Confrontation – Dying Declaration, § 908.045(3)
¶34 We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. As the State notes, no published decision of any state court in the country has eliminated the dying declaration hearsay exception based on the reading of selected language of Crawford. We concur with the courts that have addressed this question after Crawford: a hearsay exception as long-standing, well-established and still necessary as this one, as indeed this case illustrates, cannot be lightly dismissed. Regardless of the religious justifications that have been articulated for dying declarations over the centuries, this hearsay exception is a crucial one, and it retains its vitality. We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder.
¶35 We therefore affirm the court of appeals’ holding that the statements made by Somerville to the EMT and the officer were properly admitted and did not violate Beauchamp’s confrontation rights under the state and federal constitutions.
The court of appeals held that the right to confrontation turned on how it was viewed when the 6th amendment was adopted, 2010 WI App 42, ¶¶11-12 (confrontation not violated here, because “dying declarations were recognized as an exception to the confrontation right at the founding of our Republic”). The supreme court now ratifies that view, ¶¶26-28. To the extent this rule countenances possibly unreliable evidence, the remedy is “to continue to freely permit, as the law does, the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case,” ¶5. (The court of appeals made essentially the same point, 2010 WI App 42, ¶12 n. 1, stressing the right to attack the dying-declarant’s credibility under § 908.06.)
Prior Inconsistent Statements, § 908.01(4)(a)1
The Wisconsin test for admissibility need not conform to the more restrictive test of Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982) on habeas review of State v. Vogel, 96 Wis.2d 372, 291 N.W.2d 838 (1980):
¶43 We are unpersuaded that our simple, straightforward and workable requirement for the admission of prior inconsistent statements——that the declarant be present and available for cross-examination——needs any revision, and we decline the invitation to reformulate Wisconsin’s standard on this question.
It follows that trial counsel wasn’t ineffective for failing to seek exclusion of these statements:
¶44 … We note that the standard of review governing this issue in this case sets the bar high. We are satisfied that Beauchamp was not prejudiced by his counsel’s failure to seek to bar the admission of the statements on the basis of a standard not employed in Wisconsin law. Counsel was not required to urge the circuit court to apply the law of another jurisdiction when Wisconsin had its own test. In light of this standard of review, we agree with the court of appeals that Beauchamp’s claims regarding the prior inconsistent statements’ admission are without merit. Where a legal standard has been set forth in another jurisdiction, counsel is free to make an argument setting forth the other jurisdiction’s practice as persuasive authority, but it simply cannot be said here either that Beauchamp was prejudiced by counsel’s failure to object or that the circuit court erred in permitting the admission of the evidence.
Note, incidentally, the reference to a 7th Circuit habeas decision reviewing a Wisconsin result as articulating “the law of another jurisdiction.” Indeed so; as the court of appeals pointed out, “On federal questions, Wisconsin courts are bound only by the decisions of the United States Supreme Court,” ¶17. More problematic is the increasingly frequent tendency to pronounce some or another issue as “unsettled” and then to declare that as a matter of law counsel can’t have performed deficiently by failing to pursue the issue precisely because it was unsettled. The court of appeals said exactly that here, 2010 WI App 42, ¶18 (“Beauchamp’s trial lawyer had no Strickland responsibility to either seek a change in Wisconsin law or lay a fact-predicate to try to precipitate that change”). The supreme court nominally says that failure to object was non-prejudicial rather than non-deficient, but the thrust is the same.