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  • WisBar News
    April 06, 2017

    Supreme Court: Confrontation Clause Does Not Apply to Suppression Hearings

    Joe Forward

    Drunk driving

    April 6, 2017 – Allowing use of a police officer’s recorded statements from a dashcam at a suppression hearing did not violate a criminal defendant’s right to confront witnesses even though the police officer died before the hearing, the state supreme court has ruled.

    Glenn Zamzow, convicted of drunk driving, appealed the conviction, arguing that his constitutional right to confront the witnesses against him was violated when the court allowed recorded statements from the arresting officer, who subsequently died, at a hearing on Zamzow’s motion to suppress all evidence obtained after the stop.

    In State v. Zamzow, 2017 WI 29 (April 6, 2017), a Wisconsin Supreme Court majority (5-2) ruled that the Sixth Amendment to the U.S. Constitution, the Confrontation Clause, applies to trials not suppression hearings, and due process rights were not violated.

    “We hold that the Confrontation Clause protects a defendant’s right to confront 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,” wrote Justice Rebecca Bradley for the majority.

    Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley, wrote a dissenting opinion, concluding the Sixth Amendment protects defendants “in all criminal prosecutions,” including hearings to determine the admissibility of evidence.

    No Right to Confront at Suppression Hearing

    Fond du Lac Police Officer Craig Birkholz stopped and arrested Zamzow after observing him drive across the road’s center line around 3 a.m. on a Sunday morning in March. Zamzow smelled of intoxicants and admitted that he had been drinking.

    Two other officers arrived, including Officer Curt Beck, and they arrested Zamzow for drunk driving. He was charged with operating while intoxicated (OWI), his third offense.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Zamzow filed a motion to suppress the evidence, arguing that Officer Birkholz lacked reasonable suspicion to stop his vehicle. By then, Birkholz had died, so the state relied on a recording of the stop, as well as testimony from one of the other assisting officers.

    A computer forensic scientist also testified regarding the recording. He said he prepared a DVD of the dashboard camera from each squad car on scene, and Officer Beck confirmed that the video recorded accurately depicted the events as he observed them.

    But it was not clear from the dashboard camera video whether Zamzow crossed the center line or not.

    Defense counsel objected, arguing that Officer Birkholz could not be cross-examined on his reasons for stopping Zamzow in the first place. In chambers, while reviewing the video, the judge discovered that the video included audio the court did not hear.

    The judge ordered a second hearing so the audio could be played on the record. The audio captured Officer Birkholz say to Zamzow: “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.” Birkholz could also be heard explaining the stop to the other officers.

    Defense counsel objected to the audio under the Confrontation Clause, but the judge ruled that the audio of Birkholz was sufficient to conclude he had reasonable suspicion to make the stop, and the Sixth Amendment does not apply to suppression hearings.

    Zamzow was convicted after a jury trial. On appeal, an appeals court ruled that the Confrontation Clause does not apply to suppression hearings.

    Majority Affirms

    A 5-2 majority affirmed the appeals court decision, concluding that the Confrontation Clause only applies to trials and not suppression hearings, despite Zamzow’s argument that it applies “in all criminal prosecutions” and is not limited to trials.

    The majority – in examining whether the phrase “all criminal prosecutions” includes non-trial hearings that are part of the prosecution against the defendant – noted that the U.S. Supreme Court has not addressed this precise issue but cited prior U.S. Supreme Court decisions that suggest or indicate the Sixth Amendment protection is only a “trial right.”

    In concluding that the Confrontation Clause does not apply to suppression hearings, the majority noted that the proof required in pretrial stages is different than trial.

    The majority also reviewed other state and federal decisions, explaining that “Wisconsin is not alone in interpreting the Confrontation Clause as protecting a trial right.”

    For instance, the New Mexico Supreme Court held, in 2008, that the Confrontation Clause “does not apply to preliminary questions of fact elicited at a suppression hearing.” That decision, from the Land of Enchantment, relied on U.S. Supreme Court decisions to rule that confronting witnesses “is primarily a trial right, not a pretrial right.”

    A Wisconsin Supreme Court majority agreed with those decisions that conclude the Confrontation Clause is not applicable to pretrial suppression hearings.

    “Presenting live witnesses at a suppression hearing undoubtedly strengthens testimony offered by the State, 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,” wrote Justice R. Bradley.

    Due Process

    In the alternative, Zamzow argued that the 14th Amendment required that he be allowed to confront the witness against him, as a matter of due process.

    But the process due in a pretrial hearing like suppression of evidence is less demanding than it is for trials, noting that hearsay is allowed at suppression hearings.

    “Any right to confrontation and cross-examination implicated by the Due Process Clause is therefore relaxed at a suppression hearing,” Justice R. Bradley wrote.


    Justice Abrahamson dissented, joined by Justice Ann Walsh Bradley, reiterating that the U.S. Supreme Court has not decided the issue and any decision must predict what might happen if the High Court did decide it.

    She rebutted the majority’s assertion that the Confrontation Clause does not apply to suppression hearings in part because they don’t determine guilt or innocence.

    “But guilt or innocence is often at stake at suppression hearings,” Justice Abrahamson wrote. “In drug offenses and drunk-driving prosecutions, for instance, the result of the suppression hearing is often determinative of the case.”

    Justice Abrahamson noted that the U.S. Supreme Court “has never explicitly held that the Confrontation Clause is an accused’s right at trial only.”

    “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,” Justice Abrahamson wrote.

    Justice Abrahamson also noted that historically, the suppression hearing occurred within the trial, but was separated over the years as a matter of judicial efficiency.

    “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 constitutional confrontation right,” she wrote.

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