State of Wisconsin, Plaintiff-Respondent, v. Glenn T. Zamzow, Defendant-Appellant-Petitioner.
CASE NO.: 2014AP2603-CR
SUPREME COURT OF WISCONSIN
April 6, 2017
2017 WI 29 | 366 Wis. 2d 562 | 874 N.W.2d 328
Gary R. Sharpe
REVIEW OF A DECISION OF THE COURT OF APPEALS. (Ct. App. 2016 – Published). PDC No: 2016 WI App 7. SOURCE
ATTORNEYS:
For the defendant-appellant-petitioner, there was a brief and oral argument by Thomas B. Aquino, assistant state public defender.
For the plaintiff-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
(L.C. No. 2011CT145)
REVIEW of a decision of the Court of Appeals. Affirmed.
OPINION
¶1 REBECCA GRASSL BRADLEY, J. We review a published opinion of the court of appeals,1 which determined that use of a deceased police officer‘s recorded statements at a suppression hearing2 did not violate Glenn T. Zamzow‘s rights under the Confrontation Clause of the
I. BACKGROUND
¶2 Officer Craig Birkholz of the Fond du Lac Police Department stopped Zamzow‘s car early on a Sunday morning after observing the car cross the center line. During the stop, Zamzow smelled of intoxicants and admitted to drinking alcohol. Officer Curt Beck arrived on the scene with a third officer to assist Birkholz. The officers arrested Zamzow, and the State charged him with operating while intoxicated and operating with a prohibited alcohol concentration, both as third offenses.3 Zamzow filed a motion to suppress all evidence obtained during the stop, claiming Birkholz lacked reasonable suspicion. Before the court could hold a suppression hearing, Birkholz died.
¶3 With Birkholz unavailable to testify at the suppression hearing, the State instead relied on a recording of the stop, as well as testimony by Beck and a computer forensic specialist from the police department, to establish reasonable suspicion. The computer forensic specialist first testified about recordings from cameras mounted on the two squad cars involved in the stop. He testified that he prepared a DVD containing the dashboard camera video from each car. Next, Beck explained his role in assisting with the stop. He acknowledged watching the DVD with the dashboard camera videos, and he confirmed that the recording produced by his own car‘s camera fairly and accurately depicted the stop as he remembered it. Additionally, he confirmed that the dashboard camera video from Birkholz‘s car fairly and accurately depicted the events Beck personally observed, and verified that the video consisted of a continuous and uninterrupted segment.
¶4 Based on the two officers’ testimony——and over defense counsel‘s objection to the impossibility of cross-examining Birkholz about his reasons for initiating the stop——the circuit court allowed the State to introduce the video from Birkholz‘s car, which the court viewed. After hearing arguments from Zamzow‘s counsel
¶5 At the second suppression hearing, the court heard the initial statement Birkholz made to Zamzow after initiating the stop: “Officer Birkholz, city police. The reason I stopped you is you were crossing the center line there coming at me and then again when I turned around and got behind you.” The court also heard audio in which Birkholz explained his basis for the stop to the arriving officers.4 Zamzow‘s counsel objected to admission of both audio statements, arguing that the inability to cross-examine Birkholz denied Zamzow his right to confront a witness against him.
¶6 The circuit court denied Zamzow‘s suppression motion and made the following findings of fact:
[O]n Sunday night, March 13th, at 3:04 a.m. or thereabouts, the officer in this case, deceased Officer Birkholz, did make an observation that the defendant had crossed the center line on Johnson Street as he was approaching the Johnson street bridge from the east traveling west. The officer turned around, stopped the vehicle, and has testified that the vehicle crossed the center line again as it was going over the Johnson Street bridge.
From the video, the court could not “discern in any fashion . . . whether a cross of the center line occurred prior to the two vehicles crossing paths,” and the court added that it was “difficult from the video to discern whether the defendant‘s vehicle actually crossed the center line as it was going over the bridge.” Focusing instead on the statement Birkholz made to Zamzow, the court concluded, “[T]he . . . testimony that the vehicle did, in fact, cross the center line twice in that short amount of time” provided a “sufficient basis for the officer to have made a stop for further inquiry.”
¶7 On Zamzow‘s motion for reconsideration, the circuit court clarified its decision. Relying on State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990), the court concluded that the Confrontation Clause does not apply at a suppression hearing. The court added that, even if the Confrontation Clause does apply at suppression hearings, Birkholz‘s statement to Zamzow was nontestimonial and therefore admissible.
