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

¶34      "'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, ¶13, 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, § 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.

¶35      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. …

¶36      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. …

¶37      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. …

¶39      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.

¶11      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 § 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.

• 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.”) ¶13.
• 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[.]” ¶14.
• 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[.]” ¶15.

¶20. 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.

¶17   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., ¶¶53-57.

¶19      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.

¶52      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.

¶57      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.

¶45      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.

¶46      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.

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 ^[5] We agree with the concurrence that Nelis' right to confrontation under Crawford is not implicated. Concurrence, ¶¶53, 73, 80. However, because Nelis raised arguments concerning Crawford in his briefs and at oral argument, we address those arguments here.

¶24      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.

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^[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., ¶11. We do not read Crawford in such a restrictive light. Under the definition of testimonial adopted today we must overrule Hemphill.

¶27      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.

¶28      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. …

…

¶30      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.").

¶31      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.

¶32      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., ¶53. 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).

¶16      Davis was a consolidated decision in two cases, Davis v. Washington and Hammon v. Indiana.  Davis, 126 S. Ct. at 2270, 2272. …

…

¶18      … 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. …

¶19      … 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.

¶20      … 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, ¶37 ….

…

¶23      … 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.…

…

¶26      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. …

¶27      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.

¶53      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.

¶53      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.

¶53. A threshold question for applying the Crawford framework is whether the State is proffering "testimonial" hearsay evidence. ...

¶54. 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. ...

¶40. 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.

¶37     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, ¶55, 257 Wis. 2d 203, 651 N.W.2d 12.

 ¶38     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.

¶45      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.

¶46      We conclude that affidavits verifying nontestimonial bank records in compliance with Wis. Stat. § 891.24 are also nontestimonial. Such affidavits are generally of a different nature than inculpatory testimony against an accused criminal defendant.

¶47      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. § 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. § 891.24 is complied with, the affidavits are not testimonial and their admission did not violate Doss's Confrontation Clause rights. ^[7]

¶13      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.

¶25      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.

¶32      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. 

¶20. 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.

¶35      In State v. Watson, 227 Wis. 2d 167, 195, 595 N.W.2d 403 (1999), the supreme court explained: “In Kolpin v. Pioneer Power & Light, 162 Wis. 2d 1, 37, 469 N.W.2d 595 (1991), we stated that ‘even if [the expert] arguably relied on hearsay in forming [the expert’s] opinion, [the expert’s] opinion is still admissible.’” We note, however, that

[Wisconsin Stat. §] 907.03 is not a hearsay exception. Hearsay data upon which the expert’s opinion is predicated may not be automatically admitted into evidence by the proponent and used for the truth of the matter asserted unless the data are otherwise admissible under a recognized exception to the hearsay rule. (Citation omitted.)

State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993).

¶36      Safarik was asked to analyze all of the evidence from the Recob home to determine if their simultaneous death was naturally or criminally caused—the medical examiner had ruled out accident or suicide. Naturally, he would seek out information on simultaneous death by natural causes to test his hypothesis that the deaths were the result of a crime. The statistics relied upon by Christakis of Harvard and Anderson of the CDC were not admitted into evidence; rather, they served to illustrate the basis for the opinion they shared that it was statistically impossible for a couple to suffer simultaneous death from natural causes—an opinion Safarik took into consideration when reaching his conclusion that death was by a criminal act. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (The trial court may, in its discretion, allow an expert to testify to otherwise inadmissible facts for the limited purpose of serving as a basis of the expert’s opinion.). The trial court did not err in permitting Safarik to rely upon the opinions of Christakis and Anderson.  

¶16 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.

¶17 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.  ...

¶20 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, ¶¶9, 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.

As to the latter problem, Richard Friedman observes (as usual, presciently anticipating the battleground):

For example, suppose a laboratory report is a critical piece of evidence. In most circumstances, the lab report should be considered testimonial, because the report is prepared in anticipation of its introduction at trial. Therefore, the lab technician who made the report should testify at trial if she is available to do so. If she becomes unavailable through no fault of the accused (by accidental death, for example), and the accused has not had an opportunity to crossexamine her, then the report should not be considered admissible. ...

The cases relied on by Barton are State v. Delaney, 613 S.E.2d 699, 700 (N.C. Ct. App. 2005) (in effect, no impact); and People v. Thomas II, 30 Cal. Rptr. 3d 582, 587 (Cal. Ct. App. 2005) ("Crawford does not undermine the established rule"). While critical of any general rule in this area ("The basis-for-expert-opinion veneer seems to me to be too thin in this context."), Friedman also suggests that perhaps the statements at issue in Thomas were "idle chatter" and not testimonial; if so, then Thomas is weakened.

On similar facts (expert testified to someone else's lab notes), U.S. v. Moon, 7th Cir No, 05-4506, 1/3/08 ("the Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial"; witness "entitled to analyze the data that" non-testifying person collected, though latter's "own conclusions based on the data should have been kept out of evidence"). For authority that one expert cannot merely summarize findings of another, see People v. Lonsby, 707 N.W.2d 610 (MI App 2005) (testifying witness's summarizing non-testifying serologist's test results violated  Crawford). And for other authority exemplifying the idea that expert testimony often (always? necessarily?) raises potential confrontation problems, see People v. Goldstein, 2005 NY Int 156 (confrontation violation where prosecution psychiatrist testified to statements made by non-testifying declarants). But see State v. Ruggles, Or App No. A127538, 8/29/07 (lab report indicating BAC admissible); People v. Salinas, Cal App No. F049017, 1/12/07 (lab report indicating substance methamphetamine admissible through testimony of lab supervisor rather than analyst who ran test, because: report merely "routine documentary evidence," i.e., only showed "recorded test results" therefore not testimonial, and supervisor provided full opportunity for cross-examination on foundation showing for document; had the report contained "opinion testimony" that defendant, for example, had been under the influence, then admissibility result would be different); U.S. v. Washington, 4th Cir No. 05-4883, 8/22/07 ("machine generated data" nontestimonial, because thaey "are the 'statements' of the machines themselves"; therefore, expert allowed to use that data to derive opinion about substances in blood sample), albeit over strong dissent.

Can the prosecution sidestep Crawford simply by announcing that the testimonial-declarant is available to be subpoenaed by the defense? Yes, at least according to State v. Campbell, 2006 ND 168 ("Because neither Pinks nor Campbell attempted to subpoena the forensic scientist as provided by statute, they have waived their ability to complain of a constitutional violation"). That result is criticized by Richard Friedman, here. Authority for the idea that the burden can't be shifted in this manner: State v. Birchfield, OR SCt No. S53363, 4/19/07 (as matter of state constitution; federal constitution not reached); Bratton v. State, TX App No. 05-03-01773-CR, 2/28/05; State v. Cox, 876 So.2d 932, 938-39 (La. App. 3d Cir. 2004).

