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.

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). But see Garcia v. Hepp, 65 F.4th 945 (2023).

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).