What the court held
Case: State of Wisconsin v. Mark D. Jensen, No. 2004AP2481-CR.
Issue: In a homicide trial, can statements of the victim before death accusing the defendant of trying to murder her be admitted into evidence?
Holding: Yes. If the court finds by a preponderance of the evidence that the defendant murdered the victim, then he caused her unavailability, and forfeits his right to invoke the Confrontation Clause.
Attorneys: For Appellant: Moeller, Marguerite M., Madison; Graveley, Michael D., Kenosha; For Respondent: Glynn, Stephen M., Milwaukee; Albee, Craig, Milwaukee.
The facts seem ripped from a Hollywood movie: a murdered woman left an envelope to be opened in the event of her death, and inside, it says that her husband is trying to kill her.
The question is whether the letter is admissible at her husband’s trial for murder.
The Wisconsin Supreme Court says that it depends, but the practical answer is yes.
The court remanded the case for the circuit court to determine whether, by a preponderance of the evidence, the defendant murdered his wife. If so, then he caused her unavailability, and forfeited his right to confrontation.
A dissent by Justice Louis B. Butler disparaged the procedure as “plac[ing] the cart before the horse.”
Ultimately, however, the evidence seems certain to be admissible. If the trial judge can’t find by a preponderance of the evidence that the husband murdered his wife, then the case never should have been bound over for trial in the first place; it should have been dismissed at the preliminary hearing stage.
To get past that stage, the court had to find that a felony probably was committed, and the defendant probably committed it. How then could the court find that the preponderance of the evidence standard is not met on the same factual question?
As such, the procedure approved by the court seems to be a mere formality, and the letter will have to be admitted at trial.
The first issue in the case was whether the letter is testimonial, and thus subject to the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004).
The court concluded that it was, noting that Julie, the victim, addressed it to the police with the intent that it be used to further investigation in the event of her death. The court found it irrelevant that no crime had yet been committed.
The court contrasted the letter with informal statements Julie made to neighbors to the same effect, which the court concluded were nontestimonial, and thus not subject to Confrontation Clause analysis in the first place.
Because the letter was testimonial, its admission would violate the Confrontation Clause, unless an exception is present —such as the forfeiture by wrongdoing doctrine. Under the doctrine, a defendant forfeits his right to cross-examine a witness, if the defendant caused the witness to be unavailable for trial.
Even though the question on the forfeiture issue — whether the defendant murdered the victim — is the same as the ultimate question of guilt for the jury, the court held the doctrine applicable, because a defendant should not profit from his own misconduct.
Agreeing with the State, the court held that Julie’s letter should be admitted, if the circuit court finds, by a preponderance of the evidence that the defendant, Mark Jensen, murdered his wife, rejecting Jensen’s argument that a higher standard should apply.
Butler concurred with much of the majority opinion, but concluded that the forfeiture by wrongdoing doctrine applies only if the defendant made the witness unavailable, “for the purpose of preventing the witness from testifying.”
Even if Jensen did murder his wife, Butler concluded, it could not have been for the purpose of preventing her from testifying at a trial concerning her own murder. Accordingly, Butler concluded that the exception does not apply, and admission of the letter, or any other “testimonial” statements would violate the Confrontation Clause.
The effect of the majority analysis is to create a “homicide exception” to the Confrontation Clause not present in the common law, Butler opined.
David Ziemer can be reached by email.