2017 WI 29
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2603-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Glenn T. Zamzow,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
366 Wis. 2d 562, 874 N.W.2d 328
(Ct. App. 2016 – Published)
PDC No: 2016 WI App 7
OPINION FILED: April 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 13, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Fond du Lac
JUDGE: Gary R. Sharpe
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. joined by BRADLEY, A. W., J.
dissent (opinion filed).
NOT PARTICIPATING:
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.
2017 WI 29
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2603-CR
(L.C. No. 2011CT145)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. APR 6, 2017
Glenn T. Zamzow, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶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 Sixth Amendment or the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution. We hold that the Confrontation Clause protects a
1
State v. Zamzow, 2016 WI App 7, 366 Wis. 2d 562, 874
N.W.2d 328.
2
The Honorable Gary R. Sharpe, Fond du Lac County Circuit
Court, presiding.
No. 2014AP2603-CR
defendant's right to confrontation at trial but not at
suppression hearings, and admission of the deceased officer's
recorded statements during the suppression hearing did not
deprive Zamzow of due process. We therefore affirm.
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
3
See Wis. Stat. § 346.63(1)(a)-(b) (2011-12).
2
No. 2014AP2603-CR
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 and from the State, the court took the
suppression motion under advisement in order to further review
the video. While watching the video again in chambers, the
circuit court discovered that the recording included audio,
which had not accompanied the video at the suppression hearing.
The court ordered a second suppression hearing so the audio
accompanying the video could be played on the court record.
¶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
3
No. 2014AP2603-CR
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."
4
In its reasonable suspicion determination, the court did
not rely on Birkholz's statement to the arriving officers.
4
No. 2014AP2603-CR
¶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 proceedings. Id., ¶¶10-11. Additionally, the court
of appeals rejected Zamzow's claim, first raised in his
postconviction motion, that admitting the audio statements
denied him due process of law. Id., ¶16. In particular, the
court of appeals relied on United States v. Matlock, 415 U.S.
164 (1974), and United States v. Raddatz, 447 U.S. 667 (1980),
to conclude that "the Supreme Court has, at a minimum, intimated
5
No. 2014AP2603-CR
that admission at a pretrial suppression hearing of hearsay
statements where the declarant cannot be cross-examined does not
present a due process problem." Zamzow, 366 Wis. 2d 562, ¶13.
¶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 Sixth Amendment presents a
question of law, which this court reviews do novo. Id. (citing
Deadwiller, 350 Wis. 2d 138, ¶17). "Whether a defendant's right
to due process was violated also presents a question of law that
we review de novo." State v. McGuire, 2010 WI 91, ¶26, 328
Wis. 2d 289, 786 N.W.2d 227.
III. ANALYSIS
A. The Confrontation Right
¶11 The Sixth Amendment to the United States Constitution
provides: "In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him . . . ." In Pointer v. Texas, 380 U.S. 400 (1965),
the Supreme Court held that the Sixth Amendment's Confrontation
6
No. 2014AP2603-CR
Clause applies to the states through the Due Process Clause of
the Fourteenth Amendment. Id. at 403, 405.5
¶12 Zamzow contends the Sixth Amendment right to
confrontation "[i]n all criminal prosecutions" guarantees a
right to confront the witnesses against him at suppression
hearings. Although he acknowledges the Supreme Court has never
directly addressed the question, he argues the Court assumed the
Confrontation Clause applies at a suppression hearing in McCray
v. Illinois, 386 U.S. 300 (1967).6 He also draws analogies to
the Court's decisions regarding other Sixth Amendment rights,
noting the Public Trial Clause applies at suppression hearings,
5
Zamzow has not raised any argument that his right to
confrontation differs under the Wisconsin Constitution, which
provides that "[i]n all criminal prosecutions the accused shall
enjoy the right . . . to meet the witnesses face to face." Wis.
Const. art. I, § 7. "We have observed that [the Confrontation
Clause and Wis. Const. art. I, § 7] are 'generally'
coterminous . . . ." State v. Rhodes, 2011 WI 73, ¶28, 336
Wis. 2d 64, 799 N.W.2d 850 (citing State v. Hale, 2005 WI 7,
¶43, 277 Wis. 2d 593, 691 N.W.2d 637).
6
In support of this argument, Zamzow directs us to
Professor LaFave's Search and Seizure, which asserts, "It should
not be assumed that the right of confrontation has no
application at a Fourth Amendment suppression hearing, for such
is not the case." 6 Wayne R. LaFave, Search and Seizure
§ 11.2(d), at 92 (5th ed. 2012). But see 3 Wayne R. LaFave et
al., Criminal Procedure § 10.5(e), at 618 (4th ed. 2015)
("[D]efendant's right of cross-examination at the suppression
hearing may be substantially narrower than that available at
trial." (citing McCray v. Illinois, 386 U.S. 300 (1967))); cf.
Nancy Hollander et al., Wharton's Criminal Procedure § 8:10, at
8-28 (14th ed. 2015) ("At the federal level, the defendant's
right to confront a witness, embodied in the Sixth Amendment of
the Constitution, was early held not to apply to the preliminary
hearing." (footnote omitted)).
7
No. 2014AP2603-CR
Waller v. Georgia, 467 U.S. 39, 46-47 (1984), and the Counsel
Clause applies at preliminary hearings, Coleman v. Alabama, 399
U.S. 1, 9-10 (1970). Emphasizing the Court's relatively recent
overhaul of its Confrontation Clause jurisprudence in Crawford,
Zamzow asserts that evidence presented at suppression hearings
should also be subject to the Confrontation Clause's guaranteed
procedural mechanism for scrutinizing witness testimony.
¶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 Sixth Amendment and, building on the historical analyses in
Crawford, examine the Confrontation Clause's meaning at the time
of its adoption.
¶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
8
No. 2014AP2603-CR
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 Sixth Amendment's text does not alone provide
precise insights into the applicability of the Confrontation
Clause during particular stages of a criminal proceeding.
