trial court violates the confrontation clause when the court applies ordinary s. 904.03 balancing to limit cross-examination by a defendant on issues central to the defense without giving any special consideration to the defendant's constitutional right to confront witnesses against him. Rhodes v. Dittmann,
903 F.3d 646 (2018).
A finding of unavailability of a witness due to mental illness, made on the basis of a confused and stale record, deprived the defendant of the right to confront witnesses, but the error was harmless. Burns v. Clusen,
599 F. Supp. 1438 (1984).
The use of a child victim's statements to a psychologist under s. 908.03 (4) violated the accused sexual assaulter's confrontation rights. Nelson v. Ferrey,
688 F. Supp. 1304 (1988).
The trial court's wholesale exclusion of the defendant's proffered expert and lay testimony regarding post-traumatic stress disorder from the guilt phase of a murder trial, without valid state justification, violated the defendant's right to present a defense and to testify in the defendant's own behalf. Morgan v. Krenke,
72 F. Supp. 2d 980 (1999).
A Bad Case of Indigestion: Internalizing Changes in the Right to Confrontation After Crawford v. Washington Both Nationally and in Wisconsin. Kinnally. 89 MLR 625 (2006).
State v. Thomas: Face to Face with Coy and Craig—Constitutional Invocation of Wisconsin's Child-Witness Protection Statute. Vaillancourt. 1990 WLR 1613.
Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.
COUNSEL
NOTE: See also the notes to article I, section 8 — Self-incrimination.
A defendant is entitled to the presence of counsel at a post-warrant lineup, but the attorney need not participate or object and need not be the ultimate trial counsel. Wright v. State,
46 Wis. 2d 75,
175 N.W.2d 646 (1970).
A city attorney should not be appointed defense counsel in a state case in which city police are involved unless the defendant, being fully informed, requests the appointment. Karlin v. State,
47 Wis. 2d 452,
177 N.W.2d 318 (1970).
A conference in chambers between defendant's counsel and the prosecutor in regard to a plea agreement, but without the defendant's presence, was not violative of the defendant's constitutional rights and not a manifest injustice since the defendant had the benefit of counsel both during the entry of the defendant's plea and at the sentencing and the defendant on the record expressly acquiesced in the plea agreement. Kruse v. State,
47 Wis. 2d 460,
177 N.W.2d 322 (1970).
A disciplinary action against an attorney is a civil proceeding. An indigent attorney is not entitled to the appointment of an attorney. State v. Hildebrand,
48 Wis. 2d 73,
179 N.W.2d 892 (1970).
An indigent defendant is not entitled to a substitution of appointed counsel when the defendant is dissatisfied with the one appointed. Peters v. State,
50 Wis. 2d 682,
184 N.W.2d 826 (1971).
American Bar Association standards relating to the duty of defense counsel, while approved by the court, do not automatically prove incompetency or ineffectiveness if violated. State v. Harper,
57 Wis. 2d 543,
205 N.W.2d 1 (1973).
An arrestee has no right to demand that counsel be present while a breathalyzer test is administered. State v. Driver,
59 Wis. 2d 35,
207 N.W.2d 850 (1973).
A defendant has no right to counsel or to be present when photographs are shown to a witness. The right to counsel exists only at or after the initiation of criminal proceedings. Holmes v. State,
59 Wis. 2d 488,
208 N.W.2d 815 (1973).
While it is not desirable, it is not error to appoint a city attorney from another city, not connected with the testifying police, as defense attorney. Hebel v. State,
60 Wis. 2d 325,
210 N.W.2d 695 (1973).
A person is not entitled to counsel at a lineup prior to the filing of a formal charge, but prosecution may not be delayed while a suspect is in custody merely for the purpose of holding a lineup without counsel. State v. Taylor,
60 Wis. 2d 506,
210 N.W.2d 873 (1973).
A conviction was not overturned because of the absence of counsel at an informal confrontation where the defendant was identified by the victim. Jones v. State,
63 Wis. 2d 97,
216 N.W.2d 224 (1974).
When a conflict arises in dual representation, a defendant must be granted a vacation of sentence and new hearing because a conflict at sentencing per se renders counsel's representation ineffective and actual prejudice need not be shown. Hall v. State,
63 Wis. 2d 304,
217 N.W.2d 352 (1974).
Defense counsel's failure to cross-examine the state's principal witness at trial did not constitute ineffective representation when cross-examination had proved fruitless at the preliminary. Krebs v. State,
64 Wis. 2d 407,
219 N.W.2d 355 (1974).
The duty to appoint counsel is upon the judicial system as part of the superintending power of the judicial system. When the appointment of counsel for indigent convicted persons for parole and probation revocation proceedings will be recurrent and statewide, the power of appointment will be exercised by the supreme court. State ex rel. Fitas v. Milwaukee County,
