Relying on precedent predating Crawford v. Washington, 541 U.S. 36 (2004), two judges of the court of appeals hold that the Confrontation Clause does not apply to suppression hearings and that the circuit court could rely on hearsay evidence in denying Zamzow’s motion to suppress. The third judge on the panel dissents, arguing the majority’s conclusion “rests upon a shaky foundation” (¶20) and “continues [the] unfortunate legacy” of pre-Crawford Confrontation Clause jurisprudence (¶23).
Zamzow was charged with OWI after a traffic stop. He moved to suppress, arguing the office lacked reasonable suspicion to stop him. The officer who stopped Zamzow died before the suppression hearing, so the state introduced the audio and video recording from the officer’s squad car. On the recording the officer is heard telling Zamzow that “[t]he reason I stopped you is you were crossing the center line there coming at me and then again when I turned around and got behind you.” (¶¶2-3). The circuit court found the video of the stop was inconclusive as to whether Zamzow crossed the center line, but nonetheless denied the motion to suppress based on the officer’s recorded statement as to what he observed. (¶4).
A majority of the court of appeals’ panel rejects the idea that the officer’s statement was inadmissible hearsay and that the Confrontation Clause prohibited the circuit court’s admission of and reliance on the statement. The majority relies on State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990), which involved the admission of hearsay statements at a pretrial hearing regarding the admissibility of a statement from an unavailable witness. Frambs in turn relied on § 901.04(1), which provides that the rules of evidence don’t apply to a judge’s pretrial rulings on the admissibility of evidence. See also State v. Jiles, 2003 WI 66, ¶48, 262 Wis. 2d 457, 663 N.W.2d 798 (“[T]he rules of evidence do not apply at suppression hearings.”). The majority rejects Zamzow’s suggestion that Frambs is undermined by Crawford:
¶11 In his brief-in-chief, Zamzow asserts that Frambs, “having been decided long before Crawford …, is no longer good law.” This is in contrast with Zamzow’s subsequent acknowledgement that “the Crawford case did not deal with the issue of pre-trial hearings.” Zamzow’s acknowledgement is completely correct—Crawford did not address pretrial hearings, in any way. Zamzow fails to identify any basis for concluding that Frambs is no longer good law; nor are we able to identify such basis. Frambs remains good law, and based on Frambs, as well as the cited Supreme Court precedent, we conclude the Confrontation Clause simply does not apply to pretrial hearings such as the suppression hearing at issue in this case, and the circuit court’s reliance upon the hearsay evidence from the recording was not improper.
The “cited Supreme Court precedent” referred to above are pre-Crawford cases implying (though not directly deciding) that confrontation is a trial right not applicable to pretrial hearings. The dissent provides a nice rejoinder to this logic:
¶20 …. Frambs relies upon Ohio v. Roberts, 448 U.S. 56 (1980), to state that the Confrontation Clause is inapplicable in pretrial proceedings. See Frambs, 157 Wis. 2d at 704-05. Roberts has since been overruled by Crawford, 541 U.S. 36. Furthermore, Roberts never declared that the right to confront one’s accusers did not pertain to pretrial hearings as that was not a question presented to the Roberts Court. Yet, because Roberts used the word “trial” when describing the confrontation right, and the Frambs court relied upon this word choice, the majority decides that it may ignore the actual words used by the framers and limit the scope of the Confrontation Clause.
¶21 What the Confrontation Clause actually provides is “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” U.S. Const. amend. VI (emphasis added). The majority errs by defining “prosecutions” so as to exclude all pretrial proceedings. If neither the Confrontation Clause nor the rules of evidence apply at pretrial hearings, what rules do apply? The pure whims of the judicial officer presiding over the case? As Justice Antonin Scalia wrote, “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Crawford, 541 U.S. at 62. Yet, this is exactly what the majority condones in its decision today.
