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State v. Marvin L. Beauchamp, 09AP806, Wis SCT rev granted 9/13/10

decision below: 2010 WI App 42; for Beauchamp: Martin E. Kohler, Craig S. Powell

Issues (from Table of Pending Cases):

Does the confrontation clause bar admission of testimonial dying declarations against a defendant in light of Crawford v. Washington, 541 U.S. 36 and State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811?

Does a defendant’s right to due process of law restrict the substantive use of prior inconsistent statements?

Crawford explicitly left open “whether the Sixth Amendment incorporates an exception for testimonial dying declarations.” But Giles v. California subsequently repeated Crawford‘s recognition that dying declarations were “admitted at common law even though they were unconfronted,” 128 S.Ct. 2687, 2682-83 (2008). The court of appeals took “Giles’s pronouncement as to whether the confrontation clause governs dying declarations as binding,” and thus ruled that dying declarations can’t violate the right to confrontation. From the wording of the Issue-Statement (which in the absence of posted petitions for review is all there is to go on), that would appear to be what the supreme court will decide. Keep in mind as you track this case the admonition of the court of appeals that admissibility doesn’t automatically follow from absence of a confrontation analysis. Rather, § 904.03 may support exclusion in any given case; in any event, the dying-declarant’s credibility may be attacked under § 908.06, ¶12 n. 1.

The hearsay problem (substantive use of prior inconsistent statements) raises an interesting sort of variant on the usual sort of federal-state comity question. The 7th Circuit has laid down a more restrictive test for substantive admissibility of prior inconsistent statements admissibility: Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982) on habeas review of State v. Vogel, 96 Wis.2d 372, 291 N.W.2d 838 (1980). The court of appeals declined to follow CTA7:

¶17      On federal questions, Wisconsin courts are bound only by the decisions of the United States Supreme Court. State v. Moss, 2003 WI App 239, ¶20, 267 Wis. 2d 772, 781, 672 N.W.2d 125, 130; McKnight v. General Motors Corp., 157 Wis. 2d 250, 257, 458 N.W.2d 841, 844 (Ct. App. 1990) (decisions of the Seventh Circuit are not precedent in Wisconsin state courts). We have found no published Wisconsin appellate decision that even cites Vogel, no less adopts its five guideline factors. Thus, the trial court was not bound by the Vogel guidelines, and, of course, neither are we.[3]

[3]  People v. Govea, 701 N.E.2d 76, 83 (Ill. App. Ct. 1998), also declined to apply the guidelines adopted by Vogel v. Percy, 691 F.2d 843, 846–848 (7th Cir. 1982), because those guidelines conflicted with Illinois law that allowed, inter alia, the admission of a witness’s prior inconsistent statements if: (1) “the witness is subject to cross-examination concerning the statement”; and (2) “narrates, describes, or explains an event or condition of which the witness had personal knowledge, and (A) the statement is proved to have been written or signed by the witness.” See 725 ILCS 5/115-10.1. 

Compelled to follow CTA7 is one thing; persuaded to follow it, something else. The court of appeals certainly had no authority to alter the supreme court’s decision in Vogel, but the latter court surely does. Whether it chooses to, of course, is the question at hand.

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