Barton notes, literally as an aside, ¶22 n. 4, that the underlying report itself was never admitted into evidence. Despite its seeming significance, this fact probably doesn't limit the holding, because whether or not the report had substantive evidentiary effect wouldn't impact the crucial details listed in ¶16. The fault line for the court seems to be this: “The critical point ... is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others,” ¶10, quoting Williams, ¶19. Indeed, the very point of the opinion (though it is not quite explicit) is that Lyle's testing wasn't "testimonial"; in other words, Crawford doesn't apply. Thus, the court doesn't even address the other component of Crawford, unavailability of the "witness," precisely because there was no non-testifying "witness." Unavailability analysis would have been interesting: the reason Lyle didn't testify was because he'd retired and he refused to testify unless the State coughed up $1000 (¶4 n. 1). 

For related problem, of whether "business records" or "public records" such as police dispatch tapes, fingerprint and autopsy reports and the like are "testimonial," see State v. Shipley, Iowa SCt No. 111/06-0051, 7/18/08 (certified abstract of driving record didn't violate confonrtation); State v. Kronich, Wash SCt No. 78428-1, 7/12/07 (departmental certification of driving record not testimonial); People v. Pacer, NY Ct. App No. 45, 3/28/06(affidavit from DMV official describing agency revocation and mailing procedures, offered to prove that defendant knew driving license revoked, inadmissible under Crawford); Belvin v. State, FL App 4th Dist No. 4D04-4235, 3/8/06 (affidavit from non-testifying officer who administered breath test in OWI prosecution, to show that test was performed according to approved methods, etc., violated Crawford; "the statutory listing of breath test affidavits under the public records and reports exception to the hearsay rule does not control whether they are testimonial under Crawford"); People v. Mitchell, Cal App No. B176271, 8/11/05; Michels v. Commonwealth, Va App No. 2008-04-4, 1/17/06 (documents on file with state secretary of state not testimonial; cases collected re: business records and Crawford). Compare, U.S. v. Gilbertson, 7th Cir No. 05-2923, 1/30/06 (certified auto titles not testimonial, because not produced pursuant to government investigaiton taken in anticipation of criminal litigation); U.S. v. Torres-Villalobos, 8th Cir No. 06-1876, 5/9/07 (same, re: warrant of deportation). See also cases in Crawford Outline.

But see U.S. v. Ellis, 2nd Cir No. 02-1665-pr, 10/25/06 ("a statement properly admitted under FED. R. EVID. 803(6) cannot be testimonial because a business record is fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence. ... Because the autopsy reports are business records as defined in FED. R. EVID. 803(6), they are nontestimonial."); U.S. v. Ellis, 7th Cir No. 05-3942, 8/22/06 (medical report of drug in urine and blood, taken during OWI investigation, not testimonial under Davis-Hammon).

It ought to be recalled that the first step of confrontation analysis is hearsay admissibility and where the report is admitted into evidence then it must satisfy hearsay rules. This case simply doesn't address the hearsay rule. For a rough but accessible statement of principles, see  Walworth County v. Therese B., 2003 WI App 223, ¶¶8-9.

Scholarly critique of "the various stratagems employed by courts" to avoid Crawford when it comes to admissibility of experts' reports, downloadable, here (Jennifer Mnookin, "Expert Evidence and the Confrontation Clause After Crawford v. Washington "). Cert petition, pending as of 1/08 raises this question:

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, 541 U.S. 36 (2004).

¶10      The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis. Stat. § 908.06 ….

¶11      A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant. Smith was warned by the trial court, and he could have chosen not to put into evidence Nunn’s out-of-court statements. Smith ignored the trial court’s warnings, and will not be permitted by this court, in hindsight, a second kick at the cat.

¶24      Fensterer and Owens teach us that the key inquiry for Confrontation Clause purposes is whether the declarant is present at trial for cross-examination, takes the oath to testify truthfully and answers questions asked of him or her by defense counsel. These cases also plainly inform us that the Confrontation Clause does not guarantee that the declarant’s answers to those questions will not be tainted by claimed memory loss, real or feigned.  

¶25      Rockette claims that the Crawford court altered this analysis where prior testimonial statements are concerned. However, we can find nothing in the Crawford opinion suggesting that the Court intended to overrule or otherwise call into question Fensterer or Owens.

¶26      … Accordingly, we hold that a witness’s claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the Confrontation Clause under Crawford, so long as the witness is present at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination. See Fensterer, 474 U.S. at 20, 22; Owens, 484 U.S. at 559-60.

¶26. In this case, Michael's statement appeared to have particularized guarantees of trustworthiness to satisfy the confrontation clause. Michael's statement was a spontaneous comment to his good friend and his friend's son in response to Weed's attempt to drive while intoxicated. Michael allegedly made the statement twice--once to Chris inside the cottage and again to both Fuerbringer and Chris when they were outside starting the fish fry. There also was not an apparent motive for Michael to fabricate the statement.

¶27. However, Weed notes that Michael had been drinking and contends that his statement was not trustworthy because he made it in response to her humiliating comments (e.g. Weed's comment that she would divorce him and make him the "poorest asshole in Portage"). We acknowledge that Michael's mental state might have been affected by having a few beers, although Fuerbringer testified that Michael later switched to soda. We also recognize that the conversation at the cottage was tense, with both Michael and Weed making negative comments about each other. Nevertheless, upon reviewing the totality of the circumstances surrounding Michael's statement, it still appears that his statement had particularized guarantees of trustworthiness. Although Michael had a few beers, there was no indication that Michael was drunk and making inaccurate or untruthful statements. Furthermore, even though Michael and Weed spoke negatively about each other, this does not mean that Michael's statement was untrue. Even if Michael intended to disparage Weed by stating "[t]hat's why I took the bullets out of the .357," this does not necessarily undermine the veracity of his statement. In addition, it seems that if Michael's primary intention was to disparage Weed, he could have done so more directly than describing an act that he had recently performed (i.e. taking bullets out of the gun)

¶11      The statement made by Fields 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. Fields 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 Fields 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 suspect. See People v. Moscat, 777 N.Y.S.2d 875 (N.Y. Crim. Ct. 2004); State v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. 2004); People v. Corella, 18 Cal. Rptr. 3d 770 (Cal. Ct. App.  2004).

So to what issue other than truth might the testimony have been relevant? The prosecutor contends that most of the statements were admissible to show “the actions taken by [each] witness”. Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant’s rights under the sixth amendment and the hearsay rule. ... Under the prosecution’s theory, every time a person says to the police “X committed the crime,” the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one’s accusers. See Crawford v. Washington, 124 S. Ct. 1354 (2004).

But the court of appeals in Hemphill doesn’t adopt the trial court's analysis and thus this problem is left for another day; instead, the court treats the statement as a hearsay exception, which gets to the second problem. (This is made clear in the court's ensuing Roberts analysis, ¶13, that the statement was reliable as either a present sense impression or excited utterance.) Indeed, the three supporting cites are all excited-utterance cases of one type of another. The ensuing analysis will have to be read in light of Hammon v. Indiana, 05-5705, 6/19/06 (police interview of complainant at scene, shortly after incident, elicited "testimonial" statement), and the companion case, Davis v. Washington (accusation made in 911 call immediately after incident "nontestimonial"). Hemphill seems to fall factually somewhere between these two cases (the police were on the scene, same as in Hammon, but the alleged perpetrator wasn't within police control, unlike Hammon but like Davis). Was there an ongoing emergency? But even if there wasn't (because the perp might have been lurking about), it might or might not matter that the statement wasn't made in response to police questioning. That seems like a mere detail -- after all, the presence of the police undoubtedly prompted the statement, and the declarant must have known the accusation would later be used in court. And, indeed, the Court trends strongly in that direction, in footnote 1:

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.

