Confrontation Clause Case Analysis

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While Manuel may have lost this case, the decision is good for defendants generally. “For now,” at least, the court has adopted the broadest possible definition of a “testimonial” statement — “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Crawford itself only requires that prior testimony be deemed testimonial. Until further word comes from either the U.S. Supreme Court or the Wisconsin Supreme Court, lower courts are bound to hold that any statement falling into any three of the categories is testimonial.

The decision is also good for defendants, because the court declined to hold that nontestimonial statements do not implicate the Confrontation Clause at all, but remain subject to the same analysis as before, Ohio v. Roberts, 448 U.S. 56 (1980).

Unfortunately for defendants, the Roberts test was essentially a license to admit any hearsay without worrying about the Confrontation Clause; but the court’s holding is still better than one that would have exempted nontestimonial hearsay from the clause altogether. So, notwithstanding the result for Manuel, the decision is good for defendants.

Defense attorneys need to pay close heed, however, to a seemingly innocuous footnote, which in fact, would provide grounds to distinguish this case on just slightly different facts: “We review only whether Stamps’ statement to Rhodes violated Manuel’s confrontation right. Manuel does not claim that Rhodes’ statement to Misener constitutes a separate confrontation violation.”

The reason is that, unlike Stamps, Rhodes did not refuse to testify at all; instead, she did testify, but what she testified to was that she didn’t remember what Stamps told her, and she didn’t remember what she told Misener. Thus, Misener’s testimony was allowed pursuant to sec. 908.01(4)(a)1, and State v. Lenarchik, 74 Wis.2d 425, 436, 247 N.W.2d 80 (1976).

Had Rhodes not testified at all, Misener’s testimony clearly would violate the Confrontation Clause. Misener’s testimony is the classic example of “double hearsay” or “hearsay within hearsay”: “Rhodes told me that Stamps told her that ….”

The objections to this level of hearsay are twofold. First, there is not a single exception to the hearsay rule into which the statement from Rhodes to Misener would even plausibly fit, if Rhodes did not testify at all.

Second, the statement clearly is testimonial under the third formulation cited by the court, although not the first two.

Rhodes made two separate statements. First, she asked, upon watching Stamps get arrested, “Why, because he was with the guy that shot that dude?” This statement would qualify as an off-hand remark, specifically labeled nontestimonial by the court in Crawford v. Washington, 541 U.S. 36, 51, 56 (2004).

After that, however, she gave an actual statement to Misener, described by the court as follows: “Misner also said that Rhodes told him that Stamps said he was talking to Adams after Adams pulled his vehicle over to the roadside. At that point, Misener stated that Rhodes indicated that Stamps told her that Manuel ‘came out of nowhere.’ Misener then said that Rhodes told him that Stamps told her he heard gunshots and all of a sudden saw Manuel.”

Rhodes’ statements to Misener clearly constitute, “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

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The State could not plausibly argue that any reasonable person could think that she could describe a shooting in detail, to a police officer, no less, and think it won’t be used at trial at some point.

Even with the procedural history in the case at bar, however, a Confrontation Clause argument could be made. The argument that no violation is based on the fact that the defendant is able to cross-examine Rhodes.

However, this is meaningless, inasmuch as Rhodes has no personal knowledge whatsoever; only Stamps does. Manuel could cross-examine Rhodes, but could not cross-examine Stamps — the person who is the origin of the substance of the testimony against him.

An argument can be made that this is not the sort of cross-examination that the Confrontation Clause contemplates, and admission of the testimony still runs afoul of Crawford, something the court of appeals briefly discussed in this case. State v. Manuel, 2004 WI App 111, 275 Wis.2d 146, 685 N.W.2d 525, 528 n. 4, 532 n.7.

– David Ziemer

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David Ziemer can be reached by email.