Cruel and unusual punishment extends to the denial of medical care if a serious medical need was ignored and prison officials were deliberately indifferent to the inmate’s condition. A serious medical need means that the illness or injury is sufficiently serious to make the refusal uncivilized. Deliberate indifference implies an act so dangerous that the defendant’s knowledge of the risk of harm from the resulting act can be inferred. Cody v. Dane County, 2001 WI App 60, 242 Wis. 2d 173, 625 N.W.2d 630, 00-0549. The defendant’s life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of the defendant’s life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant’s life expectancy, it must explain, on the record, how the defendant’s life expectancy fits into the sentencing objectives. State v. Stenzel, 2004 WI App 181, 276 Wis. 2d 224, 688 N.W.2d 20, 03-2974. In addressing whether a sentence constitutes cruel and unusual punishment and is excessive, a court looks to whether the sentence is so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Davis, 2005 WI App 98, 281 Wis. 2d 118, 698 N.W.2d 823, 04-1163. A prisoner has a liberty interest in avoiding forced nutrition and hydration, but the Department of Corrections may infringe on the prisoner’s liberty interest by forcing the prisoner to ingest food and fluids against the prisoner’s will. A court may enter a temporary ex parte order for involuntarily feeding and hydration if exigent circumstances require immediate involuntary treatment in order to avoid serious harm to or the death of an inmate. Continuation of the order requires the right to an evidentiary hearing when the department’s allegations are disputed, the opportunity to meaningfully participate in the evidentiary hearing, and that the order cannot be of indefinite or permanent duration without periodic review. DOC v. Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, 05-2750. Sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional and is not unduly harsh and excessive. Fourteen-year-olds who commit homicide do not have the same diminished moral culpability as those juvenile offenders who do not commit homicide. Sentencing a 14-year-old to life imprisonment without parole for committing intentional homicide serves the legitimate penological goals of retribution, deterrence, and incapacitation. That the defendant was 14 years old at the time of the offense and suffered an indisputably difficult childhood does not automatically remove the punishment out of the realm of proportionate. State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451, 08-1139. See also State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. While Saenz, 2007 WI App 25, addressed initial authorization for forced feeding, it is consistent with Saenz to require that, when the Department of Corrections seeks a continuation of that authorization, the focus is on what will likely occur if the authorization to force feed is terminated. In those circumstances the department must show that: 1) if forced feeding is withdrawn, it is likely the inmate would continue the inmate’s hunger strike; and 2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. Because of the presumptive validity of the medical opinions that support the necessity for continued forced feeding of a prisoner, the circuit court must accept them unless there is evidence that they are a substantial departure from accepted medical judgment, practice, or standards. A medical opinion is presumptively a “reliable medical opinion” within the meaning of the showing the Department of Corrections must make when the opinion is that of a licensed physician who is qualified by training or experience to render the opinion and the opinion is based on a proper evidentiary foundation. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. A prisoner’s objections to the manner of forced feeding that may implicate the 8th amendment protection against cruel and unusual punishment are properly before the circuit court when the Department of Corrections seeks a continuation of authorization to force feed the prisoner. When the allegation is one of excessive force, the 8th amendment protects against force that is not applied in a good faith effort to maintain order but is maliciously and sadistically applied to cause harm. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. A proportionality test is utilized for determining whether a forfeiture is unconstitutionally excessive, considering the nature of the offense, the purpose of the statute, the maximum potential fine for the offense, and the harm that actually resulted from the defendant’s conduct. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226. Forfeiture of a convicted drug seller’s financial interest in a vehicle did not violate the excessive fines clause, but forfeiture of a co-titleholder’s full financial interest in the vehicle was a different matter when undisputed testimony was that the co-titleholder had no knowledge of illegal activity and did not consent to it. The co-titleholder was entitled to any remaining proceeds beyond the drug seller’s financial interest in the vehicle after its sale. