On Point: j. "Testimonial" Evidence

State v. Nelson Holmes, 2024AP1121, District I, 6/17/25 (one-judge decision; ineligible for publication); case activity

The COA affirmed Nelson Holmes’ conviction at trial of operating a vehicle under the influence and with a prohibited alcohol concentration, finding that a witness’s statements to a 911 operator were not testimonial and were admissible as present sense  impressions, and that Holmes was not subjected to custodial interrogation when he made incriminating statements to police.

Christopher Roalson v. Jon Noble, No. 22-2833, 8/28/24

The Seventh Circuit affirms an order denying habeas relief, applying pre-Smith law on the confrontation clause, as the underlying WI COA decision dates back to 2014. The Court concludes that the rule the COA applied–“one expert cannot act as a mere conduit for the opinion of another” and must instead “render[] her own expert opinion”–did not contradict Melendez-Diaz or Bullcoming, the established precedent at the time.

Smith v. Arizona, USSC No. 22-899, 6/21/2024, vacating and remanding Arizona v. Smith, No. 1CA-CR 21-0451 (Ariz. Ct. App. 2022) (unreported); Scotusblog page (with links to briefs and commentary)

SCOTUS unanimously holds that expert witness testimony restating an absent lab analyst’s factual assertions to support his or her own opinion is hearsay. However, the Court declined to address the second part of the Confrontation Clause test, whether the underlying evidence was testimonial, as the issue was undeveloped in this case.

State v. Antonio G. Ramirez, Jr., 2021AP1590, 11/15/23, District 2 (recommended for publication); case activity (including briefs)

There are some serious unresolved confrontation questions around statements alleged victims make in settings involving both medical treatment and criminal investigation: often, during a police-instigated physical examination after an alleged physical or sexual assault. Here, despite turning out a 52-page, recommended-for-publication opinion, the court of appeals fails meaningfully to address any.

Smith v. Arizona, U.S.S.C. No. 22-899, cert. granted 9/29/23; Scotusblog page (containing links to briefs and commentary)

Question presented:

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

State v. Alvin James Jemison, Jr., 2021AP2207-CR, 7/18/23, District 1 (not recommended for publication); case activity (including briefs)

After a jury trial, Jemison was convicted of second-degree sexual assault of an unconscious person (Teresa) as a repeater – serious sex crime and sentenced to life in prison without the possibility of release to extended supervision. See Wis. Stat. § 939.618(2)(b). After the circuit court denied his postconviction motion without a Machner hearing, Jemison raised three claims on appeal: (1) the evidence was insufficient to support the completed sexual intercourse charge, (2) the court erred in its admission of other acts evidence, and (3) the court erroneously denied his claims without an evidentiary hearing. The court of appeals rejects each of Jemison’s claims and affirms.

State v. Kevin J. McDowell, 2022AP164-CR, District 4, 9/22/22 (not recommended for publication); case activity (including briefs)

The decision in this interlocutory appeal addresses the procedure for assessing whether out-of-court statements the state proposes to admit at a criminal trial are “testimonial” and therefore inadmissible under the Confrontation Clause. It also rejects the state’s claim that a deceased witness’s statements to police are nontestimonial because they were made to address an ongoing emergency.

State v. Darrell K. Smith, 2021AP72-CR, 9/20/22, District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Smith of 2nd degree sexual assault of A.B. He argued that his trial counsel was ineffective for failing to object when (1) statements from a non-testifying sexual assault nurse examiner (SANE) were admitted in violation of the Confrontation Clause, and (2) the circuit admitted a DOC photo of Smith and two officers testified that the photo was obtained from the DOC, thereby informing the jury that Smith had previous convictions. The circuit court denied both claims without a Machner hearing. The court of appeals reverses and remands for a hearing.

State v. Mark D. Jensen, 2021 WI 27, 3/18/21, affirming a court of appeals summary disposition; case activity (including some briefs)

Julie Jensen died by poisoning in 1998. The state eventually charged her husband, Mark, with having killed her; the defense was that she had died by suicide. Before her death Julie had made oral and written statements to the effect that Mark would be responsible if something happened to her. She wasn’t available to testify at the trial, of course, and Mark moved to exclude these statements on Confrontation grounds. Our supreme court now holds that, when it held these statements testimonial in a prior appeal (in 2007), it established the law of the case; it further concludes that SCOTUS has not altered the law so much since then that the law-of-the-case doctrine should give way. So, it remands for a new trial, without the statements.

State v. Mark D. Jensen, 2018AP1952, petition for review of a summary court of appeals order granted 6/16/20; affirmed 3/18/21; case activity

Usually we do to the issues presented first. Here, they’re pretty insubstantial, so let’s just say what’s going on: the supreme court has intervened to (potentially) save a manifestly unconstitutional (and you don’t have to take our word for it) homicide conviction and life sentence in a notorious case.