*1 Wisсonsin, Plaintiff-Respondent, State Dorcey, Defendant-Appellant-Petitioner. Patrick J.
Supreme Court Argued April 29, No. 79-1171-CR. 1981.—Decided June 1981. (Also reported 612.) in 307 N.W.2d *2 argument petitioner For the there were briefs and oral Butler, public Jr., Louis B. assistant state defender. argued by respondent Sally For the the cause was L. Wellman, general, attorney assistant with whom on Follette, general. brief attorney Bronson La was C. STEINMETZ, J. This before case comes the court on review, petition a appeals a of decision the court of which affirmed a decision of circuit court for Mil- county, waukee Honorable C. circuit Holz, Marvin judge. application court evidentiary At issue is the of alleged hearsay rules on and whether the defendant was right denied of confrontation. Dorcey charged
The defendant Patrick J. was with de- livery party contrary cocaine a as crime to secs. 161.16(4), 161.41(1) (b) 939.05, prelimi- and A Stats. nary hearing held 2,1978, was on March and before the Honorable Patrick J. Madden. state called a wit- as Ropicky ness Deborah who testified that December on p.m. Dorcey at about 12:45 saw the she defendant Rop- Gerald Eickstaedt’s in South house Milwaukee. icky present testified that she in the was kitchen Dorcey talking. and Eickstaedt and she heard them Dorcey say “I stated, She heard Patrick to Gerald Eick- if staedt that the other ounce cocaine within sold was couple days, [Dorcey] give that Pat Jerry would it to $1,850.” [Eickstaedt]
The state called then Officer Glenn Lewis. Lewis was investigating drug undercover officer trade at question. the time in He testified that he met Eickstaedt 9, 1977, house on Eickstaedt’s December at about testify a.m. Lewis was asked to 11:45 as to the contents of a conversation he had with Eickstaedt at that time. testimony grounds objected on
Defense counsel hearsay was inadmissible conversation as to this right to deprive constitutional the defendant his would anticipation him. In confront the witnesses already testimony, the defense had submitted explaining the rules of detailed memorandum court a admissibility arguing against of Lewis’s testimony. if the could court ruled that state show Dorcey probable conspiracy between cause that a existed Eickstaedt, hearsay testimony to Eickstaedt’s then as against Dorcey. Eick- would statements be admissible testify he had died six weeks staеdt unavailable to as was hearing. preliminary before the had of- Officer Lewis then testified Eickstaedt $2,- up fered to Lewis ounces cocaine for sell two *3 per expressed buy to one ounce. Lewis a desire ounce. problem, stated would some since Eickstaedt cause thought buy he Lewis wanted to two ounces and that he phone would have to make a call to work it out. Accord- ing Lewis, to Eickstaedt stated that he had a who source supply “top could shelf” and if cocaine Lewis give money, would Eickstaedt Eickstaedt would take money and return in few source minutes drug. give money Lewis refused to Eickstaedt until saw the he cocaine. Eickstaedt then went to the telephone and Lewis testified that he overheard Eick- staedt as follows: stated, “He T have a dude buy here who wants to some cocaine; He only he wants one pause. ounce.’ There was a stated, money.’ ‘He won’t front me the Another
pause. said, you He ‘I’ll meet a half a block from the liquor conversation.” minutes,’ store in about ten and terminated the Eickstaedt then told Lewis that he would return in 15 minutes. Lewis observed Eickstaedt leave the house and p.m. away Eick- in a Buick Riviera about 12:05 drive gloves p.m. staedt about 12:20 He his returned removed glove bag plastic was white inside one with some gave powder $2,150 in Lewis left the it. Eickstaedt powder, house with which was later to determined cocaine. testify.
The state called two other to Officer officers Tarczynski that at Richard testified 11:45 a.m. he saw Eickstaedt and Lewis enter Eickstaedt’s and that house p.m. house, at 12:05 he leave saw Eickstaedt enter a Buick, park. p.m. few drive a blocks and At 12:20 he parked driveway saw the Buick in same Eick- p.m. staedt’s house and at 12:50 he saw both Buick parked driveway. a Pontiac LeMans George Hegerty p.m. Officer testified that at 12:10 he parked Place, saw Eickstaedt a Buick Riviera on Park a few blocks from Eickstaedt’s house. He a Pontiac saw Dorcey directly park LeMans driven the defendant According Dorcey behind Eickstaedt’s car. Hegerty, got in seat of the front the Buick next Eickstaedt. Dorsey appeared The two converse. then returned away. his own both car and cars drove probable The court ruled that was there cause that a conspiracy between еxisted the defendant and Eickstaedt testimony consequently and that of Officer Lewis was admissible. again trial court
Before the the defense moved to ex- clude Officer Lewis’s account what Eickstaedt said. *4 testimony The court ruled that was admissible as co-conspirator statement of it that was reliable , against since penal Eickstaedt’s were statements his in- Ropicky, terests. Deborah Lewis and the other officers gave substantially testimony the same at trial as at the preliminary hearing.
The defendant was of delivery convicted one count of of party a controlled substance as to a crime and sen- term prison an indeterminate of to the state
tenced year. one more than stating judgment, appeals of affirmed The court testimony Lewis admissible was as Officer that the penal by his interests under Eickstaedt statement appeals 908.045(4), ruled that The court of Stats.' sec. admissibility no constitutional bar was there appellant-petitioner testimony question. also appeals before the court several other issues raised argue on this review. issues he chose not which testimony (1) Officer court Was before this аre: the Wisconsin Rules of Evidence Lewis admissible under (ch. Stats.), (2) if under stat- admissible by utes, barred Confrontation Clauses was United States Wisconsin Constitutions?