¶14      Had the Supreme Court intended to overrule Craig, it would have done so explicitly. The majority opinion in Crawford does not discuss Craig or even mention it in passing. The only precedent that Crawford overruled was Roberts, and then, only with respect to testimonial statements. See State v. Manuel, 2005 WI 75, ¶60, 281 Wis. 2d 554, 697 N.W.2d 811.

¶15      We conclude that Crawford and Craig address distinct confrontation questions. Crawford concerns the admissibility of out-of-court “testimonial evidence” where the witness was not available for cross-examination. The fundamental issue in Crawford was the reliability of testimony. The Court concluded that the Constitution does not permit judicial determinations of reliability concerning out-of-court testimony; except for traditional common law exceptions, only confrontation at trial is sufficient to satisfy the Sixth Amendment. The issue in Craig, and in this case, is not the reliability of testimony—in both Craig and here, the accused had the opportunity to cross-examine the witness. Rather, the issue is whether the demands of the Confrontation Clause are met when, for public policy reasons and following a case-specific determination of necessity, a barrier is placed between the witness and the accused. Craig addressed this question, and Crawford did not.

… In fact, a categorical requirement that the child’s trauma must be such that he or she cannot speak would run counter to the detailed, three-part test to determine the necessity of a special procedure to shield the child witness from the accused. Furthermore, we have applied Craig in the past and have not read it to impose such a requirement. See, e.g. State v. Street, 202 Wis. 2d 533, 552-54, 551 N.W.2d 830 (Ct. App. 1996).

¶16 First, the State conceded that its process-server had Shelia J.’s wrong address for seven of the attempts at service. Second, a detective found Shelia J. and spoke with her after the victim-advocate learned that Shelia J., as phrased by the State in its representation to the trial court, “believes she didn’t have to come if she didn’t get a subpoena.” Yet, the detective did not then serve Shelia J., but, apparently, merely asked Shelia J. to call the district attorney’s office. Attempting to, in the State’s word, “persuade” a reluctant witness, either directly or through relatives, to come to court is not sufficient when a subpoena could have and should have been served. The district attorney may sign and issue a subpoena “to require the attendance of witnesses.” Wis. Stat. § 885.01(2). “Any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness’s abode.” Wis. Stat. § 885.03. Further, “[i]nexcusable failure to attend any court of record is a contempt of the court,” Wis. Stat. § 885.11(3), and “[e]very court … may issue an attachment to bring such witness before it for the contempt, and also to testify,” § 885.11(2).

¶17 To quote Gollon’s reflection in a related context, whether a hearsay declarant is constitutionally unavailable “is too important” to be satisfied by going-through-the-motions efforts; rather, the efforts must be adapted to the circumstances and must be unstinting. See id., 115 Wis. 2d at 601, 340 N.W.2d at 916. Indeed, even under the lower nonconstitutional standard of Wis. Stat. Rule 908.04(1)(e), the party seeking to introduce an out-of-court declarant’s hearsay assertions “must ‘specify the facts showing diligence’ and not rely on ‘a mere assertion of perfunctory showing of some diligence.’” State v. Williams, 2002 WI 58, ¶63, 253 Wis. 2d 99, 127, 644 N.W.2d 919, 933 (quoted source omitted). Not serving Shelia J. with a subpoena when that was possible and when that step was a foreseeable potential condition to her presence at trial was not reasonable, and does not reflect the constitutionally required good-faith effort to secure King’s right to confront his accuser. Accordingly, the State has not demonstrated that Shelia J. was constitutionally unavailable, and the trial court erred in permitting the jury to hear her preliminary examination testimony. See Crawford, 541 U.S. at 54.

This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request. In effect, the videotape stands as the direct examination, with defense opportunity for live cross-examination. The court of appeals holds that this statute on its face satisfies Crawford v. Washington, 541 U.S. 36 (2004):

¶10 The trial court further acknowledged that following the mandatory protocol would not per se violate James’ confrontation rights. In that respect, we agree with the court’s analysis. ...

¶11 This language describes exactly the situation before us. The State has promised to produce the children for cross-examination upon James’ request. As long as both children testify, the videotape-direct testimony-cross-examination sequence conforms both to Wis. Stat. § 908.08(5)(a) and Crawford. Cf. also State v. Tarantino, 157 Wis. 2d 199, 458 N.W.2d 582 (Ct. App. 1990) (a pre-Crawford case upholding § 908.08 against a Confrontation Clause challenge).^[3]

---

^[3] ... [T]he right of confrontation simply means the right to confront in the sense that a defendant must at some point be allowed to face his or her accuser and force that person to answer for the accusation. It does not require that in order for the courts to admit an out-of-court accusation, the accuser must have confronted the accused at the time he or she made the accusation.

This discussion relates to the procedure at an abstract level: there is nothing necessarily wrong with using a videotaped statement as, in effect, direct testimony. "The notion that James cannot expect a full and exacting cross-examination lacks any factual basis," ¶22. It simply remains to be seen whether and under what circumstances the court will be inclined to find that the defendant was denied "full and exacting cross-examination." In this regard see for example, State v. Price, WA SCt No. 77152-9, 11/16/06 (child's inability to remember did not render her "unavailable," therefore her pretrial statements and taped interview admissible without violating confrontation); U.S. v. Kappell, 6^th Cir No. 04-1333, 8/9/05 (child-witness, even though unresponsive or inarticulate, considered “available” for cross-examination where testifying by remote, closed circuit technology). In all likelihood, something more than a squirrelly performance will have to be shown. See. e.g., State v. Pitt, OR App No. A120428, 11/15/06 (child witness declared incompetent to testify "unavailable" for confrontation purposes). Tangential but related point: it is settled that a witness who, for example, pleads the 5th is "unavailable" for cross-examination, State v. Paul J. Stuart, 2005 WI 47, ¶¶28-29. It is probably fair to say that any witness who genuinely "clams up" should be treated no differently than a witness who has formally invoked the 5th.

¶13    We agree with the State that when the Supreme Court overruled Jackson, it also effectively overruled Dagnall. Not only did Dagnall’s holding rely on the Jackson rule, but Montejo eschewed Dagnall’s central tenet: that the right to an attorney is automatically invoked as soon as a defendant is represented.  See Montejo, 129 S. Ct. 2079, 2085. Montejo overruled this interpretation of the Sixth Amendment. 

¶17      Forbush’s suppression motion was based entirely on his claim that he could not waive the right to an attorney. However, in Montejo the Supreme Court held to the contrary: police may interrogate a defendant charged with a crime who waives the right to an attorney. We conclude this holding is the law not only under the United States Constitution, but under the Wisconsin Constitution as well.