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226. The basic precept underlying the prohibition against cruel and unusual punishment is one of proportionality that punishment for the crime should be graduated and proportional to both the offender and the offense. A punishment violates that prohibition if it is inconsistent with evolving standards of decency that mark the progress of a maturing society. In deciding a categorical challenge such as this, a court will first consider objective indicia of society’s standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Second, notwithstanding such objective evidence, a court will exercise its own independent judgment to determine whether the punishment violates the constitutional prohibition. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. The U.S. Supreme Court in Miller, 567 U.S. 460 (2012), did not foreclose a sentencer’s ability to sentence a juvenile to life without the possibility of parole in homicide cases, but required sentencing courts to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Thus, it is not unconstitutional to sentence a juvenile to life imprisonment without the possibility of supervised release for intentional homicide under s. 973.014 (1g) (a) 3. if the circumstances warrant it. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. The mandatory minimum of 20 years’ imprisonment provided by s. 973.014 (1g) (a) 1. as applied to children does not violate the prohibitions against cruel and unusual punishment contained in the U.S. and Wisconsin Constitutions. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. A defendant’s life sentence was not cruel and unusual when the defendant’s three property crime felony convictions subjected the defendant to a recidivist penalty. Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). The excessive fines clause of the U.S. Constitution does not apply to civil punitive damage awards in actions between private parties. Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Exposure to an unreasonable risk of serious damage to future health is a basis for a cause of action for cruel and unusual punishment. Risk from environmental tobacco smoke was a basis for a cause of action. Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993). A sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the California three strikes law, is not grossly disproportionate and therefore does not violate the prohibition on cruel and unusual punishments. Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003). A state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. The state must give defendants some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, but the 8th amendment does not require the state to release that offender during the offender’s natural life. Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). A mandatory life sentence without parole for those under the age of 18 at the time of their crimes violates the 8th amendment’s prohibition on cruel and unusual punishments. Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The excessive fines clause of the 8th amendment to the U.S. Constitution is an incorporated protection, applicable to the states under the 14th amendment’s due process clause. Timbs v. Indiana, 586 U.S. ___, 139 S. Ct. 682, 203 L. Ed. 2d 11 (2019). A separate factual finding of permanent incorrigibility is not required before a sentencer imposes a life-without-parole sentence on a murderer under 18 years of age. Jones v. Mississippi, 593 U.S. ___, 141 S. Ct. 1307, 209 L. Ed. 2d 390 (2021). The “unnecessary and wanton infliction of pain” proscribed by the 8th amendment includes a prohibition on deliberate indifference to the serious medical needs of prisoners. To establish such a claim, a plaintiff must demonstrate that: 1) the prisoner’s condition was objectively serious; and 2) the defendants were deliberately indifferent to the prisoner’s health or safety. A serious medical condition is one that has been diagnosed by a physician or that is so obvious that even a lay person would perceive the need for a doctor’s attention. A medical condition need not be life threatening to be serious; rather, it could be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated. The test for deliberate indifference is subjective: the plaintiff must show that the officials were both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that they actually drew the inference. Orlowski v. Milwaukee County, 872 F.3d 417 (2017). Persons confined in the central state hospital under ss. 51.20, 51.37, 971.14, 971.17, and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy, 511 F. Supp. 1325 (1981). A prisoner has no liberty interest in avoiding transfer to any prison, whether within or without the state. Berdine v. Sullivan, 161 F. Supp. 2d 972 (2001). Incarcerating a person beyond the termination of the person’s sentence without penological justification violates the 8th amendment prohibition against cruel and unusual punishment when it is the product of deliberate indifference. To comply with due process, prison officials cannot ignore an inmate’s request to recalculate the inmate’s sentence and must place some procedure in place to address such requests. Russell v. Lazar, 300 F. Supp. 2d 716 (2004). With respect to juvenile offenders convicted of crimes other than homicide, Graham, 560 U.S. 48 (2010), suggests that there is a point when the 8th amendment to the U.S. Constitution prohibits parole officials from refusing to grant parole solely based on the seriousness of the offense. However, nothing in Graham prohibits the Wisconsin Parole Commission from considering the seriousness of the offense and the consequences to the victims in making parole decisions. Heredia v. Blythe, 638 F. Supp. 3d 984 (2022). Solitary confinement—Punishment within the Letter of the Law, or Psychological Torture? Thoenig. 1972 WLR 223.