¶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
9
No. 2014AP2603-CR
voce"7 provides a superior mechanism for achieving the trial's
primary aim: "the clearing up of truth" in the presence of the
jury. Id. Absent from Blackstone's commentary was any
indication the common law right to confront witnesses existed at
any stages preceding the trial. See 4 id. at 317-57.
¶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
7
"By word of mouth; orally. . . . In reference to the
examination of witnesses, the term means that oral rather than
written testimony was taken." Viva Voce, Black's Law Dictionary
1804 (10th ed. 2014).
8
We make no pretense of replicating Crawford's encyclopedic
review of the Sixth Amendment's history, but the dissent faults
the depth and breadth of our inquiry into the common law right
of confrontation and the original public meaning of the
Confrontation Clause. See Dissent ¶41 n.7, ¶49. As contrary
evidence of historical meaning, however, the dissent cites two
twenty-first century law review articles about confrontation at
(continued)
10
No. 2014AP2603-CR
¶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
sentencing, two modern treatises, a 1924 case from this court,
contradictory separate writings in Gannet Co. v. DePasquale, 443
U.S. 368 (1979), and a non-precedential 1974 dissent from denial
of certiorari. Only the dissent's quotation from Joseph Chitty,
A Practical Treatise on the Criminal Law (5th ed. 1847), even
begins to offer any persuasive insight into common law practice
at the time of the Sixth Amendment's framing. Although the
dissent's authorities assuredly provide thoughtful commentary
for any court reconciling the Sixth Amendment's protections with
modern criminal procedure, after-the-fact analysis is no
substitute for contemporaneous evidence when examining original
meaning.
9
Although the exclusionary rule originally applied only in
federal criminal cases, the Supreme Court later held in Mapp v.
Ohio, 367 U.S. 643 (1961), that the exclusionary rule also
applies in state criminal cases through the Due Process Clause
of the Fourteenth Amendment.
11
No. 2014AP2603-CR
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 practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act." Id. at
175.
¶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
12
No. 2014AP2603-CR
confidential informant's absence did not violate the Sixth
Amendment.10
¶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.
Id. at 725.
10
A few years later, the Court confirmed the Sixth
Amendment implications of its decision in McCray, observing that
it had "specifically rejected the claim that defendant's right
to confrontation under the Sixth Amendment and Due Process
Clause of the Fourteenth Amendment had in any way been
violated." United States v. Matlock, 415 U.S. 164, 175 (1974).
13
No. 2014AP2603-CR
¶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.
14
No. 2014AP2603-CR
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 pre-
trial 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
11
In State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct.
App. 1990), the court of appeals observed that it saw "no
evidence that the Supreme Court intended the protection of the
confrontation clause to be available to a defendant
in . . . pretrial situations." Id. at 704. The statement arose
during an analysis based on Ohio v. Roberts, 448 U.S. 56 (1980),
(continued)
15
No. 2014AP2603-CR
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, "A trial focuses on the ultimate issue of an accused's
guilt or innocence, whereas in a pretrial hearing the focus is
generally on the admissibility of evidence." Id., ¶15.
Recognizing the continued validity of that distinction in
Supreme Court jurisprudence, the court emphasized that "recent
cases continue to focus on the protections afforded a defendant
at trial." Id., ¶18 (first citing Giles v. California, 554 U.S.
353, 357-58 (2008); then citing Crawford, 541 U.S. at 68).
¶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
which the Supreme Court overruled in Crawford v. Washington, 541
U.S. 36 (2004). Any effect on Frambs following Crawford's
overruling of Roberts is irrelevant for our purposes here, as we
conduct an independent, comprehensive review of the
applicability of the Confrontation Clause at suppression
hearings.
16
No. 2014AP2603-CR
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 Sixth Amendment right of pretrial
confrontation"); State v. Woinarowicz, 2006 ND 179, ¶11, 720
N.W.2d 635 ("In Crawford, the United States Supreme Court did
not indicate it intended to change the law and apply the
Confrontation Clause to pretrial hearings. . . . The Sixth
Amendment right to confrontation is a trial right, which does
not apply to pretrial suppression hearings."); Vanmeter v.
State, 165 S.W.3d 68, 74-75 (Tex. App. 2005) ("Crawford did not
change prior law that the constitutional right of confrontation
is a trial right, not a pretrial right . . . . We hold,
therefore, that Crawford does not apply at pretrial suppression
hearings."); see also Ebert v. Gaetz, 610 F.3d 404, 414 (7th
Cir. 2010) ("[T]he court considered the statement at a
suppression hearing, not . . . trial; the Confrontation Clause
was not implicated." (citing United States v. Harris, 403 U.S.
573, 584 (1971) (plurality))); State v. Watkins, 190 P.3d 266,
270-71 (Kan. Ct. App. 2007); State v. Harris, 2008-2117 (La.
12/19/08), 998 So. 2d 55 (per curiam); State v. Williams, 960
A.2d 805, 819-20 (N.J. Super. Ct. App. Div. 2008); People v.
Mitchell, 2 N.Y.S.3d 207, 209-10 (App. Div. 2015); State v.
Brown, 2016-Ohio-1258, 61 N.E.3d 922, ¶¶13-15 (Ct. App., 2d
Dist.); State v. Fortun-Cebada, 241 P.3d 800, ¶41 (Wash. Ct.
App. 2010).
17
No. 2014AP2603-CR
¶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 witness becomes impossible, the Confrontation
Clause does not prohibit use of valuable evidence, such as the
video at issue here.
¶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
12
We therefore do not share the concern, articulated by the
dissents both here and at the court of appeals, that our holding
will reduce suppression hearings "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." Dissent, ¶85 (quoting Zamzow,
366 Wis. 2d 562, ¶22 (Reilly, J., dissenting)). Because of the
weight live testimony carries when it emerges intact from the
gauntlet of cross-examination, a prosecutor has no incentive to
intentionally weaken the State's own case by failing to bring an
available witness before the court to defend against a
defendant's suppression motion.