¶18      Historically, we generally have interpreted Article I, Section 11 to provide the same constitutional guarantees as the Supreme Court has accorded through its interpretation of the Fourth Amendment. Arias, 311 Wis.  2d 358, ¶20. We have interpreted Article I, Section 11 to provide the same constitutional guarantees as the Fourth Amendment provided even before the Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961), applied the Fourth Amendment's guarantees to the states under the Fourteenth Amendment. ^[6] Arias, 311 Wis.  2d 358, ¶20. On only one occasion, in our development of Article I, Section 11 jurisprudence have we required a showing different from that required by the Supreme Court's Fourth Amendment jurisprudence. We did so in regard to our development of a good faith exception under Article I, Section 11. State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625 (creating two additional requirements under Article I, Section 11 for law enforcement before according a good faith exception to their reliance on a defective no-knock search warrant). Eason has no application here. Pursuant to our usual practice, we shall interpret the provisions of the Fourth Amendment and Article I, Section 11 as equivalent in regard to community caretaker analyses.

¶20      Historically, we have interpreted Article I, Section 11 of the Wisconsin Constitution in accord with the Supreme Court's interpretation of the Fourth Amendment. See, e.g., State v. Malone, 2004 WI 108, ¶15, 274 Wis. 2d 540, 683 N.W.2d 1; State v. Guzman, 166 Wis. 2d 577, 586-87, 480 N.W.2d 446 (1992); State v. Williams, 47 Wis. 2d 242, 249, 177 N.W.2d 611 (1970). Our coordination of Article I, § 11 with the Supreme Court's Fourth Amendment jurisprudence began long before we were required to follow the Supreme Court's Fourth Amendment jurisprudence by its decision in Mapp v. Ohio, 367 U.S. 643 (1961). For example, in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923), we excluded evidence that was obtained in violation of Hoyer's constitutional rights under Article I, § 11 of the Wisconsin Constitution, an interpretation consistent with the United States Supreme Court's use of the exclusionary rule under the Fourth Amendment. Hoyer, 180 Wis. at 412 (citing Amos v. United States, 255 U.S. 313 (1921)). State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, represents the only time we have departed from the Supreme Court's construction of the Fourth Amendment in our interpretation of Article I, Section 11. ^[5]

¶21      There are sound policy reasons for this consistency in our jurisprudence. By following the Supreme Court's Fourth Amendment jurisprudence in interpreting Article I, Section 11, we impart certainty about what the law requires for those who will apply our decisions with respect to searches and seizures, and we provide distinct parameters to those who must enforce the law while maintaining the constitutionally protected rights of the people. Therefore, were we to conclude that a dog sniff of the exterior of a vehicle in a public place constitutes a search under Article I, Section 11, we would be undertaking a significant departure from the Supreme Court's Fourth Amendment jurisprudence in interpreting the right to be free of unreasonable searches under the Wisconsin Constitution.

¶19      … (T)his court ordinarily adopts and follows the Fourth Amendment jurisprudence of the United States Supreme Court.

…

¶27      Young, however, argues that we should reject Hodari D. and interpret Article I, Section 11 of the Wisconsin Constitution to afford greater protections to individual liberty interests than does the Fourth Amendment. …

…

¶30      Typically, this court interprets Article I, Section 11 of the Wisconsin Constitution in tandem with the Fourth Amendment jurisprudence of the United States Supreme Court. Griffith, 236 Wis.  2d 48, ¶24 n.10.  Of course, we do not always follow the Supreme Court's lead, ^[9] and the Court does not require us to do so when we supplement the United States Constitution's protections with protections under our own constitution.  See Michigan v. Long, 463 U.S. 1032, 1041 (1983) ("It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions."). ^[10] We embrace the Fourth Amendment jurisprudence of the United States Supreme Court when we perceive soundness in Supreme Court analysis and value in uniform rules. We follow that course in this case.

Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899. (No. 2000AP2590-CR), and as providing greater due process protection than the Fourteenth Amendment, State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582. (No. 2003AP1690-CR). However, to date, it has not construed art. I, sec. 11 of the Wisconsin Constitution differently than the Fourth Amendment to the U.S. Constitution. We therefore interpret the state provision as providing the same level of protection from governmental searches and seizures as the federal provision. See State v. Eason, 2001 WI 98, ¶47, 245 Wis. 2d 206, 629 N.W.2d 625 (“[W]e are reluctant to construe our state constitutional provision differently than the fourth amendment, especially since the two provisions are intended to protect the same interests and we are unconvinced that the Supreme Court provides less protection than intended by the search and seizure provision of the Wisconsin Constitution.”).

The ink barely dry on the supreme court’s “New Federalism” revolution, the court of appeals’ Thermidorian Reaction rears its head. Somewhat polemical? Sure, but compare the court of appeals’ spin on Eason with the supreme court’s, in Knapp itself, 2005 WI 127, ¶73 n. 14 (emphasis supplied):

This is not the first time we have explicitly departed from federal constitutional jurisprudence to extend greater rights to Wisconsin citizens. …

In State v. Eason, 2001 WI 98, ¶63, 245 Wis. 2d 206, 629 N.W.2d 625, this court departed from the Supreme Court's holding in United States v. Leon, 468 U.S. 897, 919-20 (1984), where the Supreme Court formulated an exception to the exclusionary rule where a police officer relied in good faith upon a search warrant issued by an independent and neutral magistrate. This court concluded that for the good faith exception to apply, "the State must show that the process used attendant to obtaining the search warrant included a significant investigation and a review by a police officer trained in, or very knowledgeable of, the legal vagaries of probable cause and reasonable suspicion, or a knowledgeable government attorney." Eason, 245 Wis.  2d 206, ¶63. Although the Supreme Court did not require this in Leon, this court held "that Article I, Section 11 of the Wisconsin Constitution requires this process and thus affords additional protection than that which is afforded by the Fourth Amendment."  Id.

UPDATE: The court of appeals subsequently amended footnote 3 (presumably in response to Roberson's petition for review, which was highly critical of the court's misrepresentation of Eason. The amendment -- which will be recited momentarily -- is highly peculiar in several respects. First, although it will be included in the hard-bound official reporters, the amended language is not included in the publicly accessible court file, at least as of 10/25/05, though it is avaliable through the commerical on-line service LEXIS). Second, although the court certainly has authority to reconsider the decision on its own motion, within 30 days of the PFR, § 809.24(3) (action which the court indeed took earlier in this very case), it is far from clear that this can be done after publication has been ordered and even more doubtful that language can be changed short of full withdrawal. This is because the court of appeals simply "does not have the power to overrule, modify, or withdraw any language from" its own published decision, State v. Miyosha White, 2004 WI App 237, ¶7. Indeed, this very strictly observed limitation derives from the Art. VIII pinciple that the court of appeals is a unitary court, Cook v. Cook, 208 Wis. 2d 166, ¶¶41-55, 560 N.W.2d 246 (1997). It follows that that principle is violated when a panel issues a post-publication amendment. This leads to the final and somewhat related point: a post-publication amendment subverts the publication process; who is to say that the publication committee would have ordered publication of the changed text? Now, the new language (new text is highlighted, deleted text struckthrough):

Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899. (No. 2000AP2590-CR), and as providing greater due process protection than the Fourteenth Amendment, State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582. (No. 2003AP1690-CR). However, to date, it has not generally construed the search and seizure protections of art. I, sec. 11 of the Wisconsin Constitution to be coextensive with those of differently than the Fourth Amendment to the U.S. Constitution. We therefore interpret the state provision as providing the same level of protection from governmental searches and seizures as the federal provision. See State v. Eason, 2001 WI 98, ¶47, 245 Wis. 2d 206, 629 N.W.2d 625 See State v. Fry, 131 Wis. 2d 158, 388 N.W.2d 565 (1986) (“[W]e are reluctant to construe our state constitutional provision differently than the fourth amendment, especially since the two provisions are intended to protect the same interests and we are unconvinced that the Supreme Court provides less protection than intended by the search and seizure provision of the Wisconsin Constitution.”). (Citation omitted.)