RULES OF EVIDENCE testimony The trial court found of Officer co-conspirator. as Lewis was admissible a statement of a general rule, hearsay testimony is not admis- Under 908.02, Stats., Sec. states: sible. Hearsay Hearsay “908.02 rule. not admissible ex- provided by cept by adopted or as these other rules rules supreme court or statute.”
157
(4) (b) 5, Stats., provides:
Sec. 908.01
following'
apply
“908.01
Definitions.
definitions
chapter:
under this
hearsay.
“(4)
A
which
Statements
aee
not
hearsay
statement is
if:
“(b)
by party opponent.
Admission
The statement
against
party
offered
and is:
during
coconspirator
“5. A
party
statement
of a
conspiracy.”
the course and
furtherance
co-conspirator
Under this rule statements of a
made
“during
conspiracy”
course and
furtherance of the
against any
parties
conspir-
are admissible
or all
acy. By definition
do not
such statements
constitute
hearsay and are therefore
outside
rule which ex-
testimony.
Bergeron
State,
cludes
v.
85 Wis.2d
595, 612,
(1978).
271
In
N.W.2d 386
order for the state-
however,
admissible,
ments to be
it must be established
cоnspiracy
is a
there
between the declarant
party to
suit.
all of the elements of
Not
the substan-
conspiracy
however,
tive
proven,
crime
need be
charged
conspiracy.
the defendant need not be
22A
C.J.S.,
;
(1961)
Criminal Law
758b
v.
sec.
Caccitolo
State,
102,
(1975) ;
69
139
v.
Wis.2d
230 N.W.2d
O’Neil
State,
quantum
391,
237 Wis.
N.W.
proof required
prima
showing,
is,
is a
“the
facie
coconspirator
declarations
one
will not be received
prima
conspiracy
another until a
case of a
facie
Timm,
508, 518,
first
made.”
been
State
244 Wis.
;
(1944)
see
State,
N.W.2d 670
also Gelosi v.
215 Wis.
(1934) ;
C.J.S.,
be
by
hearsay
its own boot-
“Otherwise,
would lift itself
sue.
v.
competent
straps
evidence.” Glasser
to the level of
States,
60,
(1942); Federal
Ins.
315
75
United
U.S.
Life
(1936).
Thayer,
658, 667, 269
547
222
N.W.
Co. v.
Wis.
by
However,
conspiracy may
proved
circumstan-
supra
654,
evidence,
State,
v.
at
and
court
tial
Gelosi
contingent
testimony first,
upon
may
disputed
hear the
showing
conspiracy.
a
United
was
a later
there
1967) ;
Halpin,
(7th
v.
Finally, since the rule
limited to statements made
is
“during
conspiracy,”
the course and in furtherance
began
necessary
conspiracy
to determine when the
Bergeron
State, supra
As
and ended.
we stated
613:
“The
issue
the admission of
inadmissible
dependent upon
question
a factual
to when
as
the con-
spiracy began and terminated.
trial
court must rule
admissibility
on the
ing
of such
or
statements
acts. This rul-
weight
any
finding
fact,
other
and will
appeal.
State,
be dealt with as such on
Schultz v.
125 Wis.
452,
conspiracy
(1905).
mination must be determined facts Adams, each case. State v. 257 Wis. N.W.2d conspiracy agreement A commences with be- persons tween or more to direct their conduct toward objective the realization a criminal and each member individually conspiracy consciously must in- particular tend realization of the criminal venture. Additionally, conspirator must each have an individual conspiracy. supra Nutley, stake in the State at 556.” present In the case the record shows all of the requirements According above were fulfilled. evidence, pur- state’s went to Lewis Eickstaedt’s house to left house cocaine. Eickstaedt for 15 minutes chase upon drug. his return sold Lewis one ounce of the Surveillance officers observed Eickstaedt the de- during fendant meet in car the time that Eickstaedt was gone Ropicky from his house. Deborah testified that *7 short time after Lewis left the house she the saw defend- ant in the house and heard him tell he Eickstaedt that if ounce, give sell could the other he would it to Eickstaedt $1,850. At surveillance time saw de- officers the driveway. fendant’s car in Eickstaedt’s is This evidence prima conspiracy, sufficient to establish a case of facie so far as the of rules evidence are concerned. petitioner argued by that the statements Deb- Ropicky prove
orah not are admissible to the of existence conspiracy a because her observations occurred after the and conspiracy. sale thus after the of termination argument This must fail it because on based an ex- cessively concept narrow of the commencement and ter- of conspiracy, concept rejected mination a a we in Ber- geron. and “Commencement conspir- termination a [of acy] particular must be determined facts in each Bergeron, supra at present ease.” 613. In the ease the lower courts viewed a statement made the defendant shortly relating after the sale the first ounce of of part the sale second ongoing ounce as of an con- spiracy between defendant and Eickstaedt co- sell ruling weight finding any caine. This “has the of other appeal.” Ber as on fact, such will be dealt findings will be appeal, of fact supra geron, at 613. On weight great prepon contrary upheld unless find present case the In the of the evidence. derance we affirm contrary to evidence and thus ings finding conspiracy Eick- between of a the lower courts’ defendant. staedt and the one
Although the standard as court stated the lower than as conspiracy existed rather probable cause that apparent conspiracy, that there prima case of facie finding conspiracy sustain a evidence to is sufficient either standard. under presented apart from that evidence was conclude
We which was suf- what Eickstaedt said account of Lewis’s conspiracy. Under sec. fact ficient establish therefore, Stats., Eick- 908.01(4) (b) 5, Lewis’s account of and it is not controll- admissible staedt’s statements was presence ing co-con- they made were out Dorcey. spirator, CLAUSE
CONFRONTATION Constitu- Amendment to the United States The Sixth part: provides, in tion enjoy prosecutions, accused “In all criminal shall right. . to be confronted with witnesses .