18
No. 2014AP2603-CR
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 Sixth Amendment to certain pretrial
hearings, Waller v. Georgia, 467 U.S. 39 (1984); Coleman v.
Alabama, 399 U.S. 1 (1970), tellingly, it has not done so with
respect to the Confrontation Clause. Cases holding that the
Public Trial and Counsel Clauses apply during pretrial
proceedings base their conclusions on the nature of the rights
19
No. 2014AP2603-CR
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 Sixth Amendment to
pretrial proceedings do not logically attach to the
Confrontation Clause.13
¶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
13
Accusing us of placing form ahead of substance, the
dissent insists that "the temporal factor does not control"
whether the Confrontation Clause applies. Dissent, ¶¶51-52. We
agree. As demonstrated by our review of historical evidence and
Supreme Court decisions, we choose to join other jurisdictions
in holding that the confrontation right is a trial right not out
of "cursor[y] rel[iance] on . . . references to 'at trial' in
United States Supreme Court cases," dissent, ¶48, but because we
are persuaded that the confrontation right applies to testimony
before a finder of fact weighing the ultimate question of a
defendant's guilt or innocence.
20
No. 2014AP2603-CR
audio statement to make a reasonable suspicion determination,
the circuit court did not deny Zamzow his right to confrontation
under the Sixth Amendment.14
B. Due Process
¶28 The Fourteenth Amendment to the United States
Constitution provides: "No state shall . . . deprive any person
of life, liberty, or property, without due process of
law . . . ." As an alternative to his Confrontation Clause
argument, Zamzow contends the circuit court denied him due
process of law at the suppression hearing by relying on the
audio recording of Birkholz's statements without any possibility
of cross-examination, quoting Goldberg v. Kelly, 397 U.S. 254,
269 (1970): "[i]n almost every setting where important decisions
turn on questions of fact, due process requires an opportunity
to confront and cross-examine adverse witnesses."
¶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
14
Because we conclude the Confrontation Clause did not
require confrontation at the suppression hearing, we need not
determine whether Birkholz's statement was testimonial.
21
No. 2014AP2603-CR
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 by Beck established that the recording from the
dashboard camera on Birkholz's squad car accurately and
continuously documented the portions of the stop observed by
Beck. The audio portion of that same continuous recording
captured a statement made by Birkholz to Zamzow before Beck's
arrival on the scene. The circuit court's reliance on that
22
No. 2014AP2603-CR
hearsay statement did not offend the reduced standard for due
process of law required at a suppression hearing.
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 Sixth Amendment guarantees that a
defendant whose guilt or innocence is at stake at trial may
employ the "greatest legal engine ever invented for the
discovery of truth." Green, 399 U.S. at 158 (quoting 5 John
Henry Wigmore, Evidence § 1367 (3d ed. 1940)). But the Sixth
Amendment does not mandate that statements considered at a
suppression hearing face the crucible of cross-examination. Nor
does the Due Process Clause demand this. Accordingly, we
conclude that the circuit court did not deny Zamzow his rights
under the Sixth and Fourteenth Amendments to the Constitution by
relying on an audio recording of a deceased officer's statement
at the suppression hearing.
By the Court.—The decision of the court of appeals is
affirmed.
23
No. 2014AP2603-CR.ssa
¶32 SHIRLEY S. ABRAHAMSON, J. (dissenting). The Sixth
Amendment to the United States Constitution enumerates an
accused's rights "in all criminal prosecutions." Glenn T.
Zamzow, convicted of drunk driving, asserts that he was denied
his Sixth Amendment enumerated right "to be confronted with the
witnesses against him" during a hearing on his motion to
suppress evidence. The majority opinion declares, without
equivocation, that no such right exists.
¶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 Sixth Amendment to the United States Constitution
states:
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 Fourth Amendment
suppression hearing,1 not a preliminary examination. The two are
1
The defendant asserts that the stop of his vehicle was
unlawful and therefore that all evidence derivative of the stop
should be suppressed.
1
No. 2014AP2603-CR.ssa
very different. Cases cited by the majority opinion relating to
preliminary examinations are not relevant to the instant case.2
¶36 To put the instant case in context, the Sixth
Amendment Confrontation Clause is implicated when the
declarant's statement is testimonial. Crawford v. Washington,
541 U.S. 36 (2004). Majority op., ¶27 n.14. The circuit court
found that some of the declarant's (here Officer Birkholz's)
statements were testimonial and some were not. Silently
assuming that all the evidence at issue is testimonial, the
court of appeals and the majority opinion do not determine
2
Neither a constitutional nor a statutory right of
confrontation exists in a preliminary examination in Wisconsin.
Wis. Stat. § 970.038; State v. O'Brien, 2014 WI 54, ¶¶30-31, 354
Wis. 2d 753, 850 N.W.2d 8.
In a preliminary examination, the question is whether there
is probable cause to hold the accused for trial. See majority
op., ¶17.
The United States Supreme Court has held that a probable
cause determination for the sole purpose of pretrial detention
does not require the full panoply of adversarial safeguards,
including confrontation. This type of pretrial proceeding does
not impair the accused's defense on the merits. Gerstein v.
Pugh, 420 U.S. 103, 119 (1975); United States v. Green, 670 F.2d
1148, 1154 n.8 (D.C. Cir. 1981).
In a suppression hearing, the question is what evidence
will be admitted at trial to determine guilt. A suppression
hearing is a more searching exploration into the merits of the
case than a preliminary examination.
2
No. 2014AP2603-CR.ssa
whether the evidence is testimonial under Crawford.3 Apparently,
it is easier for the majority opinion to answer the
constitutional confrontation question regarding suppression
hearings than to answer whether the evidence of Zamzow's driving
and law enforcement's stop is testimonial. I take on the same
question the majority opinion does.