Constitutional Law—Eighth Amendment—Appellate Sentence Review. Graupner. 1976 WLR 655.
I,7Rights of accused. Section 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law. confrontation and compulsory process
The right to have compulsory process to obtain witnesses in one’s behalf does not require that the state be successful in attempting to subpoena the defendant’s witnesses, but only that the process issue and that a diligent, good-faith attempt be made by the officer to secure service of the process. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except when it is clearly shown that there has been an abuse of discretion. Elam v. State, 50 Wis. 2d 383, 184 N.W.2d 176 (1971). An accused should be allowed to cross-examine to discover why an accomplice has pleaded guilty and has testified against him. Champlain v. State, 53 Wis. 2d 751, 193 N.W.2d 868 (1972). When a witness is not available for trial and when the defendant has had a prior opportunity to cross-examine that witness, former testimony, including that given at a preliminary examination, may be introduced without violating either constitutional mandates or the hearsay rule of evidence. State v. Lindsey, 53 Wis. 2d 759, 193 N.W.2d 699 (1972). Because there was no showing that the witness was permanently ill, the defendant was denied the constitutional right to confrontation by the court allowing the use of the witness’s deposition. Sheehan v. State, 65 Wis. 2d 757, 223 N.W.2d 600 (1974). Whether a witness’s refusal on 5th amendment grounds to answer otherwise permissible questions violates the defendant’s right to confrontation must be determined from the whole record. West v. State, 74 Wis. 2d 390, 246 N.W.2d 675 (1976). Admission of double hearsay did not violate the defendant’s right to confront witnesses. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976). Introduction into evidence of a victim’s hospital records unsupported by testimony of the treating physician did not violate the defendant’s right of confrontation and cross-examination. State v. Olson, 75 Wis. 2d 575, 250 N.W.2d 12 (1977). The trial court did not deny the defendant’s right of confrontation by forbidding cross-examination of the sole prosecution witness as to the witness’s history of mental illness, since no showing was made that the history was relevant to the witness’s credibility. The right of confrontation is also limited by s. 904.03 if the probative value of the desired cross-examination is outweighed by the possibility of unfair or undue prejudice. Chapin v. State, 78 Wis. 2d 346, 254 N.W.2d 286 (1977). The defendant’s right of confrontation was not violated when preliminary examination testimony of a deceased witness was admitted at trial when the defendant had unlimited opportunity to cross-examine the witness and the testimony involved the same issues and parties as at trial. Nabbefeld v. State, 83 Wis. 2d 515, 266 N.W.2d 292 (1978). A defendant’s right to compulsory process did not require admission of an unstipulated polygraph exam. Lhost v. State, 85 Wis. 2d 620, 271 N.W.2d 121 (1978). The trial court did not err in favoring a witness’s right against self-incrimination over the compulsory process rights of the defendant. State v. Harris, 92 Wis. 2d 836, 285 N.W.2d 917 (Ct. App. 1979). The state’s failure to use the Uniform Extradition Act to compel the presence of a doctor whose hearsay testimony was introduced denied the accused’s right to confront witnesses and violated the hearsay rule, but the error was harmless. State v. Zellmer, 100 Wis. 2d 136, 301 N.W.2d 209 (1981). Medical records, as explained to the jury by a medical student, were sufficient to support a conviction and did not deny the right of confrontation. Hagenkord v. State, 100 Wis. 2d 452, 302 N.W.2d 421 (1981). The trial court properly denied a request to present a defense witness who refused to answer relevant questions during an offer of proof cross-examination. State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810 (1981). Admission of a statement by a deceased co-conspirator did not violate the right of confrontation. State v. Dorcey, 103 Wis. 2d 152, 307 N.W.2d 612 (1981). Cross-examination, not exclusion, is the proper tool for challenging the weight and credibility of accomplice testimony. State v. Nerison, 136 Wis. 2d 37, 401 N.W.2d 1 (1987). A defendant waives the right of confrontation by failing to object to the trial court’s finding of witness unavailability. State v. Gove, 148 Wis. 2d 936, 437 N.W.2d 218 (1989). A prosecutor who obtains an incriminating statement from a defendant is obliged to honor a subpoena and to testify at a suppression hearing if there is a reasonable probability that testifying will lead to relevant evidence. State v. Wallis, 149 Wis. 2d 534, 439 N.W.2d 590 (Ct. App. 1989). A defendant had no confrontation clause rights as to hearsay at a pretrial motion hearing. The trial court could rely on hearsay in making its decision. State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990). Allegations of professional misconduct against the prosecution’s psychiatric expert initially referred to the prosecutor’s office but immediately transferred to a special prosecutor for investigation and possible criminal proceedings were properly excluded as the subject of cross-examination of the expert due to the lack of a logical connection between the expert and prosecutor necessary to suggest bias. