SPD Case Summaries

Constitution and Constitutional Issues

Updated 7/15/08

Confrontation	Construction	Double Jeopardy	Due Process	Equal Protection
Ex Post Facto	First Amendment	Public Trial	Self-Incrimination	Separation of Powers


CONFRONTATION (See also Evidence -- Witnesses; Habeas -- Confrontation; and Evidence -- Hearsay)

Bias Interplay with 5th Amendment Pending Charges Forfeiture Hearsay "Testimonial" Statement General test for Admissibility Certified Records Bank Medical Coconspirator's Statement Expert -- Crime Lab Analyst Former Testimony -- Preliminary Hearing Impeachment Opportunity for Cross-Examination Statement Against Interest Recent Perception / Excited Utterance Statement Not Admitted for Its Truth (go: here) Screened Witness Unavailable Declarant Videotaped Statement of Child


Confrontation -- Generally




Confrontation – Statements Made by Prosecutor and Judge in Transcript Read to Jury
*State v. Donald W. Jorgensen, 2008 WI 60, reversing* unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation, notwithstanding lack of objection?
Holding: ถ34 "'The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them.'" State v. Jensen, 2007 WI 26, ถ13, 299 Wis. 2d 267, 727 N.W.2d 518 (citation omitted); see also Crawford v. Washington, 541 U.S. 36, 42 (2004), U.S. Const. amend. VI; ^[10] Wis. Const. art. I, ง 7. ^[11] By reading the November 10 hearing transcript at Jorgensen's criminal trial, which essentially provided the jury with the judge's and the prosecutor's conclusions about Jorgensen's guilt, the circuit court itself seemingly testified against the defendant, and the prosecutor essentially testified against the defendant by virtue of the judge reading the transcript from the November 10 hearing. This highly prejudicial and largely inadmissible evidence was not subject to cross-examination. ถ35 Here, the circuit court seemed to testify against the defendant when it stated the following: (1) Jorgensen was having difficulty following simple instructions due to intoxication; and (2) Jorgensen violated the no alcohol provision of his bond. These statements directly related to Jorgensen's alleged intoxication and the elements of the offenses charged for which Jorgensen was to be presumed innocent. … ถ36 The circuit court's commentary essentially constituted unsworn testimony against the defendant, and it reached legal conclusions that should otherwise rest solely within the province of the jury. Jorgensen never had the opportunity to question the circuit court's observations. … ถ37 Also, by virtue of the circuit court reading the November 10 hearing transcript, the prosecutor essentially "testified" against the defendant without being subject to confrontation. …

Confrontation – Prosecutor’s Closing Argument
*State v. Donald W. Jorgensen, 2008 WI 60, reversing* unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue/>Holding: ถ39 Jorgensen's right to confrontation was also violated during the prosecutor's closing argument. The prosecutor took what the jury had improperly heard during the trial a step further. She "testified" that Jorgensen was a "chronic alcoholic" who did not acknowledge his problem, that on November 10 she smelled a strong odor of intoxicants from him, and that she knew Jorgensen was drunk that day in court.

Confrontation -- Generally: Limitation on Right to Cross-Examine
*State v. Harry L. Seymer*, 2005 WI App 93
For Seymer: Andrea T. Cornwall, SPD, Milwaukee Appellate
Issue/Holding: Where the (pro se) sexual assault defendant’s attempt to cross-examine the complainant and principal witness was abruptly terminated by the trial court, purportedly because of the defendant’s “mocking tone” and “derisive behavior”; but where the record did not in any respect support these “subjective impressions,” “the underpinnings of the trial court’s decision to terminate cross-examination [are] unavailing, and Seymer’s opportunity for effective cross-examination [was] violated,” ถถ8-12.
An unusual, probably fact-specific (i.e., likely non-recurrent) case in which, as the court of appeals says, “it appears that the trial court, for whatever reason, found Seymer exasperating and gave him little leeway during the trial, as we could find almost no other support in the record for the trial court’s termination of Seymer’s cross‑examination,” ถ12. Indeed, the fact-pattern is apparently unusual enough that the court musters no precedential authority in support of its conclusion. That doesn’t mean that this case is itself cutting-edge; it means, rather, that you’ll have to extrapolate a bit to draw any broader meaning. As the court glancingly indicates (ถ8), the right to confrontation has to be first “accommodated” before it may properly be limited. However narrowly defined in any given case, confrontation seemingly wasn’t accommodated in any respect before Seymer’s cross was abruptly terminated. In most instances, the inquiry that’s cut off is very specific (such as prior conduct, or witness-bias). What makes this case unusual, then, is the utter failure to accommodate cross-examination. That said, there is at least one implied lesson that shouldn’t be overshadowed by the final result, namely: you can forfeit your right to cross-examine through your behavior. (Also see ง 906.11, re: controlling examination of witnesses.) If Seymer had been “mocking” or “derisive” or otherwise contemptuous then the trial judge’s action would have been defensible – or so the court of appeals implies by making a point of scouring the record and ultimately finding no support for the trial judge’s “subjective impressions.” And indeed, the court of appeals’ refusal to take at face value those very impressions represents another unusual aspect of the decision. That is, the court could simply have deferred to the trial court on this matter and said that Seymer had failed to show that the trial judge’s “findings” were clearly erroneous; critically, the court did not do so, but instead engaged in the equivalent of independent review. Hard to say what larger lesson might be derived from that particular exercise of review. Part of the problem is that court’s analysis is so cursory (likely because the record is pretty extreme, and the outcome therefore obvious). Are a “trial judge’s “subjective impressions” something other than findings of historical fact? That’s simply not clear. But at a minimum, this case importantly means that a judge’s ruling isn’t immunized from review simply because it relies on something (such a “mocking tone) which couldn’t possibly be refuted by the cold record. Note that the judge did not make a contemporaneous record of Seymer’s supposed disruptive behavior; instead, the judge very tersely ended cross, and only later, on postconviction ruling, provided after-the-fact embellishment (ถ10). Perhaps this made the court of appeals skeptical. But returning to the matter of forfeiture, there is one thing that the court simply fails to go into but that could well be decisive. Forfeiture is in the nature of a sanction and surely there must be some warning before penalty is exacted. See, e.g., *Illinois v. Allen*, 397 U.S. 337 (1970), at least by way of analogy (“Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 464 , 1023 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom”). In this case, there was insufficient warning to Seymer that his cross crossed a line – something mentioned by the court in passing (ถ9), but without elaboration; omitted warning could well be the most significant feature of the case and ought not be overlooked merely because not stressed by the court.


Confrontation -- Bias



Bias -- Generally
*State v. Justin Yang*, 2006 WI App 48
For Olson: John J. Grau
Issue/Holding: ถ11 Inquiry into a witness’s bias is always material and relevant. *State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Evidence ง 1367 (Chadbourn rev. 1974). Although, as Van Arsdall* observes, this does not mean there can be no limits on a defendant’s cross-examination seeking to expose bias, the great engine only has power if the trial court does not apply too-restrictive a governor or, to use an old railroading term, shunt it to a “dead track.” We analyze Yang’s confrontation-denial contention against this background.

Bias -- Limitation on Cross-Examination
*State v. Justin Yang*, 2006 WI App 48
For Olson: John J. Grau
Issue/Holding: Defense cross-examination of a principal State’s witness was impermissibly curtailed when the trial court abruptly ended inquiry into whether the witness had threatened to cause the defendant (her ex-husband) “trouble” following his remarriage, where: The witness testified only with the aid of a translator and had obvious difficulty answering questions (“a witness’s comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely. … his inquiry into that area was not yet closed. Accordingly, the trial court’s invocation of, in essence, ‘asked-and-denied’ to move the trial along was not yet justified, given the critical nature of motive to Yang’s defense.”) ถ13. Although the inquiry would not have directly proved the defense theory, the desired inference was one “Yang was entitled to argue to the jury; not every fact in a trial is provable by direct-evidence. … Indeed, … are routinely told that circumstantial evidence can be as valuable to the jury as direct evidence[.]” ถ14. Yang asserted, in opening statement, the fact sought to be established by the inquiry and it is therefore assumed that there was a good-faith basis for the questioning; nor would the jury have been bound by the witness’s denial. “Thus, Yang was entitled to have the jury decide from his lawyer’s questions and the nature of his former wife’s responses whether she was telling the truth[.]” ถ15. The error was prejudicial, ถ17: it was a close case, as exemplified by partial acquittal; motive to lie was, by the State’s own representation to the jury, crucial and the curtailed cross “would have been an appropriate tool for them to use in making that assessment.” All in all, a fact-specific case, though it does seem to be a ringing endorsement of the right to cross-examine, especially with regard to potential matters of bias or motive to lie.

Bias: Interplay with Fifth Amendment *State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02* For Barreau: Glenn C. Reynolds Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness's "real and appreciable apprehension" of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony. ถถ51-52. (No error found here, because the inhibited inquiry would have been largely cumulative. ถ54.)

