State v. Jermaine Smith, 2005 WI App 152, PFR filed
For Smith: Glen B. Kulkoski
Issue: Whether a co-actor’s in-custody pretrial statements were admissible as impeachment on rebuttal after the defense introduced a different hearsay statement by that declarant.
¶10 The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis. Stat. § 908.06 ….
¶11 A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant. Smith was warned by the trial court, and he could have chosen not to put into evidence Nunn’s out-of-court statements. Smith ignored the trial court’s warnings, and will not be permitted by this court, in hindsight, a second kick at the cat.
This case was originally recommended for non-publication, and it’s not clear, really, why publication ensued. The court provides virtually no analysis, and goes on to say that any error would be harmless, ¶¶12-13, so that the discussion on admissibility both scants the issue and is gratuitous anyway. Mapping the intersection between Crawford and impeachment is undoubtedly necessary, but this simply isn’t much of a start. By grounding admissibility under § 908.06 (which allows an attack on a hearsay declarant’s “credibility”), the court treats the rebuttal evidence as mere impeachment, which was apparently the State’s intended effect. Nothing wrong with that, but there’s a fine question about whether non-substantive (mere impeachment) evidence is “testimonial” and thus implicates confrontation analysis – whose resolution will have to wait for some other case: the holding appears based on notions of waiver, in that Smith was explicitly warned but forged ahead anyway. For that matter, it’s probably dangerous to view the case as limited to the fact that the litigant was put on notice. Even in the absence of warning, though, Smith probably would have been held to a door-opening theory of admissibility. Not much in this opinion, then, to advance our understanding of Crawford. Somewhat tangentially, but still related: One of the most problematic post- Crawford areas has to do with expert opinion, which may be based on hearsay, though the jury must be told not to give that hearsay substantive evidentiary effect: does sneaking in hearsay under this guise violate Crawford? This recurrent problem is at heart similar to the problem in Smith, at least when stripped of waiver / door-opening: again, the relationship between non-substantive evidence and Crawford; or, to put it otherwise, whether non-substantive hearsay may be deemed “testimonial.” See U.S. v. Logan, 419 F.3d 172 (2nd Cir 2005) (pre-Crawford requirement that a hearsay statement must be offered for the truth of the matter in order to trigger confrontation clause analysis remains viable).