Confrontation Clause Case Analysis

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The two areas of law most likely to be affected by the decision are domestic violence cases and sensitive crimes — the areas most commonly plagued by uncooperative witnesses.

Only one Wisconsin case is expressly rejected by the U.S. Supreme Court in its discussion — State v. Bintz, 2002 WI App 204, 257 Wis.2d 177, 650 N.W.2d 913 — but every Confrontation Clause case decided since Ohio v. Roberts, 448 U.S. 56 (1980), is suspect, and must be reconsidered anew.

Bintz actually involved hearsay of two witnesses — the defendant’s (Robert Bintz) brother, David, and David’s cellmate. David admitted to involvement in a murder, and implicated Robert in a statement to police. Under the decision in this case, the statement is clearly testimonial, and inadmissible.

The cellmate testified both at Robert’s preliminary hearing and at David’s trial. The cellmate’s testimony at the preliminary hearing is apparently admissible, because Robert had the opportunity to cross-examine.

However, the cellmate was only testifying as to what David told him, so it is "hearsay within hearsay." Because Robert cannot cross-examine David, the cellmate could not testify as to what David told him, assuming David’s statements qualify as "testimonial."

Interestingly, the cellmate also testified as to what David said in his sleep. Presumably, talking in one’s sleep would not qualify as "testimonial."

Another recent Wisconsin decision likely to be reversed is State v. Hale, 2003 WI App 238, 672 N.W.2d 130, review granted, Feb. 24, 2000.

In Hale, the court of appeals concluded that prior testimony from a co-defendant’s trial is admissible at the defendant’s trial because the co-defendant had opportunity to cross-examine the witness.

While the decision in the case at bar does not address this situation, given the Court’s emphatic defense of the right of confrontation, the decision in Hale should be expected to be overturned.

The cases most clearly overturned are those in which testimonial hearsay was admitted pursuant to the residual hearsay exception, sec. 908.045(6). Those cases admit testimonial hearsay based on "comparable circumstantial guarantees of trustworthiness."

Admission of such statements, however, is patently inconsistent with the Supreme Court’s conclusion that, "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."

Accusations of sexual assault made well after the incidents should therefore no longer be admissible. Thus, State v. Sorenson, 143 Wis.2d 226, 421 N.W.2d 77 (1988), which upheld statements to a social worker under the residual exception, should be deemed no longer valid law.

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One hearsay exception (besides dying declaration, which the court suggested remains outside the Confrontation Clause) that may still pass constitutional muster is the recent perception exception, sec. 908.045(2), recently at issue in State v. Weed, 2003 WI 85, 263 Wis.2d 434, 666 N.W.2d 485.

To qualify for the recent perception exception, a statement must be made "not in response to the instigation of a person engaged in investigating … a claim." Thus, any statement that fits into the exception arguably does not qualify as "testimonial," and is therefore still admissible.

A big question in domestic violence cases will be whether admission of 911 calls, which are frequently essential for a successful prosecution, are barred by the Confrontation Clause.

Admission of 911 calls was upheld by the Wisconsin Court of Appeals in State v. Ballos, 230 Wis.2d 495, 602 N.W.2d 117 (Ct.App.1999), as either excited utterances, statements of recent perception, or present sense impressions.

If 911 calls are nontestimonial, Ballos remains good law; if not, Ballos fails. However, as Chief Justice Rehnquist noted in his concurrence, it will be "months or years" before the definition of "testimonial" is set.

– David Ziemer

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David Ziemer can be reached by email.