On Point: 6. Confrontation, 6th Am.

Adam Samia v. United States, USSC No 22-196  ; cert. granted 12/13/22; Scotusblog page (containing links to briefs and commentary)

Question presented:

Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment.

State v. Kevin J. McDowell, 2022AP164-CR, District 4, 9/22/22 (not recommended for publication); case activity (including briefs)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State v. Darrell K. Smith, 2021AP72-CR, 9/20/22, District 1 (not recommended for publication); case activity (including briefs)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State v. Ryan L. Bessert, 2021AP1062-CR, District 3, 5/3/22 (not recommended for publication); case activity (including briefs)

The circuit court properly applied § 972.11(2m)(a) under the circumstances of this case when allowing the complaining child witness to testify via closed circuit television, so Bessert’s right to confrontation was not violated. In addition, assuming without deciding that Bessert’s right to a public trial was violated because the courthouse doors were locked when the circuit court issued its verdict, the court employed an appropriate remedy for the constitutional violation by timely re-announcing the verdicts in open court.

State v. Garland Dean Barnes, 202AP226-CR, petition for review of a per curiam opinion granted 4/15/22; affirmed 6/6/23; case activity (including briefs)

Questions Presented:

Can a defendant open the door to testimonial hearsay violating his confrontation rights, and which was excluded based on an egregious discovery violation, by challenging the quality of the police investigation?

Can the claim that a non-testifying officer witnessed the defendant commit the crime be admitted over hearsay objections under the theory that it is admissible to show the course of investigation, not for the truth of the matter asserted?

Hemphill v. New York,  USSC No. 20-637, 142 S.Ct. 681, 1/20/22 reversing and remanding People v. Hemphill, 150 N.E.3d 356; Scotusblog page (including links to briefs and commentary)

New York charged Hemphill with a homicide; a stray 9mm bullet fired after a fight in the street had killed a child. Hemphill’s defense was that another man, Morris, had fired the shot. Police had searched Morris’s room and found both 9mm and .357-magnum ammunition, and the state had, in fact, originally charged Morris with the murder. Hemphill was able to introduce evidence of Morris’s possession of the 9mm ammo by cross-examination of a state’s witness. In response the state sought to introduce portions of a transcript of Morris’s ultimate plea–in which he admitted to possessing a .357 revolver, rather than the 9mm pistol that had killed the child. Morris was out of the country and thus not available for cross-examination, but the New York courts ruled the transcripts were admissible under state law allowing such evidence where it is “reasonably necessary” to “correct” a “misleading impression.” The Supreme Court reverses, declaring in an 8-1 decision that “Hemphill did not forfeit his confrontation right merely by making the plea allocution arguably relevant to his theory of defense.” (Slip op. at 2).

State v. Oscar C. Thomas, 2021 WI App 55; Review granted 1/11/22; affirmed 2/21/23; case activity (including briefs)

This is the appeal from Thomas’s second conviction at trial for the false imprisonment, sexual assault and murder of his wife. (The first conviction was ultimately undone by the Seventh Circuit, which held that his counsel had been ineffective for failing to seek out certain expert testimony.) Thomas raises three issues. He claims he was convicted of the sexual assault count in violation of the corroboration rule, because the only evidence it occurred was his own confession. He also says all three convictions were obtained in violation of his right to confrontation, as the state introduced a hearsay lab report concerning DNA evidence during cross-examination of his expert. And he argues one of the jurors was objectively biased because she at least believed she was a cousin of one state’s witness. The court rejects all three claims.

Hemphill v. New York, No. 20-637, cert. granted 4/19/21; reversed 1/20/22; Scotusblog page

Question presented:

Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.

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. Patrick A. Keller, 2021 WI App 22; case activity (including briefs)

Keller was convicted of causing mental harm, as a party to a crime, to his stepdaughter, who has autism. During his trial, the circuit court admitted statements made by non-testifying confidential reporters to Child Protective Services access workers. In a published decision, the court of appeals holds that these statements were not made for the primary purpose of gathering evidence to prosecute Keller, so the Confrontation Clause does not apply.