Confrontation
Clause Case Analysis
March
17, 2004
The
two areas of law most likely to be affected by the decision are domestic violence
cases and sensitive crimes — the areas most commonly plagued by uncooperative
witnesses.
Only
one Wisconsin case is expressly rejected by the U.S. Supreme Court in its discussion
— State v. Bintz, 2002 WI App 204, 257 Wis.2d 177, 650 N.W.2d 913 —
but every Confrontation Clause case decided since Ohio v. Roberts, 448 U.S. 56
(1980), is suspect, and must be reconsidered anew.
Bintz
actually involved hearsay of two witnesses — the defendant's (Robert Bintz)
brother, David, and David's cellmate. David admitted to involvement in a murder,
and implicated Robert in a statement to police. Under the decision in this case,
the statement is clearly testimonial, and inadmissible.
The
cellmate testified both at Robert's preliminary hearing and at David's trial.
The cellmate's testimony at the preliminary hearing is apparently admissible,
because Robert had the opportunity to cross-examine.
However,
the cellmate was only testifying as to what David told him, so it is "hearsay
within hearsay." Because Robert cannot cross-examine David, the cellmate
could not testify as to what David told him, assuming David's statements qualify
as "testimonial."
Interestingly,
the cellmate also testified as to what David said in his sleep. Presumably, talking
in one's sleep would not qualify as "testimonial."
Another
recent Wisconsin decision likely to be reversed is State v. Hale, 2003 WI App
238, 672 N.W.2d 130, review granted, Feb. 24, 2000.
In
Hale, the court of appeals concluded that prior testimony from a co-defendant's
trial is admissible at the defendant's trial because the co-defendant had opportunity
to cross-examine the witness.
While
the decision in the case at bar does not address this situation, given the Court's
emphatic defense of the right of confrontation, the decision in Hale should be
expected to be overturned.
The
cases most clearly overturned are those in which testimonial hearsay was admitted
pursuant to the residual hearsay exception, sec. 908.045(6). Those cases admit
testimonial hearsay based on "comparable circumstantial guarantees of trustworthiness."
Admission
of such statements, however, is patently inconsistent with the Supreme Court's
conclusion that, "the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually prescribes: confrontation."
Accusations
of sexual assault made well after the incidents should therefore no longer be
admissible. Thus, State v. Sorenson, 143 Wis.2d 226, 421 N.W.2d 77 (1988), which
upheld statements to a social worker under the residual exception, should be deemed
no longer valid law.
One hearsay
exception (besides dying declaration, which the court suggested remains outside
the Confrontation Clause) that may still pass constitutional muster is the recent
perception exception, sec. 908.045(2), recently at issue in State v. Weed, 2003
WI 85, 263 Wis.2d 434, 666 N.W.2d 485.
To
qualify for the recent perception exception, a statement must be made "not
in response to the instigation of a person engaged in investigating ... a claim."
Thus, any statement that fits into the exception arguably does not qualify as
"testimonial," and is therefore still admissible.
A
big question in domestic violence cases will be whether admission of 911 calls,
which are frequently essential for a successful prosecution, are barred by the
Confrontation Clause.
Admission
of 911 calls was upheld by the Wisconsin Court of Appeals in State v. Ballos,
230 Wis.2d 495, 602 N.W.2d 117 (Ct.App.1999), as either excited utterances, statements
of recent perception, or present sense impressions.
If
911 calls are nontestimonial, Ballos remains good law; if not, Ballos fails. However,
as Chief Justice Rehnquist noted in his concurrence, it will be "months or
years" before the definition of "testimonial" is set.
-
David Ziemer
David
Ziemer can be reached by email.
