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Confrontation – “Non-Testimonial” Statement – Statements to Acquaintances

State v. Mark D. Jensen, 2007 WI 26, on bypassFor Jensen: Craig W. Albee


¶31      Finally, we consider the statements Julie made to Wojt and DeFazio. Jensen argues that if the circumstances reveal that the declarant believed her statements to nongovernmental actors would be passed on to law enforcement officials, those statements are testimonial. While we reiterate that governmental involvement is not a necessary condition for testimonial statements, we conclude that under the circumstances of this case, Julie’s statements to Wojt and DeFazio were nontestimonial. Essentially, we are not convinced that statements to a neighbor and a child’s teacher, unlike the letter and voicemails——which were directly intended for the police——were made under circumstances which would lead a reasonable person in the declarant’s position to conclude these statements would be available for later use at a trial.¶32      Our decision in Manuel, 281 Wis.  2d 554, guides us to this conclusion. In Manuel, we determined that statements made to loved ones or acquaintances are not the memorialized type of statements that Crawford addressed. Id., ¶53. Moreover, we determined that the witness’s girlfriend was not a governmental agent, and there was no reason to believe the declarant expected his girlfriend to report to the police what he told her. Id. Here, Julie confided in Wojt and DeFazio about the declining situation in the Jensen household and are wholly consistent with the statements of a person in fear for her life. As one court put it, “when a declarant speaks with her neighbor across the backyard fence, she has much less of an expectation that the government will make prosecutorial use of those statements.” State v. Mizenko, 127 P.3d 458, (Mont. 2006); see also Compan v. People, 121 P.3d 876, 880-81 (Colo. 2005) (holding that victim’s statement to an acquaintance made after an assault were nontestimonial).

Facts and analysis in relation to facts are both left maddeningly vague. This much we know from the majority opinion: Wojt was a neighbor, DeFazio a teacher, ¶1; Julie gave Wojt an envelope for the police in case anything happened to her; according to Wojt she was fearful Jensen was trying to kill her, and told Wojt he’d been looking into “computer pages about poisoning,” ¶5. These, presumably, are the statements at issue and held nontestimonial—but to the extent they accompanied Julie’s transfer to Wojt of the letter to the police, it’s not clear why the statements would be severable from the testimonial letter; nor does the court explain severability. For a detailed analysis, review Justice Butler’s partial dissent, ¶¶75, et seq., which has the virtue of applying law to facts. As to the DeFazio statement, the facts are recited in ¶9 n. 3 and lend themselves to a self-evident analysis.


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