¶8 Zamzow proceeded to trial, and a jury convicted him on both counts. At trial, the jury did not hear the audio recording of Birkholz‘s statement. After the circuit court denied Zamzow‘s motion for postconviction relief, he appealed and the court of appeals affirmed. State v. Zamzow, 2016 WI App 7, ¶1, 366 Wis. 2d 562, 874 N.W.2d 328. The court of appeals agreed with the circuit court that “the Confrontation Clause simply does not apply to pretrial hearings such as the suppression hearing at issue in this case.” Id., ¶11. Emphasizing United States Supreme Court precedent suggesting the right to confrontation is a trial right, the court rejected Zamzow‘s contention that Crawford v. Washington, 541 U.S. 36 (2004), undermined Frambs and extended the confrontation right to pretrial
¶9 Zamzow filed a petition for review, which we granted.
II. STANDARD OF REVIEW
¶10 Ordinarily, the decision whether to admit evidence is within the circuit court‘s discretion. State v. Griep, 2015 WI 40, ¶17, 361 Wis. 2d 657, 863 N.W.2d 567 (citing State v. Deadwiller, 2013 WI 75, ¶17, 350 Wis. 2d 138, 834 N.W.2d 362). Whether the admission of evidence violates a defendant‘s rights under the Confrontation Clause of the
III. ANALYSIS
A. The Confrontation Right
¶11 The
¶12 Zamzow contends the
¶13 In recent years, Crawford and its progeny initiated a reassessment of the nature of the Confrontation Clause‘s protections. See Crawford, 541 U.S. at 61 (“To be sure, the Clause‘s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee.“). By contrast, Zamzow presents a different question here, asking not what the Confrontation Clause protects but when its protections apply. To answer Zamzow‘s question, we begin with the text of the
¶14 On its face, the Sixth Amendment‘s introductory phrase “[i]n all criminal prosecutions” seems to speak in broad terms, and early English dictionaries provide little guidance regarding the scope of “prosecutions” during the Framing era. Samuel Johnson‘s dictionary defined a “prosecution” as a “[s]uit against a man, in a criminal cause.” 2 Samuel Johnson, A Dictionary of the English Language (London 1756). Noah Webster provided a more comprehensive definition: “the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment.” 2 Noah Webster, An American Dictionary of the English Language (New York, S. Converse 1828). Although both definitions contemplate a formal process for pursuing criminal charges, neither delineates the specific procedures used to determine guilt or innocence. Consequently, the
¶15 Accordingly, because “[t]he founding generation‘s immediate source of the [right to confront one‘s accusers] . . . was the common law,” Crawford, 541 U.S. at 43, we also look to the common law to guide our understanding of the Confrontation Clause‘s meaning. See Mattox v. United States, 156 U.S. 237, 243 (1895) (“We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted . . . .“). Blackstone extolled the virtues of confrontation in his discussion of “the nature and method of the trial by jury.” 3 William Blackstone, Commentaries on the Laws of England 349 (Philadelphia 1772) (emphasis omitted). He explained that “the confronting of adverse witnesses” affords an “opportunity of obtaining a clear discovery” of the underlying truth of the matter at issue. Id. at 373. Unlike a “private and secret examination taken down in writing before an officer” and later read at trial, the “examination of witnesses viva voce”7 provides a superior
¶16 In Mattox v. United States, 156 U.S. 237 (1895), one of the Supreme Court‘s earliest opinions discussing the Confrontation Clause, the Court described the common law right in a manner consistent with Blackstone‘s articulation:
The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury . . . .
Id. at 242. Like Blackstone, the Court emphasized the trial-oriented protection afforded by the right to confrontation of witnesses, which guarantees the “personal presence of the witness before the jury.” Id. at 243.8
¶17 As criminal procedure evolved over the past century to include various pretrial proceedings, the Supreme Court addressed questions about non-trial criminal hearings and their relationship to procedural guarantees mandated by the Constitution. In particular, suppression hearings have become an important stage in many criminal cases since the Supreme Court adopted the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914).9 When examining the intersection of constitutional requirements and non-trial proceedings, the Court identified a “difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt.” Brinegar v. United States, 338 U.S. 160, 174 (1949). At a criminal trial, traditionally before a jury, “[g]uilt . . . must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard.” Id. (emphasis added). Probable cause, in contrast, implicates only “the factual and
¶18 When discussing the government‘s privilege not to reveal the identity of a confidential informant, the Supreme Court relied on this distinction between proof at trial——where a defendant‘s guilt or innocence is at stake——and proof at a suppression hearing. In McCray v. Illinois, 386 U.S. 300 (1967), the Court explained it never held that, as an evidentiary principle, “an informer‘s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search.” Id. at 312. Faced with an undeveloped challenge to an unidentified informant‘s absence from a suppression hearing, the Court succinctly noted, “Petitioner also presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we consider absolutely devoid of merit.” Id. at 313-14 (emphasis added) (quoting Cooper v. California, 386 U.S. 58, 62 n.2 (1967)). Where testimony by the arresting officers at the suppression hearing was sufficient to establish probable cause for the arrest and resultant search, id. at 304, the confidential informant‘s absence did not violate the
¶19 Elsewhere, the Court made more explicit the connection between criminal trials and the Sixth Amendment‘s guarantee of confrontation and cross-examination. Four members of the Court endorsed a concise statement on the matter in Pennsylvania v. Ritchie, 480 U.S. 39 (1987): “[T]he right to confrontation is a trial right . . . .” Id. at 52 (plurality). In California v. Green, 399 U.S. 149 (1970), the Court declared, “[I]t is [the] literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause . . . .” Id. at 157. Earlier, in Barber v. Page, 390 U.S. 719 (1968), the Court described a clear connection between the confrontation right and particular stages of a criminal case:
The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.
¶20 Consistent with the Supreme Court‘s implicit and explicit characterizations of the Confrontation Clause, this court recently held that “[o]ur caselaw establishes that the Confrontation Clause does not apply to preliminary examinations.” State v. O‘Brien, 2014 WI 54, ¶30, 354 Wis. 2d 753, 850 N.W.2d 8 (first citing State ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 634, 317 N.W.2d 458 (1982)); then citing State v. Oliver, 161 Wis. 2d 140, 146, 467 N.W.2d 211 (Ct. App. 1991); and then citing State v. Padilla, 110 Wis. 2d 414, 422, 329 N.W.2d 263 (Ct. App. 1982)). The primary case on which this court relied explained that the “purpose of a preliminary hearing is quite different from a trial” because “the defendant‘s guilt need not be proven beyond a reasonable doubt.” Funmaker, 106 Wis. 2d at 634.
¶21 Wisconsin is not alone in interpreting the Confrontation Clause as protecting a trial right; numerous state and federal courts agree. Peterson v. California, 604 F.3d 1166, 1169-70 (9th Cir. 2010) (“[T]he right to confrontation is basically a trial right. . . . Accordingly, Crawford does not affect the . . . Supreme Court cases holding that the Confrontation Clause is primarily a trial right.“); Whitman v. Superior Court, 820 P.2d 262, 271 (Cal. 1991) (“[T]he United States Supreme Court has repeatedly stated that ‘[t]he right to confrontation is basically a trial right.‘” (quoting Barber, 390 U.S. at 725)); Blevins v. Tihonovich, 728 P.2d 732, 734 (Colo. 1986) (en banc); Leitch v. Fleming, 732 S.E.2d 401, 404 (Ga. 2012); People v. Blackman, 414 N.E.2d 246, 247–48 (Ill. App. Ct. 1980); State v. Sherry, 667 P.2d 367, 376 (Kan. 1983) (“The Sixth Amendment right of confrontation is a protection that exists at the trial of the defendant.“); Oakes v. Commonwealth, 320 S.W.3d 50, 55 (Ky. 2010) (“[T]he U.S. Supreme Court has never held that the right to confront witnesses applies to pretrial hearings. In fact, to the contrary, it has repeatedly described the right as a trial right.“); State v. Daly, 775 N.W.2d 47, 66 (Neb. 2009) (“[I]t is well established that Confrontation Clause rights are trial rights that do not extend to pretrial hearings in state proceedings.“); Sheriff v. Witzenburg, 145 P.3d 1002, 1004 (Nev. 2006) (“[C]onfrontation has historically been described as a trial right.“); State v. Lopez, 2013-NMSC-047, ¶2, 314 P.3d 236 (“[T]he right of confrontation . . . applies only at a criminal trial where guilt or innocence is determined.“); Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. Ct. 1991) (“[T]he right to confrontation is a trial right.“); State v. Timmerman, 2009 UT 58, ¶11, 218 P.3d 590 (”Barber, Green, and Ritchie establish Supreme Court precedent confining the Sixth Amendment Confrontation Clause to trial.“).