That eminent authority LaFave likewise says the right of confrontation has some application at a Fourth Amendment suppression hearing, 6 Search and Seizure: A Treatise on the Fourth Amendment § 11.2(d) (5th ed. 2012), based on a few cases holding that the defendant has a right to cross-examine the prosecution’s suppression hearing witnesses, e.g., United States v. Mejia, 69 F.3d 309, 315-19 (9th Cir. 1995) (it was error for judge assigned to continued suppression hearing merely to read transcript of some prosecution witnesses’ testimony at first hearing; continuance should have been granted “so that the government’s two main witnesses would testify in person and be cross-examined in front of the judge who would be required to assess their credibility”); United States v. Hodge, 19 F.3d 51 (D.C. Cir. 1994) (suppression hearing is a “critical stage of the prosecution,” and thus “any limitations on the right of cross-examination … must be justified by weighty considerations”); People v. Levine, 585 N.W.2d 770, 774 (Mich. Ct. App. 1998) (citing cases from other states in support, court concludes that “the protections of the Confrontation Clause extend to a pretrial suppression hearing” ), vacated on other grounds, 600 N.W.2d 622 (Mich. 1999).
Unfortunately, however, most courts addressing the issue since Crawford have taken the same position as the majority in this case, e.g., State v. Fortun-Cebada, 241 P.3d 800, 807 (Wash. Ct. App. 2010) (“[t]he overwhelming majority of state courts that have addressed the question of whether Crawford applies to a preliminary hearing[,] such as a motion to suppress, have also held that the right of confrontation is not implicated” and collecting cases). A blog post here makes the same point.
Zamzow also made a novel due process argument, claiming “it would be fundamentally unfair to allow the trial court to make a finding of constitutional fact solely on a statement that cannot be tested for defects in perception.” (¶12). The majority rejects this claim, too. Citing United States v. Matlock, 415 U.S. 164 (1974), and United States v. Raddatz, 447 U.S. 667 (1980), which allowed hearsay at pretrial hearings despite confrontation and due process objections, the majority concludes the Supreme Court has “intimated” that admission of hearsay at suppression hearings doesn’t present a due process problem even if the declarant cannot be cross-examined. (¶13). Moreover:
¶14 Zamzow does not dispute that the officer in this case in fact told him, as captured on the recording, that the officer had observed him cross the center line twice. Comparing the officer’s recorded statement to a written police report, Zamzow argues, however, that due solely to his inability to cross-examine the officer (because of the officer’s death), such evidence was not sufficiently reliable for the circuit court to rely upon it in finding reasonable suspicion for the stop. We disagree. Unlike a police report, the audio recording afforded the court a real-time observance of the actual interaction between the officer and Zamzow. The court was able to hear directly what the officer said to Zamzow and how he said it. Indeed, the court noted that the officer’s statement was made directly to Zamzow, “at the very beginning of the stop,” and was “conversational and an exchanging of information.” While Zamzow was not able to challenge the officer’s observations for “defects in perception,” this does not make the officer’s recorded statement unreliable. ….
Those interested in developing a due process claim might want to consult Christine Holst, The Confrontation Clause and Pretrial Hearings: A Due Process Solution, 2010 U. of Ill. Law Rev. 1599.
The majority’s broad holding in this case—that the Confrontation Clause doesn’t apply to suppression hearings and that a circuit court may rely on hearsay evidence (¶11)—inspires in the dissent a dystopian vision of a future where “evidentiary hearings are no longer necessary” to decide suppression motions because suppression hearings will be “reduced to a paper review in which trial courts read police reports and review evidence such as dash cam videos ….” (¶22). The dissent is correct to raise the alarm, but we mustn’t resign ourselves to that future just yet, for the following reasons.
First, the facts of this case are unusual. It will be the rare case in which an officer who is a necessary witness at a suppression hearing dies before the suppression hearing and puts the prosecution in the position of having lost a crucial witness. Second, the rules governing suppression hearings put the burden on the state to establish the legality of a search or seizure, State v. Cheers, 102 Wis. 2d 367, 388, 306 N.W.2d 676 (1981), and require the trial court to determine the credibility and reliability of the witnesses and choose between conflicting versions of the facts, State v. Pires, 55 Wis. 2d 597, 602-03, 201 N.W.2d 153 (1972). Complying with these dictates necessarily requires the court to take evidence in support of and against suppression and choose between conflicting versions of the facts, State v. Wille, 185 Wis. 2d 673, 682, 518 N.W.2d 325 (Ct. App. 1994). This decision doesn’t (and can’t) change these rules, and (we should argue) when a witness is available to testify, the state can’t meet its burden, and the judge can’t make credibility and reliability determinations, without live testimony from the witness that includes an opportunity to test the credibility and reliability of the witness through cross-examination. Finally, if the defense believes the state isn’t going to bring in an available witness to testify, the defense has the power to subpoena witnesses, too, and should exercise that power if it will advance the argument for suppression and preserve the issue for appeal.