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SCOW muddles confrontation, hearsay analysis; addresses Miranda at John Doe proceeding

State v. Peter J. Hanson, 2019 WI 63, 6/5/19, affirming an unpublished decision of the court of appeals; case activity (including briefs)

Hanson was called to testify at a John Doe proceeding looking into an unsolved homicide. He was eventually charged with the crime, and at his trial the jury heard  a portion of Hanson’s John Doe testimony. The supreme court held the admission of this evidence didn’t violate Hanson’s right to confrontation. The court also holds that Hanson’s John Doe testimony was admissible despite the lack of Miranda warnings because that warning isn’t required at a John Doe proceeding.


The confrontation issue turns on whether Hanson’s John Doe testimony was inadmissible hearsay. At the John Doe proceeding, Hanson was asked if he had talked to Kathy, his now-deceased wife, about the murder of one McLean and if she had accused Hanson of killing McLean. Hanson said she hadn’t accused him to his face, but he knew she was telling others that he had killed McLean. He knew that because a sheriff’s investigator named Laskowski told him. He also acknowledged that he told people his wife’s death was the best thing that ever happened to him. (¶20).

Hanson’s own statements aren’t hearsay, of course, because they are an admission by a party opponent under § 908.01(4)(b)1. But there are two more levels of potential hearsay here: Laskowski’s statement to Hanson that Kathy was saying Hanson killed McLean; and Kathy’s statement itself. (¶21). Surely those are hearsay, right?

Nope, says the court: They aren’t being offered for the truth of the matter asserted, but to show Hanson’s consciousness of guilt.

¶26     A jury could infer that Hanson said that Kathy’s death was the best thing that ever happened to him because he had heard from Detective Laskowski that she might be a witness against him in McLean’s murder. We accept the State’s proffered purpose for Detective Laskowski’s statement and conclude that it was not offered to prove the truth of the matter asserted. The same rationale applies to the third layer, Kathy’s statement to Detective Laskowski, since whether Kathy actually told Detective Laskowski that Hanson confessed to her is discrete from Hanson’s belief that she would testify against him. There is therefore a legitimate nonhearsay purpose for the admission of Hanson’s John Doe testimony that is relevant to the charge against Hanson for McLean’s murder: consciousness of guilt. “[W]hen the State offers a statement for a proper nonhearsay purpose . . . it is neither hearsay (evidence law) nor testimonial hearsay (confrontation law).” [7 Daniel] Blinka, [Wisconsin Practice Series: Wisconsin Evidence], § 802.302 at 828 [(4th ed. 2017)].

“Not offered for its truth”? The state’s “proffered purpose” is specious bootstrapping, and it hornswoggles the court. As Hanson argued (¶24), he had other reasons to say Kathy’s death was a good thing for him—e.g., she’d been calling his PO over and again to allege he’d violated his rules and get him locked up—not to mention she wouldn’t be around to continue to make false accusations against him and get him charged with something he didn’t do. So for Kathy’s statement to have probative value regarding (or even relevance to) whether Hanson’s remark shows consciousness of guilt instead of some other state of mind—that is, for Kathy’s statement to be admissible at all under § 904.01—it has to be admitted for the truth of its assertion: that Hanson killed McLean. So it’s hearsay. State v. Sveum, 220 Wis. 2d 396, 406, 584 N.W.2d 137 (Ct. App. 1998) (if testimony has probative value only if it proves the truth of the matter asserted, it is hearsay).

What’s also troubling here is that when Hanson objected to this evidence on hearsay and confrontation grounds at trial, the judge let it all in on the theory it was all a party admission—lock, stock, and barrel. (¶8). Not even the state defends that plainly erroneous ruling. (¶21 n.12). Under the trial judge’s ruling Hanson’s statement, Kathy’s statement, and Laskowski’s statement about Kathy’s statement all came in for their truth, and there was no request for (and, given the judge’s ruling, would have been no basis for requesting) a limiting instruction to tell the jury Kathy’s allegation wasn’t offered for its truth, but to show Hanson’s consciousness of guilt. So far as the jury knew, Kathy’s statement could be used for its truth.

What we have here is another in the continuing series of decisions effectively limiting the right of confrontation, which was supposed to be reinvigorated after Crawford v. Washington, 541 U.S. 36 (2004). Many of the decisions have limited the scope of what is “testimonial” evidence covered by the Confrontation Clause, but making it easier to find that testimony isn’t hearsay also has the effect of limiting confrontation. Maybe this shouldn’t be surprising. Crawford has been criticized as having a superficial (or at least misfocused) historical basis, and in particular for ignoring the sea-change in the hearsay rules since 1789. So was Scalia just a lousy historian, who couldn’t see that his attempt to revive the right to confrontation would be still-born because the decision’s under-conceived notion of “testimonial” evidence and the expansion of admissible hearsay would allow replication of the very flaws Crawford railed against? Or was Crawford just so much legalistic argle-bargle, a sleight of hand that led us to believe we were seeing the renewal of confrontation rights when the decision was actually creating “The Incredible Shrinking Confrontation Clause“?

Miranda and John Doe proceedings

Hanson was in jail on a charge unrelated to the homicide at the time he testified at the John Doe proceeding, but he wasn’t given Miranda warnings before he testified (¶7). He was, however, read the warnings in Wis. J.I.—Criminal SM 12 (2011) about his right to counsel and to decline to answer questions that might incriminate him. And that was sufficient, as the John Doe proceedings are akin to grand jury proceedings, not the kind of custodial questioning initiated by law enforcement officers that Miranda covers:

¶34     As in grand jury proceedings, a witness at a John Doe proceeding is not subject to custodial police interrogation. A John Doe proceeding is convened by a judge for the purpose of determining if a crime has been committed. See Wis. Stat. § 968.26(2)(b); see also State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597 (1978) (emphasizing that a John Doe judge must “conduct himself as a neutral and detached magistrate in determining probable cause.”). While a district attorney often questions John Doe witnesses, this court has long recognized that the proceedings “are constantly under the scrutiny of a judge,” who “does not act as ‘chief investigator’ or as a mere arm of the prosecutor.” State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, ¶86, 363 Wis. 2d 1, 866 N.W.2d 165 (quoted source omitted) (emphasis in original). ….

¶35     Moreover, even if a witness at a John Doe proceeding is in custody relating to other charges at the time of the proceeding, they would not be compelled to confess for “fear of reprisal . . . or in the hope of more lenient treatment,” as is the fear with custodial police interrogation and a “police dominated atmosphere.” See Illinois v. Perkins, 496 U.S. 292, 296-97 (1990). As the United States Supreme Court recently clarified, “service of a term of imprisonment, without more, is not enough to constitute Miranda custody,” as “standard conditions of confinement and associated restrictions on freedom will not necessarily implicate the same interests that the Court sought to protect when it afforded special safeguards to persons subjected to custodial interrogation.” Howes v. Fields, 565 U.S. 499, 512 (2012). A witness at a John Doe proceeding is not subject to custodial interrogation and therefore Miranda warnings are not required. Although we do not require Miranda warnings be given at John Doe proceedings, we recommend a John Doe judge address a witness in accordance with Special Materials 12.

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