¶22 Although we now address, for the first time, whether the Confrontation Clause applies at suppression hearings,11 courts in other states have already tackled the question in the post-Crawford era. The New Mexico Supreme Court presents a representative example, holding that “the Confrontation Clause does not apply to preliminary questions of fact elicited at a suppression hearing.” State v. Rivera, 2008-NMSC-056, ¶13, 192 P.3d 1213. That court relied on Ritchie and Barber when explaining, “[T]he United States Supreme Court has held that a defendant‘s right to confront witnesses against him is primarily a trial right, not a pretrial right.” Id., ¶¶13-14. The court added,
¶23 Other courts reached similar conclusions. See, e.g., People v. Felder, 129 P.3d 1072, 1073-74 (Colo. App. 2005) (observing that “[n]othing in Crawford suggests that the Supreme Court intended to alter its prior rulings allowing hearsay at pretrial proceedings, such as a hearing on a suppression motion challenging the sufficiency of a search warrant,” and reasoning that “had the Court intended the rule of Crawford to apply at the pretrial stage, it would have revisited its prior decisions refusing to recognize a
¶24 We agree with those jurisdictions in concluding that the Confrontation Clause does not apply during suppression hearings. At common law, the right to confront witnesses developed as a mechanism for assessing witness reliability in the presence of the fact-finder, and several decisions by the Supreme Court indicate the confrontation right protects defendants at trial——when guilt or innocence is at stake. See Ritchie, 480 U.S. at 52 (plurality); Green, 399 U.S. at 157; Barber, 390 U.S. at 725; Brinegar, 338 U.S. at 174-75. Presenting live witnesses at a suppression hearing undoubtedly strengthens testimony offered by the State,12 but when cross-examination of a
¶25 It is important to recognize the dissimilarity between the inquiry at trial and the inquiry at suppression hearings: while the purpose of a trial is to ascertain a defendant‘s guilt or innocence, the function of a suppression hearing is to determine whether the police violated the defendant‘s constitutional rights. In McCray, the Supreme Court explained that the suppression hearing implicates a lesser concern than the trial itself:
We must remember . . . that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society‘s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the
Fourth Amendment . If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.
386 U.S. at 307 (citation omitted) (quoting State v. Burnett, 201 A.2d 39, 44 (N.J. 1964)). The proceedings here reveal the gulf between these inquiries. Although the circuit court did consider Birkholz‘s statement when evaluating reasonable suspicion, the jury that actually convicted Zamzow at trial never heard the audio recording. Birkholz‘s statement itself played no part in the determination of guilt or innocence. Zamzow was “judged upon the untarnished truth.” Id.
¶26 While the Supreme Court has applied the Public Trial and Counsel Clauses of the
those clauses protect. See Waller, 467 U.S. at 46-47; Coleman, 399 U.S. at 9-10 (plurality); id. at 11-12 (Black, J., concurring). Here, elevating suppression hearings to a level of constitutional significance on par with trials would contravene the clear distinction the Supreme Court has described between pretrial hearings and the trial itself for Confrontation Clause purposes. The Court never nullified that distinction in Crawford or any subsequent Confrontation Clause case, and we will not adopt such a construction here. Because the Court has made clear that the interests protected by the confrontation right specifically target the determination of guilt or innocence, the justifications underpinning application of the Public Trial and Counsel Clauses of the
¶27 In light of the longstanding principle that the Confrontation Clause protects a trial right, we conclude the Confrontation Clause does not require confrontation of witnesses at suppression hearings. By relying on Birkholz‘s recorded audio statement to make a reasonable suspicion determination, the circuit court did not deny Zamzow his right to confrontation under the
B. Due Process
¶28 The
¶29 We agree with the court of appeals that clear precedent from the Supreme Court undermines Zamzow‘s due process argument. In many of the Confrontation Clause cases discussed above, the Supreme Court also addressed alleged due process violations. Drawing those cases together, the Court explained that the distinction between trials and pretrial hearings applies in the due process context, too:
This Court . . . has noted that the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial. United States v. Matlock, 415 U.S. 164, 172-174 (1974); Brinegar v. United States, 338 U.S. 160, 172-174 (1949). Furthermore, although the Due Process Clause has been held to require the Government to disclose the identity of an informant at trial, provided the identity is shown to be relevant and helpful to the defense, Roviaro v. United States, 353 U.S. 53, 60-61 (1957), it has never been held to require the disclosure of an informant‘s identity at a suppression hearing. McCray v. Illinois, 386 U.S. 300 (1967). We conclude that the process due at a suppression hearing may be less demanding and elaborate than the protections accorded the defendant at the trial itself.