him.” I, provides, in
Art. sec. 7 of the Wisconsin Constitution part: prosecutions enjoy “In criminal the accused all shall the
right... face.” to meet the witnesses face to applicable provisions of the Amendment are Sixth through the Fourteenth Pointer to the states Amendment. Texas, (1965). 380 400 v. U.S. relationship between the Confrontation Clause recently hearsay explained by was most
the rules the
161 Supreme Roberts, in Ohio 448 United v. States Court (1980). U.S. 56 In that case the court its rul reiterated ing that the clause bars the confrontation admission hearsay Roberts, 63; some at v. evidence. Id. California Green, (1970). 399 U.S. 156-57 It also made clear that was Confrontation Clause not intended abrogate exceptions all rule which declares hearsay Roberts, supra inadmissible. at 63. principles determining
The court described two. whether or not absent witness statements barred In Sixth Amendment. of the words court: operates separate “The Confrontation- Clause two ways in range First, admissible, hearsay. to restrict preference conformance with the Framers’ for face-to- accusation, face the Sixth Amendment a rule establishes necessity. (including In case where usual cases prior must either occurred), prosecution cross-examination has produce, unavailability of, or demonstrate the the declarant whose it wishes to statement use Stubbs, the defendant. See Mancusi v. 408 U.S. (1972) ; Page, Barber also v. U.S. See States, (1900) ; v. United Motes 178 U.S. California Green, “The U.S., 161-162, 165, 167, n. at 16. operates aspect second once witness is shown to Reflecting underlying aug- purpose be unavailable. its accuracy fact-finding process by ensuring ment defendant in the evidence, effective means to test advеrse only hearsay the Clause countenances marked with such departure trustworthiness the 291 that ‘there is no material from general Snyder rule.’ Massachusetts, reason U.S., Roberts, at supra 107.” 65. present declarant,
In the Eickstaedt, case Gerald died preliminary hearing. six weeks before the It is thus indisputable testify was he at the available preliminary hearing or trial and the “rule of neces- sity” qualifying satisfied. The second principle is con- cerned the “trustworthiness” evi- principle dence. On this the court stated: *9 Mancusi v. recently in principle was formulated “The Stubbs: “ to insure of concern has been ‘The focus the Court’s been of which have that widely may there “are indicia whether a statement viewed as of determinative though jury placed no con there is be before the supra, Evans, declarant,” Dutton at frontation satisfactory 89, for trier fact a basis and to “afford the statement,” evaluating prior Cali the truth of the Green, supra, It clear from these at 161. is fornia prior statements, Court, numerous decisions of and from though his the witness unavailable that even prior testimony these “indicia of re must bear some of U.S., liability.” 408 at 213.’ applied reliаbility’ this ‘indicia re- Court has “The concluding hearsay quirement principally certain exceptions upon rest solid foundations that admis- such any comports virtually them evidence within sion protection.’ Mattox v. the ‘substance of the constitutional States, U.S., at 244 .... United hearsay sum, present “In when a declarant trial, cross-examination at the Confrontation Clause nor- that showing mally requires then, Even he is unavailable. only adequate if it his statement is admissible bears reliability.’ Reliability can be without ‘indicia of inferred firmly more in a case where the evidence within a falls hearsay exception. cases, rooted In other the evidence excluded, showing particular- must be at least absent a or guarantees Roberts, supra ized of trustworthiness.” (Emphasis supplied.) 65-66. exception which allows admission of co-conspirator
statements made well-rooted ago years Wisconsin law. Almost 90 the Wisconsin Su- preme Court stated: principle “The is well established that evidence co-conspirators, acts and pend- declarations of if made ing conspiracy, of, furtherance or with refer- to, design,
ence the common are admissiblе all State, 416, 420, . . . .” Baker v. 80 Wis. N.W. *10 Lewis The statements of Eickstaedt related Officer being conspiracy in furtherance with the defendant (4) (b) 5, Stats.). However, hearsay (sec. were not 908.01 they challenge must face the of the defendant’s constitu- right tional to confrontation and cross-examination. casé, Eickstaedt, in declarant never testified preliminary the defendant he had since died before the receiving examination. The other test for Eickstaedt’s in statements evidence is one of trustworthiness. As we 588-91, Olson, said in State v. Wis.2d N.W.2d (1977): right “The confrontation is not absolute. However val- legiti- right gives way accused, the uable to other process. in mate considerations the criminal trial As we Lenarchick, Supreme ap- in said States United Court pears to have concluded that there are instances where though confrontation, even there is no face-to-face process requirements due and confrontation are satisfied. appears some Under circumstances an uncross- special examined trustworthiness. is hearsay indicia of statement clothed with may exceptions rule its degree trustworthiness, satisfy at times but hearsay requirements satisfaction of does not neces- Determining sarily satisfy whether the confrontation rule. right confront and to cross-examine must give way any particular question into instance ‘calls “integrity fact-finding process” the ultimate requires ined.’ Courts have balanced such factors as: whether the witness is unavailable and the competing closely interest be exam- prosecution good has made witness; procure faith and reasonable efforts high whether the evidence has reliability standards of assurance of trustworthiness; or whether the evidence is exception admissible rule; under an to the subject whether the introduced statements to diver- gent views; high probability whether there of assur- ance that the cross-examination of the witness would not any statements; cast doubts on the admitted whether the objection defendant’s to the evidence was raised via other trial; testimony during the whether the defendant had prior opportunities been afforded for cross-examination witness; pro- whether the evidence is collateral or crime; bative of an element of whether the evidence directly crime; ties the defendant and whether the practical outweigh speedy considerations of convenience and trials producing the inconvenience of the witness.” Olson, supra As 588-89, quoting we stated State v. Wigmore, Evidence, (Chad- from 5 sec. at 184-85 1974): bourn Rev. cases, “In this line it is clear that the Court has re- *11 equate fused to clause and the Sixth Amendment’s confrontation any particular hearsay version of the rule— acknowledgement ancient or by modern. The net result is of possibility legitimate the Court expansion supplementation recognized classically exceptions, corollary possibility with however disapproval application in recognized some circumstances of the exceptions. Perhaps expect nothing we can defi- more in case-by-case nite this area than approach, which takes into account in each (e.g., case such factors ‘indicia reliability’) proved of Court. This as influential with Dutton may produce nothing precise pre- more or ‘totality dictable than the of the circumstances’ standard widely once so used in the area of confessions law ....
