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Confrontation – Admissible Hearsay (Statement of Recent Perception) – Roberts Analysis Surviving Crawford

State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding1 [general principles]: The two-part analysis of Ohio v. Roberts, 448 U.S. 56 (1980) survives Crawford for use in determining Confrontation Clause admissibility of nontestimonial statements, ¶¶54-61 (unavailable declarant, and adequate indicia of reliability).

Issue/Holding2 [applied to facts]: The hearsay in question – a statement of recent perception – is not firmly rooted, and therefore must have particularized guarantees of trustworthiness to be admissible, ¶67. That showing is satisfied, where the statement was made spontaneously, in private to the declarant’s girlfriend and thus in confidence, and without ulterior motive to fabricate, ¶¶69-70.

To same effect, re excited utterance: State v. Roberto Vargas Rodriguez, 2006 WI App 163, ¶28, PFR filed 8/28/06; subsequent history: affirmed, 2007 WI App 252 (confrontation right forfeited), PFR filed 11/1/07.But: Davis seems to have sounded the end of Roberts analysis as a matter of federal constitutional law, despite this holding, at least according to James J. Duane in a commentary in the Fall ’06 Criminal Justice; and according to Lisa Kern Griffin in the Michigan Law Review (“The Court buried the lede, but Davis does pronounce Roberts dead.”); and, for that matter, Richard Friedman (“The Court also manages to close one can of worms, going well out of its way to make clear (though some lower courts have not recognized this so far) that if a statement is not testimonial it is not covered by the Confrontation Clause.”) But, just how much advantage does (did?) a Roberts analysis give? None at all, bluntly says Friedman: “Numerous post-Crawford courts, having determined the statements at issue were not testimonial, have gone through the Roberts analysis and—not surprisingly—determined that the statements were admissible. … No terrible harm is done, perhaps, but the process is wasteful, because courts will continue to run through it with predictable results.”

Note holding in State v. Cook, 135 P.3d 260 (Ore. 2006), that Roberts survives as matter of state constitution confrontation analysis.

 

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