On Point blog, page 10 of 15
Irving L. Cross v. Hardy, 7th Cir No. 09-1666, 1/13/11
7th circuit decision, reversed, Hardy v. Cross, USSC No. 11-74, 12/12/11
Habeas Review – Confrontation – Pre-Crawford (Ohio v. Roberts) Showing of Witness Unavailability
The state court (Illinois) unreasonably applied controlling Supreme Court precedent in finding good-faith efforts to secure the presence of the declarant, before determining that she was unavailable so that her first-trial testimony could be read to the jury at Cross’s re-trial.
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,
Confrontation: Forfeiture Doctrine – Witness Unavailability; Authentication – Telephone Recording; Appellate Jurisdiction
State v. Scottie L. Baldwin, 2010 WI App 162 (recommended for publication); for Baldwin: Robert E. Haney; (principal briefs not posted on-line)
The trial judge’s findings, though made prior to Giles v. California, 128 S.Ct. 2678 (2008), satisfied the test imposed by that case, that forfeiture of the right to confrontation requires intent to prevent the witness from testifying.
¶39 Therefore,
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decision below: unpublished; prior On Point post; for Rhodes: John J. Grau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.
TPR – Right to Subpoena Parent’s Child
Jeffrey J. v. David D., 2010AP1717, District 3, 9/28/10
court of appeals decision (1-judge, not for publication); for David D.: Shelley Fite, SPD, Madison Appellate
Parent’s right to confrontation was satisfied by in-chambers discussion between judge and children during which they spoke in favor of termination, where their father killed their mother and grandparents, and the judge reasonably determined that they would suffer emotional harm if required to submit to face to face confrontation.
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.
State v. Marvin L. Beauchamp, 09AP806, Wis SCT rev granted 9/13/10
decision below: 2010 WI App 42; for Beauchamp: Martin E. Kohler, Craig S. Powell
Issues (from Table of Pending Cases):
Does the confrontation clause bar admission of testimonial dying declarations against a defendant in light of Crawford v. Washington, 541 U.S. 36 and State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811?
Does a defendant’s right to due process of law restrict the substantive use of prior inconsistent statements?
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. Mark W. Sterling, 2009AP815-CR, District I, 5/4/10
court of appeals decision (3-judge, not recommended for publication); for Sterling: Dianne M. Erickson; BiC; Resp.; Reply
Charging Decision – Judicial Involvement
Increase in the charge, following trial judge’s veiled suggestion to the prosecutor that such an increase would be appropriate, wasn’t occasioned by judicial interference with prosecutorial discretion, ¶¶16-22.
Initially charged with first-degree reckless injury, Sterling was ultimately convicted on an amended charge of attempted first-degree intentional homicide.