Bias: Pending Charges *State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02* For Barreau: Glenn C. Reynolds A witness's pending criminal charges are relevant to bias, even absent promises of leniency. ถ55. In this instance, the trial court prohibited cross-examination about whether the witness was receiving benefits from the state for his testimony, but only after the witness testified outside the jury's presence that there were none. Any error on the inhibition of confrontation was therefore harmless. Additionally, there was no prohibition on asking the witness whether he had any pending charges; though counsel didn't pursue that inquiry, there was no error, because confrontation requires only the opportunity for effective cross-examination, not its actualization.

Bias: Pending Charges -- Sentence Received by Prosecution Witness without Plea Bargained Benefit for Testimony State v. Bryan Hoover, 2003 WI App 116, PFR filed 6/26/03 For Hoover: Glenn C. Cushing, SPD, Madison Appellate Issue/Holding: The defense wasn’t entitled to cross-examine a prosecution witness about the sentence he received on an otherwise unrelated charge, where the witness wasn’t offered a benefit in exchange for his testimony. Allowing the defense to cross-examine on the witness’s perception of what benefit he might receive sufficiently accommodated the right of confrontation. ถถ14-23. (Not much in the way of analysis by the court, though there is this potentially troublesome extension of *State v. McCall, 202 Wis. 2d 29, 549 N.W.2d 418 (1996): ถ20. The rationale of McCall* is controlling here. In the absence of any sentencing-for-testimony agreement, it would be irrelevant to question Anderson-El about his sentence. Defense counsel was able to and, in fact, did question Anderson-El about his charges and whether he expected to get a benefit from testifying. However, eliciting information about the actual sentence imposed was not relevant to any incentives the prosecution may have given Anderson-El for testifying on behalf of the State. Moreover, testimony concerning the actual sentence imposed might confuse the jury into believing the court was a party to some unproven sentencing-for-testimony agreement. As in *McCall, the record does not support such a speculative theory. The problem, then, is that the decision might be read to say that no matter what you can’t go into the actual sentence received absent agreement for the testimony. But what difference does* it make whether a concession was offered for testimony? The judge is no more a part of that sort of plea bargain, so the rationale of jury confusion that the court was a party to the agreement applies equally. (*McCall*, by the way, dealt with dismissal of charges, unaccompanied by a plea bargain, which is at least seemingly different from a case that goes to disposition.) Why, then, shouldn’t the defense be allowed to get into the sentence actually received? No good answer is given. The court does mention that the defense put the witness’s bias before the jury in a number of ways (such as priors), ถ17, but on the issue of his “personal motivation for coming forward” his claim of “good intentions” apparently is conclusive. It’s fair to read this as a fact-specific case: the just-mentioned opportunity to explore bias was sufficient; more importantly, the court itself saw the evidence of guilt as “overwhelming,” ถ28. But that doesn’t explain ถ20.)

Confrontation -- Forfeiture



All cases decided before *Giles v. California, USSC No. 07-6053, 6/25/08 are subject to reconsideration if not outright doubt. There, the Court held in effect that the forfeiture doctrine "applie(s) only when the defendant engaged in conduct designed to prevent the witness from testifying," although the Court also allowed that "(e)arlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify." It is hard in light of Giles* to see how the enunciation of the doctrine in
Confrontation – Forfeiture-by-Wrongdoing Challenge to “Testimonial” Statement – Waiver of Argument
*State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR denied 2/21/08; on remand from supreme court, and affirming,* 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding: Although forfeiture (of confrontation) by wrongdoing must be raised and decided on the trial level, the State did not waive the right to argue forfeiture on appeal in this instance where that doctrine had not yet been endorsed by either the Supreme Court or any court in Wisconsin, ถ11. (Moreover, the issue of “misconduct” by the defendant was raised in the sense that the State had alleged intimidation of a witness—though the court doesn’t suggest that that fact alone sufficed to preserve the argument.)

Confrontation – Forfeiture-by-Wrongdoing -- Intimidation of Witness into not Testifying
*State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR denied 2/21/08; on remand from supreme court, and affirming,* 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding: ถ17 It is undisputed that LaMoore and her daughter did not appear at trial, either when trial was originally scheduled or when it actually commenced. This record contains abundant facts^[11] from which the trial court could be, and apparently was, satisfied “by the greater weight of the credible evidence”^[12] that Rodriguez either independently ( e.g., his recorded statement while incarcerated that he “found” LaMoore), or Luis at Rodriguez’s request ( e.g., Luis’s recorded statement that he would “pay her off”) were a cause of LaMoore’s failure to appear. The trial court’s order, entered before the final trial date, terminated Rodriguez’s telephone, mail and visitation privileges based upon a finding that the action was “necessary to prevent the further intimidation of witnesses.” This is, in essence, a finding by the trial court by a preponderance of the credible evidence that Rodriguez had taken steps while being held at the House of Correction to intimidate LaMoore, who he knew to be a witness against him, that intimidation has already occurred ( e.g., LaMoore did not appear at the trial date), and that the restrictions announced were necessary to attempt to prevent future intimidation. The finding of misconduct, coupled with LaMoore’s failure to appear at the original or adjourned trial date, and the court’s finding that the “State has made a due and diligent effort to get the victim here to court,” satisfy the substantive requirements announced in *Jensen. Id., ถถ53-57. ถ19 What the jury found beyond a reasonable doubt, the trial court, as we have explained, earlier found by a preponderance of the evidence. The jury found that Rodriguez intimidated LaMoore as a victim and intimidated LaMoore as a witness. Those jury findings confirm the sufficiency of the evidence to support the trial court’s earlier conclusion by a preponderance of the evidence that Rodriguez had intimidated LaMoore. We hold that where the jury finds beyond a reasonable doubt that the defendant intimidated the person who was a witness, the defendant has forfeited, by his own misconduct, his right to confront that witness. This is on remand, following a prior published decision, 2006 WI App 163, for reconsideration in light of the forfeiture doctrine recognized by State v. Mark D. Jensen, 2007 WI 26. The earlier decision didn’t reach forfeiture, holding instead that the challenged statements were non-testimonial, 2006 WI App 163, ถ16-27. Is the prior result still precedential? That’s not clear. Generally, of course, the court of appeals doesn’t have authority to withdraw any language form its own, published decisions. But this decision was remanded for reconsideration by the supreme court, so the court of appeals must have had the authority to alter the prior opinion. But, did it exercise that (presumed) authority? Perhaps: the court now “assume(s), without deciding, that the statements were testimonial. Consequently, we first determine whether forfeiture by wrongdoing has been established,” ถ16. That language is inconsistent with the idea that the prior opinion retains binding effect. See also ถ20 (“we do not decide whether the statements … were testimonial”). You can bet, though, that the State will cite the prior opinion for the idea that the statements were non-testimonial. In any event, although the forfeiture test was changed by Giles v. California*, the result on these facts seems unassailable (i.e., Rodriguez acted with the specific purpose to prevent the declarants from testifying).

Confrontation –Forfeiture-by-Wrongdoing Challenge to “Testimonial” Statement: Adoption of Doctrine
*State v. Mark D. Jensen, 2007 WI 26, on bypass*
For Jensen: Craig W. Albee
Issue/Holding: ถ52 In essence, we believe that in a post-Crawford world the broad view of forfeiture by wrongdoing espoused by Friedman and utilized by various jurisdictions since Crawford's release is essential. In other words, after "[n]oting the broad embrace of the doctrine" by courts nationwide and "recognizing the compelling public policy interests behind its enactment," Commonwealth v. Edwards, 830 N.E.2d 158, 165 (Mass. 2005), we elect to adopt the forfeiture by wrongdoing doctrine in Wisconsin.

Confrontation – – Forfeiture-by-Wrongdoing Challenge to “Testimonial” Statement: Test
*State v. Mark D. Jensen, 2007 WI 26, on bypass*
For Jensen: Craig W. Albee
Issue/Holding: ถ57 In short, we adopt a broad forfeiture by wrongdoing doctrine, and conclude that if the State can prove by a preponderance of the evidence that the accused caused the absence of the witness, the forfeiture by wrongdoing doctrine will apply to the confrontation rights of the defendant. UPDATE: This formulation of the forfeiture doctrine is no longer tenable in light of *Giles v. California*, USSC No. 07-6053, 6/25/08, holding in effect that the doctrine "applie(s) only when the defendant engaged in conduct designed to prevent the witness from testifying."




Confrontation -- Hearsay Landscape permanently altered by: *Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, No. 05-5224, 6/19/06; Hammon v. Indiana, 05-5705, 6/19/06. Some first reactions to Davis* and Hammon posted here. And further altered by *Giles v. California*, USSC No. 07-6053, 6/25/08 (defendant doesn't "forfeit" right to confront witness unless his or her conduct was "designed" to prevent witness from testifying). (For discussion re: 911 calls, go here .)