Nevertheless, certainty of probably gainsaid it will not be that un- permissible toas any system dimensions of preferable law permanently constitution- alizing freezing or that law into its ancient molds.” indicia of totality of circum- stances this case are that the statements of Eickstaedt by high related Officer Lewis have a standard of assur- ance of They trustworthiness. were made in further- conspiracy ance of a with the defendant and were made by presence him in the of Lewis whom he did not know to be an officer at the time.
The statements were penal Eickstaedt’s inter- (sec. 908.045(4), ests Stats., supra, 1)n. and did not in- culpate by the defendant name. None of Eickstaedt’s statements testified to Officer Lewis identified the Dorcey co-conspirator. Dorcey’s involve- defendant as his circumstantially by proven ment in the crime was inferentially observations of others than Eickstaedt by considering these Eickstaedt’s statements. Under extremely unlikely circumstances, that Eickstaedt’s designed merely him were an invention statements Dorcey inculpate in a crime he did not commit. Eick- indicium of the trustworthiness
Another provided by testimony of staedt’s statements was Ropicky. Deborah stated at trial her observations She (whom A1 but Eickstaedt and she knew as Officer Lewis time) together at did not know to be an officer at that house. Eickstaedt Eickstaedt’s She observed leave returning Upon house return. the two men went and then and then left These basement Lewis the house. physical observations were all consistent Officer surrounding testimony of the Eick- Lewis’s circumstances that a time statements. She then testified short staedt’s house, Dorcey after Lewis left arrived and Eickstaedt Dorcey together were in the house when she heard regarding the second ounce of the defendant’s statement cocaine. properly
The trial court to tes- allowed Officer Lewis tify to the statements of Eickstaedt to him and those as *12 presence phone. made in his over the By appeals the Court. —The decision the court of affirmed. ABRAHAMSON, (dissenting).
SHIRLEY S. J. I dis- majority analysis sent because has erred in its application of Ohio v. prior Roberts and of this court’s cases.
In Ohio v. Supreme Roberts the United States Court acknowledged prior the criticisms1 of its efforts recon- 1 66-68, See authorities cited at 448 U.S. at n. 9. Heffernan, writing Justice for the court in 1976 in State v. Le narchick, 426, 442, (1976), 74 Wis.2d 247 80 N.W.2d commеnted on
166 hearsay rules, cile the confrontation clause and the but begin Supreme declined “to anew.” The Court instead de- “general approach problem” cided to continue the to the cases, approach it took in its earlier which the Court having described “as discernible” and “as demonstrated steering among proposed success a middle course al- Roberts, 56, 66-68, ternatives.” Ohio v. 448 n. 9 U.S. (1980).
This case is the first case in which this court2 has at-
tempted to reconcile Ohio v. Roberts with this court's de-
holdings”
Supreme
“murkiness
United States
Court’s
hearsay-confrontation
cases.
Westen,
analyzing
In 1979 Professor
in an article
Ohio v. Rob
erts,
191,
(1978),
granted,
55 Ohio
2d
St.
tiary rulings. Needless concededly rights a standard be measured should constitutional nothing Clause.” having with the Confrontation to do prosecutions, ac VI, “In all criminal Const.: U. S. Amend. enjoy right with the witnesses . to be confronted . . shall cused against him.” Const, requires criminal “in all I, 7 of the Wis. Art. sec. enjoy right wit- to meet the ... shall prosecutions the accused face to face.” nesses 908.01, 59 Rule Note —1974 Council Committee’s The Judicial of the Wisconsin R221, clause “the confrontation states Wis.2d interpreted the Wisconsin Su- appears to have been constitution Supreme consistently Court’s States preme with the United Court (Ci- confrontation clause.” interpretation the sixth amendment omitted.) tations *14 my disagreement
I with the write to state the basis for reasoning opinion majority of the set forth an and to analysis confrontation-hearsay I which be- issue lieve with v. Roberts with consistent Ohio the case is analysis law of not offer a this state. does trouble- confusing present free solution state of case the however, judgment does, law. It the of the Unit- reflect despite Supreme ed of that States Court and this court already path the confusion, we will continue on the taken. state, I in conclude that the trial courts this faced with hearsay-confrontation a federal state and constitutional admissibility question, the of should determine the evi- dence as follows:
First,
prosecutor
that
must demonstrate
wit-
in
ness
unavailable
Ohio
constitutional sense.
v.
Roberts,
65, 66,
(1980).
