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Confrontation – Hearsay: Former Testimony, § 908.045(1) — Codefendant’s Separate Trial

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: Under Crawford v. Washington, 124 S. Ct. 1354 (2004), prior testimony at a codefendant’s separate trial is inadmissible at Hale’s trial, given that the previously testifying witness cannot be located. ¶¶53-58.

Crawford says that testimonial hearsay violates confrontation absent prior opportunity to cross-examine. A witness’s prior testimony is, well, “testimonial,” ¶53. The real question is whether the codefendant’s opportunity to cross-examine had any bearing on Hale’s right of confrontation; the court – efficiently characterizing the issue as one of “confrontation by proxy” – says it didn’t, that the defendant must have had the prior opportunity to cross-examine the witness, ¶56. He didn’t, so Crawford was violated. Simple as that.

Simple or not, there are implications. The court doesn’t say so explicitly, but the only fair reading is that State v. Robert Bintz, 2002 WI App 204, ¶¶18-20, 257 Wis. 2d 177, 650 N.W.2d 913 (prior testimony from codefendant’s separate trial admissible against defendant) is now overruled. (Bintz was eventually upheld in federal court on habeas review, but under pre-Crawford analysis, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005).)

There are 4 (!) separate concurrences involving 6 justices. They all agree that Crawford was violated, so that helps. But Justice Prosser’s 3-vote concurrence (¶¶91-99) makes the point that a defendant may forfeit the right of confrontation by wrongdoing: kill a witness and you won’t be heard to complain about that witness’s “unavailability.” The point seems unassailable and yet … it doesn’t really have anything to do with the case at hand, does it? Indeed, as leading expert Richard Friedman puts it, “(f)orfeiture often raises difficult issues.” Why not have caselaw discussion wait, though, for a live case actually raising them?

And Justice Butler writes separately to say that the challenged evidence violated hearsay as well as confrontation, ¶¶101-07. Indeed, the majority recognized that resolution of an appeal on nonconstitutional grounds is generally preferred, but in this instance it’s best to invert the priorities and get Crawford out of the way, ¶42. In fact, the very point of Crawford is to replace unpredictable, case-by-case “trustworthiness” analysis with an easily administered rule. Pace Justice Butler, inverted constitutional analysis is probably the preferable modality in Crawford cases. Note, for example, the Justice’s stress on the particular facts, indicating that Jones and Hale had antagonistic defenses, and their their interests didn’t coincide, ¶¶103-05. That might very well have been true, but it is precisely the sort of case-specific (and thus labor-intensive) inquiry Crawford seeks to avoid. Moreover, the fact that codefendants Jones and Hale’s interests clashed doesn’t mean that they necessarily diverged on the matter of attacking Sullivan. Maybe, maybe not: it’s not a self-evident proposition; the matter simply isn’t explored in sufficient detail to conclude one way or the other.

This isn’t to say, by any means, that the hearsay rule now should be ignored; just the contrary. But if the evidence can be efficiently analyzed and deemed inadmissible under Crawford, then there’s no need for the heavy lifting of a fact-intensive hearsay analysis. Regardless, it ought to be kept in mind that the relationship between hearsay and confrontation is now irrevocably splintered. As Richard Friedman usefully observes: “The rule against hearsay and the Confrontation Clause are separate sources of law—and Crawford stops the tendency to meld them. The question for Confrontation Clause purposes in each case is whether the given statement is testimonial. The fact that a statement fits within a hearsay exception does not alter its status with respect to that question. But one can say that most statements that fit within certain hearsay exceptions are not testimonial.” (All the more reason to take up confrontation first.)

For whatever it’s worth, pre-Crawford cases tended to find “that testimony given at a codefendant’s trial was sufficiently reliable to satisfy Roberts if the witness had been cross-examined by the codefendant’s counsel,” Dorchy v. Jones, 398 F.3d 783 (6th Cir 2005). No longer.

What about where the prior testimony occurred at the defendant’s own prior trial? The witness, of course, must still be found unavailable, and for a case where the state’s effort to locate the witness for the retrial were deemed inadequate, though oddly without even mentioning Crawford, see People v. Avila, 31 Cal Rptr 3d (Cal App 2005) (“Waiting until the morning a trial begins to try to locate a witness after being out of touch for several months is generally not prudent or reasonable, and certainly is not an untiring effort to secure a witness’s presence at trial.”).

And: the long-standing problem of preliminary hearing testimony will continue to vex the defense bar, even (especially?) under Crawford analysis. See e.g. summaries of Stuart and Norman, immediately below; and see, George Owens v. Frank, 394 F3d 490 (7th Cir. 2005) (such testimony admissible under Ohio v. Roberts, because Owens had adequate opportunity for cross-examination, “limited scope” of preliminary hearing notwithstanding; court not reaching retroactivity of Crawford). The “testimonial” nature of this evidence will not be in doubt. Nor, one imagines, will there ever be much if any dispute over whether the preliminary hearing witness is indeed “available” at trial. The question will be whether Crawford’s requirement for “opportunity” to cross-examine is somehow more stringent than Roberts’ was.

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