The Fifth Amendment to the United States Constitution provides that no person “shall … be subject for the same offence to be twice put in jeopardy of life or limb ….” Article I, section 8 of the Wisconsin Constitution provides that “no person for the same offense may be put twice in jeopardy of punishment ….” Two recent decisions of the Wisconsin Supreme Court have concluded that certain provisions of the state constitution provide greater protections than analogous provisions of the federal constitution. State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899 (No. 2000AP2590-CR) (construing protection against self-incrimination in article I, section 8 of the Wisconsin Constitution to be greater than the Fifth Amendment); State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582 (No. 2003AP1690-CR) (construing due process protection in article I, section 8 of the Wisconsin Constitution to be greater than the Fourteenth Amendment). Following State v. Seefeldt, 2003 WI 47, ¶15 n.4, 261 Wis. 2d 383, 661 N.W.2d 822, our analysis does not distinguish between the double jeopardy protections of the state and federal constitutions. Id. (“In construing Wisconsin ’s protection against double jeopardy protection, we are guided by the rulings of the U.S. Supreme Court.”) (citation omitted).

¶66      The powers of the Wisconsin Supreme Court are defined in several ways and have diverse origins.  Some are explicitly set forth in Article VII, Section 3 of the Wisconsin Constitution: appellate and original jurisdiction and superintending and administrative authority.  Others are derived from the state constitutional separation of powers doctrine, as well as from the court's very existence, especially this court's being the highest court in the state, the court of last resort.  Indeed, "it is well established that this court has express, inherent, implied and incidental powers" ^[25] to manage the sound operation of the judicial system in our tripartite form of government. 

…

¶69      When all is said and done, Arneson v. Jezwinski, 206 Wis. 2d 217, 225-26, 556 N.W.2d 721 (1996), quoted with approval in State ex rel. Hass v. Wisconsin Court of Appeals, 2001 WI 128, 248 Wis. 2d 634, 640, 636 N.W.2d 707 (2001), summarizes the case law interpreting our superintending authority and sets forth the present and long-standing view that the court's superintending authority is a broad power to be exercised for controlling the course of litigation and is shaped by the continuing necessity that this court carry out its function as a supreme court. …

…

¶92      The judiciary article of the Wisconsin Constitution was amended in 1977. The supreme court's superintending authority was placed in a one-sentence subsection separated from the other subsections granting appellate and original jurisdiction and separated from any reference to writs. Article VII, Section 3(1) of the 1977 amendment reads simply as follows regarding the court's superintending powers: "The supreme court shall have superintending and administrative authority over all courts." 

¶93      Thus, in 1977, presumably aware of the historical case law interpreting the 1848 constitution and the court's exercise of superintending power to adopt and enforce the Code of Judicial Ethics, the legislature and the people of the state decoupled the court's superintending authority over all state courts from the writs specified in the 1848 constitution and thereby gave their imprimatur to the court's historical interpretation of the 1848 language attributing to the court broad constitutional superintending power to control litigation. Thus, the 1977 constitutional amendment implemented Justice Adam Smith's broad explication of the court's superintending power set forth in the Blossom case and in Chief Justice Wilkie's opinion in Kading.

¶23. Chvala asserts that Wisconsin courts do not rely on decisions from other states to interpret the Wisconsin Constitution, and he asks that we not consider the above cases in reaching our decision. We recognize that none are binding, but there is no reason we may not consider how courts of other jurisdictions have decided the same or similar issues. We observe that the supreme court did just that in In re Grady, 118 Wis. 2d 767, 778-81.

¶20. We find that the state constitutional right to bear arms is fundamental. It is indeed a rare occurrence for the state constitution's Declaration of Rights to be amended. See Monks, The End of Gun Control, 2001 Wis. L. Rev. at 249. Article I, Section 25 explicitly grants a right to bear arms….

¶21. Nevertheless, we do not agree with Cole's position that strict scrutiny or intermediate scrutiny is required in this case…. We find the precedents of other states, favoring a "reasonable" test, to be persuasive in the context of the right to bear arms.

¶22. Generally, when other courts have evaluated challenges to the validity of gun control statues under state constitutional provisions, the test has been whether the statute constitutes a "reasonable regulation" in light of the state's police powers…. We are persuaded that this standard is appropriate because the interests of public safety involved here are compelling. See id. at 259 n.69-70 (and cases cited therein)….

¶26. Although Article I, Section 25 creates a fundamental right, as the above analysis shows, such a right is still subject to reasonable restriction. As such, we find the correct test to be whether or not the restriction upon the carrying of concealed weapons is a reasonable exercise of the State's inherent police powers. Such a test should not be mistaken for a rational basis test. The explicit grant of a fundamental right to bear arms clearly requires something more, because the right must not be allowed to become illusory….

¶27. … Under circumstances such as those in this case, the reasonableness test focuses on the balance of the interests at stake, rather than merely on whether any conceivable rationale exists under which the legislature may have concluded the law could promote the public welfare….

¶4. First, as the trial court noted, we may not read our 1848 constitution using modern definitions and syntax. We are to examine:

(1) The [nineteenth century] plain meaning of the words in the context used;

(2) The historical analysis of the constitutional debates and of what practices were in existence in 1848, which the court may reasonably presume were also known to the framers of the 1848 constitution, and;

(3) The earliest interpretation of this section by the legislature as manifested in the first law passed following the adoption of the constitution.

State v. Beno, 116 Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984) (citations omitted).

¶5. This case requires us to interpret language in the Wisconsin Constitution. We do so de novo. Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996).

• Multiplicity / Multiple Punishment
  • Generally
  • Judicial Estoppel Bar to Arguing
  • Particular Crimes
    • Reckless Homicide
    • Reckless Injury
    • Sexual Assault
      • Single Incident
      • Distinct Intrusions
    • Car-Jacking
    • Harassment Injunction
    • Enticement
    • Bail Jumping -- Different Bond Conditions
    • Battery -- Simple/Prisoner
    • Child Pornography
    • Theft
      • Same Victim
      • Concealing
    • Perjury -- Same Proceeding
    • Burglary / Intent to Steal While Armed, Burglary / Intent to Steal While Committing Battery
  • Prosecution Following Juvenile Discipline
  • Waiver -- Guilty Plea
• Prosecutorial Misconduct
  • Provoking Mistrial
  • Vindictiveness
    • Increased Charge Following Hung Jury
    • Increased Charge After Postconviction Relief
    • More Onerous Plea Offer Postconviction Relief
• Retrial Following Mistrial Over Defense Objection
• Remedy
  • Partial Acquittal (Ashe Collateral Estoppel)
  • Multiplicity
  • Pre-Jeopardy Dismissal
• Sentence
  • Judicial Vindictiveness
  • Amending to Correct Mistaken Oral Pronouncement
  • Modification
  • Defendant's Fraud
• Successive Prosecutions, § 939.71

To determine whether a civil penalty is so punitive that it is should be characterized as criminal punishment, we must consider the factors listed by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and reaffirmed in Hudson v. United States....