Second, prosecutor must demonstrate that hearsay exception proffered within which the evidence falls is trustworthiness, marked with “indicia 65-73, reliability.” Roberts, Ohio v. 448 U.S. at hearsay exception must bear sufficient indicia of relia- bility “may satisfy that the evidence the strictures of the guarantee right which Constitution of confronta- Hagenkord State, tion.” v. 452, 469, 100 Wis.2d 302 N.W. (1981). 2d 421
Third,
prosecutor
must demonstrate that
the evi
particular
in
dence
case has “the
indicia of
totality
case,”
of circumstances in
(majority
this
opinion supra, p. 164, relying on State Olson,
75 Wis.2d
575, 588-91, 250
(1977)).
N.W.2d 12
previ
As we have
ously said, “each confrontation claim must stand on its
own facts,
apparent
and it is
that
balancing
not all of the
applicable
factors
Olson
every
Hagen
case.”
State,
kord 452, 475-476,
Wis.2d
I. question There is no in this case un- that the witness in the a available constitutional sense of the word. For e.g., unavailability, see, discussion of constitutional Ohio 4 908.01(4) 1979-80, provides: (b), Rule Stats. “ by (4) hearsay (,b) A if Admission ... statement is not . . . party opponent,. party a and is statement is offered representative 1) statement, a his own in either individual or his adop- capacity, 2) his or a statement of which he manifested 3) by person truth, authorized tion or belief in its or a statement a concerning 4) by subject, or a state- him to make the a statement scope concerning by agent matter within the ment his or servant during agency employment, of re- or the existence the of his made during oy party lationship, 5) co-conspirator of a a statement conspiracy.” in furtherance of the course and 5 to Rule 908.01 Note —1974 Judicial Council Committee’s R240, (4)(b), explains: admis 59 оf evidential Wis.2d “Exclusion hearsay change category in Wis sions from is a technical of hearsay ex as a consin law. Wisconsin has admissions considered category ception. . of evidential from . Exclusion admissions . places receipt hearsay effect, of admis substantive has no adversary upon nature of sions the more rational basis prior system of the effect of Wiscon results in no alteration hearsay applicable. are not rule sin decisions. The reasons party himself nor should for a to cross-examine There is no need It require be under oath. own statements that his he be heard to .analysis most simplifies because admissions also con some admissions and since are out-of-court statements evidence silence, places with other circumstantial them or duct hearsay category.” outside the 170 Roberts; State, 425, Lenarchick v.
v.
74 Wis.2d
247 N.W.
;
(1976)
Olson,
575,
2d 80
v.
State
75 Wis.2d
250 N.W.2d
(1977); Virgil
State,
12
166,
v.
84 Wis.2d
267 N.W.2d
(1978); Vogel
852
State,
372,
v.
96 Wis.2d
291 N.W.2d
(1980); Hagenkord
838
State,
v.
452,
302
Wis.2d
(1981);
343,
State,
N.W.2d
v.
Robinson
102 Wis.2d
N.W.2d 668
question
A more difficult
in the case at
whether
bar is
hearsay exception
police
within which the
officer's
testimony falls is marked with
As
trustworthiness.
Supreme
Roberts,
Court
65,
said
Ohio v.
448 U.S. at
quoting
Stubbs,
Mancusi
(1972):
U.S.
“The focus of the
сoncern has been to
Court’s
insure
there ‘are
widely
indicia of
which have been
may
viewed as
determinative
whether a statement
placed
jury though
before the
there
no confrontation
declarant,’
Evans, supra
Dutton
and to
satisfactory
‘afford the trier of fact a
for evaluat-
basis
ing
prior
the truth of the
statement’...”
*16
majority opinion
“hearsay
concludes that the
ex-
ception” allowing
co-conspirator’s
admission of the
state-
is
ments marked with trustworthiness
and that
the evi-
dence in this
is
majority
case
opinion
admissible. The
say
can be
majority
read to
the
reaches this conclusion
by relying on a
Roberts, namely,
sentence Ohio v.
“Re-
liability can be
without more in a case where the
inferred
evidence
firmly
within a
hearsay exception”
rooted
falls
(emphasis majority opinion
p.
noting
162),
at
and
“hearsay exception”
that
the
applicable here has been
recognized by this court since
so,
majority
1891.6 If
the
State,
416, 420,
Baker v.
80 Wis.
(1891),
As “firmly de- hearsay exception rooted” whether pends special circumstances which on whether it involves reliability guarantee evi- the of the trustworthiness necessary degree the thereunder dence admitted requirements If satisfy clause. of the confrontation hearsay exception “firmly rooted” then the court generally particularized will not undertake a search testimony reliability of in issue.7 determine the . prosecutor falls with that evidence When the demonstrates firmly hearsay exception marked with trust in a rooted which is worthiness, Supreme Court indicated that the United States may generally without ex trial court admit further evidence particular ploration In of the evidence. Ohio of the request Roberts, 72-73, rejected Roberts’ 448 U.S. Court particularized search for indicia of reliabil undertake a the Court ity in that case once the Court determined of the evidence testimony ex v. Green former fell evidence within California may require analysis by Nevertheless, ception. of a case facts excep application court 1» determine whether the trial sufficiently particular in the admission case results in the tion ruling evidence; on admis trial court in in such a case the reliable *17 competing factors set forth in sibility balance various must Supreme United
As the States Court said in the text preceding hearsay” sentence, “firmly the ex- rooted ception must rest upon . . such solid that admission foundations virtually any comports evidence within them with the protection.’ ‘substance constitutional Mattox States, U.S., United 156 rules at 244. This truism reflects the ‘hearsay that generally dеsigned v. roots,’ the Confrontation Clause protect values,’ similar California Green, U.S., at and ‘stem from same Evans, Dutton v. It U.S. also responds to certainty workaday the need for in the world conducting criminal trials. sum, “In present when a declarant trial, cross-examination at nor- the Confrontation Clause
mally requires showing that he is Even unavailable. then, only adequate his statement is admissible if bears reliability.’ Reliability ‘indicia of can be inferred without firmly more a case where the evidence within a falls hearsay exception. cases, In rooted other the evidence excluded, showing must be particu- at least absent a guarantees larized 448 U.S. Roberts, of trustworthiness.” Ohio v. (emphasis added). The “solid hearsay exception foundations” of each length not the exception recognized. of time the has been long-established Some of exceptions may on close analysis be guarantees found not to rest on of trustworth- iness satisfy sufficient the confrontation clause test. To exception determine whether the “solid founda- requires tion” analysis of the rationale of the hear- say exception.
