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Confrontation – “Testimonial” Statement – Letter Addressed to / Voicemails Recorded by Police

State v. Mark D. Jensen, 2007 WI 26, on bypass
For Jensen: Craig W. Albee

Issue/Holding:

¶27      In light of the standard set out above, we conclude that under the circumstances, a reasonable person in Julie’s position would anticipate a letter addressed to the police and accusing another of murder would be available for use at a later trial. The content and the circumstances surrounding the letter make it very clear that Julie intended the letter to be used to further investigate or aid in prosecution in the event of her death. Rather than being addressed to a casual acquaintance or friend, the letter was purposely directed toward law enforcement agents. The letter also describes Jensen’s alleged activities and conduct in a way that clearly implicates Jensen if “anything happens” to her.¶28      Furthermore, the State insists that the letter is nontestimonial because it was created before any crime had been committed so there was no expectation that the letter would potentially be available for use at a later trial. However, under the standard we adopt here it does not matter if a crime has already been committed or not. …

¶30      For many of the same reasons, we also determine that the voicemails to Kosman are testimonial. [10] The crux of Julie’s message was that Jensen had been acting strangely and leaving himself notes Julie had photographed and that she wanted to speak with Kosman in person because she was afraid Jensen was recording her phone conversations. Again, the circuit court determined that these statements served no other purpose than to bear testimony and were entirely for accusatory and prosecutorial purposes. Furthermore, Julie’s voicemail was not made for emergency purposes or to escape from a perceived danger. She instead sought to relay information in order to further the investigation of Jensen’s activities. This distinction convinces us that the voicemails are testimonial. See Pitts v. State, 627 S.E.2d 17, 19 (Ga. 2006) (“Where the primary purpose of the telephone call is to establish evidentiary facts, so that an objective person would recognize that the statement would be used in a future prosecution, then that phone call ‘bears testimony’ against the accused and implicates the concerns of the Confrontation Clause.”).

 

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