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991). The ability of a child witness to speak the truth or communicate intelligently are matters of credibility for the jury, not questions of competency to be determined by the judge. State v. Hanna, 163 Wis. 2d 193, 471 N.W.2d 238 (Ct. App. 1991). When a witness’s “past-recollection recorded statement” was admitted after the witness testified and was found “unavailable” as a result of having no current memory of the murder in question, there was an opportunity for cross-examination and the right to confrontation was not violated. State v. Jenkins, 168 Wis. 2d 175, 483 N.W.2d 262 (Ct. App. 1992). A defendant charged with trespass to a medical facility is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino, 170 Wis. 2d 576, 489 N.W.2d 678 (Ct. App. 1992). An indigent may be entitled to have a court compel the attendance of an expert witness. It may be error to deny a request for an expert to testify on the issue of suggestive interview techniques used with a young child witness if there is a “particularized need” for the expert. State v. Kirschbaum, 195 Wis. 2d 11, 535 N.W.2d 462 (Ct. App. 1995), 94-0899. In this case, the defendant’s right to confrontation was violated when the trial court failed to give the jury a limiting instruction regarding out-of-court statements made by a nontestifying codefendant. State v. Mayhall, 195 Wis. 2d 53, 535 N.W.2d 473 (Ct. App. 1995), 94-0727. But see Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998); Samia v. United States, 599 U.S. ___, 143 S. Ct. 2004, 216 L. Ed. 2d 597 (2023). An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic, 200 Wis. 2d 210, 546 N.W.2d 501 (Ct. App. 1996), 95-0881. The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall, 202 Wis. 2d 29, 549 N.W.2d 418 (1996), 94-1213. Evidence of 911 calls, including tapes and transcripts of the calls, is not inadmissible hearsay. Admission does not violate the right to confront witnesses. State v. Ballos, 230 Wis. 2d 495, 602 N.W.2d 117 (Ct. App. 1999), 98-1905. For a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant’s defense. Under the first part of the inquiry, a defendant must demonstrate that the proffered testimony satisfies each of the following four requirements: 1) the testimony of the expert witness meets the s. 907.02 standards governing the admission of expert testimony; 2) the expert testimony is clearly relevant to a material issue in the case; 3) the expert testimony is necessary to the defendant’s case; and 4) the probative value of the expert testimony outweighs its prejudicial effect. Under the second part of the inquiry, the court must determine whether the defendant’s right to present the proffered evidence is nonetheless outweighed by the state’s compelling interest to exclude the evidence. State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 777, 00-2830. Cross-examination of a highly qualified witness, who is familiar with the procedures used in performing the tests whose results are offered as evidence, who supervises or reviews the work of the testing analyst, and who renders the expert’s own expert opinion is sufficient to protect a defendant’s right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, 00-3065. When the privilege against self-incrimination prevents a defendant from directly questioning a witness about his or her testimony, it may be necessary to prohibit that witness from testifying or to strike portions of the testimony if the witness has already testified. A defendant’s right of confrontation is denied in each instance that potentially relevant evidence is excluded. The question is whether the defendant could effectively cross-examine the witness. State v. Barreau, 2002 WI App 198, 257 Wis. 2d 203, 651 N.W.2d 12, 01-1828. When a witness’s memory, credibility, or bias was not at issue at trial, the inability of the defendant to cross-examine the witness at the preliminary hearing with questions that went to memory, credibility, or bias did not present an unusual circumstance that undermined the reliability of the witness’s testimony. Admission of the unavailable witness’s preliminary hearing testimony did not violate the defendant’s constitutional right to confrontation. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303. Prior testimony may be admitted against a criminal defendant only when that defendant has had a prior opportunity to cross-examine the witness giving that testimony. State v. Hale, 2005 WI 7, 277 Wis. 2d 593, 691 N.W.2d 637, 03-0417. Unavailability for confrontation purposes requires both that the hearsay declarant not appear at the trial and, critically, that the state make a good-faith effort to produce that declarant at trial. If there is a remote possibility that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. The lengths to which the prosecution must go to produce a witness is a question of reasonableness. State v. King, 2005 WI App 224, 287 Wis. 2d 756, 706 N.W.2d 181, 04-2694. Casual remarks on the telephone to an acquaintance plainly were not testimonial. That an informant overheard the remarks does not transform the informant into a government officer or change the casual remark into a formal statement. Statements made in furtherance of a conspiracy by their nature are not testimonial. State v. Savanh, 2005 WI App 245, 287 Wis. 2d 876, 707 N.W.2d 549, 04-2583. A witness’s claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the confrontation clause if the witness is present at trial, takes an oath to testify truthfully, and answers the questions put to the witness during cross-examination. In contrast to cases when the witness either invokes the 5th amendment and remains silent or refuses to be sworn in or testify, when a witness takes the stand, agrees to testify truthfully, and answers the questions posed by defense counsel, defense counsel is able to test the witness’s recollection, motive, and interest and hold the witness’s testimony up so that the jury can decide whether it is worthy of belief. State v. Rockette, 2006 WI App 103, 294 Wis. 2d 611, 718 N.W.2d 269, 04-2732. Despite the state constitution’s more direct guarantee to defendants of the right to meet their accusers face to face, the Wisconsin Supreme Court has generally interpreted the state and federal rights of confrontation to be coextensive. The U.S. Supreme Court’s decision in Crawford, 541 U.S. 36 (2004), does not represent a shift in confrontation-clause jurisprudence that overturns state and federal precedents permitting a witness to testify from behind a barrier upon a particularized showing of necessity. State v. Vogelsberg, 2006 WI App 228, 297 Wis. 2d 519, 724 N.W.2d 649, 05-1293. The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under the standard rules of evidence. When evidence is irrelevant or not offered for a proper purpose, the exclusion of that evidence does not violate a defendant’s constitutional right to present a defense. There is no abridgement on the accused’s right to present a defense so long as the rules of evidence used to exclude the evidence offered are not arbitrary or disproportionate to the purposes for which they are designed. State v. Muckerheide, 2007 WI 5, 298 Wis. 2d 553, 725 N.W.2d 930, 05-0081. The confrontation clause places no constraints on the use of prior testimonial statements when the declarant appears for cross-examination. It made no difference in this case in which oral statements of a witness were not disclosed until a subsequent police witness testified whether the burden was on the state or the defendant to show that the witness was available for further cross-examination after the court told the witness he could step down. The witness testified and was cross-examined concerning his statements to the police; therefore, defendant’s right to confrontation was not violated. State v. Nelis, 2007 WI 58, 300 Wis. 2d 415, 733 N.W.2d 619, 05-1920. Inasmuch as a criminal defendant does not have an unqualified right to require the appearance of any persons as witnesses for trial, and a defendant’s right to compulsory process at trial must satisfy certain standards, the compulsory process rights of a defendant at the preliminary stage of criminal proceedings also must be subject to reasonable restrictions. The court declines to expand a criminal defendant’s compulsory process rights to encompass a right to subpoena police reports and other non-privileged investigatory materials for examination and copying in anticipation of a preliminary hearing. State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826. By the judge’s reading at a criminal trial the transcript of a hearing at which the defendant appeared to be intoxicated, resulting in additional charges, the jury was essentially provided with the judge’s and the prosecutor’s conclusions at the hearing about the defendant’s guilt with the circuit court and the prosecutor essentially testifying against the defendant, denying the right to cross-examination. State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77, 06-1847. Affidavits verifying nontestimonial bank records in compliance with s. 891.24 are nontestimonial and their admission does not violate the confrontation clause. The affidavits fulfill a statutory procedure for verifying nontestimonial bank records and do not supply substantive evidence of guilt. State v. Doss, 2008 WI 93, 312 Wis. 2d 570, 754 N.W.2d 150, 06-2254. Applying the St. George, 2002 WI 50, test in an operating while intoxicated (OWI) prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on portable breath test results, the right to do so is outweighed by the state’s compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature’s act forbidding that evidence in OWI prosecutions under s. 343.303, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the state’s compelling interest in public safety on its roads. State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, 07-1898. The U.S. Supreme Court in Giles, 554 U.S. 353 (2008), held that forfeiture by wrongdoing required not just that the defendant prevented the witness from testifying, but also that the defendant intended to prevent the witness from testifying. In doing so, the Court reaffirmed the doctrine’s viability generally, but chose a narrower view of its scope than Jensen I, 