Confrontation – Testimonial Statement, Opportunity for Cross-Examination – Witness Who Testified and Then Was Dismissed
*State v. Samuel Nelis, 2007 WI 58, affirming* unpublished decision
For Nelis: Robert A. Ferg
Issue/Holding: ถ45 Although Steve Stone testified at trial, Nelis argues that Steve Stone did not have the opportunity to explain or deny his alleged oral statements because the State did not examine him concerning such statements, and the oral statements were not made known prior to Police Chief Stone's testimony. The State argues that there was no violation of Nelis' right to confrontation under Crawford because Steve Stone testified at trial and was cross-examined by the defense. ถ46 Nelis' right to confrontation was not violated because "the Confrontation Clause places no constraints at all" on the use of prior testimonial statements when the declarant appears for cross-examination, as did Steve Stone. Crawford, 541 U.S. at 59 n.9 (citation omitted).^[5] It makes no difference, under the circumstances here, whether the burden is on the State or on Nelis to show that Steve Stone was available for further cross-examination after the court told him he could "step down." Steve Stone testified at trial and was cross-examined concerning his statements to the police; therefore, Nelis' right to confrontation was not violated. ^[5] We agree with the concurrence that Nelis' right to confrontation under Crawford is not implicated. Concurrence, ถถ53, 73, 80. However, because Nelis raised arguments concerning Crawford in his briefs and at oral argument, we address those arguments here.

Confrontation – “Testimonial” Statement – Generally: “Broad” Definition Applies – Solicitation by Police not Absolutely Necessary
*State v. Mark D. Jensen, 2007 WI 26, on bypass*
For Jensen: Craig W. Albee
Issue/Holding: ถ24 We note that there is support for the proposition that the hallmark of testimonial statements is whether they are made at the request or suggestion of the police. See State v. Barnes, 854 A.2d 208, 211 ( Me. 2004). In our view, however, the Sixth Circuit's decision in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), aptly describes why such an inquiry is insufficient under Crawford: Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation. . . . If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally. The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime. Id. at 675. Thus, we believe a broad definition of testimonial is required to guarantee that the right to confrontation is preserved. That is, we do not agree with the State's position that the government needs to be involved in the creation of the statement.^[8] We believe such a narrow definition of testimonial could create situations where a declarant could nefariously incriminate a defendant. ^[8] We note that recently in State v. Hemphill, 2005 WI App 248, 287 Wis. 2d 600, 707 N.W.2d 313, the court of appeals held that a declarant's spontaneous statement to responding police officers implicating the defendants in a crime was deemed nontestimonial. The court reasoned, in part as follows: The statement made by [the declarant] in the instant case does not fall into any of the identified categories of "testimonial" statements. This was not a statement extracted by the police with the intent that it would be used later at trial. It was not an interrogation situation. [The declarant] offered the statement without any solicitation from police. It was a spontaneous statement made to a responding police officer. Like the foreign cases cited by the State in its brief, the [declarant's] statement was offered unsolicited by the victim or witness, and was not generated by the desire of the prosecution or police to seek evidence against a particular subject. Id., ถ11. We do not read Crawford in such a restrictive light. Under the definition of testimonial adopted today we must overrule Hemphill. It simply isn’t possible to say precisely what implications flow from overruling Hemphill, though at minimum it would seemingly be that the mere unsolicited nature of a statement doesn’t throw it outside of confrontation analysis. The Hemphill methodology has certainly been invalidated, but the court doesn’t distinctly say that the result was therefore wrong. Hemphill, it should be noted, was an excited utterance case, 2005 WI App 248, ถ13; Jensen is not. Does this mean that Jensen has now declared all excited utterances to the police necessarily testimonial? Hard to see how, in light of *Davis v. Washington. Also see State v. Ohlson, Wash SCt No. 78238-5, 10/18/07 (per se rule that excited utterance necessarily testimonial "is no longer tenable"). Rather, it probably just means that a court can’t avoid threshold determination of whether* the statement is testimonial merely because it is spontaneous. Note, as well, *State v. Roberto Vargas Rodriguez, 2006 WI App 163, an excited utterance case which relied heavily on Hemphill* and whose result therefore might have been thrown in doubt -- except that on remand for reconsideration in light of Jensen the court "assume(d), without deciding, that the statements were testimonial," but affirmed the result on the distinct ground of forfeiture, 2007 WI App 252, PFR denied 2/21/08.

Confrontation – “Testimonial” Statement – Letter Addressed to / Voicemails Recorded by Police
*State v. Mark D. Jensen, 2007 WI 26, on bypass*
For Jensen: Craig W. Albee
Issue/Holding: ถ27 In light of the standard set out above, we conclude that under the circumstances, a reasonable person in Julie's position would anticipate a letter addressed to the police and accusing another of murder would be available for use at a later trial. The content and the circumstances surrounding the letter make it very clear that Julie intended the letter to be used to further investigate or aid in prosecution in the event of her death. Rather than being addressed to a casual acquaintance or friend, the letter was purposely directed toward law enforcement agents. The letter also describes Jensen's alleged activities and conduct in a way that clearly implicates Jensen if "anything happens" to her. ถ28 Furthermore, the State insists that the letter is nontestimonial because it was created before any crime had been committed so there was no expectation that the letter would potentially be available for use at a later trial. However, under the standard we adopt here it does not matter if a crime has already been committed or not. … … ถ30 For many of the same reasons, we also determine that the voicemails to Kosman are testimonial.^[10] The crux of Julie's message was that Jensen had been acting strangely and leaving himself notes Julie had photographed and that she wanted to speak with Kosman in person because she was afraid Jensen was recording her phone conversations. Again, the circuit court determined that these statements served no other purpose than to bear testimony and were entirely for accusatory and prosecutorial purposes. Furthermore, Julie's voicemail was not made for emergency purposes or to escape from a perceived danger. She instead sought to relay information in order to further the investigation of Jensen's activities. This distinction convinces us that the voicemails are testimonial. See Pitts v. State, 627 S.E.2d 17, 19 (Ga. 2006) ("Where the primary purpose of the telephone call is to establish evidentiary facts, so that an objective person would recognize that the statement would be used in a future prosecution, then that phone call 'bears testimony' against the accused and implicates the concerns of the Confrontation Clause.").

Confrontation – “Non-Testimonial” Statement – Statements to Acquaintances
*State v. Mark D. Jensen, 2007 WI 26, on bypass*
For Jensen: Craig W. Albee
Issue/Holding: ถ31 Finally, we consider the statements Julie made to Wojt and DeFazio. Jensen argues that if the circumstances reveal that the declarant believed her statements to nongovernmental actors would be passed on to law enforcement officials, those statements are testimonial. While we reiterate that governmental involvement is not a necessary condition for testimonial statements, we conclude that under the circumstances of this case, Julie's statements to Wojt and DeFazio were nontestimonial. Essentially, we are not convinced that statements to a neighbor and a child's teacher, unlike the letter and voicemails——which were directly intended for the police——were made under circumstances which would lead a reasonable person in the declarant's position to conclude these statements would be available for later use at a trial. ถ32 Our decision in Manuel, 281 Wis. 2d 554, guides us to this conclusion. In Manuel, we determined that statements made to loved ones or acquaintances are not the memorialized type of statements that Crawford addressed. Id., ถ53. Moreover, we determined that the witness's girlfriend was not a governmental agent, and there was no reason to believe the declarant expected his girlfriend to report to the police what he told her. Id. Here, Julie confided in Wojt and DeFazio about the declining situation in the Jensen household and are wholly consistent with the statements of a person in fear for her life. As one court put it, "when a declarant speaks with her neighbor across the backyard fence, she has much less of an expectation that the government will make prosecutorial use of those statements." State v. Mizenko, 127 P.3d 458, (Mont. 2006); see also Compan v. People, 121 P.3d 876, 880-81 (Colo. 2005) (holding that victim's statement to an acquaintance made after an assault were nontestimonial). Facts and analysis in relation to facts are both left maddeningly vague. This much we know from the majority opinion: Wojt was a neighbor, DeFazio a teacher, ถ1; Julie gave Wojt an envelope for the police in case anything happened to her; according to Wojt she was fearful Jensen was trying to kill her, and told Wojt he’d been looking into “computer pages about poisoning,” ถ5. These, presumably, are the statements at issue and held nontestimonial—but to the extent they accompanied Julie’s transfer to Wojt of the letter to the police, it’s not clear why the statements would be severable from the testimonial letter; nor does the court explain severability. For a detailed analysis, review Justice Butler’s partial dissent, ถถ75, et seq., which has the virtue of applying law to facts. As to the DeFazio statement, the facts are recited in ถ9 n. 3 and lend themselves to a self-evident analysis.