¶37 I conclude that the Sixth Amendment confrontation
right applies at suppression hearings. My analysis will proceed
as follows:
I. 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.
II. 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
3
"Testimonial statements of witnesses absent from trial"
violate a defendant's confrontation right unless "the declarant
is unavailable, and . . . the defendant has had a prior
opportunity to cross-examine." Crawford v. Washington, 541 U.S.
36, 59 (2004). Whether statements of different types and
contexts are testimonial has been progressively defined by the
Court since Crawford: "[T]o rank as 'testimonial,' a statement
must have a 'primary purpose' of 'establish[ing] or prov[ing]
past events potentially relevant to later criminal prosecution."
Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6 (2011) (quoting
Davis v. Washington, 547 U.S. 813, 822 (2006)).
Court of Appeals Judge Paul Reilly concluded that Officer
Birkholz's statement that Zamzow crossed the center line prior
to the stop was testimonial, as it described a past event with
the purpose of establishing or proving that event in a later
criminal prosecution and was made by an officer who intended to
bear testimony in that prosecution. State v. Zamzow, 2016 WI
App 7, ¶17, 366 Wis. 2d 562, 874 N.W.2d 328.
3
No. 2014AP2603-CR.ssa
of the Sixth Amendment, suppression hearings were
generally conducted at trial.
III. 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 the Sixth
Amendment confrontation right. The Sixth
Amendment Counsel, Compulsory Process, and
Confrontation Clauses are structurally identical.
A. Enumerated Sixth Amendment rights attach to
non-trial critical stages in a criminal
prosecution.
B. The purpose and function of a proceeding in a
criminal prosecution determines the application
of an enumerated Sixth Amendment right.
I
¶38 I start where the majority opinion starts——with the
text of the Sixth Amendment enumerating rights "in all criminal
prosecutions." The text informs the interpretation of the
confrontation right. Majority op., ¶13.
¶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 Sixth Amendment.
4
In writing Crawford, a seminal Confrontation Clause case,
Justice Scalia acknowledged that the Sixth Amendment's text
alone does not resolve how to apply the Confrontation Clause.
Crawford, 541 U.S. at 42-43.
5
Coleman v. Alabama, 399 U.S. 1, 14 (1970) (Douglas, J.,
concurring).
4
No. 2014AP2603-CR.ssa
¶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
Sixth Amendment Confrontation Clause, Justice Scalia turned to
the historical background of the Clause, devoting a significant
part of his opinion to this endeavor. The Justice examined
details of English common law, colonial American practice, and
American cases. He used diverse sources such as English and
6
Mattox v. United States, 156 U.S. 237 (1895). The
majority opinion, ¶15, cites Mattox for the proposition that the
Constitution is interpreted in light of the law existing when it
was adopted. In ¶16, the majority opinion quotes from Mattox to
emphasize the trial-oriented protections of the confrontation
right. The Mattox language quoted by the majority opinion
states that the "primary object" of the Confrontation Clause is
to prevent convictions based on depositions and ex parte
affidavits. Applying the Confrontation Clause at a suppression
hearing may result in the suppression of the use of depositions
and ex parte affidavits at trial.
Justice Scalia explains Mattox's holding to be that prior
trial or preliminary hearing testimony is admissible at trial
only if the defendant had an adequate opportunity to cross-
examine the witness before trial. Crawford, 541 U.S. at 57.
5
No. 2014AP2603-CR.ssa
American cases; histories of English law; histories of the Sixth
Amendment; evidence, criminal law, and constitutional law texts;
law review articles; and nineteenth-century treatises. Chief
Justice Rehnquist's concurrence in the Crawford judgment
proffered its own extensive view of historical evidence on the
meaning of the Confrontation Clause.7
¶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
7
For additional historical analyses of the Confrontation
Clause, see Benjamin C. McMurray, Challenging Untested Facts at
Sentencing: The Applicability of Crawford at Sentencing After
Booker, 37 McGeorge L. Rev. 589, 605-08 (2006); Shaakirrah R.
Sanders, Unbranding Confrontation as Only a Trial Right, 65
Hastings L.J. 1257, 1261-66 (2014).
Cf. California v. Green, 399 U.S. 149, 173-74 (1970)
(Harlan, J., concurring) ("[T]he Confrontation Clause comes to
us on faded parchment. History seems to give us very little
insight into the intended scope of the Sixth Amendment
Confrontation Clause.").
8
Crawford, 541 U.S. at 43.
9
Crawford, 541 U.S. at 49 (quoted source omitted).
6
No. 2014AP2603-CR.ssa
• 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. The Sixth 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
10
Crawford, 541 U.S. at 49-50 (citations omitted).
11
Crawford, 541 U.S. at 54.
12
Crawford, 541 U.S. at 55.
13
Crawford, 541 U.S. at 61. "Where testimonial statements
are at issue, the only indicium of reliability sufficient to
satisfy constitutional demands is the one the Constitution
actually prescribes: confrontation." Crawford, 541 U.S. at 68-
69.
"Dispensing with confrontation because testimony is
obviously reliable is akin to dispensing with jury trial because
a defendant is obviously guilty. This is not what the Sixth
Amendment prescribes." Crawford, 541 U.S. at 62.
7
No. 2014AP2603-CR.ssa
¶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 Sixth Amendment. The text of
the Sixth Amendment does not use the word "trial" in stating the
accused's confrontation right. In comparison, the accused's
Sixth Amendment right to "enjoy the right to a speedy and public
trial" explicitly refers to "speedy and public" as a trial
right.
¶45 Indeed, the United States Supreme Court has never
explicitly held that the Confrontation Clause is an accused's
right at trial only.14
14
In McCray v. Illinois, 386 U.S. 300, 305 (1967), the
Court tacitly assumed that the Confrontation Clause applies to a
suppression hearing. In that case, the Court concluded that a
defendant could not ask for the name of a confidential informant
during cross-examination at a suppression hearing, citing the
confidential informant privilege. McCray held that the Clause
was not violated by limiting cross-examination; it did not hold
that the Clause was inapplicable to a suppression hearing. The
McCray Court distinguished between suppression hearings and
trials (in which guilt is determined) in balancing the
application of an informer privilege. McCray, 386 U.S. at 307.
