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). When previously unknown information is raised by the circuit court at a sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at the sentencing hearing. State v. Counihan, 2020 WI 12, 390 Wis. 2d 172, 938 N.W.2d 530, 17-2265. When the primary purpose of a report was neither to “gather evidence for” nor “substitute for testimony in” the prosecution of the defendant, the report and related testimony did not constitute “testimonial” statements. As a result, the confrontation clause was not implicated. State v. Nelson, 2021 WI App 2, 395 Wis. 2d 585, 954 N.W.2d 11, 19-0194. See also State v. Keller, 2021 WI App 22, 397 Wis. 2d 122, 959 N.W.2d 343, 19-1573. 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).
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000014/000026
section
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