A statute that creates a cause of action with an essential counterpart at common law becomes no less an essential counterpart simply because it addresses a narrower range of practices. If the legislature focuses and directs the principles of common law fraud to a specific realm it does not strip a litigant of his or her right to a jury trial when it would otherwise exist. Otherwise, a legislative enactment clearly modeled on a common law cause of action but applied to a specific context would carry no right to a jury trial. State v. Abbott Laboratories,
2012 WI 62,
341 Wis. 2d 510,
816 N.W.2d 145,
10-0232.
I,6
Excessive bail; cruel punishments. Section 6
. Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted.
Imposition of a 3-year sentence as a repeater was not cruel and unusual even though the present offense only involved the stealing of 2 boxes of candy, which carried a maximum sentence of 6 months. Hanson v. State,
48 Wis. 2d 203,
179 N.W.2d 909.
It was not cruel and unusual punishment to sentence a defendant to 25 years for armed robbery when the maximum was 30 years, when by stipulation the court took into consideration 5 other uncharged armed robberies. Mallon v. State,
49 Wis. 2d 185,
181 N.W.2d 364.
Current standards of what constitutes cruel and unusual punishment should not be applied in reviewing old sentences of long standing. State ex rel. Warren v. County Court,
54 Wis. 2d 613,
197 N.W.2d 1.
A sentence is not discriminatory and excessive because it is substantially greater than that received by a codefendant. State v. Studler,
61 Wis. 2d 537,
213 N.W.2d 24.
Actions for the forfeiture of property that are commenced by the government and driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment. State v. Hammad,
212 Wis. 2d 343,
569 N.W.2d 68 (Ct. App. 1997),
95-2669.
A prison inmate does not possess a reasonable expectation of privacy in his body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashhiyah v. McCaughtry,
230 Wis. 2d 587,
602 N.W.2d 307 (Ct. App. 1999),
98-3020.
Cruel and unusual punishment extends to the denial of medical care if a serious medical need was ignored and prison officials were deliberately indifferent to the inmate's condition. A serious medical need means that the illness or injury is sufficiently serious to make the refusal uncivilized. Deliberate indifference implies an act so dangerous that the defendant's knowledge of the risk of harm from the resulting act can be inferred. Cody v. Dane County,
2001 WI App 60,
242 Wis. 2d 173,
625 N.W.2d 630,
00-0549.
The defendant's life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of his or her life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant's life expectancy, it must explain, on the record, how the defendant's life expectancy fits into the sentencing objectives. State v. Stenzel,
2004 WI App 181,
276 Wis. 2d 224,
688 N.W.2d 20,
03-2974.
In addressing whether a sentence constituted cruel and unusual punishment and was excessive, a court looks to whether the sentence was so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Davis,
2005 WI App 98,
698 N.W.2d 823,
281 Wis. 2d 118,
04-1163.
A prisoner has a liberty interest in avoiding forced nutrition and hydration, but department of corrections may infringe on the prisoner's liberty interest by forcing him or her to ingest food and fluids against his or her will. A court may enter a temporary ex parte order for involuntarily feeding and hydration, if exigent circumstances require immediate involuntary treatment in order to avoid serious harm to or the death of an inmate. Continuation of the order requires the right to an evidentiary hearing when DOC's allegations are disputed, the opportunity to meaningfully participate in the evidentiary hearing, and that the order cannot be of indefinite or permanent duration without periodic review. Department of Corrections v. Saenz,
2007 WI App 25,
299 Wis. 2d 486,
728 N.W.2d 765,
05-2750.
Sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional and is not unduly harsh and excessive. Fourteen-year-olds who commit homicide do have the same diminished moral culpability as those juvenile offenders who do not commit homicide. Sentencing a 14-year-old to life imprisonment without parole for committing intentional homicide serves the legitimate penological goals of retribution, deterrence, and incapacitation. That the defendant was 14 years old at the time of the offense and suffered an indisputably difficult childhood does not automatically remove the punishment out of the realm of proportionate. State v. Ninham,
2011 WI 33,
333 Wis. 2d 335,
797 N.W.2d 451,
08-1139.
While
Saenz addressed initial authorization for forced feeding, it is consistent with
Saenz to require that, when the Department of Corrections (DOC) seeks a continuation of that authorization, the focus is on what will likely occur if the authorization to force feed is terminated. In these circumstances DOC must show that: 1) if forced feeding is withdrawn, it is likely the inmate would continue his or her hunger strike; and 2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death. Department of Corrections v. Lilly,
2011 WI App 123,
337 Wis. 2d 185,
804 N.W.2d 489,
09-1420.
Because of the presumptive validity of the medical opinions that support the necessity for continued forced feeding of a prisoner, the circuit court must accept them unless there is evidence that they are a substantial departure from accepted medical judgment, practice, or standards. A medical opinion is presumptively a "reliable medical opinion" within the meaning of the showing DOC must make when the opinion is that of a licensed physician who is qualified by training or experience to render the opinion and the opinion is based on a proper evidentiary foundation. Department of Corrections v. Lilly,
2011 WI App 123,
337 Wis. 2d 185,
804 N.W.2d 489,
09-1420.
A prisoner's objections to the manner of forced feeding that may implicate the 8th amendment protection against cruel and unusual punishment are properly before the circuit court when DOC seeks a continuation of authorization to force feed the prisoner. When the allegation is one of excessive force, the 8th amendment protects against force that is not applied in a good faith effort to maintain order but is maliciously and sadistically applied to cause harm. Department of Corrections v. Lilly,
2011 WI App 123,
337 Wis. 2d 185,
804 N.W.2d 489,
09-1420.
