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SCOW will address confrontation, harmlessness, and corroboration rule

State v. Oscar C. Thomas, 2020AP32, petition for review of a published decision granted 1/11/2022; case activity (including briefs)

Issues presented (from the petition):

Whether the Court of Appeals applied the wrong standard in determining that admission of DNA evidence in violation of [Thomas’s] right of Confrontation was harmless?

Whether the Court of Appeals erred in determining that [Thomas’s] confession to a sexual assault was corroborated by a significant fact?

As to harmlessness, Thomas levels an accusation at the court of appeals that it has faced with some frequency (and with which the Seventh Circuit has, in one notable case, agreed): that it’s failing to faithfully apply the constitutional harmless error test, and is instead substituting the one for sufficiency of the evidence.

Regarding the corroboration rule, Thomas argues that the details about his statements to police that they were able to confirm were insignificant, in that while they verified some of the facts he asserted, these facts were peripheral and did not show that any crime had occurred.

There’s a third issue here, too. You can look to our post on the published court of appeals decision for the facts, but in a nutshell a defense expert testified that the physical evidence made either Thomas’s theory of innocence or the state’s theory of guilty plausible. The state then cross-examined the defense expert relying on–and introducing–a hearsay DNA report which would typically have been barred by the Confrontation Clause. In its response to Thomas’s petition, the state asks SCOW also to decide whether evidence otherwise barred by the confrontation right may come in as impeachment of a defense witness or by some other “opening the door” theory. As we’ve also noted, SCOTUS is currently considering a closely-related claim. That case was argued this past October so SCOTUS is likely to beat SCOW to the punch, so the high Court’s analysis will likely guide SCOW on this issue.

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