Both the Supreme United States Court and this court analyzed have conceptual particular of the hearsay exception pursuant to which the evidence was considering admitted when right a claim of denial of the of confrontation was before the court. Thus in Ohio v. Olson to assess the effect of the admission of the evidence on integrity fact-finding process in that case.
173 in forth applied set the standards the Court Roberts involved Green, (1970), which v. 399 U.S. California hearsay exception same within the admission evidence where Roberts, that and concluded in which was involved although form, in cross-exam- fact, defense counsel testimony hearing, prior at a ined a witness “in- proceeding sufficient prior bore of a witness in a reliability” the confrontation clause. under dicia of held, admissible, constitutionally the Court evidence was “ ‘ cross- adequate opportunity to an there was ince [s] . himself witness], . . availed and counsel examine [the . opportunity, transcript . . bore sufficient of that “ a reliability” trier of fact and afforded ‘the “indicia of prior satisfactory evaluating the truth of the basis ” ’ Roberts, 448 U.S., 216.” Ohio statement.’ at 73. U.S. falling specifically defined evidеnce within
While testimony” apparently exception aspect of the “former command, the confrontation satisfies constitutional specifically Supreme stated United States Court deciding testimony would former was not whether objections if in the former admissible over confrontation although having opportu- proceeding defendant, engage nity witness, did not to cross-examine the engaged in de cross-exami- cross-examination or minimis are, however, apparently nation. Both sufficient events testimony former admissible under render 1979-80; hearsay exception. 908.045, Ohio v. Rule Stats. Thus, Roberts, Roberts, in Ohio v. U.S. at 70. analyzed particular aspect a court of the broad “former testimony” hearsay exception evi to determine whether satisfying particular aspect exception dence reliability” important passed “indicia test. It is say note that the Court did not that all evidence within testimony” exception has relia the “former sufficient analysis. Hagen bility also, e.g., in a confrontation See State, 452, 469-471, kord 100 Wis.2d 302 N.W.2d stage my analysis The issue the second under co-conspirator whether statements of therefore party during in furtherance course of and conspiracy, 908.01(4) (b) 5, Stats., Rule are admissible *19 special exception has of relia- because assurances bility comport that with the substance constitu- protection tional of the confrontation clause. grounds admitting co-conspira- for statements of
Two recognized: generally (1) tors are under the substantive agency conspirator of law for a is liable the the acts of conspirators; (2) against other admissions inter- 1048, Wigmore Evidence, est are See admissible. secs. 1077, 4-5, 1079, pp. 158, (Chadbourne Ed. 1977); Note, Preserving Right the to Confrontation —A Approach Hearsay New Trials, Evidence in Criminal 113 U. L. Pa. Rev. 754-756 The constitu- theory tional issue under either pro- whether the rule pursuant vides assurance that evidence admitted there- generally to is reliable. The view held is that neither theory incorporates reliability. an of assurance commentary Advisory of the Federal the Committee on printed (b) federal rules of evidence 908.01(4) with Rule agency theory states that conspiracy “the of is at best a “ fiction,” R248, at by Wis.2d and that dmissions [a] party-opponent a category excluded from the of hear- say thеory admissibility on the that their in evidence adversary system the result of the rather than satisfac- tion of the conditions of the rule.” 59 Wis.2d R245.
Attorney Davenport explained admitting the that rule co-conspirators statements of theories, on rests several primarily but not theory on in- evidence is herently highly reliable: exceptions enough, “Interestingly numerous while spontaneous exclama- hearsay rule, as those for such interest, primarily on against rest and declarations tions very by nature excepted hearsay its lacking theory that a contains reliability in hear- guarantees special of usually has say generally, been co-conspirator exception by variety unrelated supported of theories a say not to This is itself. of the evidence trustworthiness justification, a asserted as has never been that at least ments state- prejudicial out-of-court in the sense generally conspirator considered can one against as own interest as well his declarations major development of the Rather, that exception peal his fellows. of ap- seemingly random of a the result been (1) char- following a rationales: to various of the relationship mutual of conspiracy of as acterization agency, thereby conspirator admissions of one with the others; (2) being admissions treated vicarious as conspira- many of the statements of a characterization themselves, conspiracy (elements, in ‘acts’ tors as ; (3) allegation special crime) need tradi- prosecutions for such lax rules evidence Davenport, The tionally Con and inchoate crime.” secret Exception Co-Conspirator Clause *20 frontation Analysis, A 85 Harv. Functional Prosecution: Criminal L. Rev. (1972). 1378, 1384 traditionally support- co-conspirator been rule has theory necessity theory than on the rather
ed on the of commentator noted: of As one student trustworthiness.8 on the generally vicarious admissions “Courts admit ground responsibility principal’s for substantive that agent’s responsibility his for acts entails evidential his Morgan agent’s persuasively has Professor statements. argued carious substantive cies unrelated to the reasoning fallacious, vi- since that line of is this responsibility poli- is based on social necessity reliability and of evidence. Appeals implicitly acknowl Court of The Seventh Circuit necessity.” exception largely edged is a result of United “the that (7th 1979). Gil, Cir. States 604 F.2d co-conspirators’ “It has said admission of been that hearsay sug- justified by necessity. The declarations is gestion that secret, agreements inherently is that criminal participation possible is of overt without commission acts, consequently necessity and that there is a sufficient justify hearsay questionable admission of of reliabil- ity. .. good however, reason, is “There to believe that testi- mony extremely likely be oral declarations furtherance is only might unreliable. Not declarations'be inadvertently misreported, but in an uncertain case there pressure prosecution on the This fabricate evidence. may easily conspiracy case, testimony be done in a where
may conspirators yet from elicited untried or un- as sentenced, alleged and where auditors of declarations may events, range participants be chosen from a wide and investigation making view with a cross- and examination most difficult. guarantee “The of a absence co-con for spirators’ declarations, pre their fabrication, and ease of strong rejection hearsay exception. sent a case Comment, Hearsay Exception Co-Conspi . . For Declarations, rators 530, 533-34, 25 U. Chi. L. Rev. 539-