United States v. Raddatz, 447 U.S. 667, 679 (1980) (citation omitted). Any right to confrontation and cross-examination implicated by the Due Process Clause is therefore relaxed at a suppression hearing.
¶30 Ultimately, “due process is flexible and calls for such procedural protections as the particular situation demands.” State v. Chamblis, 2015 WI 53, ¶54, 362 Wis. 2d 370, 864 N.W.2d 806 (alteration omitted) (quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997)). Here, Birkholz‘s death rendered him unavailable to testify at the suppression hearing. But testimony
IV. CONCLUSION
¶31 The right to confrontation arose at common law as a tool to test witness reliability at trial. With the advent of pretrial evidentiary hearings during the twentieth century, the Supreme Court has signaled that the right to confrontation persists as a trial protection and does not apply during pretrial proceedings. The
By the Court.—The decision of the court of appeals is affirmed.
¶32 SHIRLEY S. ABRAHAMSON, J. (dissenting). The
¶33 The United States Supreme Court has not squarely addressed the issue presented in the instant case. Thus, to decide the instant case the majority opinion must predict, on the basis of case law tackling other questions, what the United States Supreme Court will do when it has the opportunity to decide the issue presented in the instant case.
¶34 The
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (Emphasis added.)
¶35 The instant case involves a
¶36 To put the instant case in context, the
¶37 I conclude that the
- The text and history of the
Sixth Amendment enumerating the confrontation right “in all criminal prosecutions” informs the interpretation of the confrontation right at a suppression hearing. Cross-examination is the core of the confrontation right. - The phrase “in all criminal prosecutions” in the
Sixth Amendment is not limited to what occurs at trial. In any event, at the time of the adoption of theSixth Amendment , suppression hearings were generally conducted at trial. - The United States Supreme Court‘s interpretation of the textual phrase “in all criminal prosecutions” in applying an enumerated
Sixth Amendment right other than the confrontation right informs the interpretation of theSixth Amendment confrontation right. TheSixth Amendment Counsel, Compulsory Process, and Confrontation Clauses are structurally identical.- Enumerated
Sixth Amendment rights attach to non-trial critical stages in a criminal prosecution. - The purpose and function of a proceeding in a criminal prosecution determines the application of an enumerated
Sixth Amendment right.
- Enumerated
I
¶38 I start where the majority opinion starts——with the text of the
¶39 The constitutional text alone might not resolve the instant case, but it helps a great deal.4 The very words “in all criminal prosecutions” signify that the confrontation right is guaranteed in proceedings before, during, and after the trial.5 Unfortunately, the majority opinion does not seriously engage with the text of the
¶40 The majority opinion in the instant case, without careful attention to Justice Scalia‘s historical analyses of confrontation in Crawford, looks to history. It limits its historical research and its originalist view of “in all criminal prosecutions” and the Confrontation Clause to some old dictionaries, Blackstone‘s Commentaries, and one 1895 United States Supreme Court case.6 See majority op., ¶¶14-16. As the majority opinion correctly acknowledges, its historical analysis is not illuminating.
¶41 Justice Scalia‘s and Chief Justice Rehnquist‘s historical analyses of the Confrontation Clause in Crawford are helpful in the instant case. To understand the meaning of the
¶42 These analyses are edifying for purposes of this writing. The history demonstrates that the right of confrontation was very important in Roman, English, and American legal history. From this history, the following precepts can be drawn from Crawford about the confrontation right:
- The English common-law tradition is one of live testimony in court subject to adversarial testing.8
- “Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of the facts in question . . . .”9
- Many early American cases demonstrate that prosecutions are carried on to conviction by witnesses confronted by the accused and subjected to the accused‘s personal examination.10
- “[T]he common law in 1791 [when the
Sixth Amendment was adopted] conditioned admissibility of an absent witness‘s examination on unavailability and a prior opportunity to cross-examine. TheSixth Amendment therefore incorporates those limitations.”11 - The historical sources do not say “that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that this requirement was dispositive.”12
- The Confrontation Clause reflects the judgment that reliability of evidence is tested “in the crucible of cross-examination.”13
¶43 In sum, the text and historical analyses of the Confrontation Clause lead to the conclusion that the confrontation right is of great significance in Anglo-American jurisprudence and that the significance of the confrontation right lies in the accused‘s right to cross-examine a witness.