65 Wis. 2d 130,
221 N.W.2d 902 (1974).
The trial judge must unconditionally and unequivocably demonstrate in the record that the defendant intelligently, voluntarily, and understandingly waived the constitutional right to counsel, whether or not the defendant is indigent. Keller v. State,
75 Wis. 2d 502,
249 N.W.2d 773 (1977).
When a state agency seeks to enforce its orders through the coercion of imprisonment for contempt, the full constitutional right to counsel arises. Ferris v. State ex rel. Maass,
75 Wis. 2d 542,
249 N.W.2d 789 (1977).
One charged with a crime carrying a penalty of incarceration has the full constitutional right to counsel, regardless of whether incarceration is ordered. State ex rel. Winnie v. Harris,
75 Wis. 2d 547,
249 N.W.2d 791 (1977).
The mere fact that one attorney represents two defendants charged in the same crime is not sufficient evidence of inadequate representation. The defendant has the burden of showing by clear and convincing evidence that an actual and operative conflict existed. Harrison v. State,
78 Wis. 2d 189,
254 N.W.2d 220 (1977).
A defendant has no right to be actively represented in the courtroom both by self and by counsel. Moore v. State,
83 Wis. 2d 285,
265 N.W.2d 540 (1978).
Discussing the test to determine if the denial of a continuance acted to deny a defendant either due process or effective assistance of counsel. State v. Wollman,
86 Wis. 2d 459,
273 N.W.2d 225 (1979).
Discussing withdrawal of a guilty plea on the grounds of ineffective representation by trial counsel. State v. Rock,
92 Wis. 2d 554,
285 N.W.2d 739 (1979).
A defendant's request on the morning of trial to represent himself was properly denied as untimely. Hamiel v. State,
92 Wis. 2d 656,
285 N.W.2d 639 (1979).
A prerequisite to a claim on appeal of ineffective trial representation is preservation of trial counsel's testimony at a postconviction hearing in which the representation is challenged. State v. Machner,
92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App. 1979).
The trial court did not err in refusing the defendant's request on the second day of trial to withdraw a waiver of the right to counsel. Discussing self-representation. Pickens v. State,
96 Wis. 2d 549,
292 N.W.2d 601 (1980).
The right to counsel did not preclude incarceration for a second operating while intoxicated conviction when the defendant was not represented by counsel in proceedings leading to the first conviction, since the first offense was a civil forfeiture case. State v. Novak,
107 Wis. 2d 31,
318 N.W.2d 364 (1982).
Counsel was ineffective for failing to raise the heat-of-passion defense in a murder case when the wife who had been maltreated during a 23-year marriage intentionally killed her husband while he lay sleeping. State v. Felton,
110 Wis. 2d 485,
329 N.W.2d 161 (1983).
A defendant's uncorroborated allegations will not support a claim of ineffective representation when counsel is unavailable to rebut the claim of ineffectiveness. State v. Lukasik,
115 Wis. 2d 134,
340 N.W.2d 62 (Ct. App. 1983).
Effective assistance of counsel was denied when the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig,
124 Wis. 2d 600,
369 N.W.2d 722 (1985).
When a trial court fails to make adequate inquiry into a defendant's last-minute request to replace the defendant's attorney, the right to counsel is adequately protected by a retrospective hearing at which the defendant may present the defendant's own testimony. State v. Lomax,
146 Wis. 2d 356,
432 N.W.2d 89 (1988).
Defense counsel's absence at the return of the jury verdict without the defendant's consent and the failure to poll the jury were grounds for automatic reversal. State v. Behnke,
155 Wis. 2d 796,
456 N.W.2d 610 (1990).
When a defendant accepts counsel, the decision to assert or waive a constitutional right is delegated to the attorney. The failure of the defendant to object to the attorney's waiver is waiver. State v. Wilkens,
159 Wis. 2d 618,
465 N.W.2d 206 (Ct. App. 1990).
There is a two-prong test for ineffective counsel: 1) trial counsel was ineffective; and 2) the defense was prejudiced so that absent error the result would have been different. State v. Wilkens,
159 Wis. 2d 618,
465 N.W.2d 206 (Ct. App. 1990).
A court may disqualify a defendant's chosen counsel over the defendant's objection and waiver of the right to conflict-free representation when actual or a serious potential for a conflict of interest exists. State v. Miller,
160 Wis. 2d 646,
467 N.W.2d 118 (1991).
A determination of indigency by the public defender under s. 977.07 is not the end of the court 's inquiry into the need to appoint counsel. State v. Dean,
