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Confrontation – Witness Testifying Behind Screen – Thomas Surviving Crawford

State v. Fred V. Vogelsberg, 2006 WI App 228 (Cert. petition filed, Case No. 06-1253)
For Vogelsberg: Timothy A. Provis

Issue1: Whether the holding of State v. Thomas, 150 Wis. 2d 374, 394, 442 N.W.2d 10 (1989) (witness may testify behind screen upon showing of necessity) survives Crawford v. Washington, 541 U.S. 36 (2004).


¶14      Had the Supreme Court intended to overrule Craig, it would have done so explicitly. The majority opinion in Crawford does not discuss Craig or even mention it in passing. The only precedent that Crawford overruled was Roberts, and then, only with respect to testimonial statements. See State v. Manuel, 2005 WI 75, ¶60, 281 Wis. 2d 554, 697 N.W.2d 811.¶15      We conclude that Crawford and Craig address distinct confrontation questions. Crawford concerns the admissibility of out-of-court “testimonial evidence” where the witness was not available for cross-examination. The fundamental issue in Crawford was the reliability of testimony. The Court concluded that the Constitution does not permit judicial determinations of reliability concerning out-of-court testimony; except for traditional common law exceptions, only confrontation at trial is sufficient to satisfy the Sixth Amendment. The issue in Craig, and in this case, is not the reliability of testimony—in both Craig and here, the accused had the opportunity to cross-examine the witness. Rather, the issue is whether the demands of the Confrontation Clause are met when, for public policy reasons and following a case-specific determination of necessity, a barrier is placed between the witness and the accused. Craig addressed this question, and Crawford did not.

See also State v. Blanchette, 134 P.3d 19 (Kan App 2006) (Crawford didn’t overrule Craig; testimony via closed-circuit television therefore upheld).

Issue/Holding2: The requirement of particularized findings before dispensing with face-to-face confrontation of a child-witness, Maryland v. Craig, 497 U.S. 836 (1990), is not limited to instances of trauma impairing the child’s ability to communicate, ¶19:

… In fact, a categorical requirement that the child’s trauma must be such that he or she cannot speak would run counter to the detailed, three-part test to determine the necessity of a special procedure to shield the child witness from the accused. Furthermore, we have applied Craig in the past and have not read it to impose such a requirement. See, e.g. State v. Street, 202 Wis. 2d 533, 552-54, 551 N.W.2d 830 (Ct. App. 1996).

The court also upholds the trial court’s particularized findings of trauma, premised largely on “a police report indicating that a social worker told police that Vogelsberg had threatened to harm the child if he ever told anyone about the abuse.”


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