II
¶44 The majority opinion rests its conclusion on its certitude that the accused‘s right of confrontation is limited to the trial. Majority op., ¶¶17-21. This purported certitude has no basis in the text of the
¶46 True, the Court has referred to confrontation as a trial right or a right at trial in its discussion of the
I conclude that although an accused‘s right of confrontation at a suppression hearing may not be the “core” of the Confrontation Clause, it is within its limits.
¶47 A suppression hearing affects the trial and the ultimate question of a defendant‘s guilt or innocence. If evidence is not suppressed at the suppression hearing, it can be introduced at trial. An issue not discussed by the majority opinion but of importance is the defendant‘s ability to raise the suppression issue again at trial.17 If the right of confrontation is not available to the defendant at the suppression hearing, but is available at trial, will the defendant have the right to relitigate the suppression ruling at trial when the constitutional guarantee of confrontation is in effect? If so, what is the purpose of the suppression hearing? If the defendant pleads guilty, does he or she waive the right to raise the confrontation issue on appeal? If so, is the Wisconsin statute allowing a defendant to appeal the denial of a motion to suppress effective? See majority op., ¶26 n.13; see also Curry v. Texas, 228 S.W.3d 292, 298 (Tex. Ct. App. 2007).
¶48 Nevertheless, the majority opinion joins courts in other jurisdictions cursorily relying on these references to “at trial” in
¶49 Not only is this conclusion devoid of substantial analysis and support in the cases cited, it is also devoid of historical support.19 Historically, the suppression of unconstitutionally obtained evidence occurred during the trial.20 “Indeed, the modern suppression hearing, unknown at common law, is a type of objection to evidence such as took place at common law . . . in open court . . . .” Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 437 (1979) (Blackmun, J., concurring in part and dissenting in part).21 See also I Joseph Chitty, A Practical Treatise on the Criminal Law 571 (5th ed. 1847) (“The practice . . . at present, is for the prosecutor‘s counsel, on his examination of his own evidence in chief, to inquire of the witnesses all the facts, so as to satisfy the jury that the confession was voluntarily made, and duly taken.“).
¶50 As the years passed, however, courts began hearing suppression motions before trial instead of at trial. Moving the suppression hearing up in time in a criminal prosecution to precede the trial offered greater judicial convenience and efficiency, and it prevented delay while a jury was sitting.22 Indeed, federal and Wisconsin rules of criminal procedure now generally require that defendants bring a motion to suppress evidence before
¶51 That a suppression hearing has changed temporal location does not detract from its ultimate goal of excluding illegally obtained evidence at trial and should not influence the application of the accused‘s confrontation right. Interpreting the accused‘s constitutional confrontation right on the basis of when it is asserted is contrary to the general rule that form is not placed over substance and is contrary to tenets of constitutional law. “A rule of practice must not be allowed for any technical reason to prevail over a constitutional right.” Gouled v. United States, 255 U.S. 298, 313 (1921); abrogated on other grounds by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967).
¶52 Justice Blackmun got it right. He concluded that “for purposes of applying the public-trial provision of the
¶53 In sum, the broad text of the
III
¶54 I next examine the United States Supreme Court‘s interpretations of the
A
¶55 In its cases interpreting and applying the enumerated
¶56 A critical stage is any stage in a criminal prosecution, “formal or informal,
¶57 The Court‘s focus on giving a defendant the right to counsel at a pretrial proceeding to ensure the defendant‘s constitutional right to a fair trial and cross-examination implies that a suppression hearing (inherently tied to fair trial and cross-examination) is a critical stage in criminal prosecutions.26
¶58 The Wisconsin supreme court has long recognized that the confrontation right “is an essential and fundamental requirement for a fair trial.” State v. Bauer, 109 Wis. 2d 204, 208, 325 N.W.2d 857 (1982) (citation omitted).
¶59 Courts in several jurisdictions recognize the applicability of the
Court of Appeals has declared that “a pretrial suppression hearing is a critical stage.” United States v. Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988).28
¶60 Judge Harry Edwards wrote that the suppression hearing is a critical stage of the prosecution because it “affects substantial rights of an accused person; the outcome of the hearing——the suppression vel non of evidence——may often determine the eventual outcome of conviction or acquittal.” United States v. Green, 670 F.2d 1148, 1154 (D.C. Cir. 1981). The Green court declared that because of the historical and practical importance of the right of cross-examination, any limitations on the right at the suppression hearing must be justified by weighty considerations. Green, 670 F.2d at 1154.29 I agree.
