In determining whether a statement is testimonial under
Crawford, a broad definition of testimonial is required to guarantee that the right to confrontation is preserved. The government does not need to be involved in the creation of a testimonial statement. A statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his or her statement might be used in the investigation or prosecution of a crime. It does not matter if a crime has already been committed or not. Statements made to loved ones or acquaintances are not the memorialized type of statements that
Crawford addressed. State v. Jensen,
2007 WI 26,
299 Wis. 2d 267,
727 N.W.2d 518,
04-2481.
The forfeiture by wrongdoing doctrine is adopted in Wisconsin. Essentially, the forfeiture by wrongdoing doctrine states that an accused can have no complaint based on the right to confrontation about the use against him or her of a declarant's statement if it was the accused's wrongful conduct that prevented any cross-examination of the declarant. State v. Jensen,
2007 WI 26,
299 Wis. 2d 267,
727 N.W.2d 518,
04-2481.
In applying the the forfeiture by wrongdoing doctrine the circuit court must determine whether, by a preponderance of the evidence, the defendant caused the witness's unavailability, thereby forfeiting his or her right to confrontation. While requiring the court to decide the evidence the very question for which the defendant is on trial may seem troublesome, equitable considerations demand such a result. State v. Jensen,
2007 WI 26,
299 Wis. 2d 267,
727 N.W.2d 518,
04-2481.
Under the doctrine of forfeiture by wrongdoing announced in
Jensen, the statement of an absent witness is admissible against a defendant who the trial court determines by a preponderance of the evidence caused the witness's absence. When a jury finds beyond a reasonable doubt that the defendant intimidated the person who was a witness, the defendant has forfeited, by his or her own misconduct, the right to confront that witness. State v. Rodriguez,
2007 WI App 252,
306 Wis. 2d 129,
743 N.W.2d 460,
05-1265.
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 test in an 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, 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, 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, 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,
2011 WI App 3,
331 Wis. 2d 440,
794 N.W.2d 482,
09-0898.
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 he or she 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.
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,
253 Wis. 2d 99, which sets out a 2-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 he or she testified at trial. State v. Griep,
2015 WI 40, 361 Wis. 2d 657,
863 N.W.2d 567,
09-3073.
The admission at a pretrial suppression hearing of hearsay statements when the declarant could not be cross-examined did not present a due process problem in this case. While the defendant was not able to challenge the officer's observations for “defects in perception," that did not make the officer's recorded statement unreliable. The officer's recorded statement provided reliable evidence that the officer had observed the defendant cross the center line, providing the legal basis for the stop. State v. Zamzow,
2016 WI App 7,
366 Wis. 2d 562,
874 N.W.2d 328,
14-2603.
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.
Introduction of an accomplice's confession for rebuttal purposes, not hearsay, did not violate the defendant's confrontation rights. Tennessee v. Street,
471 U.S. 409 (1985).
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 (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 (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 (1987).
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 (1987).
The confrontation clause prohibits the placement of a screen between a child witness and the defendant. Coy v. Iowa,
487 U.S. 1012 (1988).
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' testimony to court without face-to-face confrontation with the defendant. Maryland v. Craig,
497 U.S. 836,
111 L. Ed. 2d 666 (1990).
In a joint trial, the confession of one defendant naming the other defendant that was read with the word “deleted" replacing the second defendant's name violated the second defendant's right of confrontation. Gray v. Maryland,
523 U.S. 185,
140 L. Ed. 2d 294 (1998).
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,
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 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, 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).
When an “ongoing emergency," as discussed in
Davis, 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. ___,
131 S. Ct. 2705,
180 L. Ed. 2d 610 (2011).
Under Supreme Court precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. Where 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. ___ (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. ___ (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. ___, (2015)
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 her own behalf. Morgan v. Krenke,
72 F. Supp. 2d 980 (1999).
State v. Thomas: Face to Face With Coy and Craig — Constitutional Invocation of Wisconsin's Child-Witness Protection Statute. 1990 WLR 1613.
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 (2005).
Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.
COUNSEL
Note: See also the notes to Article I, Section 8 — Self-incrimination.
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.
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.
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 his constitutional rights and not a manifest injustice since the defendant had the benefit of counsel both during the entry of his 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.
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.
An indigent defendant is not entitled to a substitution of appointed counsel when he is dissatisfied with the one appointed. Peters v. State,
50 Wis. 2d 682,
184 N.W.2d 826.
ABA 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.
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.
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.
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.
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.
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.
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 representation ineffective and actual prejudice need not be shown. Hall v. State,
63 Wis. 2d 304,
217 N.W.2d 352.
Defense counsel's failure to cross-examine the state's principal witness at trial did not constitute ineffective representation when cross-examination had proved fruitless at the preliminary. Krebs v. State,
64 Wis. 2d 407,
219 N.W.2d 355.
The duty to appoint counsel is upon the judicial system as part of the superintending power of the judicial system. When the appointment of counsel for indigent convicted persons for parole and probation revocation proceedings will be recurrent and statewide, the power of appointment will be exercised by the supreme court. State ex rel. Fitas v. Milwaukee County,
65 Wis. 2d 130,
221 N.W.2d 902.
The trial judge must unconditionally and unequivocably demonstrate in the record that the defendant intelligently, voluntarily, and understandingly waived the constitutional right to counsel, whether or not the defendant is indigent. Keller v. State,