(continued)
8
No. 2014AP2603-CR.ssa
¶46 True, the Court has referred to confrontation as a
trial right or a right at trial in its discussion of the Sixth
Amendment. But these references have been in the context of
cases involving trials.15 It makes good sense to confine an
opinion's discussion to the facts presented——which, in each of
the Court's cases referenced by the majority opinion, was a
trial. It does not make good sense to extrapolate from these
decisions that the confrontation right is exclusively a right at
trial.16
Recognizing a Sixth Amendment confrontation right at a
suppression hearing does not mean that the confrontation right
at the suppression hearing has no limits. Indeed the limits on
the right to confrontation at a suppression hearing and at trial
are not necessarily the same. The majority opinion misses this
point when it implies that Professor LaFave's writings are
inconsistent on the question whether a right to confrontation
exists at a suppression hearing. See majority op., ¶12 n.6.
15
See, e.g., California v. Green, 399 U.S. 149, 157 (1970)
("it is this literal right to 'confront' the witness at the time
of trial that forms the core of the values furthered by the
Confrontation Clause"); Barber v. Page, 390 U.S. 719, 725-26
(1968) (the confrontation right encompasses "the opportunity to
cross-examine and the occasion for the jury to weigh the
demeanor of the witness").
16
Indeed the Court has recently indicated that the "trial
right" reading of the Confrontation Clause may be erroneous.
See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 315
(2009) (in discussing a paradigmatic historical example of a
violation of the Confrontation Clause, the Court noted that the
rejection of ex parte affidavits at trial is "the core of the
right to confrontation, not its limits.").
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.
9
No. 2014AP2603-CR.ssa
¶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 United States Supreme Court cases to eliminate the
confrontation right at a suppression hearing.18 See, e.g.,
majority op., ¶21 (collecting cases).
17
See 6 Wayne R. LaFave et al., Search and Seizure
§ 11.2(f), at 110-22 (5th ed. 2012).
18
See e.g., State v. Rivera, 192 P.3d 1213, ¶14 (N.M. 2008)
("[T]he United States Supreme Court has held that a defendant's
right to confront witnesses against him is primarily a trial
right . . . ."); State v. Woinarowicz, 720 N.W.2d 635, 641 (N.D.
2006) ("The Sixth Amendment right to confrontation is a trial
right, which does not apply to pretrial suppression hearings.").
10
No. 2014AP2603-CR.ssa
¶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
19
By contrast, see 6 Wayne R. LaFave et al., Search and
Seizure § 11.2(d), at 92 (5th ed. 2012), concluding that the
right of confrontation applies at a Fourth Amendment suppression
hearing.
20
See, e.g., 3 Wayne R. LaFave, Criminal Procedure
§ 10.1(a) (4th ed. 2016) ("At one time, it was not uncommon for
states to treat objections to illegally obtained evidence as
subject to the usual principle that the admissibility of
evidence is determined when it is tendered and not in advance of
trial. A few jurisdictions still follow [this
approach] . . . .") (internal quotation marks omitted).
See, e.g., State v. Allen, 183 Wis. 323, 197 N.W. 808
(1924) (motion to suppress illegally obtained evidence brought
during trial, when prosecution seeks to use the evidence).
21
See also Gannett Co., Inc. v. DePasquale, 443 U.S. 368,
395-96 (1979) (Burger, C.J., concurring) ("When the Sixth
Amendment was written, and for more than a century after that,
no one could have conceived that the exclusionary rule and
pretrial motions to suppress evidence would be part of our
criminal jurisprudence.").
See also North Carolina v. Wrenn, 417 U.S. 973 (1974)
(White, J., dissenting from denial of certiorari) ("Evidence
used against [the defendant] at trial was seized under a search
warrant issued by a magistrate on an affidavit which was
sustained at trial after an evidentiary hearing out of the
presence of a jury.").
11
No. 2014AP2603-CR.ssa
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 trial.23
22
Jones v. United States, 362 U.S. 257, 264 (1960),
overruled on other grounds by United States v. Salvucci, 448
U.S. 83 (1980):
In the interest of normal procedural orderliness, a
motion to suppress, under Rule 41(e), must be made
prior to trial, if the defendant then has knowledge of
the grounds on which to base the motion. . . . This
provision of Rule 41(e), requiring the motion to
suppress to be made before trial, is a crystallization
of decisions of this Court requiring that procedure,
and is designed to eliminate from the trial disputes
over police conduct not immediately relevant to the
question of guilt.
23
See, e.g., Federal Rule of Criminal Procedure Rule 12(e);
United States v. White, 584 F.3d 935, 948 (10th Cir. 2009):
Rule 12(b)(3)(C) of the Federal Rules of Criminal
Procedure requires that a party raise a motion to
suppress before trial. A party who fails to do so
"waives any Rule 12(b)(3) defense, objection, or
request," although "[f]or good cause, the court may
grant relief from the waiver." Fed. R. Crim. P.
(continued)
12
No. 2014AP2603-CR.ssa
¶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 Sixth
Amendment" to a suppression hearing, the temporal factor does
not control the analysis. Gannett Co., Inc. v. DePasquale, 443
U.S. at 436-37 (Blackmun, J., concurring in part and dissenting
in part).
¶53 In sum, the broad text of the Sixth Amendment in the
phrase "in all criminal prosecutions" and the fact that
suppression hearings were conducted at trial at the time of the
12(e). This waiver rule applies not only when a
defendant fails to file any pretrial motion to
suppress, but also when a defendant fails to assert a
particular argument in a pretrial suppression motion
that he did file.
See also Wis. Stat. § 971.31(2) ("[O]bjections based
on . . . the use of illegal means to secure evidence shall be
raised before trial by motion or be deemed waived. . . .")
