On Point: H. Hearsay, Ch. 908

State v. Marvin L. Beauchamp, 2011 WI 27, affirming 2010 WI App 42; for Beauchamp: Craig S. Powell; case activity

Confrontation – Dying Declaration, § 908.045(3)

¶34  We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. 

State v. Dennis J. Thornton, 2009AP3074-CR, District 2, 4/13/11

court of appeals decision (not recommended for publication); for Thornton: Angela C. Kachelski; case activity

Scienter is not an element of § 940.225(3). State v. Lederer, 99 Wis. 2d 430, 433, 299 N.W.2d 457 (Ct. App. 1980) (statute requires proof of victim’s nonconsent – in contradistinction, presumably, of defendant’s knowledge of lack of consent –

7th circuit court of appeals decision

Habeas – Certificate of Appealability

We pause briefly to note the district court’s error in denying a certificate of appealability in this case. The statute provides that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has interpreted this language to require a showing that “reasonable jurists could debate whether (or,

State v. Bryan Peter Leather, 2010AP354-CR, District 1, 4/5/11

court of appeals decision (not recommended for publication); for Leather: Rex Anderegg; case activity

Leather argues he was entitled to call the prosecutor as a witness to testify about the complainant’s hearsay statements to her. The 6th amendment right to present a defense (confrontation and compulsory process) isn’t absolute and in particular doesn’t extend to irrelevant evidence. The offer of proof in support of admissibility shows that the complainant’s statements to the prosecutor weren’t inconsistent with her testimony,

decision below: unpublished; case activity

Issues (formulated by On Point):

Whether Domke was denied effective assistance of counsel by trial counsel’s: failure to object to inadmissible hearsay in the form of a social worker’s testimony reciting the complainant’s recitation of the alleged sexual assaults; producing, without first interviewing her, the complainant’s mother as a defense witness who proceeded to testify that she believed the complainant “100 percent.”

State v. Jimmie Lee Higgins, 2010AP861-CR, District 1, 2/1/11

court of appeals decision (3-judge, not recommended for publication); for Higgins: Ellen Henak, SPD, Milwaukee Appellate; case activity; Higgins BiC; State Resp.; Reply

Any error with respect to exclusion of the victim’s pretrial statement to the police in one instance, and admissibility of her statements to a nurse, would be harmless.

decision below: unpublished; for Kandutsch: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Issues (formulated by On Point):

Whether admission into evidence of electronic monitoring daily summary reports requires expert testimony to lay a foundation as to accuracy and reliability.

Whether the daily summary reports fall outside the definition of hearsay because they don’t represent assertions made by a person.

Kandutsch, while under electronic monitoring,

State v. Marlon M. Anderson, 2010AP742-CR, District 1/4, 12/9/10

court of appeals decision (3-judge, not recommended for publication); for Anderson: Angela Conrad Kachelski; Anderson BiC; State Resp.

A defendant’s statement made voluntarily but in violation of Miranda isn’t admissible in the State’s case-in-chief, but is admissible if the defendant testifies and the statement is inconsistent with his testimony. The question raised here relates to how such inconsistency is measured: whether outright contradictions are necessary,

State v. Devon A. Sheriff, 2009AP3095-CR, District 1, 11/16/10 

court of appeals decision (3-judge, not recommended for publication); for Sheriff: Jeffrey W. Jensen; Sheriff BiC; State Resp.

Sheriff, convicted at jury trial of participating in drug sale, unsuccessfully appeals trial judge’s refusal to admit into evidence codefendant’s statements.

¶12      We conclude that the statements that Sheriff sought to admit were properly excluded because they were irrelevant.

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?