Professor LaFave in
- United States v. Mejia, 69 F.3d 309 (9th Cir. 1995) (where suppression hearing aborted because of illness of judge and new hearing held before another judge, it error for that judge merely to read transcript of some prosecution witnesses’ testimony at aborted hearing; continuance should have been granted “so that the government‘s two main witnesses would testify in person and be cross-examined in front of the judge who would be required to assess their credibility“).
- People v. Levine, 585 N.W.2d 770 (Mich. App. 1998) (citing cases from other states in support of conclusion that “the protections of the Confrontation Clause extend to a pretrial suppression hearing“) (the Michigan Supreme Court vacated this decision on other grounds, and did not address the appellate court‘s decision that the Confrontation Clause applies at suppression hearings).
- State v. Ehtesham, 309 S.E.2d 82 (W. Va. 1983) (suppression hearing should be “a meaningful hearing, at which both the state and the defendant should be afforded the opportunity to produce evidence and to examine and cross-examine witnesses“; defendant‘s right denied where judge refused defense opportunity to cross examine officer who obtained search warrant).
¶61 In interpreting the
¶62 A federal court of appeals has written of the right of cross-examination as follows: “So basic is the right [to cross-examine witnesses] that the Supreme Court has held that its denial, ‘without waiver . . . would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.‘” Proffitt v. Wainwright, 685 F.2d 1227, 1251 (11th Cir. 1982) (quoting Smith v. Illinois, 390 U.S. 129, 131 (1968)).30
¶63 In sum, the United States Supreme Court has indicated that the
B
¶64 In its cases interpreting and applying enumerated
¶65 For example, the United States Supreme Court has declared that an accused‘s
¶66 The Waller Court reasoned that the accused‘s
Although I do not further discuss these cases in the instant dissent, I note that other
¶67 Furthermore, the pretrial suppression hearing has in many instances supplanted the trial. The Waller Court recognized that for many defendants the suppression hearing is “the only trial, because the defendants [will] thereafter plead[] guilty . . . .” Waller, 467 U.S. at 47. The suppression hearing resembles a bench trial: witnesses are called; the defendant has a right to counsel who can question witnesses; the judge must find facts and apply legal principles to the facts found; the conduct of law enforcement officials is often reviewed at a suppression hearing. The Waller Court elaborated as follows:
[A] suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions. The outcome frequently depends on a resolution of factual matters. The need for an open proceeding may be particularly strong with respect to suppression hearings. A challenge to the seizure of evidence frequently attacks the conduct of police and prosecutor. . . . [S]trong pressures are naturally at work on the prosecution‘s witnesses to justify the propriety of their conduct in obtaining the evidence.
Waller, 467 U.S. at 46-47 (internal quotation marks and citations omitted).
¶68 In effect, the Waller court recognized that suppression hearings are tantamount to trials, in both form and importance.
¶69 The purpose and function of an accused‘s
¶70 Both the Public Trial Clause and the exclusionary rule are aimed at deterring unlawful conduct. This deterrent effect would be weakened if the
¶71 In determining whether the
- “Evidence is presented by means of live testimony, witnesses are sworn, and those witnesses are subject to cross-examination.”
- “Determination of the ultimate issue depends in most cases upon the trier of fact‘s evaluation of the evidence, and credibility is often crucial.”
- “[T]he pretrial suppression hearing often is critical, and it may be decisive, in the prosecution of a criminal case. If the defendant prevails, he will have dealt the prosecution‘s case a serious, perhaps fatal, blow; the proceeding often then will be dismissed or negotiated on terms favorable to the defense. If the prosecution successfully resists the motion to suppress, the defendant may have little hope of success at trial (especially where a confession is in issue), with the result that the likelihood of a guilty plea is substantially
increased.”33 - “The suppression hearing often is the only judicial proceeding of substantial importance that takes place during a criminal prosecution.”
Gannett, 443 U.S. 434-36 (Blackmun, J., concurring in part and dissenting in part).
¶72 For Justice Blackmun, these factors led him to conclude that the suppression hearing——so much like a trial——must, like a trial, be public under the
¶73 These factors lead me to conclude that the suppression hearing——so much like a trial——must, like a trial, afford an accused the confrontation right.34
Justice Blackmun offered a similar approach in Kentucky v. Stincer, 482 U.S. 730 (1987), and Pennsylvania v. Ritchie, 480 U.S. 39 (1987). Justice Blackmun was persuaded that “there are cases in which a state rule that precludes a defendant from access to information before trial may hinder that defendant‘s opportunity for effective cross-examination at trial, and thus that such a rule equally may violate the Confrontation Clause.” Kentucky v. Stincer, 482 U.S. at 738 n.9.