13
No. 2014AP2603-CR.ssa
adoption of the Sixth Amendment lead to the conclusion that the
accused's Sixth Amendment confrontation right may be asserted at
the suppression hearing.
III
¶54 I next examine the United States Supreme Court's
interpretations of the Sixth Amendment text "in all criminal
prosecutions" in applying an enumerated Sixth Amendment right
other than the confrontation right. These interpretations
inform the interpretation of the Sixth Amendment confrontation
right because the Sixth Amendment Counsel, Compulsory Process,
and Confrontation Clauses are structurally identical.
A
¶55 In its cases interpreting and applying the enumerated
Sixth Amendment right to counsel, the Court has interpreted the
Sixth Amendment text "in all criminal prosecutions" to mean at
"critical stages" of the criminal prosecution. Coleman v.
Alabama, 399 U.S. 1, 7 (1970).24
24
See Coleman v. Alabama, 399 U.S. 1, 7 (1970) (an accused
"requires the guiding hand of counsel at every step in the
proceedings against him") (quoting Powell v. Alabama, 287 U.S.
45, 69 (1932)); United States v. Wade, 388 U.S. 218, 336 (1967)
("It is central to that principle that in addition to counsel's
presence at trial, the accused is guaranteed that he need not
stand alone against the State at any stage of the prosecution,
formal or informal, in court or out, where counsel's absence
might derogate from the accused's right to a fair trial.")
(emphasis added).
Coleman involved a pretrial hearing to determine whether
there was sufficient evidence against the accused to warrant
proceeding with the criminal prosecution.
14
No. 2014AP2603-CR.ssa
¶56 A critical stage is any stage in a criminal
prosecution, "formal or informal, in court or out, where
counsel's absence might derogate from the accused's right to a
fair trial . . . as affected by his right to meaningfully cross-
examine the witnesses against him. . . ." United States v.
Wade, 388 U.S. 218, 226-27 (1967) (emphasis added) (relating to
counsel at post indictment line-up).25 In applying the right to
counsel and determining the critical stage, a court scrutinizes
the pretrial proceeding to determine whether counsel is
"necessary to preserve the defendant's basic right to a fair
trial as affected by his right meaningfully to cross-examine the
witnesses against him and to have effective assistance of
counsel at the trial itself." Coleman, 399 U.S. at 7. The
efficacy of an accused's right to counsel is diminished without
an accused's confrontation right. Examining witnesses is an
area of counsel's expertise.
¶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
25
The Sixth Amendment right to counsel applies at "critical
stages" of the criminal prosecution when there is "potential
substantial prejudice to [the] defendant's rights" that
"confrontation and the ability of counsel [helps to]
avoid. . . ." Wade, 388 U.S. at 227.
See also State v. Curry, 147 P.3d 483, 485-86 (Utah Ct.
App. 2006) (concluding that the suppression hearing is a
critical stage where counsel must be present to cross-examine
the prosecution's witness).
15
No. 2014AP2603-CR.ssa
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 Sixth Amendment confrontation right at
suppression hearings on the ground that the suppression hearing
is a critical stage in a criminal prosecution that requires
cross-examination to ensure a fair trial.27 The Seventh Circuit
26
"The security of that right is as much the aim of the
right to counsel as it is of the other guarantees of the Sixth
Amendment . . . [including] his right to be confronted with the
witnesses against him . . . ." United States v. Wade, 388 U.S.
218, 226–27 (1967).
27
See, e.g., Curry v. State, 228 S.W.3d 292, 297 (Tex. Ct.
App. 2007) (the Confrontation Clause applies at a suppression
hearing because it is a "critical stage" of the criminal
prosecution); State v. Sigerson, 282 So. 2d 649, 651 (Fla. App.
1973) ("The hearing on the motion to suppress, while not
deciding the guilt or innocence of the appellee, is clearly a
critical stage of the prosecution and the confrontation clause
of the Sixth Amendment to the United States constitution
guarantees an accused in a criminal case the right to confront
the witnesses against him."); United States v. Hodge, 19
F.3d 51, 53 (D.C. Cir. 1994) (a suppression hearing is a
critical stage of the prosecution and "any limitations on the
right of cross-examination . . . must be justified by weighty
considerations") (internal quotation marks and citations
omitted). See also United States v. Clark, 475 F.2d 240, 246-47
(2d Cir. 1973) (the defendant has a right to be present at a
pretrial suppression hearing "held to determine the
constitutionality of a seizure of evidence from an accused";
defendant was "entitled to assist his counsel in cross-examining
[the prosecution's] witnesses and in developing [ ] matters
further at the suppression hearing.").
(continued)
16
No. 2014AP2603-CR.ssa
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
Professor LaFave in 6 Search & Seizure, § 11.2(d), at 93 n.
217, cites the following cases in support of a confrontation
right at suppression hearings:
• 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).
28
See also People v. Strothers, 928 N.Y.S.2d 28 (N.Y. App.
Div. 2011) (the suppression hearing is a critical stage and
trial judge's decision to proceed without defendant's counsel,
who was running late, was reversible error).
17
No. 2014AP2603-CR.ssa
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.
¶61 In interpreting the Sixth Amendment Confrontation
Clause, the majority opinion errs in failing to consider the
right to a fair trial and the significant role of cross-
examination.
¶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
29
A limitation on the right of confrontation at a
suppression hearing is an informer's privilege. See United
States v. Green, 670 F.2d 1148, 1154 (D.C. Cir. 1981).
18
No. 2014AP2603-CR.ssa
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 Sixth Amendment text "in all criminal proceedings"
includes a pretrial proceeding that lays the groundwork for a
fair trial and enables the accused to cross-examine witnesses.
Thus the Court's cases have kept the door open for an accused's
Sixth Amendment confrontation right to apply at a suppression
hearing. Looking to the critical stage analysis, I conclude
that the confrontation right should apply at suppression
hearings to permit cross-examination, which promotes a fair
trial.