Using the Kennedy factors, we conclude that the Wisconsin drug tax was so punitive in purpose and effect that it constituted a criminal punishment....

... (J)eopardy attaches to a punitive tax “when the defendant voluntarily pays the amount due in full . . . [or] when the government takes title to a defendant’s assets.” See Doyle v. Johnson, 235 F.3d 956, 959 (5th Cir. 2000).

... For these reasons, we reverse the district court’s denial of habeas corpus. In doing so, we emphasize that this case does not stand for the proposition that Wisconsin cannot both tax and imprison those who violate drug laws. It is well-established that cumulative punishments may be meted out as long as they result from a single proceeding. See, e.g., Kurth Ranch, 511 U.S. at 778; Torres, 28 F.3d at 1464. Moreover, it is a rare tax statute which is so punitive in either purpose or effect that it is subject to double jeopardy analysis at all. However, when we are presented with a criminal punishment masquerading as a civil tax, we are compelled by the mandates of the Constitution to ensure that the defendant is punished only once for his misconduct.

¶15      Charges are multiplicitous if they charge a single criminal offense in more than one count. State v. Grayson, 172 Wis. 2d 156, 159, 493 N.W.2d 23 (1992). Claims of multiplicity are analyzed using a two-prong test that requires examination of: (1) “whether the charged offenses are identical in law and fact;” and (2) if they are not, “whether the legislature intended the multiple offenses to be brought as a single count.” State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).

¶16      If, applying the first step of the analysis, a court determines that the charges are identical in law and fact, then the charges are multiplicitous and violate constitutional double jeopardy protections. State v. Trawitzki, 2001 WI 77, ¶¶20-21, 244 Wis. 2d 523, 628 N.W.2d 801. If the charges are not identical in law and fact, no constitutional violation exists, but the court must still determine if the legislature intended multiple punishments for the same offenses. Id., ¶¶20-22. …

¶17      [W]hether the legislature intended that multiple offenses that are different in fact be brought as a single count … is conducted de novo.

¶18      “[W]e begin with the presumption that the legislature intended multiple punishments. This presumption may only be rebutted by a clear indication to the contrary.” Id. at 751 (citations omitted). “We use four factors to determine legislative intent in a multiplicity analysis: 1) statutory language; 2) legislative history and context; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishment.” Id.

¶32. In sum, we conclude that the imposition of cumulative punishments from different statutes in a single prosecution for "the same offense" violates double jeopardy when the cumulative punishments are not intended by the legislature. See Whalen, 445 U.S. at 689; see also Rutledge v. United States, 517 U.S. 292, 297 (1996).

¶33. The "same offense" in this specific situation should be an offense identical in law and fact. The imposition of cumulative punishments not authorized by the legislature is a due process violation, not a double jeopardy violation, when the punishments do not spring from the same offense. "The same offense" is the sine qua non of double jeopardy. State v. Trawitzki, 2001 WI 77, ¶22, 244 Wis. 2d 523, 628 N.W.2d 801; State v. Grayson, 172 Wis. 2d 156, 159 n.3, 493 N.W.2d 23 (1992).

¶35. Some of our commentary on multiplicity must be re-evaluated in light of the last quarter-century of United States Supreme Court decisions…. In short, legislative intent to authorize cumulative punishments overrides a total identity of law and fact a la Blockburger.

¶36. This understanding is significant because this court has said that if offenses "are identical in law and fact, the charges are multiplicitous in violation of the double jeopardy clauses of the federal and state constitutions." Anderson, 219 Wis. 2d at 747; see also Trawitzki, 244 Wis. 2d 523, ¶21; Derango, 236 Wis. 2d, ¶30. Although this statement is usually true, it is not always true, because the legislature may have intended to authorize cumulative punishments for the same offense. ¶37. In situations where the legislature intends to authorize cumulative punishments for the same offense, we may no longer say that the charges are "multiplicitous" or that they violate double jeopardy. Use of the term "multiplicitous" should be limited to situations in which the legislature has not authorized multiple charges and cumulative punishments.

¶38. In addition, in discussing multiplicity, a reference to "charges" must be employed carefully, because it is permissible to charge more than one count, even if the state may not punish a defendant on more than one count. Johnson, 467 U.S. at 500….

¶43. First, the court determines whether the charged offenses are identical in law and fact using the Blockburger test. Trawitzki, 244 Wis. 2d 523, ¶21; Derango 236 Wis. 2d 721, ¶29. If it is determined, using this test, that the offenses are identical in law and fact, the presumption is that the legislative body did not intend to punish the same offense under two different statutes. Whalen, 445 U.S. at 692. "Accordingly, where two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Id. (emphasis added).

¶44. Conversely, if under the Blockburger test the charged offenses are different in law or fact, a presumption arises that the legislature did intend to permit cumulative punishments. See Derango, 236 Wis. 2d 721, ¶30; Lechner, 217 Wis. 2d at 407; Sauceda, 168 Wis. 2d at 496; State v. Kuntz, 160 Wis. 2d 722, 755, 467 N.W.2d 531 (1991). "This presumption can only be rebutted by clear legislative intent to the contrary." Derango, 236 Wis. 2d 721, ¶30; Lechner, 217 Wis. 2d at 407; Kuntz, 160 Wis. 2d at 755 (citing Missouri v. Hunter, 469 U.S. at 367; Albernaz, 450 U.S. at 340).

¶45. Second, even if the charged offenses are not identical in law and fact, the court must still determine whether the legislature intended multiple offenses to be brought as a single count. See Anderson, 219 Wis. 2d at 746. At this juncture, however, it is the defendant's burden to show a clear legislative intent that cumulative punishments are not authorized.

¶10. Although judicial estoppel is not easily reduced to a pat formula, there are identifiable boundaries. Petty, 201 Wis. 2d at 348. First, the defendant's later position must be "clearly inconsistent" with the earlier position. Id. Second, the facts at issue should be the same in both cases. Id. Finally, the party to be estopped must have convinced the first court to adopt its position. Id. Thus, although we permit a party to argue inconsistent positions in the alternative, "once it has sold one to the court it cannot turn around and repudiate it in order to have a second victory." Id. at 350 n.6. Instances in which a defendant in a criminal case reverses positions on appeal most often fit these parameters since the facts are the same and it is easier to discern whether the positions are clearly inconsistent. Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994).

…

¶18. In Johnson's case, it was the State's decision to proceed with two separate charges. However, Johnson could have moved to dismiss one of the charges as multiplicitous. Instead he chose to take advantage of the separate charges in an attempt to limit his total criminal exposure. He requested that the lesser-included offense of possession be submitted to the jury for the cocaine in his pocket.