75 Wis. 2d 502,
249 N.W.2d 773.
When a state agency seeks to enforce its orders through the coercion of imprisonment for contempt, the full constitutional right to counsel arises. Ferris v. State ex rel. Maass,
75 Wis. 2d 542,
249 N.W.2d 789.
One charged with a crime carrying a penalty of incarceration has the full constitutional right to counsel, regardless of whether incarceration is ordered. State ex rel. Winnie v. Harris,
75 Wis. 2d 547,
249 N.W.2d 791.
The mere fact that one attorney represents 2 defendants charged in the same crime is not sufficient evidence of inadequate representation. The defendant has the burden of showing by clear and convincing evidence that an actual and operative conflict existed. Harrison v. State,
78 Wis. 2d 189,
254 N.W.2d 220.
A defendant has no right to be actively represented in the courtroom both by self and by counsel. Moore v. State,
83 Wis. 2d 285,
265 N.W.2d 540 (1978).
The test to determine if the denial of a continuance acted to deny a defendant either due process or effective assistance of counsel is discussed. State v. Wollman,
86 Wis. 2d 459,
273 N.W.2d 225 (1979).
Withdrawal of a guilty plea on the grounds of ineffective representation by trial counsel is discussed. State v. Rock,
92 Wis. 2d 554,
285 N.W.2d 739 (1979).
A defendant's request on the morning of trial to represent himself was properly denied as untimely. Hamiel v. State,
92 Wis. 2d 656,
285 N.W.2d 639 (1979).
A prerequisite to a claim on appeal of ineffective trial representation is preservation of trial counsel's testimony at a postconviction hearing in which the representation is challenged. State v. Machner,
92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App. 1979).
The trial court did not err in refusing the defendant's request on the 2nd day of trial to withdraw a waiver of the right to counsel. Self-representation is discussed. Pickens v. State,
96 Wis. 2d 549,
292 N.W.2d 601 (1980).
The right to counsel did not preclude incarceration for a second operating while intoxicated conviction when the defendant was not represented by counsel in proceedings leading to the first conviction, since the first offense was a civil forfeiture case. State v. Novak,
107 Wis. 2d 31,
318 N.W.2d 364 (1982).
Counsel was ineffective for failing to raise the heat-of-passion defense in a murder case when a wife who had been maltreated during a 23-year marriage intentionally killed her husband while he lay sleeping. State v. Felton,
110 Wis. 2d 485,
329 N.W.2d 161 (1983).
A defendant's uncorroborated allegations will not support a claim of ineffective representation when counsel is unavailable to rebut the claim of ineffectiveness. State v. Lukasik,
115 Wis. 2d 134,
340 N.W.2d 62 (Ct. App. 1983).
Effective assistance of counsel was denied when the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig,
124 Wis. 2d 600,
369 N.W.2d 722 (1985).
When a trial court fails to make adequate inquiry into a defendant's last-minute request to replace his or her attorney, the right to counsel is adequately protected by a retrospective hearing at which the defendant may present his or her own testimony. State v. Lomax,
146 Wis. 2d 356,
432 N.W.2d 89 (1988).
See also Texas v. Cobb,
532 U.S. 162, 149 LEd 2d 321 (2001).
Defense counsel's absence at the return of the jury verdict without the defendant's consent and the failure to poll the jury were grounds for automatic reversal. State v. Behnke,
155 Wis. 2d 796,
456 N.W.2d 610 (1990).
When a defendant accepts counsel, the decision to assert or waive a constitutional right is delegated to the attorney. The failure of the defendant to object to the attorney's waiver, is waiver. State v. Wilkens,
159 Wis. 2d 618,
465 N.W.2d 206 (Ct. App. 1990).
There is a two-prong test for ineffective counsel: 1) trial counsel was ineffective; and 2) the defense was prejudiced so that absent error the result would have been different. State v. Wilkens,
159 Wis. 2d 618,
465 N.W.2d 206 (Ct. App. 1990).
A court may disqualify the defendant's chosen counsel over the defendant's objection and waiver of the right to conflict-free representation when actual or a serious potential for a conflict of interest exists. State v. Miller,
160 Wis. 2d 646,
467 N.W.2d 118 (1991).
A determination of indigency by the public defender under s. 977.07 is not the end of the court 's inquiry into the need to appoint counsel. State v. Dean,
163 Wis. 2d 503,
471 N.W.2d 310 (Ct. App. 1991).
To bring a claim of ineffective appellate counsel, defendant must petition the court that heard the appeal for a writ of habeas corpus. State v. Knight,
168 Wis. 2d 509,
484 N.W.2d 540 (1992).
The question of ineffective counsel is whether there is a reasonable probability that a jury viewing the evidence untainted by counsel's errors would have had a reasonable doubt respecting guilt. State v. Glass,
170 Wis. 2d 146,
488 N.W.2d 432 (Ct. App. 1992).
A defense attorney's ex parte petition to withdraw was improperly granted. A minimal due process hearing was required. State v. Batista,
171 Wis. 2d 690,
492 N.W.2d 354 (Ct. App. 1992).
Absent a clear waiver of counsel and a clear demonstration of a defendant's ability to proceed
pro se, courts are advised to mandate full representation by counsel. State v. Haste,
175 Wis. 2d 1, N.W.2d (Ct. App. 1993).