B
¶64 In its cases interpreting and applying enumerated
Sixth Amendment rights, the Court has interpreted and applied
the Sixth Amendment text "in all criminal prosecutions" by
examining the purpose and function of the particular criminal
proceeding. Whether the Court applies a Sixth Amendment right
in a pretrial proceeding requires comparing the purpose and
30
See also Davis v. Alaska, 415 U.S. 308, 315 (1974)
(holding that adequate cross-examination is required by the
Sixth Amendment and stating that "[c]ross-examination is the
principal means by which the believability of a witness and the
truth of his testimony are tested."); Douglas v. Alabama, 380
U.S. 415, 418 (1965) (stating that "[o]ur cases construing the
[confrontation] clause hold that a primary interest secured by
it is the right of cross-examination . . . .").
19
No. 2014AP2603-CR.ssa
function of the pretrial proceeding with the purpose and
functions of the enumerated right and the trial.31
¶65 For example, the United States Supreme Court has
declared that an accused's Sixth Amendment right to a public
trial grants an accused the right to a public suppression
hearing. In Waller v. Georgia, 467 U.S. 39 (1984), the Court
described the function of the accused's Sixth Amendment public
trial right as "ensuring that judge and prosecutor carry out
their duties responsibly," "encourag[ing] witnesses to come
forward," and "discourage[ing] perjury." Waller, 467 U.S. at
46.
¶66 The Waller Court reasoned that the accused's Sixth
Amendment's right to a public trial extends to a pretrial
suppression hearing because "[t]hese aims and interests
[protected at trial] are no less pressing in a hearing to
suppress wrongfully seized evidence." Waller, 467 U.S. at 46.
31
See Shaakirrah R. Sanders, Unbranding Confrontation as
Only a Trial Right, 65 Hastings L.J. 1257 (2014) (arguing that a
defendant's right to confrontation at a non-trial proceeding is
determined by analogizing the protection afforded by the Sixth
Amendment at trial).
Although I do not further discuss these cases in the
instant dissent, I note that other Sixth Amendment rights apply
in criminal prosecutions beyond the trial. See, e.g., United
States v. Bowe, 698 F.2d 560, 565 (2d Cir. 1983) (the Compulsory
Process Clause applies at a suppression hearing, unless that
witness invoked the Fifth Amendment); Mempa v. Riley, 389 U.S.
128, 136-37 (1967) (Counsel Clause applies at sentencing in
Washington state probation revocation proceeding); Apprendi v.
New Jersey, 530 U.S. 466, 476 (2000) (Jury Clause applies at
sentencing fact-finding); Alleyne United States, 133 S. Ct. 2151
(2013) (Jury Clause applies at sentencing for fact-finding for a
fact that increases the penalty).
20
No. 2014AP2603-CR.ssa
¶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 Sixth
Amendment right to a public trial echo the purpose and function
of the exclusionary rule. The exclusion of evidence at trial is
an accused's objective in a suppression hearing. The Wisconsin
Supreme Court first adopted and applied the exclusionary rule in
21
No. 2014AP2603-CR.ssa
Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). Since then,
evidence has been excluded as a check on law enforcement.
"Unlawful police conduct is deterred when evidence recovered in
unreasonable searches is not admissible in courts."32 State v.
Tompkins, 144 Wis. 2d 116, 133–34, 423 N.W.2d 823 (1988); State
v. Gums, 69 Wis. 2d 513, 516–17, 230 N.W.2d 813 (1975). See
also Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974)
(explaining that judicial integrity could be compromised if
unlawful police conduct were sanctioned by the use of evidence
obtained in violation of the Fourth Amendment).
¶70 Both the Public Trial Clause and the exclusionary rule
are aimed at deterring unlawful conduct. This deterrent effect
would be weakened if the Sixth Amendment right to public trial
did not apply to a suppression hearing or the right to
confrontation were not recognized in suppression hearings.
Without an accused's confrontation right, the state's evidence
will not be examined adequately at the suppression hearing.
¶71 In determining whether the Sixth Amendment right to a
public trial applies to render a suppression hearing public,
Justice Blackmun compared the purpose and function of the
suppression hearing to the purpose and function of a trial.
Justice Blackmun reasoned that the pretrial suppression hearing
"resembles and relates to the full trial in almost every
32
See also 1 Wayne R. LaFave et al., Search & Seizure
§ 1.1(f) (5th ed. 2012) ("[T]he deterrence of unreasonable
searches and seizures is a major purpose of the exclusionary
rule.").
22
No. 2014AP2603-CR.ssa
particular," and therefore the Sixth Amendment right to a public
trial requires a public suppression hearing. "[T]he pretrial
suppression hearing . . . must be considered part of the trial."
Gannett, 443 U.S. at 434, 436-37 (Blackmun, J., concurring in
part and dissenting in part). The following characteristics of
a suppression hearing led the Justice to this conclusion:
• "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
23
No. 2014AP2603-CR.ssa
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 Sixth Amendment.
¶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
33
"[A] decision on the motion to suppress is often outcome
determinative if it is adverse to the government. Thus, from
the prosecution's viewpoint, if evidence is suppressed, at
worst, the case will be dismissed; at best, valuable evidence
will be lost and the defendant will be in an enhanced plea
bargaining position." Elizabeth Phillips Marsh, Does Evidence
Law Matter in Criminal Suppression Hearings?, 25 Loy. L.A. L.
Rev. 987, 996 (1992).
34
The Fifth Circuit Court of Appeals stated that "we
safeguard the right to cross-examination at the suppression
hearing because the aims and interests involved in a suppression
hearing are just as pressing as those in the actual trial."
United States v. Stewart, 93 F.3d 189, 192 n.1 (5th Cir. 1996).
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)
24
No. 2014AP2603-CR.ssa
¶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.