Attorney Joseph Levi, Hearsay in his article Con- spiracy Co-Conspirators’ Reexamination Ex- —A ception Hearsay Rule, 52 Mich. L. Rev. 1165- (1954), critically analyzed rejected the clas- agency sical the'exception rationale for view trustworthy, saying: evidence argument agency “The accordingly fails because exempting shows no conspirators’ reason for utterances from the say rule. To the substantive law dpes only begs question. so gov- agency The rules of ern the conspiracy; substantive they law of decide who is a conspiracy. member of the they As such are in- *21 determining against volved whom may the evidence point admitted. they is that are not relevant in de- termining why it should be admitted. are admitted theory “Wigmore’s declarations such accordingly' need trustworthy they are because Wig- no better. fares is acute less for cross-examination is is conspirators argues all interest of that since moré against his interest identical, of one an admission distinguish to be- This each. fails the interest of conspiracy showing of a the existence tween declarations concerning membership Of or aims. its and declarations course sane falsely conspiracy. to Con- admit do not men good prove that some con- are spirators’ declarations spiracy exists but less trustworthy aims and to show its likely to lie conspirator’s interest is membership. The believing conspiracy misleading listener into members) (and stronger different more members victory for no it has. It is than in fact and other aims common sense to make ous for their are notori- that criminals a belief veracity law. the basis for pro- of these that neither must conclude therefore “We very agency or of trustworthiness posed rationales exception co-conspirators’ has impressive. expanded rules without tion Meanwhile typical of is not shrunk which rather than excep- for the true reason and of a reason. The growth parallelism of that explains its both conspiracy. expansion the law of expansion great probative need for simple: there That reason is thing prove. testimony. Consрiracy is a hard such The substantive vastly expanded. conspiracy law of has law of relaxation in the solved This created a tension admitted out of Conspirators’ declarations are evidence. necessity.” co-conspirator suggested that writer Another problem which exception a constitutional raises admission in each a determination is best avoided individual case: analogies made to other have been “Several co-conspirator’s justify
exceptions statement, the admission of a comparisons compelling. For but the instance, initially as vicari- to consider these statements relationship among conspir- confuses the ous admissions ators with that of agent. practical principal forcing justify principal adopt, which considerations *22 purposes, business evidence statements agent present conspiracy, his authorized are not with a power because its often members lack the to control or authorize other members’ actions. Nor does it follow that because the substantive law of conspiracy holds one conspirator during conspir- accountable for all acts acy, hearsay conspirator of one can be admitted to show that the conspiracy. defendant was a member simply ignored by confrontation clause cannot be so es- tablishing through hearsay necessary basic fact justify the admission of statements under the conspiracy. substantive law of against “The fact that the statements are the interests might of the declarant be a sufficient rationale for ad- mitting his participation statements relevant to his in the conspiracy. assumption But the that reasonable men do say things against logically their does not interests extend the inference of to a statement the the person. any context, interest of another inAs other might conspiracy members of a incriminate in- other revenge dividuals either because of or mistake. Further- more, conspiracy may provide strong situation moti- regard vation to with fabricate to the involvement of in- parties nocent further if the participation claim of their would group’s exception ends. Thus this must to be justification stand on its own simply seems —which that the conspiracy any secret joint nature of оr endeav- or necessitates However, the admission of this evidence. proving the difficulties of conspiracy justify should not abrogation right to confrontation. light “In of the lack of independent an rationale or of adequate substitute for cross-examination to test the co-conspirator’s truthfulness of a statements, might doubted whether their admission would be constitution- However, al. the Constitution would be satisfied if the judge were independent finding make an of reliabil- ity specific based on the scope case. But the of review of such a determination should not be confined judges’ rubric of Note, trial ‘discretion’.” Preserving the Right Approach New Hearsay Confrontation —A Evidence Trials, in Criminal 113 U. Pa. L. Rev. 741 analyses persuasive, I I find these conclude that upon co-conspirator rule does not rest such foun- solid virtually any dations that evidence within admission fully comports protections rule the con- *23 Roberts, frontation v. at clause. Ohio 448 U.S. 66. stage analysis. I turn then to the third of the
hHhHhH Roberts, 66, In Ohio v. 448 at the United States U.S. Supreme Court if the not fall said evidence does firmly hearsay exception, within a rooted “the evidence excluded, showing particular- must at least of absent a guarantees step ized in trustworthiness.” The next prosecutor this case whether has determine showing particularized guarantees made “a of trust- so that worthiness” the evidence should be admitted. The testimony police of the officer must be to de- examined possesses termine whether it relia- sufficient “indicia of bility” justify “plae[ing]” jury.” Dut it “before the Evans, ton 74, (1970) (plurality opin 400 U.S. 89 ion) differently, . Stated if in- the evidence is admissible reliability present dicia or if trustworthiness satisfactory the trier of fact will be afforded a basis for evaluating prior the truth of the also statements. See Green, 149, 399 U.S. 161 total California ity of the circumstances must be in considered determin ing whether the evidence will be admitted the de when opportunity fendant has had no to cross-examine the de- clarant trial or to have the fact-finder observe admissibility declarant. The determination of should be objection proper made the trial court when a recog been made. Conscientious defense should counsel necessity making nize the a detailed confrontation objection, proof, argument clause spe offer and an сifically attacking sought of the evidence
180 Olson, objection. State v. be admitted over the Wis.2d convenient, (1977), N.W.2d al- furnishes though guide probably incomplete, attorney in making objection weighing and for trial court competing applicable factors.
