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).