35
The significance of a decision in a suppression case is
seen in Wis. Stat. § 808.03(3)(b), providing: "An order denying
a motion to suppress evidence or a motion challenging the
admissibility of a statement of a defendant may be reviewed upon
appeal from a judgment or order notwithstanding the fact that
the judgment or order was entered upon a plea of guilty or no
contest to the information or criminal complaint."
25
No. 2014AP2603-CR.ssa
¶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 suppress fails, the defendant pleads
guilty. "Something in the neighborhood of 85 percent of all
criminal charges are resolved by guilty pleas, frequently
after . . . motions to suppress evidence have been ruled upon."
Gannett Co., 443 U.S. at 397 (1979) (Burger, C.J., concurring).37
The United States Supreme Court has recognized that because our
criminal justice system has become "'for the most part a system
of pleas, not a system of trials,' it is insufficient simply to
point to the guarantee of a fair trial as a backstop that
36
See, e.g., Vill. of Granville v. Graziano, 858 N.E.2d
879, 882 (Ohio Mun. 2006) (applying the confrontation clause at
a suppression hearing because the distinction between trial and
pretrial suppression hearings has become particularly blurred in
drunk driving cases, in which defendants must raise issues of
the admissibility of test results in a pretrial motion to
suppress); Curry v. State, 228 S.W.3d 292, 297 (Tex. Ct. App.
2007) ("In drug possession cases like the one before us, the
outcome of the suppression hearing often determines the outcome
of the trial itself."); Olney v. United States, 433 F.2d 161,
163 (9th Cir. 1970) ("We think that a motion to suppress
evidence can well be [a critical] stage of prosecution,
particularly in narcotics cases, where the crucial issue may
well be the admissibility of narcotics allegedly found in the
possession of the defendant.").
37
By all accounts, this statistic is up: "In fiscal year
2015 the vast majority of offenders (97.1%) pleaded guilty."
United States Sentencing Commission, Overview of Federal
Criminal Cases Fiscal Year 2015 4 (2016),
http://www.ussc.gov/sites/default/files/pdf/research-and-
publications/research-
publications/2016/FY15_Overview_Federal_Criminal_Cases.pdf
26
No. 2014AP2603-CR.ssa
inoculates any errors in the pretrial process." Missouri v.
Frye, 566 U.S. 133, 143-44 (2012) (internal citations and
quotation marks omitted).38
¶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 Sixth Amendment
compels the conclusion that an accused's Sixth Amendment
confrontation right applies.
¶77 I conclude on the basis of the text of the Sixth
Amendment, the history of the suppression hearing as a trial
proceeding, the purpose and function of the suppression hearing,
and the United States Supreme Court's interpretation and
application of the enumerated Sixth Amendment rights to non-
trial proceedings, that Zamzow has a Sixth Amendment right to
confront witnesses at the suppression hearing.
38
Missouri v. Frye, 566 U.S. 133, 143-44 (2012):
The reality is that plea bargains have become so
central to the administration of the criminal justice
system that defense counsel have responsibilities in
the plea bargain process, responsibilities that must
be met to render the adequate assistance of counsel
that the Sixth Amendment requires in the criminal
process at critical stages. Because ours 'is for the
most part a system of pleas, not a system of trials,'
it is insufficient simply to point to the guarantee of
a fair trial as a backstop that inoculates any errors
in the pretrial process (internal citations omitted).
27
No. 2014AP2603-CR.ssa
¶78 The majority opinion nullifies the accused's Sixth
Amendment's confrontation right at suppression hearings by
adopting an absolute, no-exceptions-allowed holding.
* * * *
¶79 To conclude briefly, the Sixth Amendment right to
confrontation applies at suppression hearings.
¶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
adverse witnesses. The deterrence effect of the exclusionary
rule will not be realized if the right to confrontation does not
exist at the suppression hearing.
¶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 Sixth Amendment, in my
opinion, compels a court to recognize that defendants have a
right to confrontation at a suppression hearing. By refusing to
give Zamzow a confrontation right at the suppression hearing in
the instant case, the majority opinion nullifies the Sixth
28
No. 2014AP2603-CR.ssa
Amendment's guarantee that the "accused" shall have the right to
confrontation "in all criminal prosecutions."39
¶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 Wis. Stat. §§ 901.04(1), 911.01(4)(a); State v. Jiles, 2003
WI 66, ¶¶25-30, 262 Wis. 2d 457, 663 N.W.2d 798.40
¶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
39
Christine Holst, in The Confrontation Clause and Pretrial
Hearings: A Due Process Solution, 2010 U. Ill. L. Rev. 1599,
1624, proposes that the best avenue to protect a defendant's
right to confrontation is under the Due Process Clause, rather
than the Confrontation Clause. She concludes that "[a]
restriction on confrontation at a pretrial hearing would then be
unconstitutional if it denied the defendant his or her right to
fundamentally fair procedure in the criminal prosecution
process."
40
See also United States v. Matlock, 415 U.S. 164, 172–74
(1974) ("[T]he rules of evidence normally applicable in criminal
trials do not operate with full force at hearings before the
judge to determine the admissibility of evidence.") (discussing
Brinegar v. United States, 338 U.S. 160 (1949); Fed. R. Evid.
104(a) & 1101(d)(1); and citing 5 J. Wigmore, Evidence § 1385
(3d ed. 1940); C. McCormick, Evidence § 53 n.91 (2d ed. 1972));
see also United States v. Raddatz, 447 U.S. 667, 679 (1980) ("At
a suppression hearing, the court may rely on hearsay and other
evidence, even though that evidence would not be admissible at
trial.").
29
No. 2014AP2603-CR.ssa
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 the Sixth
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
30
No. 2014AP2603-CR.ssa
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.
31
No. 2014AP2603-CR.ssa
1
State v. Glenn T. Zamzow
Court: Wisconsin Supreme Court
Date filed: 2017-04-06
Citations: 374 Wis. 2d 220, 2017 WI 29, 892 N.W.2d 637, 2017 WL 1294831, 2017 Wisc. LEXIS 168
Copy CitationsCombined Opinion