Accordingly I conclude that the matter should be re- manded trial court to review facts this case “particularized guarantees to determine the of trust- worthiness” to determine whether admission of the evi- adversely integrity fact-finding dence affects of the process. Only analysis guar- particularized after particular antees of trustworthiness of the evidence in the case can it be determined whether the admission of ap- this evidence violates the confrontation clause. This proach Evans, the Court in Dutton v. was followed which, (1970), bar, U.S. like case at in- the. co-conspirators. volved the admission of statements of In *24 Evans, Dutton plurality opinion the Court in its as- reliability testimony sessed the of the offered that as case follows: “The jury confrontation issue arises because the was being invited implicitly to infer that Williams had identi- perpetrator fied Evans as the of the murder when he predicament. blamed his Evans for But we conclude that right there this no denial was of the of confrontation toas question identity. First, the statement contained express past no carried on consequently assertion about fact, and warning against its face a jury giving to the weight. Second, statement undue personal Williams’ knowledge pants identity of the partici- and role other triple in the abundantly is by murder established testimony Truett’s prior and Williams’ It conviction. is inconceivable that cross-examination could have shown that position Williams was not in a to know whether or not Evans involved in Third, was pos- murder. sibility that Williams’ statement faulty was founded on recollection remote in the Fourth, extreme. the circum- stances under which Williams made the statement were give
such as suppose reason to that Williams did not misrepresent Evans’ involvement in the crime. These go beyond showing circumstances a that had no Williams apparent reason to lie spon- to Shaw. His statement was taneous, against penal and it was his interest it. make These reliability widely indicia of which have been viewed as may determinative of whether a statement placеd jury though before the there no confrontation of the declarant. “The decisions of this Court make it clear that mission prac- Confrontation Clause is to advance a tical accuracy truth-determining concern for the of the process fact by assuring in criminal trials that ‘the trier of satisfactory evaluating basis [has] the truth prior of the Green, US, statement.’ California 161, 26 L exercised, Ed2d at 499. Evans and exercised effectively, right his to confrontation on the factual question whether actually Shaw had heard Williams make the statement Shaw possibility related. And the cross-examination conceivably of Williams could have jury shown the statement, though made, might have wholly been unreliable was unreal.”9 might
The trial
consider,
court
in addition to
fac-
majority
tors set forth
(majority
supra
opinion,
p. 165), that Eickstaedt knew at the time of
the sale
Lewis that
many drug
there
arrests;
had been
that Eick-
might
staedt
have fabricated a source to induce Lewis Appeals
The Seventh Circuit Court of
summarized Dutton as
setting
following
reliability
forth the
factors as indicative of
of cer
co-conspirators:
tain out-of-court statements of
plurality opinion
“The Dutton
forth a number
sets
of factors
which were
(1)
indicative of
in that case:
the declara-
tion
past fact,
consequently
contained no assertion of a
carried
warning
jury
giving
weight;
(2)
it undue
the de-
personal knowledge
identity
clarant had
partici-
role
*25
pants
crime;
(3)
possibility
rely-
in the
the
that
the declarant was
ing upon faulty
remote;
(4)
recollection was
and
the circumstances
provide
under which the statements were made did not
reason to
misrepresented
believe that
the declarant had
the
in-
defendant’s
supra,
Evans,
88-89,
volvement in the crime. Dutton v.
400 U.S. at
Snow,
730,
(7th
210.”
91 S. Ct.
United States v.
F.2d
521
734-735
1975),
(1976).
cert. denied
Cir.
182 receiving cocaine; pay that Eickstaedt the cash before Dorcey gave police inculpating the a statement to de- type up which she a second statement had his wife police saying to the the statement w;as scribed as pressure untrue. These factors giyen under and was might involve- of defendant’s indicate that inference which, asking jury prosecution to draw is ment telephone is not reason- conversation from Eickstaedt’s telephone of the conversa- able or that Eickstaedt’s end only tion, part telephone conversa- which was the any- overheard, accurately what, if reflect tion did not thing, at end of the line. Alternative- was said- the other may ly, consideration, upon trial court find these fac- unre- tors not to be sufficient render the evidence so to liable as to be inadmissible. These are factors bring may jury’s defendant attention able go weight credibility may evi- trial and to the dence, reliability. Westen, The not its inherent Future Confrontation, 77 Mich. L. Rev. 1212-1213 initially (1979). This determination should be made the trial court.10 explained previously, majority purports
As I
apply
Olson,
the factors set forth in State v.
75 Wis.2d
575, 588-91,
(1977),
Accordingly, I would remand this case to the trial court for a determination of the evidence and admissibility of the evidence on the basis fac- forth in Olson. For forth, tors set the reasons set I dis- sent.