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, given the limits on examination at the preliminary hearing stage.
Holding: “Testimonial” hearsay is admissible only if the declarant is unavailable at trial, and if there was a prior opportunity to cross-examine the declarant, ¶26. Prior testimony at a preliminary hearing is indisputably “testimonial”; and, John’s refusal to testify at trial indisputably made him “unavailable,” ¶¶28-29. The dispositive issue is therefore whether cross-examination of John at the preliminary hearing satisfied confrontation. Because a preliminary hearing is a summary proceeding, so that inquiry is restricted to matters of plausibility and not credibility, Stuart was unable at the preliminary hearing to explore John’s potential motive to testify falsely, namely the fact that John was facing criminal charges at the time he incriminated Stuart. Thus, even though Stuart was able to bring out at trial certain matters impeaching John’s credibility (¶34), this particular restriction on cross-examination at the preliminary hearing violated confrontation:
¶37 At the very least, these facts demonstrate a potential motivation to testify falsely on the part of John. Had John testified at trial and Stuart been precluded from exploring the motivation to testify falsely, such a restriction would be considered a Confrontation Clause violation. See, e.g., Van Arsdall, 475 U.S. at 679; see also State v. Barreau, 2002 WI App 198, ¶55, 257 Wis. 2d 203, 651 N.W.2d 12. ¶38 As a result, like the State, we agree with Stuart that the use of his brother’s preliminary hearing testimony at trial violated his right to confrontation. The circuit court properly did not allow Stuart to cross-examine John at the preliminary hearing about the effect the pending charges had on his decision to cooperate. Accordingly, John’s preliminary hearing testimony should not have been admitted at trial.
A very fractionated court (5 separate opinions), requiring a bit of vote-tabulating. But as to confrontation clause analysis, the vote seems to be 6-1, if not 7-0. (Don’t be misled by Justice Prosser’s reference to (“(t)he lead opinion,” ¶61) – an apt description on, and no doubt intended to be limited to, the matter of harmless error.) The three dissenters explicitly “agree that the admission of his brother John Stuart’s preliminary hearing testimony violated the petitioner’s right to confrontation,” ¶88 (they dissent on the issue of harmless error). Chief Justice Abrahamson concurs separately on the matter of harmless error, not confrontation, ¶59. Same for Justice Butler, whose concurrence “agree(s) with the court’s interpretation and analysis of the Confrontation Clause under the facts of this case,” ¶83. That’s six votes altogether, making the “lead opinion” indisputably the majority. Justice Prosser’s concurrence (¶¶60-82) isn’t quite clear on whether he himself subscribes to this majority rationale. He does say that the “court properly concludes that the defendant’s confrontation rights were violated because he did not have adequate opportunity for cross-examination,” ¶75. But he goes on to express a view that John’s unavailability was procured only through “collusion” with the defense, and that this worked a forfeiture of the right to confrontation, ¶¶77-80. “This case is exceptional and permits a departure from the strict rules of Crawford, yet the circuit court’s denial of the defendant’s motion to impeach the witness was an error too serious to ignore under Harvey,” ¶81. Justice Prosser’s concurrence might be construed to mean that the State had a winning forfeiture argument but waived it. Regardless of how construed, there is a minimum of 6 votes in favor of what is therefore a majority rationale. Does the holding, though, represent a bright-line rule barring prior, preliminary hearing at trial (assuming, of course, the witness’s unavailability)? Doubtful; see, ¶31:
¶31 Cross-examination at a preliminary examination is not to be used “for the purpose of exploring the general trustworthiness of the witness.” Huser, 84 Wis. 2d at 614. Indeed, “[t]hat kind of attack is off limits in a preliminary hearing setting.” State v. Sturgeon, 231 Wis. 2d 487, 499, 605 N.W.2d 589 (Ct. App. 1999). When this restriction is enforced, as it was in the present case, and the State attempts to use the preliminary hearing testimony at a later trial, a Confrontation Clause problem arises.
When this restriction is enforced, as it was in the present case: that, likely, is the operative principle. Which means, in turn, that the careful practitioner will want to make prelim questioning as aggressive as possible, to ensure that restrictions are indeed enforced.