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BENCH BLOG: Divided appeals court affirms right of confrontation only at trials

By: Jean DiMotto//December 30, 2015//

BENCH BLOG: Divided appeals court affirms right of confrontation only at trials

By: Jean DiMotto//December 30, 2015//

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Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

The Court of Appeals has affirmed that it’s not only the rules of evidence that do not apply in criminal pretrial proceedings; equally inapplicable is the right of confrontation.

The issue arose in a drunken-driving case in Fond du Lac when Glenn Zamzow challenged whether a police officer had had reasonable suspicion to justify stopping him.

What made the pretrial suppression motion unusual is that the officer had died before the hearing. Since he could not testify, the parties had to rely on a squad car video and audio recording.

Suppression hearing

Zamzow objected to the audio portion on grounds of hearsay and the Confrontation Clause. Both objections were overruled by Fond du Lac County Circuit Judge Gary Sharpe, and the audio and video recording was played in open court during the hearing.

In the recording, the officer is heard saying to Zamzow, “The reason I stopped you is you were crossing the center line there coming at me and then again when I turned around and got behind you.”

Judge Sharpe was able to observe on the video that after the officer had turned around and sped up to get behind Zamzow, Zamzow’s tires were “very close to and/or upon the center line.” He could not discern whether the tires actually crossed the center line of the slushy pavement.

Relying primarily on the audio portion to find that Zamzow had twice crossed the center line, Sharpe concluded there was reasonable suspicion for the stop and accordingly denied the motion to suppress.

At the hearing on Zamzow’s motion for reconsideration, Sharpe elaborated that in addition to the audio statement he had relied on the fact that the officer had made an abrupt U-turn on a busy city street, then had sped up to get behind Zamzow before making the stop. These observations supported the officer’s recorded statement and were sufficient to establish its reliability.

Zamzow appealed on hearsay, confrontation and due-process grounds.

Hearsay issue on appeal

The majority opinion was written by Court of Appeals Judge Mark Gundrum and joined by Chief Judge Lisa Neubauer. They turned to a 1990 case, State v. Frambs, to decide the hearsay issue.

The Frambs court of appeals relied on sec. 901.04(1) which concerns judicial decisions on preliminary questions about the admissibility of evidence. “In making the determination the judge is bound by the rules of evidence only with respect to privileges.”

The Frambs court thus concluded that judges are not statutorily bound to apply the hearsay rule at a pretrial hearing in criminal cases. A 2003 Wisconsin Supreme Court case is in accord on that matter (State v. Jiles).

Accordingly, Judge Sharpe did not violate the hearsay rule by watching and listening to the audio video at Zamzow’s court hearing.

Confrontation Clause

Despite strong dissent on this issue, the majority gave somewhat cursory attention to questions of confrontation in pretrial proceedings and tended to conflate its analysis with the hearsay issue.

It found that Frambs had provided a precedential basis for determining that the Confrontation Clause does not apply at pretrial hearings, noting that the U.S. Supreme Court “has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial.”

Zamzow argued that Frambs is no longer good law because it was decided before Crawford. Gundrum responded that the Crawford decision did not “in any way” deal with pretrial hearings.

Due process clause

In an underdeveloped argument, Zamzow argued that the audio-video recording was insufficiently reliable evidence because of his inability to cross-examine the officer about defects in his perceptions.

The court disagreed. It distinguished between reliance on a police report and an audio-video recording. The latter allows a trial judge “a real-time observation of the actual interaction,” as well as the opportunity to “hear directly” what the officer said as well as how it was said. The court concluded that Judge Sharpe’s reliance on the audio-video recording was not improper.


The dissent was written by District 2 Presiding Judge Paul Reilly. In his stark manner he noted that without the audio-video recording, the prosecution of Zamzow could not have continued, thus emphasizing the stakes at pretrial hearings on suppression motions.

He formulated the issue in the case as the right to confront one’s accuser “in a criminal proceeding,” thus broadening the context of confrontation to include not only trials but all pretrial hearings. He concluded that Crawford is applicable at the pretrial stage, and therefore would require face-to-face witness confrontation at any criminal hearing.

Reilly warned that the effect of the majority’s decision is that hearings on suppression motions are no longer needed. They can be supplanted by paper reviews and by viewing dash-cam videos. The majority, however, dismissed the idea of paper reviews on due process grounds.


Aside from preliminary hearings, the vast majority of pretrial proceedings consist, as here, of suppression motions. The quantum of proof is low — preponderance of the evidence.

This reflects how a pretrial hearing, in which a judge acts as an evidentiary gatekeeper, differs from a trial, in which a jury determines a defendant’s guilt or innocence. The difference accounts for the inapplicability of the Confrontation Clause at pretrial hearings.

This interpretation of the applicability of the clause is rooted in a strong line of U.S. Supreme Court cases construing confrontation as a “trial right.” And although the majority opinion on confrontation is not as forceful as the dissent, it does appropriately cite case law that confines the right of face-to-face witness confrontation to trial and does not establish an all-encompassing right available throughout the criminal process.

That said, the fact is that cross-examination is a regular feature of pretrial suppression motions. The circumstances in this case — in which an audio-video recording was shown in open court without the opportunity to confront a witness — puts into bold relief one question identified by the dissent: whether Crawford applies in pretrial criminal proceedings.

From that point of view, the matter is an issue of first impression.

Expect a petition for review.


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