On Point blog, page 8 of 10
Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias
State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply
Confrontation – Generally
The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,
State v. Olu A. Rhodes, 2009AP25, Wis SCt rev Granted 9/24/10
decision below: unpublished; prior On Point post; for Rhodes: John J. Grau
Issue (from Table of Pending Cases):
Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.
Homicide case, tried on State’s theory Rhodes had motive to kill victim for beating Rhodes’ sister; court of appeals reversed because trial judge cut off cross-examination that Rhodes did not react violently in response to prior harm inflicted by victim on sister.
Bullcoming v. New Mexico, USSC No. 09-10876, cert grant 9/28/10
Decision Below (New Mexico supreme court)
Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
Cert. Petition
Follow-up to Melendez-Diaz v.
Joseph Stock v. Gaetz, 7th Cir. No. 09-2560, 09/03/2010
Habeas – Limits on Cros-Examination
State court limitation on impeachment of a witness — so as to exclude that portion of a pre-trial conversation containing the defendant’s “self-serving,” thus inadmissible hearsay, statement — wasn’t an unreasonable application of controlling caselaw.
Determination of whether “state interests, including those reflected in the state’s evidentiary rules, may need to bend in order to ensure that defendants have the right to confront the witnesses against them …
Confrontation – Limits on Cross-Examination
State v. Olu A. Rhodes, No. 2009AP25, District I, 7/7/10; reversed, 2011 WI 73
court of appeals decision (3-judge; not recommended for publication), reversed, 2011 WI 73; for Rhodes: John J. Grau; BiC; Resp.; Reply
¶10 A defendant’s “right to confront and to cross-examine is not absolute[,]” however, and “‘trial judges retain wide latitude … to impose reasonable limits.’” Id.
State v. Earnest Jean Jackson, 2009AP1449-CR, District I, 4/27/10
court of appeals decision (3-judge; not recommended for publication); for Jackson: Mark S. Rosen; BiC: Resp.; Reply
Double Jeopardy – Retrial Following Mistrial
Mistrial on defendant’s motion, occasioned by prosecutorial failure to disclose that witness was cooperating with police in separate investigation of Jackson, didn’t bar retrial: there was no showing that the prosecutor was aware of the undisclosed information, or that failure to disclose was intended to provoke mistrial,
Confrontation – Certified Bank (“Business”) Records – Nontestimonial
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue: Whether the authenticating affidavit of a bank record was “testimonial” within the Confrontation Clause.
Holding:
¶45 The parties do not dispute that the circuit court correctly described Crawford and Manuel as identifying business records as nontestimonial,
Confrontation – Expert Opinion Based on Hearsay
State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson
Issue: Whether an FBI agent’s expert opinion, that the simultaneous deaths of an elderly couple were the result of homicide rather than natural causes, was improperly based on hearsay, namely the opinions of two non-testifying experts who thought the likelihood of natural causes so remote as to be impossible.
Holding:
¶35 In State v.
Confrontation – Testimonial Statement, Opportunity for Cross-Examination – Witness Who Testified and Then Was Dismissed
State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg
Issue/Holding:
¶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.
Confrontation – “Testimonial” Statement – Generally: “Broad” Definition Applies – Solicitation by Police not Absolutely Necessary
State v. Mark D. Jensen, 2007 WI 26, on bypass
For Jensen: Craig W. Albee
Issue/Holding:
¶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).