163 Wis. 2d 503,
471 N.W.2d 310 (Ct. App. 1991).
The question of ineffective counsel is whether there is a reasonable probability that a jury viewing the evidence untainted by counsel's errors would have had a reasonable doubt respecting guilt. State v. Glass,
170 Wis. 2d 146,
488 N.W.2d 432 (Ct. App. 1992).
A defense attorney's ex parte petition to withdraw was improperly granted. A minimal due process hearing was required. State v. Batista,
171 Wis. 2d 690,
492 N.W.2d 354 (Ct. App. 1992).
Absent a clear waiver of counsel and a clear demonstration of a defendant's ability to proceed pro se, courts are advised to mandate full representation by counsel. State v. Haste,
175 Wis. 2d 1,
500 N.W.2d 678 (Ct. App. 1993).
The proper test of attorney performance is reasonableness under prevailing professional norms. Counsel is not required to have a total and complete knowledge of all criminal law, no matter how obscure. State v. Hubert,
181 Wis. 2d 333,
510 N.W.2d 799 (Ct. App. 1993).
Appellate counsel's closing of a file because of no merit without the defendant knowing of the right to disagree and compel a no merit report under s. 809.32 is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State,
183 Wis. 2d 587,
516 N.W.2d 362 (1994).
An appellate defendant represented by counsel has no right to have a pro se brief considered by the court when counsel has submitted a brief. State v. Debra A.E.,
188 Wis. 2d 111,
523 N.W.2d 727 (1994).
The decision to poll the jury may be delegated to counsel. Waiver by counsel without showing that the waiver was knowingly and voluntarily made by the defendant did not violate a constitutional right. State v. Jackson,
188 Wis. 2d 537,
525 N.W.2d 165 (Ct. App. 1994).
If the same counsel represents co-defendants, the trial court must conduct an inquiry to determine whether the defendant waives the right to separate counsel. When an actual conflict of interest is found, specific prejudice need not be shown. If no inquiry is made by the trial court, the court of appeals will examine the record, reversing if an actual conflict of interest is found. State v. Dadas,
190 Wis. 2d 339,
526 N.W.2d 818 (Ct. App. 1994).
The prejudice prong of the test for ineffective counsel was met when counsel failed to insure that a defense witness would appear without shackles. State v. Tatum,
191 Wis. 2d 547,
530 N.W.2d 407 (Ct. App. 1995).
A suspect's reference to an attorney who had previously or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones,
192 Wis. 2d 78,
532 N.W.2d 79 (1995).
The right to counsel and right to remain silent are the defendant's. An attorney, not requested by the defendant, could not compel the police to end questioning by stating that no questioning was to take place outside his presence. State v. Jones,
192 Wis. 2d 78,
532 N.W.2d 79 (1995).
A defendant must assert the right to counsel in a timely manner. However, no waiver of counsel is presumed and a waiver must be clear and unequivocal. The state has the burden of overcoming the presumption. Mere inconvenience to the court is insufficient to deny the right to counsel. State v. Verdone,
195 Wis. 2d 476,
536 N.W.2d 172 (Ct. App. 1995),
94-3369.
Withdrawal of a guilty plea after sentencing may be based on ineffective assistance of counsel. Erroneous advice regarding parole eligibility can form the basis for ineffective assistance. State v. Bentley,
195 Wis. 2d 580,
536 N.W.2d 202 (Ct. App. 1995),
94-3310.
A trial court's failure to conduct a hearing to determine if a defendant's waiver of counsel is knowingly made is harmless error absent a showing of prejudice. A trial court need not make a finding that a defendant is competent to proceed without counsel unless there is doubt that the defendant is competent to stand trial. State v. Klessig,
199 Wis. 2d 397,
544 N.W.2d 605 (Ct. App. 1996),
95-1938.
In certain situations a court may find that a defendant has waived counsel without having expressly done so. Waiver was found when the defendant constantly refused to cooperate with counsel while refusing to waive the right and when the court found the defendant's intent was to “delay, obfuscate and compound the process of justice." State v. Cummings,
199 Wis. 2d 721,
546 N.W.2d 406 (1996),
93-2445.
The test for ineffective assistance of counsel under the state constitution is the same as under the federal constitution. In such cases the burden is placed on the defendant to show that the deficient performance of counsel prejudiced the defense. State v. Sanchez,
201 Wis. 2d 219,
548 N.W.2d 69 (1996),
94-0208.
Read together, ss. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. When counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus, and the supreme court has the power to allow late filing. State ex rel. Schmelzer v. Murphy,
201 Wis. 2d 246,
548 N.W.2d 45 (1996),
95-1096.
Whether counsel is deficient by not requesting the polling of individual jurors upon the return of a verdict depends on all the circumstances, not on whether counsel explained to the defendant the right to an individual polling. State v. Yang,
201 Wis. 2d 725,
549 N.W.2d 769 (Ct. App. 1996),
95-0583.