(continued) ¶74 The most striking aspect of the suppression hearing that leads me to this conclusion is that the suppression hearing is the turning point in many criminal prosecutions.35 The majority opinion concedes (as it must) that “suppression hearings have become an important stage in many criminal cases since the Supreme Court adopted the exclusionary rule . . . .” Majority op., ¶17. Yet the majority opinion strangely suggests that guilt or innocence is not at stake in the suppression hearing. The majority opinion asserts that its conclusion that the confrontation right does not apply at suppression hearings is compelled because the “confrontation right protects defendants at trial——when guilt or innocence is at stake.” Majority op., ¶24; see also majority op., ¶29.
Justice Blackmun raised the same point in his separate writing in Ritchie, in which he faulted the majority for limiting its confrontation analysis to whether cross-examination is available and not inquiring into the “effectiveness of cross-examination.” Ritchie, 480 U.S. at 62; see also Ritchie, 480 U.S. at 71 (Brennan, J., dissenting) (“The creation of a significant impediment to the conduct of cross-examination thus undercuts the protections of the Confrontation Clause, even if that impediment is not erected at the trial itself.“) (emphasis added).
In Ritchie, 480 U.S. at 54 n.10, Justice Powell, however, observed in his plurality opinion that the Court has not yet recognized a Confrontation Clause violation prior to trial.
¶75 But guilt or innocence is often at stake at suppression hearings. In drug offenses and drunk-driving prosecutions, for instance, the result of the suppression hearing is often determinative of the case.36 Often, when a defendant‘s motion to
¶76 Because the suppression hearing is frequently outcome-determinative, involves adversarial and trial-like practices, and requires the circuit court to weigh testimony as a fact-finder and apply the law to the facts, the
¶77 I conclude on the basis of the text of the
¶78 The majority opinion nullifies the accused‘s
* * * *
¶79 To conclude briefly, the
¶80 Suppression hearings are historically and functionally a part of the trial. Indeed, a suppression hearing often supplants the trial. The suppression hearing is a critical stage of the “criminal prosecution“; a defendant‘s right to a fair trial is dependent on counsel‘s ability to cross-examine
¶81 Because the suppression hearing involves adversarial and trial-like practices, is frequently outcome-determinative, and requires the circuit court to weigh testimony as fact-finder and apply the law to the facts, the
¶82 Finally, the majority opinion seems to pose a serious problem for future suppression hearings. The State generally has the burden of proof at a suppression hearing that the evidence is admissible at the hearing. Rules of evidence apparently are not fully applicable at a suppression hearing. See
¶83 In the future, according to the majority opinion, the State may offer hearsay evidence in a suppression hearing. As a practical matter, the defendant may not ever be able to effectively cross-examine the witness. Isn‘t the result of the suppression hearing that the unsuppressed evidence may be introduced at trial? See ¶47, supra.
¶84 Court of Appeals Judge Paul Reilly, dissenting from the court of appeals decision in the instant case, posed the problem as follows: A paper review in which trial courts read police reports and review evidence such as dash cam videos to determine whether evidence should be suppressed may become the norm. The possible effect of the court of appeals decision (and the majority opinion in the instant case), according to Judge Reilly, is that hearsay and double hearsay testimony may be used at a suppression hearing to support the constitutional reasonableness of a search and seizure and therefore the admissibility of contraband, for example, when the same hearsay would likely not be admitted at trial.
¶85 Judge Reilly wrote as follows:
The effect of the majority‘s decision is that evidentiary hearings are no longer necessary to the determination of whether a warrantless search and/or seizure was constitutional. Suppression hearings may be reduced to a paper review in which trial courts read police reports and review evidence such as dash cam videos to determine whether a
warrantless search or seizure was nevertheless lawful. The majority mistakes us for a civil law country rather than recognizing our common law foundation.
. . . .
The majority provides no guidance in how it expects courts to protect the
Fourth Amendment rights of a criminal defendant such as Zamzow absent theSixth Amendment‘s “crucible of cross-examination” in evaluating the government‘s accusations. By relying on Frambs, the majority disregards the Crawford Court‘s lament over the legacy of Roberts as one of “fail[ure] to provide meaningful protection from even core confrontation violations.” . . . As I fear this case continues that unfortunate legacy, I dissent.
State v. Zamzow, 2016 WI App 7, ¶¶22, 23, 366 Wis. 2d 562, 874 N.W.2d 328 (Reilly, J., dissenting).
¶86 For the reasons set forth, I dissent.
¶87 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissenting opinion.