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Confrontation – Generally: Statements Made by Prosecutor and Judge in Transcript Read to Jury

State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate

Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation, notwithstanding lack of objection?


¶34      “‘The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them.'” State v. Jensen, 2007 WI 26, ¶13, 299 Wis.  2d 267, 727 N.W.2d 518 (citation omitted); see also Crawford v. Washington, 541 U.S. 36, 42 (2004), U.S. Const. amend. VI; [10] Wis. Const. art. I, § 7. [11] By reading the November 10 hearing transcript at Jorgensen’s criminal trial, which essentially provided the jury with the judge’s and the prosecutor’s conclusions about Jorgensen’s guilt, the circuit court itself seemingly testified against the defendant, and the prosecutor essentially testified against the defendant by virtue of the judge reading the transcript from the November 10 hearing. This highly prejudicial and largely inadmissible evidence was not subject to cross-examination.¶35      Here, the circuit court seemed to testify against the defendant when it stated the following: (1) Jorgensen was having difficulty following simple instructions due to intoxication; and (2) Jorgensen violated the no alcohol provision of his bond. These statements directly related to Jorgensen’s alleged intoxication and the elements of the offenses charged for which Jorgensen was to be presumed innocent. …

¶36      The circuit court’s commentary essentially constituted unsworn testimony against the defendant, and it reached legal conclusions that should otherwise rest solely within the province of the jury. Jorgensen never had the opportunity to question the circuit court’s observations. …

¶37      Also, by virtue of the circuit court reading the November 10 hearing transcript, the prosecutor essentially “testified” against the defendant without being subject to confrontation. …


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