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Confrontation – Testimonial Statement, Opportunity for Cross-Examination – Witness Who Testified and Then Was Dismissed

State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg

Issue/Holding:

¶45      Although Steve Stone testified at trial, Nelis argues that Steve Stone did not have the opportunity to explain or deny his alleged oral statements because the State did not examine him concerning such statements, and the oral statements were not made known prior to Police Chief Stone’s testimony. The State argues that there was no violation of Nelis’ right to confrontation under Crawford because Steve Stone testified at trial and was cross-examined by the defense.¶46      Nelis’ right to confrontation was not violated because “the Confrontation Clause places no constraints at all” on the use of prior testimonial statements when the declarant appears for cross-examination, as did Steve Stone. Crawford, 541 U.S. at 59 n.9 (citation omitted). [5]  It makes no difference, under the circumstances here, whether the burden is on the State or on Nelis to show that Steve Stone was available for further cross-examination after the court told him he could “step down.” Steve Stone testified at trial and was cross-examined concerning his statements to the police; therefore, Nelis’ right to confrontation was not violated.


 [5] We agree with the concurrence that Nelis’ right to confrontation under Crawford is not implicated. Concurrence, ¶¶53, 73, 80. However, because Nelis raised arguments concerning Crawford in his briefs and at oral argument, we address those arguments here.

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