On Point: 6. Confrontation, 6th Am.

State v. Glenn H. Hale, 2005 WI 7, affirming, as modified, 2003 WI App 238
For Hale: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding:

¶53. A threshold question for applying the Crawford framework is whether the State is proffering “testimonial” hearsay evidence. …¶54. Because Sullivan’s hearsay evidence was “testimonial” in nature, we turn next to the requirements of the Confrontation Clause as interpreted by Crawford: (1) unavailability of the declarant and (2) a prior opportunity for cross-examination.

State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73
For Stuart: Christopher W. Rose

Issue: Whether the preliminary hearing testimony of a witness (“John”) – unavailable at trial after refusing to testify at that stage – was admissible under the confrontation clause,

State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall

Issue/Holding1: The confrontation clause doesn’t prohibit a witness from reading to the jury admissible medical records:

¶13      First, as we have seen, the certified medical records were received by the trial court without objection. Certainly, the jurors could have read the pertinent excerpts, and, also, the prosecutor or defense counsel could have read to the jury excerpts from those records.

State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis

Issue/Holding1: Statement of coconspirator during drug transaction, conveyed to jury via police informant buying drugs as part of controlled buy, not “testimonial”:

¶25      We do not think an objective witness would reasonably believe that Vongrasamy would have thought his informal telephone conversation with his roommate would be available for use at a later trial.

State v. Donavin Hemphill, 2005 WI App 248
N.B. The holding quoted below was overruled, in State v. Mark D. Jensen, 2007 WI 26, ¶24n. 8. In other words, “a spontaneous statement to a police officer” is not, as a matter of law, non-testimonial.
For Hemphill: Jeffrey Jensen

Issue/Holding: An out-of-court statement by a witness to police (responding to a report of “trouble” involving a “subject with a gun”) which pointed out the defendant (“Those are the ones.

State v. Kevin D. James, 2005 WI App 188
For James: Terry W. Rose

Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request.

State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs

Issue/Holding: Issue/Holding: Pretrial videotaped statement, § 908.08(5), doesn’t violate confrontation when the person actually testifies, ¶24.

State v. Jermaine Smith, 2005 WI App 152, PFR filed
For Smith: Glen B. Kulkoski

Issue: Whether a co-actor’s in-custody pretrial statements were admissible as impeachment on rebuttal after the defense introduced a different hearsay statement by that declarant.

Holding:

¶10      The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis. Stat. § 908.06 ….

¶11      A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant.

State v. Bryan Hoover, 2003 WI App 116, PFR filed 6/26/03
For Hoover: Glenn C. Cushing, SPD, Madison Appellate

Issue/Holding: The defense wasn’t entitled to cross-examine a prosecution witness about the sentence he received on an otherwise unrelated charge, where the witness wasn’t offered a benefit in exchange for his testimony. Allowing the defense to cross-examine on the witness’s perception of what benefit he might receive sufficiently accommodated the right of confrontation.

State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove

Issue/Holding:

¶44. The State charged Gundy as an accomplice to Ross’s criminal activity. Gundy was arrested in Maryland, and brought back to Milwaukee where he was held in custody. Ross contends that pursuant to a plea agreement, Gundy was released from custody, and secured leniency in return for his testimony against Ross.