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COA: Confrontation Clause doesn’t apply to statements by reporters of child abuse

State v. Patrick A. Keller, 2021 WI App 22; case activity (including briefs)

Keller was convicted of causing mental harm, as a party to a crime, to his stepdaughter, who has autism. During his trial, the circuit court admitted statements made by non-testifying confidential reporters to Child Protective Services access workers. In a published decision, the court of appeals holds that these statements were not made for the primary purpose of gathering evidence to prosecute Keller, so the Confrontation Clause does not apply.

A defendant’s 6th Amendment confrontation right is violated when the circuit court admits an out-of-court statement made by someone who does not testify, those statements are testimonial. and the defendant has not had an opportunity to cross-examine the person. United States v. Crawford, 541 U.S. 36, 54 (2004).

¶20 “In determining whether an out-of-court statement is testimonial, we must decide ‘whether, in light of all the circumstances, viewed objectively,’ the ‘declarant is acting as a witness against the defendant ….’” State v. Nelson, 2021 WI App 2, ¶29, ___ Wis. 2d ___, ___ N.W.2d ___ (citation omitted). We make such a decision “by considering whether the ‘primary purpose’ of the statement was to ‘gather evidence for [the defendant’s] prosecution’ or ‘substitute for testimony in a criminal prosecution.’” Id. (citation omitted). Factors relevant to our analysis include: “(1) the formality/informality of the situation producing the out-of-court statement; (2) whether the statement is given to law enforcement or a non-law enforcement individual; (3) the age of the declarant and (4) the context in which the statement was given.” [State v. Mattox, 2017 WI 9, ¶32, 373 Wis. 2d 122, 890 N.W.2d 256.]

Applying this test, the court of appeals found the confidential reporters’ statements in this case were not testimonial. The statements were not written, signed, or in any way formal. They were oral statements made to CPS access workers.  The confidential reporters could have called 911 and made their statements to police, but they made them to CSP workers instead. Presumably, the reporters were adults. And, according to the access workers who testified about the statements, the statements were made in order to secure protection for the child not for use in a criminal prosecution. And even if the confidential reporters contemplated that the statements could be used in a criminal prosecution, this was not the primary purpose of the statements. Opinion, ¶¶22-25.

This is the second time in 3 months that District 2 has issued a published decision rejecting a Confrontation Clause challenge.  Nelson held that the defendant’s confrontation rights were not violated when the circuit court admitted a Sexual Abuse Evaluation requested by police even though the author of the evaluation did not testify at trial.  See our post here. Nelson includes a majority, concurring and dissenting opinion. The defendant filed a petition for review, but SCOW recently denied it.


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