¶19. Johnson was victorious to the extent that he convinced the jury that he possessed the cocaine in his pocket without intent to deliver it. Unfortunately for Johnson and his trial strategy, it appears that the jury did not also believe that he knew nothing about the cocaine in the bathroom. But because the jury was partially convinced of Johnson's position on the facts, he cannot now enjoy a 'second victory' by reversing that position on appeal in order to assert a double jeopardy violation.

Estoppel, as just suggested, is a double-edged sword. E.g., Whaley v. Belleque, 9th Cir No. 06-35759, 3/24/08 ("under the doctrine of judicial estoppel, the state cannot now reverse its position in order to suit its current objectives"). The problem becomes especially acute when the state uses inconsistent theories to obtain conviction; an increasing number of cases indicates that the state's use of factually contradictory theories violates due process. E.g., Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000). The matter almost came to a head in Mitchell v. Stumpf, 04-637, which raised a Question, "Does the Due Process Clause require that a defendant's guilty plea be vacated when the State subsequently prosecutes another person in connection with the crime and allegedly presents evidence at the second defendant's trial that is inconsistent with the first defendant's guilt?" In the event, however, the Court did not reach this issue, Bradshaw v. Stumpf, 545 U.S. 175, 187 (2005). Notwithstanding the observation by the Stumpf concurrence -- "This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories." -- the issue remains potentially viable. Granted that the result was vacated on a different ground, the lower court holding is worth keeping in mind, Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004):

Drawing on the principle that the Constitution’s “overriding concern [is] with the justice of the finding of guilt,” United States v. Agurs, 427 U.S. 97, 112 (1976), several of our sister circuits have found, or implied, that the use of inconsistent, irreconcilable theories to secure convictions against more than one defendant in prosecutions for the same crime violates the due process clause. See, e.g., Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000); Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc); Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) (en banc) (Clark, J., specially concurring); cf. Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) (involving a situation where both defendants had shot at the victim and it was unclear whose bullet had actually hit and killed the victim; the court found that the two theories advanced by the prosecution were not inconsistent because both defendants could have been convicted under the law of parties). On this issue of first impression in this court, we now join our sister circuits in finding that the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation.

... we conclude that fundamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained.

We also conclude, however, that where, as here, the available evidence points clearly to the truth of one theory and the falsity of the other, only the defendant against whom the false theory was used can show constitutionally significant prejudice....

These cases stand for the proposition that a party is not as bound by his prior arguments as he is by prior assertions of fact. We conclude that no due process violation has occurred in the present case when the State's shifting positions involved matters of opinion, not of underlying fact. We, therefore, decline to hold the State to the argument it made to the LaBoy jury that he is the most culpable of the four killers. That argument was permissible in the context of the LaBoy trial and supported by the evidence presented to that jury. In this proceeding, however, the purpose is the direct comparison of the relative culpability of defendant and LaBoy. We do not find it necessary to constrain the State's argument on this issue.

For a US Supreme Court case discussing judicial estoppel, see New Hampshire v. Maine, 532 U.S. 742 (2001). However, authority should be noted to the effect that judicial estoppel, a common-law doctrine not constitutionally mandated, "is not applicable in criminal cases," Roberts v. State, GA SCt No. S04G0219, 11/8/04 (further noting split nationally on this principle and citing 121 ALR5th 551). While that holding might (or might not) be correct at a sufficient level of generality, it seems that a) Wisconsin falls on the other side; and b) the specific question of inconsistent prosecutorial theories of guilt raises problems distinct from the typical instance of merely shifting positions.

¶12      Patterson argues that Wis. Stat. § 939.66(2) shows a clear legislative intent not to allow punishment for both reckless homicide and contributing to the delinquency of a child with death as a consequence. However, this argument, albeit in the context of § 939.66(2m), was rejected in Davison. Davison explained that the statute is ambiguous and the statute’s legislative history does not show a legislative intent to prevent cumulative punishments. Davison, 263 Wis. 2d 145, ¶¶74, 90. Instead, the Davison court concluded that § 939.66(2m) can reasonably be interpreted as allowing two convictions for battery as long as two battery crimes have been charged. See Davison, 263 Wis. 2d 145, ¶¶65-67. The reasons why the Davison court reached these conclusions need not be repeated here. Rather, what matters is that the Davison court effectively rejected the proposition that § 939.66(2) shows a clear legislative intent not to allow punishment for both a charged criminal homicide and a charged less serious type of criminal homicide.

…

¶19      In short, Wis. Stat. § 940.02(2)(a) and Wis. Stat. § 948.40(4)(a) address two different categories of proscribed conduct that differ markedly in their essential nature. That Patterson’s particular conduct happens to fall within a relatively limited area covered by both statutes does not show that the legislature intended only one punishment.

¶8        Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id. (citation omitted). Charges are not the same in fact if each requires proof of a fact that the other does not. Blockburger v. U.S., 284 U.S. 299, 304 (1932). Multiple offenses are significantly different in nature if each requires “a new volitional departure in the defendant’s course of conduct.” Anderson, 219 Wis. 2d at 750 (citation omitted).

¶9        Here, it is self-evident that the separate allegations against Nommensen in Washington county and Fond du Lac county are different in fact since the conduct occurred in different locations. From that, it is also self-evident that the conduct had to have occurred at different times. In short, Nommensen could not have been in two different locations at the same time. From that, it also follows that the conduct alleged against Nommensen in Fond du Lac county and the separate conduct alleged in this case each represent “a new volitional departure in [Nommensen’s] course of conduct.” See id. So, despite the “overlap” period of April 1998, a future fact finder in this case could not convict Nommensen based on the conduct for which he was acquitted in the Fond du Lac county case.

¶11. The principles described in Koller, having been applied in Harrell and several types of prosecutions in which multiple convictions were affirmed, are applicable to this case and require the holding of this court that, on the alleged facts before us, McKinnie was properly charged with separate crimes. On May 21, 2001, at approximately 9:04 p.m., in the north parking lot of Brookfield Square Mall, in Waukesha county, McKinnie allegedly armed with a dangerous weapon by threat of use of force decided to steal a car out from under its driver, Shirley Katt; on the next day, May 22, 2001, at approximately 9:30 a.m., in Milwaukee county, McKinnie, after sufficient time for reflection, again committed himself to driving a stolen car. Each act required "a new volitional departure in [McKinnie's] course of conduct." See Koller, 2001 WI App 253 at ¶31. As alleged, McKinnie's offenses are separate and distinct and may be separately charged.

¶8        The parties do not dispute that the offenses charged against Eaglefeathers are identical in law; he was charged with two violations of the same statute, Wis. Stat. § 946.49. Rather, the dispute is over whether the offenses are identical in fact.  Offenses are different in fact if the offenses “are either separated in time or are significantly different in nature.” State v. Stevens, 123 Wis.  2d 303, 322, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985). The test for whether offenses are significantly different in nature “is whether each count requires proof of an additional fact that the other count does not. The offenses are significantly different in nature if each requires a new volitional departure in the defendant’s course of conduct.” Anderson, 219 Wis.  2d 739, ¶20 (citations omitted).