2007 WI 26. State v. Baldwin, 2010 WI App 162, 330 Wis. 2d 500, 794 N.W.2d 769, 09-1540. Nontestimonial statements are not excluded by the confrontation clause and thereby may be analyzed for purposes of a hearsay objection. The broad version of the forfeiture by wrongdoing analysis, specifically approved in Giles, 554 U.S. 353 (2008), for nontestimonial statements, deems nontestimonial statements admissible if the witness’s unavailability to testify at any future trial was a certain consequence of the murder. State v. Jensen (Jensen II), 2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482, 09-0898. But see Jensen v. Clements, 800 F.3d 892 (2015). The admission of a dying declaration statement violates neither the 6th amendment right to confront witnesses nor the corresponding right under the state constitution. The confrontation right does not apply when an exception to that right was recognized at common law at the time of the founding, which the dying declaration exception was. The fairest way to resolve the tension between the state’s interest in presenting a dying declaration and concerns about its potential unreliability is to freely permit the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case. State v. Beauchamp, 2011 WI 27, 333 Wis. 2d 1, 796 N.W.2d 780, 09-0806. A criminal defendant states a violation of the confrontation clause by showing that the defendant was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. The right to cross-examination, and thereby confrontation, is not, however, absolute. Whether they are faced with the danger of undue prejudice or the specter of psychological trauma to victims, circuit courts can weigh the probative value of the evidence proffered with the dangers it brings. State v. Rhodes, 2011 WI 73, 336 Wis. 2d 64, 799 N.W.2d 850, 09-0025. But see Rhodes v. Dittmann, 903 F.3d 646 (2018). The trial court did not violate the defendant’s right to confrontation by allowing a crime lab technician to rely on a scientific report that profiled the DNA left on the victims by their attacker. State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362, 10-2363. When a non-testifying analyst documents original tests with sufficient detail for another expert to understand, interpret, and evaluate the results, that other expert’s testimony does not violate the confrontation clause. Wisconsin confrontation clause jurisprudence begins with Williams, 2002 WI 58, which sets out a two-part framework to analyze the testimony of an expert witness, relying on forensic tests conducted by a non-testifying analyst. The testifying expert witness must have: 1) reviewed the analyst’s tests; and 2) formed an independent opinion to which the expert testified at trial. State v. Griep, 2015 WI 40, 361 Wis. 2d 657, 863 N.W.2d 567, 09-3073. All toxicology reports similar to the one in this case—solely identifying the concentration of substances present in biological samples sent by the medical examiner as a part of an autopsy protocol—are generally non-testimonial when requested by a medical examiner and not at the impetus of law enforcement. The primary purpose of these toxicology reports is not to create evidence against a defendant in a criminal prosecution; rather, the principal purpose is to provide information to the medical examiner searching for the cause of death. Because there was nothing “testimonial” about the toxicology report used during the defendant’s trial, the confrontation rights of the defendant were not infringed. State v. Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256, 15-0158. Clark, 576 U.S. 237 (2015), pronounces the controlling principles in determining whether an out-of-court statement is “testimonial” and therefore subject to the confrontation clause. The dispositive question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the out-of-court statement is to create an out-of-court substitute for trial testimony. Some factors relevant in the primary purpose analysis include: 1) the formality/informality of the situation producing the out-of-court statement; 2) whether the statement is given to law enforcement or a non-law enforcement individual; 3) the age of the declarant; and 4) the context in which the statement is given. State v. Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256, 15-0158. The confrontation clause does not apply during suppression hearings. The confrontation right protects defendants at trial, when guilt or innocence is at stake. The confrontation clause does not require confrontation of witnesses at suppression hearings. State v. Zamzow, 2017 WI 29, 374 Wis. 2d 220, 892 N.W.2d 637, 14-2603. A defendant cannot show that the defendant’s rights under the confrontation clause were violated before first showing that the allegedly impermissible statements were testimonial. Under the U.S. Supreme Court’s analysis in Clark, 576 U.S. 237 (2015), statements between certain types of individuals are highly unlikely to be testimonial. The statements at issue in this case were the result of a conversation between two inmates—the type of statement that the U.S. Supreme Court and other courts have categorized as unequivocally nontestimonial. State v. Nieves, 2017 WI 69, 376 Wis. 2d 300, 897 N.W.2d 363, 14-1623. See also Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008).
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