Hearsay: “Testimonial” Statement – Excited Utterances – Ongoing Emergency
*State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06; subsequent history: affirmed, 2007 WI App 252 (court assumes without deciding that statements were testimonial but holds that Rodriguez forfeited right to confrontation by intimidating witness from testifying), PFR denied 2/21/08*
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether statements to the police, indisputably excited utterances, by both the alleged victim of an act of domestic violence and her daughter shortly after a 911 call; and by the same two the following day also to the police were “testimonial” and thereby violative of confrontation given that neither testified at trial nor had previously been cross-examined.
Holding: ถ16 *Davis* was a consolidated decision in two cases, *Davis v. Washington* and *Hammon v. Indiana. Davis, 126 S. Ct. at 2270, 2272. … … ถ18 … Resolving much of the ambiguity left by Crawford, Davis* set out the following bright-line, but, perhaps, not conclusive rule: Without attempting to produce an exhaustive classification of all conceivable statements-or even all conceivable statements in response to police interrogation-as either testimonial or nontestimonial, it suffices to decide the present case to hold as follows: Statements are nontestimonial 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. *Davis, 126 S. Ct. at 2273–2274. … ถ19 … We now turn to our case, and analyze it under both Wisconsin case law and the United States Supreme Court’s latest word in Davis. ถ20 … Manuel* set out the formulations as follows: … (3) “[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” *Id., 2005 WI 75, ถ37 …. … ถ23 … Victims’ excited utterances to law-enforcement officers responding to either an on-going or recently completed crime, serve, as with the 911-call, a dual role—the dichotomy between finding out what is happening as opposed to recording what had* happened, which, as we have seen, was recognized in *Davis.… … ถ26 A similar analysis applies when police talk to an attack-victim when the stress and cognitive disruption caused by the attack is still dominant, because the key consideration in connection with both the third Crawford/ Manuel* formulation and *Davis’s rubric, focuses on an objective analysis of the out-of-court declarant’s expectation as to how what he or she tells law enforcement will be used. … ถ27 There is nothing in the Record here that indicates that what Rodriguez does not dispute were “excited utterances” by Ms. LaMoore and Casey when the officers first spoke with them were motivated by anything other than their desire to get help and secure safety. Moreover, given their contemporaneously endured trauma it cannot be said that objectively they said what they said to the officers with a conscious expectation that their words would somehow have the potential for use in court against Rodriguez. It also cannot be said that, objectively, the officers intended to record past activities rather than assess the then-current situation. (Viability of court's analysis subject to doubt in light of subsequently decided State v. Jensen, see above.) Lengthy excerpt above necessitated by novelty of the issue—Wisconsin’s first precedential bout with Davis/Hammon—and also the implications—without saying so the court in effect carves out a domestic violence/excited utterance exception to confrontation. (On the bright side: if this case holds up there won’t be much need to grapple with the forfeiture doctrine, the next great uncharted confrontation territory.) Much can and will be said about this case, but not here except that it falls just* between *Hammon* (accusation against husband made by wife in their home while officer was “securing and assessing the scene” testimonial; husband under control of one officer while officer took wife’s statement) and Davis (statement made during 911 call; accused still at large)—that’s because LaMoore made both her statements in or immediately outside her home, like Ms. Hammon; but, each time Rodriguez was not within police control, like Davis. Still, this case seems an awful lot closer to *Hammon* than *Davis. For now, it’s enough to recite this reaction to Davis/Hammon* by Richard Friedman: There is more good news as well. The Court is explicit that it found Hammon a “much easier” case than Davis. It makes clear that if the statement concerns a closed event—“what happened” rather than “what is happening”—then it should usually be considered testimonial. The pattern of the Court’s decisions after Davis on pending certiorari petitions suggests that the Court indeed recognizes that most accusatory statements made to police officers in the field should be considered testimonial. And further confirmation is provided by the Court’s apparent endorsement of the pre-Framing English case R. v. Brasier, which characterized as testimonial an accusation of attempted rape made by a young child to her mother immediately after coming home; neither the immediacy of the statement, the youth of the declarant, nor the private status of the audience removes the statement from the protections of the confrontation right, and that is as it should be. One other point, perhaps. The majority relies on the pre-*Davis* cases of *State v. Jeffrey Lorenzo Searcy, 2006 WI App 8 and State v. Donavin Hemphill, 2005 WI App 248, both of which deemed volunteered statements by non-victims to the police to be nontestimonial. Indeed, without quite saying so, the majority all but adopts wholesale an excited-utterance exception to confrontation. The dissent would distinguish those cases on the basis that, in contrast to victims, “(c)itizens who volunteer information of this nature to the police usually do not have an expectation that their statements will require them to testify,” ถ46. A fair point, certainly; but if Friedman is right, the fault-line runs along what* the declarant describes, not his or her state of excitation. See also *State v. Mechling, 633 S.E.2d 311 (W.Va. 2006) (confrontation violated where statements of DV complainant to deputies, made after Mechling had left scene, allowed into evidence; court reserves judgment as to whether her statement to a private party related "what is happening" as opposed to "what happened): ... (A) witness’s statement taken by a law enforcement officer in the course of an interrogation is testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the witness’s statement is to establish or prove past events potentially relevant to later criminal prosecution. A witness’s statement taken by a law enforcement officer in the course of an interrogation is non-testimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police assistance to meet an ongoing emergency.... ... There was no emergency in progress when the deputies arrived, and the defendant had clearly departed the scene when the interrogation occurred. When the deputies questioned Ms. Thorn, they were seeking to determine “what happened” rather than “what is happening.” See also State v. Alvarez* , AZ App No. CR-20013408, 9/29/06, supp. op. (responses of semi-conscious, and soon-dead, victim not testimonial, court citing Rodriguez with approval; disputing idea that "what happened" questions necessarily testimonial -- but in that instance victim found staggering on highway, and thus presented an "ongoing emergency"). Comapare discussion, here. *State v. Graves, OR App No. A122061, 4/18/07 (similar facts to Rodriguez, police response to 911 call on DV emergency, but not entirely compatible result: first statement, made immediately on police arrival at home, nontestimonial because there was potential emergency; subsequent statements at scene testimonial because police had confirmed defendant no longer in house and thus was no imminent threat); State v. Ohlson, Wash SCt No. 78238-5, 10/18/07 ("the critical consideration is not whether the perpetrator is or is not at the scene, but rather whether the perpetrator poses a threat of harm, thereby contributing to an on-going emergency"); State v. Camarena*, OR SCt No. A054330, 1/25/08 (911 call reporting that assailant had only left a minute ago non-testimonial, because "the scant 60 seconds ... is insufficient to suggest that the danger of a renewed assault had fully abated"; however, certain "responses were unnecessary to resolve an ongoing emergency" and were therefore testimonial).

Hearsay: “Testimonial” Statement – "Spontaneous, Unsolicited Statements" to Police
*State v. Jeffrey Lorenzo Searcy*, 2006 WI App 8
For Searcy: Joseph L. Sommers
Issue/Holding: “(S)pontaneous, unsolicited statements offered to police officers immediately following the trauma of [declarant’s] cousin’s arrest at gunpoint” were not “testimonial” and therefore did not violate *Crawford, ถถ51-56: ถ53 Adams initiated the interaction with the officers; the police did not seek her out. She approached the police officers after they had arrested her cousin at gunpoint. Her statements to the police officers concerning her relationship to Searcy and Searcy’s residence were voluntarily made in the course of her attempting to prevent the police from taking her cousin into custody. She yelled at the officers, “[T]hat’s my cousin, you can’t do that,” and said that Searcy had been staying with her “from time to time.” Sorenson testified that when Adams approached them she was “excited.” There is no evidence in the record demonstrating that the statements were made in response to a tactically structured police interrogation, or in response to any questioning at all. Given the informal, unstructured nature of the interaction, Adams could not have reasonably anticipated that she was bearing witness and her utterances could impact future legal proceedings. Clearly, the court relied on the volunteered nature of the statement to throw it outside of Crawford* -- do the subsequently decided Davis and Hammon shed any light on this problem? Not explicitly, for the simple reason that in both cases there was indeed "interrogation," so that the Court didn't have occasion to discuss "volunteered" statements. That aside, language in the holding suggesting that there must be "a tactically structured police interrogation" is at least arguably much too broad: see, e.g., this analysis by Richard Friedman ("the Court makes clear that if it continues to speak in terms of formality, the standard will be a very loose one. ... [T]he Court indeed recognizes that most accusatory statements made to police officers in the field should be considered testimonial"). See footnote 1 of Hammon: Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations—which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh’s Case, 2How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate. At the same time, Searcy's emphasis on the idea that Adams was "excited" can't be meaningful, given Hammon's ruling that a statement admitted as an excited utterance did violate confrontation. It may be that Searcy is an outlier or perhaps just a case at the outer margins of what the Confrontation Clause countenances.