Paddling students is not cruel and unusual punishment. Ingraham v. Wright,
430 U.S. 651.
A defendant's life sentence was not cruel and unusual when the defendant's 3 property crime felony convictions subjected him to a recidivist penalty. Rummel v. Estelle,
445 U.S. 263 (1980).
A prison term of 40 years and fine of $20,000 for possession and sale of 9 ounces of marijuana was not cruel and unusual punishment. Hutto v. Davis,
454 U.S. 370 (1982).
The excessive fines clause of U.S. Constitution does not apply to civil punitive damage awards in actions between private parties. Browning-Ferris v. Kelco Disposal,
492 U.S. 257,
106 L. Ed. 2d 219 (1989).
Exposure to an unreasonable risk of serious damage to future health is a basis for a cause of action for cruel and unusual punishment. Risk from environmental tobacco smoke was a basis for a cause of action. Helling v. McKinney,
509 U.S. 25,
125 L. Ed. 2d 22 (1993).
A sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the California three strikes law, is not grossly disproportionate and therefore does not violate the prohibition on cruel and unusual punishments. Ewing v. California,
538 U.S. 11,
155 L. Ed. 2d 108,
123 S. Ct. 1179 (2003).
A state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. The state must give defendants some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, but the 8th amendment does not require the state to release that offender during his natural life. Graham v. Florida, 560 U.S. ___,
130 S. Ct. 2011,
176 L. Ed. 2d 825 (2010).
A mandatory life sentence without parole for those under the age of 18 at the time of their crimes violates the 8th amendment's prohibition on cruel and unusual punishments. Miller v. Alabama, 567 U.S. ___,
182 L. Ed. 2d 251,
132 S. Ct. 1733 (2012).
Persons confined in the central state hospital under ss. 51.20, 51.37, 971.14, 971.17, and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy,
511 F. Supp. 1325 (1981).
A prisoner has no liberty interest in avoiding transfer to any prison, whether within or without the state. Berdine v. Sullivan,
161 F. Supp. 2d 972 (2001).
Incarcerating a person beyond the termination of his or her sentence without penological justification violates the 8th amendment prohibition against cruel and unusual punishment when it is the product of deliberate indifference. To comply with due process, prison officials cannot ignore an inmate's request to recalculate his or her sentence and must place some procedure in place to address such requests. Russell v. Lazar,
300 F. Supp 2d 316 (2004).
Solitary confinement; punishment within the letter of the law or psychological torture? Thoenig, 1972 WLR 223.
Appellate sentence review. 1976 WLR 655.
I,7
Rights 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.
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.
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.
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' deposition. Sheehan v. State,
65 Wis. 2d 757,
223 N.W.2d 600.
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.
Admission of double hearsay did not violate defendant's right to confront witnesses. State v. Lenarchick,
74 Wis. 2d 425,
247 N.W.2d 80.
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.
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.
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).
When a witness died after testifying at a preliminary examination, admission of the transcript of the testimony did not deny the right of confrontation. Constitutional standards for admission of hearsay evidence are discussed. State v. Bauer,
109 Wis. 2d 204,
325 N.W.2d 857 (1982).
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 obtained 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 (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 715 (Ct. App. 1992).
To be entitled to an in camera inspection of privileged records, a criminal defendant must show the sought after evidence is relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra,
175 Wis. 2d 600,
499 N.W.2d 719 (Ct. App. 1993). See also
State v. Speese,
191 Wis. 2d 205,
528 N.W.2d 63 (Ct. App. 1995.)
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.
The right to confrontation was not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession was redacted to eliminate any reference to the defendant's existence. State v. Mayhall,
195 Wis. 2d 53,
535 N.W.2d 473 (Ct. App. 1995),
94-0727.
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.
Confrontation promotes the reliability of evidence by rigorously testing it in an adversarial proceeding before the jury. A defendant must have the opportunity to meaningfully cross-examine witnesses, and the right to present a defense may in some cases require the admission of testimony that would otherwise be excluded under applicable rules of evidence. State v. Dunlap,
2000 WI App 251,
239 Wis. 2d 423,
620 N.W.2d 398,
99-2189.
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. State v. St. George,
2002 WI 50,
252 Wis. 2d 499,
643 N.W.2d 277,
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 his or her 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 593,
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.
When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.
Crawford v. Washington,
541 U.S. 36, laid out 3 formulations of the core class of testimonial statements. 1) ex parte in-court testimony or its functional equivalent, such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; 2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and 3) statements made under circumstances that would lead an objective witness to believe that the statement would be available for use at a later trial. State v. Savanh,
2005 WI App 245,
287 Wis. 2d 876,
707 N.W.2d 549,
04-2583.
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.
In applying the 3-part test under
Crawford and
Savanh, statements volunteered to officers at the scene of a traumatic event absent any interrogation or other police prompting generated by the desire of the prosecution or police to seek evidence against a particular suspect were found not to be testimonial. State v. Searcy,
2006 WI App 8,
288 Wis. 2d 804,
709 N.W.2d 497,
04-2827.
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 him or her 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 his or her 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.
When officers did not go to the victim's house looking for evidence with which to prosecute the defendant, and, after they arrived their focus was not on building a case against the victim but, rather, trying to ensure the safety of the defendant and her daughter, and other members of the community the the out-of-court declarations of the victim and her daughter were not testimonial. State v. Rodriguez,
2006 WI App 163,
295 Wis. 2d 801,
722 N.W.2d 136,
05-1265.
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.
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 v. Washington,
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 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 where 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.
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. See also Giles v. California,
554 U.S. 353,
128 S. Ct. 2678,
171 L. Ed. 2d 488 (2008).
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.