…

¶11      An offense is different in nature from another offense when it requires proof of a fact that the other offense does not.  Anderson, 219 Wis. 2d 739, ¶20. As the circuit court explained, each count of bail jumping associated with each case would require separate proof by the State. The State would be required to prove that the court notified Eaglefeathers of the preliminary hearing in each case, and that Eaglefeathers failed to appear in each case. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other. As a result, the two charges were significantly different in nature and therefore were different in fact for purposes of double jeopardy analysis.

¶52. We are not persuaded by Schaefer's effort to distinguish Multaler. In Koller, we explained:

When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the State has alleged facts which, if proven, demonstrate a new volitional departure. However, just because the State has properly alleged facts for purposes of multiplicity analysis does not mean the State can prove the alleged facts. Thus, apart from whether there is a basis for a multiplicity challenge to pretrial allegations, events at trial, or otherwise may suggest that the State is unable to actually prove a new volitional departure supporting multiple charging.

Koller, 2001 WI App [253] at ¶34. We take this opportunity to further clarify the appropriate question when a multiplicity challenge is directed at charging. Restating and modifying the first sentence from ¶34 in Koller: When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the facts alleged by the State, and reasonable inferences from those facts, demonstrate a new volitional departure.

¶53. Schaefer's argument is better suited to a multiplicity objection made during or at the end of trial. Had we a full evidentiary record to review, it is possible that the State's allegations may not withstand a multiplicity challenge. For example, evidence that images were copied wholesale from another disk or computer could convince the trial court that the charges were not different in fact and therefore only one count should be considered by the jury. But here we have only the charging document and the evidence from the pretrial hearing. Under these circumstances, we determine that Multaler is dispositive. Thus, the fact that there were over thirty-nine separate image files "supports a conclusion that [Schaefer] made a new decision to obtain each one." Multaler, 2002 WI 35 at ¶58. Here a reasonable inference from the alleged fact that each photograph was contained in a separate computer file is that Schaefer downloaded each file separately and made a separate volitional decision to retain each file.

For example, if the accused downloads several images at once, that are contained in a single computer file, is that still on par with a traditional photo album or is that more like a magazine, which is generally not divided into separate counts for each picture? See City of Madison v. Nickel, 66 Wis. 2d 71, 83-84, 223 N.W.2d 865 (1974) (single sale of four obscene magazines charged as four obscenity offenses under city ordinance precluding sale of obscene material). Under Wis. Stat. § 948.12, the use of the term "motion picture" indicates legislative intent that possession of one movie is a single offense, although a reel of film could contain thousands of individual images. Similarly, the statute refers to a videotape in the singular form. But what if several movies are copied onto one DVD or videotape? It does not appear that State v. Multaler, 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, provides a ready answer to such situations

¶58. Applying these standards, we agree with the court of appeals that the 28 counts to which Multaler pled were not identical in fact. Although some of the downloaded image files contained multiple images, there were more than 28 separate image files. In a statement given after his arrest, Multaler admitted that he "began downloading . . . in the winter of 1998," thus suggesting that he obtained the image files over a period of time. Even had he downloaded all the image files in a very short period of time, the fact that there were more than 28 separate files supports a conclusion that he made a new decision to obtain each one. Every time he downloaded a new file, he recommitted himself to additional criminal conduct. Each decision to download more child pornography represented a new volitional departure.

¶59. Having determined that the charges are different in fact, we turn to examine the legislature's intent regarding the allowable unit of prosecution. Where charges are different in fact, we presume that the legislature intended multiple punishments. Anderson, 219 Wis. 2d at 751. This presumption is rebutted only by a clear indication of legislative intent to the contrary. Id. We use four factors to determine legislative intent in a multiplicity analysis: (1) statutory language; (2) legislative history and context; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishments for the conduct. Id.....

¶64. Nothing in the plain language of Wis. Stat. § 948.12 supports Multaler's position that the legislature intended that a computer disk, rather than an image, is the intended unit of prosecution. Rather, the plain language of the statute provides that a possessor of "any photograph . . . or other pictorial reproduction" has violated the statute. Section 948.12 (emphasis added). The singular formulation of these items covered under the statute modified by the term "any" is evidence that the legislature intended prosecution for each photograph or pictorial reproduction. In short, the plain language of the statute leads us to the conclusion that for purposes of the second part of the multiplicity analysis each image Multaler possessed could be prosecuted separately.

¶11      Next, Jaimes argues that the prosecutor’s responsibility to avoid provoking a mistrial must extend to the law enforcement officers who testify at trial …. In effect, Jaimes argues that the officer’s testimony must be imputed to the prosecutor, and when an officer testifies about explicitly excluded evidence, it is binding on the prosecutor so as to attach double jeopardy.

¶12      In response to this argument, the State acknowledges that no Wisconsin court has addressed this argument. It urges us to follow other jurisdictions’ holding that a police officer’s testimony creating a basis for the mistrial—in the absence of evidence of collusion by the prosecutor’s office intended to provoke the defendant to move for a mistrial—does not constitute prosecutorial overreaching to bar a retrial. We agree …

We conclude that (1) Lettice is not estopped from seeking a dismissal based on double jeopardy; (2) Lettice's failure to move for mistrial does not prevent him from asserting that prosecutorial misconduct bars retrial when the prosecutor engaged in misconduct with a covert motive which Lettice was not aware of until after trial; and (3) double jeopardy bars retrial because the prosecutor's action was undertaken with the intent to prevent an acquittal or to prejudice the possibility of an acquittal that the prosecutor believed would occur in the absence of his misconduct. The trial court's order of dismissal is therefore affirmed.

...

We specifically hold that even in the absence of a motion for mistrial, the double jeopardy clause bars retrial when the prosecutorial misconduct is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct. See Wallach II, 979 F.2d at 916. This protects a defendant from multiple successive prosecutions for the same offense that result from prosecutorial misconduct done with the deliberate intent of interfering with the defendant's right to have his trial completed by a particular tribunal or by prejudicing the possibility of an acquittal that the prosecutor believed likely. See Pavloyianis, 996 F.2d at 1473.

¶45 … As Humphrey [v. United States, 888 F.2d 1546, 1549 (11th Cir. 1989)] suggests, the fact that a defendant is facing stiffer charges arising out of a single incident is important because where such is the case, the concern is that the defendant will be discouraged from exercising his or her right to appeal because he or she is afraid the State will retaliate by substituting a more serious charge for the original one on retrial. However, this concern does not come into play where the new charges stem from a separate incident. In that situation, it is not the appeal that opens the door for the second charge. The prosecutor could have brought the charges against the defendant at any time, regardless of whether the defendant chose to appeal his or her conviction in the original case.

¶46. Furthermore, in this case, the present prosecutor had new evidence available to him that the earlier prosecutor did not-the testimony of the two alleged victims from the first trial. …

¶47. Contrary to Williams' assertions, the fact that the present prosecutor made his decision to press charges without actually seeing the witnesses testify is not relevant…. ¶48. Williams also asserts that the presumption of vindictiveness arises in this case because in July 2000, prior to filing the new charges, the prosecutor informed Williams that if he insisted on going to trial, the State would charge him with the 1990 incidents. It is well established that this conduct does not give rise to a presumption of prosecutorial vindictiveness. …