Hearsay: “Testimonial” Statement – Police Interview of Victim at Hospital
*State v. Daniel D. King*, 2005WI App 224
For King: Scott D. Obernberger
Issue/Holding: An interview by a detective of the victim at a hospital shortly after the charged assault, admitted into evidence as an excited utterance, is deemed “testimonial” (and, therefore, inadmissible under the confrontation clause) because it involved “response(s) to ‘structured police questioning,’” ถ18.
Result seems unassailable in light of *Hammon v. Indiana, 05-5705, 6/19/06 (police interview of complainant at scene, shortly after incident, elicited "testimonial" statement): Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial 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.¹ The Court makes clear in footnote 1 that it is not* necessarily requiring that there be "interrogation"; indeed, the footnote all but says it's at least possible to have a testimonial statement without interrogation. See also discussion in *Wall v. State, TX Cr App No. PD-1631-04, 1/18/06 (rejecting "any per se or categorical approach" and finding on particular facts that police hospital interview of victim was testimonial). But see People v. Cage*, Cal SCt No. S127344, 4/9/07 (statement to deputy sheriff at hopsital emergency room testimonial, but statement to treating doctor who asked "what happened" nontestimonial).

Hearsay: “Testimonial” Statement – Line-Up Identification
*State v. Daniel D. King*, 2005 WI App 224
For King: Scott D. Obernberger
Issue/Holding: Victim’s pre-trial identification of defendant at line-up was “testimonial” and therefore violated confrontation clause, ถ21.

Hearsay – Statement of Recent Perception, ง 908.045(2)
*State v. Antwan B. Manuel, 2005 WI 75, affirming* 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding¹ [general principles]: Assuming that an out of court statement first satisfies a hearsay rule (ถ23), it does not implicate the “core” concern of the confrontation clause unless the statement is considered “testimonial” under *Crawford v. Washington*, 541 U.S. 36, 50-51 (2004), which although declining comprehensive definition, provides three formulations: ex parte in-court testimony; formalized extrajudicial statements; and statements reasonably thought to be available for use later, at a trial. ถถ37-39.
Issue/Holding² [application to facts]: ถ53 We find these cases persuasive. Applying them, we conclude that Stamps' statements to were not testimonial. Stamps made the statements to Rhodes, his girlfriend, during what appears to be a spontaneous, private conversation that occurred shortly after the shooting. See United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004) (statements "made to loved ones or acquaintances . . . are not the kind of memorialized, judicial-process-created evidence of which *Crawford* speaks."); *Horton, 370 F.3d at 84; Rivera, 844 A.2d at 202; Shepherd, 689 N.W.2d at 729; Woods, 152 S.W.3d at 114. There is no dispute that Rhodes is not a government agent, nor is there any contention that Stamps somehow expected Rhodes to report to the police what he told her. See Cervantes, 12 Cal. Rptr. 3d 774, 783. By all indications, the conversation was confidential and not made with an eye towards litigation. See also State v. Vaught, 682 N.W.2d 284, 291 (Neb. 2004) (concluding that four-year-old victim's statement to an emergency room physician that her uncle sexually assaulted her was not testimonial as there was no indication of a purpose to develop testimony for trial, nor any indication of government involvement in the initiation or course of the examination). Absent any evidence that Stamps was attempting to use Rhodes to mislead the police on his own behalf, we conclude that Stamps' statements cannot be considered testimonial under Crawford's third formulation. This result will have to be read with the since-decided Davis* and Hammon in mind, neither of which dealt with similar facts, but which laid down broad principles. The following comments, posted before the release of those cases, remain for whatever value they might retain: The underlying facts make this a tough case to argue the potential refinement of “testimonial.” The statements were seemingly spontaneous, made in private to an intimate associate with no apparent eye toward government cooperation. If there is a connecting thread among the cases string-cited by the court – they should be reviewed closely if for no other reason than that the court expressly deems them “persuasive,” without qualification – it is the making of the statement to a close acquaintance in a private setting. Pretty obviously, then, a similar fact pattern will make a tough sell as a Crawford objection, though the court doesresist generalizations and certainly keeps open the possibility of further refinement of “testimonial.” ... And with that background in mind: Crawford by its own terms bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Thus, to put it briefly (and in the words of leading expert Richard D. Friedman), "Crawford makes clear that the principal—and perhaps only— focus of the Confrontation Clause is testimonial statements." Keep in mind that there are two levels of hearsay in this instance: Stamps’ statement to his girlfriend; and the latter’s statement to the police. The girlfriend testified at trial, and thus her statement to the police can’t be challenged. But Stamps pleaded the 5th, and because he was unavailable to be cross-examined, that requirement of Crawford was satisfied. The court of appeals refused to find Stamps’ hearsay statement “testimonial” simply because it wasn’t made to a government agent. 2004 WI App 111, ถ21. That conclusion, as the supreme court’s analysis clearly shows, is too reductionistic to be sustained. Rhodes’s status was undeniably relevant, but the apparently decisive idea was that it was “a spontaneous, private conversation” that was “confidential and not made with an eye towards litigation.” The issue of whether a given statement is “testimonial” is obviously going to recur, and for a further definition it is worth looking at Richard Friedman’s very influential Crawford amicus brief. Among his points: As discussed in Part IV, there is some ambiguity about the edges of the word's meaning. For now, though, it suffices to say that a statement that is made with the reasonable anticipation that it will be used in a criminal prosecution should be considered testimonial, while a statement that is made in the ordinary course of affairs, with no prospect of evidentiary use in the offing, is not testimonial.… One practical possibility is an objective test that would ask: Would a reasonable person in the declarant's position anticipate that the statement would likely be used for evidentiary purposes? … A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made directly to the authorities or not. (See also this slightly different and broader formulation by Friedman: "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." He stresses that governmental invovlement in procuring the statement is not "the essence of what makes a statement testimonial.") For a relatively broad definition, see *U.S. v. Cromer, 389 F.3d 662 (6th Cir. 2004), citing with approval Friedman's law review article at 86 Geo.L.J. 1011, 1043, which offers "five rules of thumb" which flesh out the meaning of "testimonial" (and are well worth reviewing): A statement made knowingly to the authorities that describes criminal activity is almost always testimonial. A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made to the authorities or not. If, in the case of a crime committed over a short period of time, a statement is made before the crime is committed, it almost certainly is not testimonial. A statement made by one participant in a criminal enterprise to another, intended to further the enterprise, is not testimonial. And neither is a statement made in the course of going about one’s ordinary business, made before the criminal act has occurred or with no recognition that it relates to criminal activity. This broad view of "testimonial" has received increasing favor, see, U.S. v. Summers, 10th Cir No. 04-2121, 6/21/05, adopting as "carefully reasoned" Cromer's test, and concluding that Crawford* "centers on the reasonable expectations of the declarant. It is the reasonable expectation that a statement may be later used at trial that distinguishes the flippant remark, proffered to a casual acquaintance, see id. at 51, from the true testimonial statement." Also, *U.S. v. Hinton, 3rd Cir No. 03-3803, 9/14/05 (and cites therein): Accordingly, statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial are testimonial. In the absence of a showing that the declarant is unavailable and that the defendant had an opportunity for crossexamination, admission of such statements will violate the Confrontation Clause of the Sixth Amendment. (Though the formulation is in one sense "broad," it is narrow in another -- see, e.g., U.S. v. Gilbertson, 7th Cir No. 05-2923, 1/30/06, adopting the foregong authorities while at the same time making the point that only* statements made following government-initiated examination in anticipation of criminal litigation fall within the rule.) Again: there is nothing necessarily inconsistent with either this formulation or with Friedman's definition / rules of thumb and the result in Manuel. The idea is simply that the meaning of "testimonial" will occupy much of the field of post-Crawford confrontation litigation. See, e.g., *State v. Snowden, MD. Ct. App. No. 42, 2/7/05 (statement to social worker investigating sexual abuse "testimonial"). For an interesting factual variation, see People v. Wahlert* , Cal App No. E035174, 6/25/05 ("pretext call" arranged and orchestrated by law enforcement deemed testimonial), opinion modified but reconsideration denied, 7/19/05. Professor Friedman's "Grappling with the Meaning of 'Testimonial'" is certainly worth at least a look for its survey of general considerations; and his invaluable Web site, The Confrontation Blog is a convenient way to stay current. More: http://www.dwt.com/lawdir/publications/CrawfordOutline.pdf (outline by Crawford’s attorney); and http://www.isba.org/Sections/criminal/crawford.pdf (lengthy case outline of Crawford cases). On an unrelated point, Cromer goes on to hold that a potential violation is not regulated by "evidence law," in particular the notion that a litigant can open the door to a violation: ... Thus, the mere fact that Cromer may have opened the door to the testimonial, out-of-court statement that violated his confrontation right is not sufficient to erase that violation. In this, too, we agree with Professor Friedman, who has postulated that a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness... This isn't necessarily a jarring result, once you conceptualize the right at stake as a peculiarly rule-based one; or, alternatively, as one which insures a personal right, therefore subject to waiver only in very restricted circumstances. Contra, though: *People v. Ko*, 2005 NY Slip Op 00632, 2/3/05 (door-opening applied, at least where "A contrary holding would allow a defendant to mislead the jury by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context.").

