Tuesday, January 25, 2005

Cross-examination by Another Party

The Wisconsin Supreme Court issued an opinion today, in State v. Hale, holding that the trial court had violated Crawford v. Washington in introducing against Hale testimony from the trial of another defendant, Jones, given by a witness, Sullivan, who was unavailable by the time of Hale's trial. Though this conclusion should be obvious, the court took a long time to reach it; when the court did get to the issue, though, it did not mince words, holding broadly that "prior testimony may be admitted against a criminal defendant only when that defendant has had a prior opportunity to cross-examine the witness giving that testimony."

Interestingly, Wis. Stat. § 908.45(1), the Wisconsin hearsay exception for former testimony, unlike Fed. R. Evid. 804(b)(1), does not prescribe this rule – i.e., that cross-examination by another person cannot act as a proxy for cross-examination by the defendant himself. Instead, it removes the hearsay bar from prior testimony so long as there was an opportunity for cross-examination by a party "with motive and interest similar to those of the party against whom [the statement is] now offered." One might have thought it obvious in this case that this rule was not satisfied – Sullivan's testimony put the murder weapon in Hall's hands rather than in Jones' – and one justice wrote a concurring opinion that emphasized this point. But the court's opinion instead addressed the constitutional question, and the rule comes through clearly: The right of confrontation is a personal one, and no matter how similar another party's motive may have been, the opportunity of that party to cross-examine does not satisfy the right of the accused.

Ultimately, the court determined that the error was harmless, and much of the justices' discussion concerned this question. One justice also wrote a long elaboration on forfeiture, in which two other justices joined, but no issue of forfeiture was presented and this opinion seems mainly to have been for the edification of the bar.

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