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Confrontation – Hearsay: Penal-Interest Statement, § 908.045(4) — Statement to Prison Cell-Mate / Non-Custodial Statement to Police

State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski

Issue/Holding: Confessions to fellow inmates are sufficiently reliable to allow admissibility without confrontation.

Issue/Holding: The codefendant’s (defendant’s brother) against-penal-interest statement to the police didn’t violate the confrontation clause, where the declarant “was not in custody and there is no indication he was threatened with prosecution or asked leading questions.” Nor was his statement “especially inculpatory in respect to shifting blame toward” the defendant. ¶13.

This result is highly suspect. The court distinguishes Lilly v. Virginia, 527 U.S. 116 (1999), and relies on State v. Murillo, 2001 WI App 11. ¶14. But habeas relief was granted in the latter case. Edward A. Murillo v. Frank, 402 F3d 786 (7th Cir. 2005). It might still be said that Lilly remains distinguishable, in that the declarant wasn’t under arrest and wasn’t trying to shift blame from himself to his brother — except that such an analysis is no longer viable, Crawford v. Washington: the confrontation clause is violated if an extrajudicial testimonial statement is admitted against the defendant unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. The declarant was unavailable (because he pleaded the Fifth), but Murillo had no prior opportunity to cross-examine. The only question is whether the statement was “testimonial”; and, because it was given to the police (albeit not while in custody) it almost certainly would be regarded as testimonial.

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