Admissible Hearsay (Statement of Recent Perception) – Roberts Analysis Surviving Crawford
*State v. Antwan B. Manuel, 2005 WI 75, affirming* 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding¹ [general principles]: The two-part analysis of *Ohio v. Roberts, 448 U.S. 56 (1980) survives Crawford* for use in determining Confrontation Clause admissibility of nontestimonial statements, ถถ54-61 (unavailable declarant, and adequate indicia of reliability).
Issue/Holding² [applied to facts]: The hearsay in question – a statement of recent perception – is not firmly rooted, and therefore must have particularized guarantees of trustworthiness to be admissible, ถ67. That showing is satisfied, where the statement was made spontaneously, in private to the declarant’s girlfriend and thus in confidence, and without ulterior motive to fabricate, ถถ69-70.
To same effect, re excited utterance: *State v. Roberto Vargas Rodriguez, 2006 WI App 163, ¶28, PFR filed 8/28/06; subsequent history: affirmed, 2007 WI App 252 (confrontation right forfeited), PFR filed 11/1/07. But:* *Davis* seems to have sounded the end of Roberts analysis as a matter of federal constitutional law, despite this holding, at least according to James J. Duane in a commentary in the Fall '06 Criminal Justice; this one, and according to Lisa Kern Griffin in the Michigan Law Review ("The Court buried the lede, but Davis does pronounce Roberts dead."); and, for that matter, Richard Friedman (“The Court also manages to close one can of worms, going well out of its way to make clear (though some lower courts have not recognized this so far) that if a statement is not testimonial it is not covered by the Confrontation Clause.”) But, just how much advantage does (did?) a Roberts analysis give? None at all, bluntly says Friedman: "Numerous post-Crawford courts, having determined the statements at issue were not testimonial, have gone through the Roberts analysis and—not surprisingly—determined that the statements were admissible. ... No terrible harm is done, perhaps, but the process is wasteful, because courts will continue to run through it with predictable results." Note holding in *State v. Cook, OR SCt No. S49851, 5/11/06, that Roberts* survives as matter of state constitution confrontation analysis.

Hearsay: General Test for Admissibility
*State v. Glenn H. Hale, 2005 WI 7, affirming, as modified*, 2003 WI App 238
For Hale: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding: ถ53. A threshold question for applying the Crawford framework is whether the State is proffering "testimonial" hearsay evidence. ... ถ54. Because Sullivan's hearsay evidence was "testimonial" in nature, we turn next to the requirements of the Confrontation Clause as interpreted by Crawford: (1) unavailability of the declarant and (2) a prior opportunity for cross-examination. Id. at 1374. ...


Hearsay: General Test for Admissibility
*State v. John Norman, 2003 WI 72, affirming* unpublished decision of court of appeals
For Norman: Angela Kachelski
Issue/Holding: Hearsay must satisfy a multi-step test to avoid violation of the confrontation clause: whether the evidence fits a well-recognized hearsay exception; if so, then whether the witness was unavailable despite good-faith prosecutorial effort to produce the witness and whether the evidence bears indicia of reliability (which may be inferred if the evidence fits a well-rooted hearsay exception unless an unusual circumstance exists). ถถ25-28. The foregoing test is no longer viable, having been supplanted by the Crawford focus on "testimonial" purpose, *State v. Glenn H. Hale*, 2005 WI 7, ¶¶53-54.

Hearsay: Former Testimony, § 908.045(1) -- Codefendant's Separate Trial
*State v. Glenn H. Hale, 2005 WI 7, affirming, as modified*, 2003 WI App 238
For Hale: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding: Under Crawford v. Washington, 124 S. Ct. 1354 (2004), prior testimony at a codefendant’s separate trial is inadmissible at Hale’s trial, given that the previously testifying witness cannot be located. ¶¶53-58.
It is indeed just that simple. Crawford says that testimonial hearsay violates confrontation absent prior opportunity to cross-examine. A witness’s prior testimony is, well, “testimonial,” ¶53. The real question is whether the codefendant’s opportunity to cross-examine had any bearing on Hale’s right of confrontation; the court – efficiently characterizing the issue as one of “confrontation by proxy” – says it didn’t, that the defendant must have had the prior opportunity to cross-examine the witness, ¶56. He didn’t, so Crawford was violated. Simple as that. Simple or not, there are implications. The court doesn’t say so explicitly, but the only fair reading is that *State v. Robert Bintz, 2002 WI App 204, ¶¶18-20, 257 Wis. 2d 177, 650 N.W.2d 913 (prior testimony from codefendant’s separate trial admissible against defendant) is now overruled. Which means that a possible trend is stopped dead in its tracks. (Bintz* was eventually upheld in federal court on habeas review, but under pre-Crawford analysis, *Robert Bintz v. Bertrand, No. 04-2682, 4/7/05. Did someone really say, “simple”? Let’s qualify that characterization a bit. There are 4 (!) separate concurrences involving 6 (count ’em) justices. They all agree that Crawford was violated, so that helps. But for some reason the urge to issue dicta proves irresistible. Justice Prosser’s 3-vote concurrence (¶¶91-99) makes the point that a defendant may forfeit the right of confrontation by wrongdoing: kill a witness and you won’t be heard to complain about that witness’s “unavailability.” The point seems unassailable and yet … it doesn’t really have anything to do with the case at hand, does it? Indeed, as leading expert Richard Friedman puts it, “(f)orfeiture often raises difficult issues.” Why not have caselaw discussion wait, though, for a live case actually raising them? And Justice Butler writes separately to say that the challenged evidence violated hearsay as well as confrontation, ¶¶101-07. Indeed, the majority recognized that resolution of an appeal on nonconstitutional grounds is generally* preferred, but in this instance it’s best to invert the priorities and get Crawford out of the way, ¶42. In fact, the very point of Crawford is to replace unpredictable, case-by-case “trustworthiness” analysis with an easily administered rule. Pace Justice Butler, inverted constitutional analysis is probably the preferable modality in Crawford cases. Note, for example, the Justice's stress on the particular facts, indicating that Jones and Hale had antagonistic defenses, and their their interests didn't coincide, ¶¶103-05. That might very well have been true, but it is precisely the sort of case-specific (and thus labor-intensive) inquiry Crawford seeks to avoid. Moreover, the fact that codefendants Jones and Hale's interests clashed doesn't mean that they necessarily diverged on the matter of attacking Sullivan. Maybe, maybe not: it's not a self-evident proposition; the matter simply isn't explored in sufficient detail to conclude one way or the other. This isn’t to say, by any means, that the hearsay rule now should be ignored; just the contrary. But if the evidence can be efficiently analyzed and deemed inadmissible under Crawford, then there’s no need for the heavy lifting of a fact-intensive hearsay analysis. Regardless, it ought to be kept in mind that the relationship between hearsay and confrontation is now irrevocably splintered. As our friend Richard Friedman usefully observes: “The rule against hearsay and the Confrontation Clause are separate sources of law—and Crawford stops the tendency to meld them. The question for Confrontation Clause purposes in each case is whether the given statement is testimonial. The fact that a statement fits within a hearsay exception does not alter its status with respect to that question. But one can say that most statements that fit within certain hearsay exceptions are not testimonial.” (All the more reason to take up confrontation first.) For whatever it's worth, pre-Crawford cases tended to find "that testimony given at a codefendant's trial was sufficiently reliable to satisfy Roberts if the witness had been cross-examined by the codefendant's counsel," *Dorchy v. Jones, 6th Cir No. 04-1797, 2/23/05. No longer. What about where the prior testimony occurred at the defendant's* own prior trial? The witness, of course, must still be found unavailable, and for a case where the state's effort to locate the witness for the retrial were deemed inadequate, though oddly without even mentioning Crawford, see *People v. Avila, Cal App No. B174888, 7/24/05 ("Waiting until the morning a trial begins to try to locate a witness after being out of touch for several months is generally not prudent or reasonable, and certainly is not an untiring effort to secure a witness’s presence at trial."). And finally, as long as this is the season for gratuitous commentary: the long-standing problem of preliminary hearing* testimony will continue to vex the defense bar, even (especially?) under Crawford analysis. See e.g. summaries of Stuart and Norman, immediately below; and see, *George Owens v. Frank*, 394 F3d 490 (7th Cir. 2005) (such testimony admissible under Ohio v. Roberts, because Owens had adequate opportunity for cross-examination, "limited scope" of preliminary hearing notwithstanding; court not reaching retroactivity of Crawford). The "testimonial" nature of this evidence will not be in doubt. Nor, one imagines, will there ever be much if any dispute over whether the preliminary hearing witness is indeed "available" at trial. The question will be whether Crawford's requirement for "opportunity" to cross-examine is somehow more stringent than Roberts' was.

Hearsay: Former Testimony, § 908.045(1) -- “Firmly Rooted” Exception – Particularized Guarantees of Trustworthiness
*State v. Glenn H. Hale, 2003 WI App 238. NOTE:* The COA holding of admissibility was effectively overruled upon review, 2005 WI 7, which ruled the prior testimony inadmissible under Crawford v. Washington. The court of appeals' result is shown for purely historical interest, but should not be regarded as binding on new cases.
For Hale: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding¹: Prior testimony (here: of a witness at codefendant’s earlier trial) is reliable as a “firmly rooted” hearsay exception, even though Hale did not have the opportunity to cross-examine the witness at the prior proceeding. ถถ18-25, *State v. Bintz, 2002 WI App 204, 257 Wis. 2d 177, 650 N.W.2d 913 deemed controlling despite distinguishing fact that Bintz did* have the opportunity to cross-examine the witness at the earlier proceeding. Court’s independent view of issue is that former-testimony exception is not firmly rooted. ถถ25-28. Nonetheless, and despite point of distinction noted above and fact that *Bintz* based its conclusion on inapposite authority, ถ29, *Bintz* is binding under “*Cook v. Cook*, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (concluding that only the supreme court has the authority to overrule, modify or withdraw language from a published opinion of the court of appeals),” ถ23. See also ถ30.
Issue/Holding²: Prior testimony of witness at codefendant’s earlier trial contained particularized guarantees of trustworthiness, where: witness would have lost use immunity had he testified falsely; codefendant’s interest in impeaching witness was similar to defendant’s; witness’s testimony concerned matter that “is straightforward and relates to an event that occurred before the murder,” so that “(l)ittle could be gained by further cross-examination.” ถ31. Note: The court also says that the former testimony was admissible under the residual hearsay exception, ง 908.045(6). ถ32 n. 5. Moreover, in light of the “overwhelming evidence,” the court “could have affirmed” on harmless error. Id. Could have, but most certainly did not: it’s apparent that the court wants the issue of former testimony to be resolved by the supreme court.

Hearsay: Admissibility of Former (Preliminary Hearing) Testimony, ง 908.045(1)
*State v. John Norman, 2003 WI 72, affirming* unpublished decision of court of appeals
For Norman: Angela Kachelski
Issue/Holding: Admissibility at trial of preliminary hearing testimony of an unavailable witness, ง 908.045(1), is a well-recognized hearsay exception and the reliability of the evidence may therefore be inferred. ถ30. Very brief cross-examination at the preliminary is not in and of itself an “unusual circumstance” that undermines reliability. ถ33. Nor does preliminary hearing prohibition on cross-examination about credibility support a broad rule of per se former testimony inadmissibility at trial. ถ35. In this case, the unavailable witness’s credibility was not at issue. “Therefore, the defendant's inability to cross-examine Park with questions that go to memory, credibility, or bias does not present an unusual circumstance that would undermine the reliability of Park's testimony in the present case.” ถ39. However: ถ40. Wisconsin case law leaves open the possibility that the inability of a defendant to cross-examine a witness at a preliminary hearing on questions of memory, credibility, or bias could, under certain circumstances, constitute an unusual circumstance that would render admission of the preliminary hearing testimony a violation of the defendant's right to confrontation. The case at hand, however, does not present such circumstances.

Hearsay: Former Testimony, Preliminary Hearing
*State v. Paul J. Stuart, 2005 WI 47, reversing* unpublished COA opinion; and overruling *State v. Paul J. Stuart*, 2003 WI 73
For Stuart: Christopher W. Rose
Issue: Whether the preliminary hearing testimony of a witness (“John”) – unavailable at trial after refusing to testify at that stage – was admissible under the confrontation clause, given the limits on examination at the preliminary hearing stage. Holding: “Testimonial” hearsay is admissible only if the declarant is unavailable at trial, and if there was a prior opportunity to cross-examine the declarant, ถ26. Prior testimony at a preliminary hearing is indisputably “testimonial”; and, John’s refusal to testify at trial indisputably made him “unavailable,” ถถ28-29. The dispositive issue is therefore whether cross-examination of John at the preliminary hearing satisfied confrontation. Because a preliminary hearing is a summary proceeding, so that inquiry is restricted to matters of plausibility and not credibility, Stuart was unable at the preliminary hearing to explore John’s potential motive to testify falsely, namely the fact that John was facing criminal charges at the time he incriminated Stuart. Thus, even though Stuart was able to bring out at trial certain matters impeaching John’s credibility (ถ34), this particular restriction on cross-examination at the preliminary hearing violated confrontation: ถ37 At the very least, these facts demonstrate a potential motivation to testify falsely on the part of John. Had John testified at trial and Stuart been precluded from exploring the motivation to testify falsely, such a restriction would be considered a Confrontation Clause violation. See, e.g., Van Arsdall, 475 U.S. at 679; see also State v. Barreau, 2002 WI App 198, ถ55, 257 Wis. 2d 203, 651 N.W.2d 12. ถ38 As a result, like the State, we agree with Stuart that the use of his brother's preliminary hearing testimony at trial violated his right to confrontation. The circuit court properly did not allow Stuart to cross-examine John at the preliminary hearing about the effect the pending charges had on his decision to cooperate. Accordingly, John's preliminary hearing testimony should not have been admitted at trial. A very fractionated court (5 separate opinions), requiring a bit of vote-tabulating. But on this point of confrontation clause analysis, the vote seems to be 6-1, if not 7-0. (Don’t be misled by Justice Prosser’s reference to (“(t)he lead opinion,” ถ61) – an apt description on, and no doubt intended to be limited to, the matter of harmless error.) The three dissenters explicitly “agree that the admission of his brother John Stuart’s preliminary hearing testimony violated the petitioner's right to confrontation,” ถ88 (they dissent on the issue of harmless error). Chief Justice Abrahamson concurs separately on the matter of harmless error, not confrontation, ถ59. Same for Justice Butler, whose concurrence “agree(s) with the court's interpretation and analysis of the Confrontation Clause under the facts of this case,” ถ83. That’s six votes altogether, making the “lead opinion” indisputably the majority. Justice Prosser’s concurrence (ถถ60-82) isn’t quite clear on whether he himself subscribes to this majority rationale. He does say that the “court properly concludes that the defendant’s confrontation rights were violated because he did not have adequate opportunity for cross-examination,” ถ75. But he goes on to express a view that John’s unavailability was procured only through “collusion” with the defense, and that this worked a forfeiture of the right to confrontation, ถถ77-80. “This case is exceptional and permits a departure from the strict rules of Crawford, yet the circuit court's denial of the defendant's motion to impeach the witness was an error too serious to ignore under Harvey,” ถ81. Justice Prosser’s concurrence might be construed to mean that the State had a winning forfeiture argument but waived it. Regardless of how construed, there is a minimum of 6 votes in favor of what is therefore a majority rationale. Does the holding, though, represent a bright-line rule barring prior, preliminary hearing at trial (assuming, of course, the witness’s unavailability)? Doubtful; see, ถ31: ถ31 Cross-examination at a preliminary examination is not to be used "for the purpose of exploring the general trustworthiness of the witness." *Huser, 84 Wis. 2d at 614. Indeed, "[t]hat kind of attack is off limits in a preliminary hearing setting." State v. Sturgeon, 231 Wis. 2d 487, 499, 605 N.W.2d 589 (Ct. App. 1999). When this restriction is enforced, as it was in the present case, and the State attempts to use the preliminary hearing testimony at a later trial, a Confrontation Clause problem arises. When this restriction is enforced, as it was in the present case*: that, likely, is the operative principle. Which means, in turn, that the careful practitioner will want to make prelim questioning as aggressive as possible, to ensure that restrictions are indeed enforced.


Hearsay: Former Testimony, Preliminary Hearing, § 908.045(1)

*State v. Paul J. Stuart, 2003 WI 73, on certification; subsequent history: overruled by State v. Paul J. Stuart*, 2005 WI 47

For Stuart: Christopher W. Rose

Issue/Holding: An unavailable witness’s former (preliminary hearing) testimony was admissible at trial without violating the defendant’s right to confrontation. Preliminary hearing testimony is a firmly rooted hearsay exception, for which reliability may be inferred unless unusual circumstances exist. ถถ36-37. The limited scope of preliminary hearing and concomitant limitation on cross-examination does not itself make the evidence inadmissible. ถ39. Only one objection was sustained, and although the witness’s credibility was an important facet of the case, Stuart “was able to meaningfully cross-examine” the witness, establishing facts that bore on credibility. ถ41.

Hearsay: Former Testimony, Preliminary Hearing, at Trial State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201 For Tomlinson: John J. Gray Issue/Holding: The witness's preliminary hearing contained sufficient indicia of reliability for confrontation clause purposes to be admissible at the defendant's trial: counsel's ability to cross-examine the witness was meaningful, as exemplified by the fact that he was able to elicit information helpful to the defense. ถ51.
Note: the court's intimation, citing *State v. Bauer, 109 Wis. 2d 204, 325 N.W.2d 857 (1982), "that the unavailability determination must be made in all Confrontation Clause cases" "may have been overbroad," is now out-dated: Crawford v. Washington* unambiguously imposes an unavailability analysis. (That is, under Crawford, once a statement from a non-testifying witness is deemed "testimonial," then it is inadmissible unless the witness is unavailable and there was prior opportunity for cross-examination.) In this instance, though, the former testimony rule expressly requires witness-unavailability. ถ46 n. 7.

Confrontation – Certified Bank (“Business”) Records – Nontestimonial
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue: Whether the authenticating affidavit of a bank record was “testimonial” within the meaning of Confrontation Clause requirements.
Holding: ถ45 The parties do not dispute that the circuit court correctly described Crawford and Manuel as identifying business records as nontestimonial, and correctly concluded that the specific bank records in this case are nontestimonial business records and not a threat to Doss's Confrontation Clause rights. The issue in this case is whether the affidavits authenticating the bank records are similarly benign nontestimonial evidence. ถ46 We conclude that affidavits verifying nontestimonial bank records in compliance with Wis. Stat. ง 891.24 are also nontestimonial. Such affidavits are generally of a different nature than inculpatory testimony against an accused criminal defendant. ถ47 The critical defining element of the affidavits accompanying the bank records in this case is that they fulfill a statutory procedure for verifying nontestimonial bank records and do not supply substantive evidence of guilt. The affidavits in this case are not the type of affidavits described in Crawford, i.e., the functional equivalent of ex parte in-court testimony that declarants "would reasonably expect to be used prosecutorially." Crawford, 541 U.S. at 51. In certifying the authenticity of bank records in the manner set forth by Wis. Stat. ง 891.24, the affidavits themselves neither provide inculpatory evidence incriminating Doss nor threaten her Confrontation Clause rights, in contrast with the type of evidence described in Crawford. As long as Wis. Stat. ง 891.24 is complied with, the affidavits are not testimonial and their admission did not violate Doss's Confrontation Clause rights.^[7] This is, to put a label on it, an “authenticating business records” case (ถ50). Without getting into any possible distinction drawn between private and public (say, crime lab report) records, take note of the pending Cert grant in Melendez-Diaz v. Massachusetts, No. 07-591 (“Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington (2004).”) The general problem of Crawford’s intersection with certified records is a matter of raging national dispute and for a smattering (but no more than that) of cases go here on this page and scroll down; more: here, from the seminal Richard Friedman. Melendez-Diaz will, presumably, put much of this dispute to rest.

Certified Medical Records
*State v. Mahlik D. Ellington*, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding¹: The confrontation clause doesn’t prohibit a witness from reading to the jury admissible medical records: ถ13 First, as we have seen, the certified medical records were received by the trial court without objection. Certainly, the jurors could have read the pertinent excerpts, and, also, the prosecutor or defense counsel could have read to the jury excerpts from those records. Ellington does not explain why any witness could not also read pertinent excerpts to the jury. Generally, the lawyer is the best reader in the courtroom, but there is no rule or doctrine that prevents the lawyer from asking a witness to read to the jury material that is in evidence.
Issue/Holding²: Admission into evidence of medical records containing subjective, diagnostic opinions—as opposed to “clinical and nondiagnostic” “objective findings”—violates confrontation, see *State v. Rundle, 166 Wis. 2d 715, 728, 480 N.W.2d 518, 524 (Ct. App. 1992). But in this instance, “the detective read to the jury only the objective findings of the medical personnel as well as what Marilyn B. told them about her injuries, namely, among other things, that they were the result of Ellington beating her.” Because Ellington hasn’t shown that any clinical findings were flawed and further because he did not dispute that he hit her, the Rundle* principle wasn’t violated, ถ16.

Coconspirator’s Statement During and in Furtherance of Conspiracy – “Non-Testimonial” Statement – Reliable under Ohio v. Roberts
*State v. Boon Savanh*, 2005 WI App 245
For Savanh: Timothy A. Provis
Issue/Holding¹: Statement of coconspirator during drug transaction, conveyed to jury via police informant buying drugs as part of controlled buy, not “testimonial”: ถ25 We do not think an objective witness would reasonably believe that Vongrasamy would have thought his informal telephone conversation with his roommate would be available for use at a later trial. Although Neuaone in fact was a police informant, it borders on the fantastic to imagine that Vongrasamy’s remarks, which included offering refreshments to Neuaone, were coerced or otherwise influenced by that fact. In all probability, Vongrasamy believed Neuaone was there on his own initiative seeking to purchase drugs for himself or an associate. We conclude Neuaone’s government affiliation, which was unknown to Vongrasamy, had no impact on producing Vongrasamy’s statements. This appears to be an easy call. It would be one thing, of course, to decide whether statements by an informant were “testimonial,” see e.g., *U.S. v. Cromer, 389 F.3d 662, 674 (6^th Cir. 2004) (statement knowingly made to authorities describing criminal activity “almost always testimonial”; therefore, informant’s statement to police implicating defendant held “testimonial”); U.S. v. Powers, 6th Cir No. 06-1684, 9/12/07; U.S. v. Hearn, 6th Cir No. 06-5854, 9/11/07. But here, the informant testified; the challenged statements were unknowingly* made to the informant. Though the court of appeals doesn’t cite any supporting authority for its conclusion, they exist in relative abundance, and the result seems beyond reproach. See *United States v. Hendricks* , 395 F.3d 173, 181 (3rd Cir. 2005) (collecting authorities to effect that statement made during course of conspiracy non-testimonial). Of course, the flip side is: if the issue is as clear-cut as it appears to be, why bothering publishing it? Could just be a symptom of *Crawford* fever. The court goes on to distinguish *Lilly v. Virginia, 527 U.S. 116 (1999) (accomplice’s custodial* statement to police inadmissible against defendant); again, the discussion seems pretty obvious, ถถ26-28. If you happen to be looking for a *Lilly-type case, see Edward A. Murillo v. Frank, 402 F3d 786 (7^th Cir. 2005), though keep in mind that it applied pre-Crawford* analysis.
Issue/Holding²: Coconspirator’s statement held admissible under *Ohio v. Roberts* reliability test: ถ32 We conclude that the second part, whether the statement bears adequate indicia of reliability, also is satisfied. In the first place, these statements fall within a firmly rooted hearsay “exception”^[4] as a matter of law, such that their reliability may be inferred without a showing of particular indicia of reliability. *State v. Webster, 156 Wis. 2d 510, 522, 458 N.W.2d 373 (Ct. App. 1990). In addition, any inherent unreliability that might accompany coconspirator statements made during the course and in furtherance of the conspiracy is per se* rebutted by the circumstances giving rise to the long history of admitting such statements. *Lilly, 527 U.S. at 137; Bourjaily*, 483 U.S. at 182-84.

Hearsay: Crime Lab Analyst Who Didn't Perform Test Herself *State v. Luther Williams, III, 2002 WI 58, on certification For Williams: Martha K. Askins, SPD, Madison Appellate Issue:* Whether confrontation was violated when an expert other than the crime lab analyst who actually performed the tests was allowed to testify to the testing results. Holding: Where the testifying expert is "highly qualified and had a close connection with the testing," -- was in fact, "a unit leader in the drug identification section of the crime lab who performed the peer review on the tests the analyst conducted" -- the right to confrontation is satisfied, so long as the testifying expert doesn't "act as a mere conduit for the opinion of another." ถถ11, 19. ถ20. Taken together, these cases teach that the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders 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. Given Koresch's qualifications and experience, her close connections to the tests and procedures implicating Williams, and her expert opinion that the tested substance contained cocaine, we determine that the admission of her testimony did not violate Williams' right to confrontation. Although Williams is a pre-Crawford case, its holding was essentially ratified by State v. Barton, discussed immediately below. Further discussion will therefore be found under that summary.

Expert Testimony: Crime Lab Analyst, Opinion Based in Part on Another's Testing
*State v. David Barton*, 2006 WI App 18
For Barton: Leonard D. Kachinsky
Issue: Whether the expert opinion of a crime lab analyst, presenting his own conclusions about tests performed by a non-testifying analyst, violated confrontation.
Holding: ถ16 Like the unit leader’s testimony in *Williams, Olson’s testimony was properly admitted because he was a qualified unit leader presenting his individual, expert opinion. Olson not only examined the results of Lyle’s tests, but he also performed a peer review of Lyle’s tests. He formed his opinion based on his own expertise and his own analysis of the scientific testing. He then presented his conclusions to the jury, and he was available to Barton for cross-examination. Thus, Olson’s testimony satisfied Barton’s confrontation right and is admissible under the supreme court’s decision in Williams. ถ17 Barton contends that Crawford v. Washington, 541 U.S. 36 (2004), overrules Williams* “to the extent *Williams* is interpreted as permitting the State to rely upon inadmissible hearsay as the basis for Olson’s testimony in this case.” We disagree. ... ถ20 The holding in Crawford does not undermine our supreme court’s decision in Williams. Williams is clear: A defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another. Williams, 253 Wis. 2d 99, ถถ9, 11. We do not see, and Barton fails to explain, how Crawford prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion. The reference is to