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  • September 16, 2021

    Wisconsin Supreme Court, a New Jensen Decision, and the Confrontation Clause

    A woman predicted that her husband might try to kill her. Then, she died by poisoning. The husband was charged with the killing. Could the wife’s accusation “from beyond the grave” be used against him at trial? Michael O’Hear discusses the case that required the Wisconsin Supreme Court to make sense of a messy line of U.S. Supreme Court decisions on the Confrontation Clause.

    Michael O'Hear

    trial sentencing

    The United States Supreme Court in 2004 famously adopted a new approach to the Confrontation Clause in Crawford v. Washington.1 Writing for the majority in Crawford, Justice Antonin Scalia announced that henceforth an out-of-court statement’s admissibility as evidence at trial would depend, subject to a few narrow exceptions, on whether the statement was “testimonial.”

    However, in that preliminary exploration of the new jurisprudential terrain, Scalia provided little clear sense of what would make a statement “testimonial.”

    Two years later, in Davis v. Washington,2 Scalia – again writing for the Court’s majority – attempted to clarify matters with the “primary purpose” test:

    Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.3

    The Primary Purpose Test and Defining ‘Testimonial’ Statements

    The primary purpose test proved reasonably straightforward in its application to the facts of Davis and a companion case, Hammon v. Indiana. Subsequent factual scenarios would expose the test’s ambiguities. This, and the arrival of new justices, would splinter the majority coalition that Scalia had assembled in Crawford and Davis.

    Michael O’Hear Michael O’Hear, Yale 1996, is a professor at Marquette University Law School, Milwaukee, where he teaches criminal law and related courses.

    Important fault lines were revealed in 2011 by Michigan v. Bryant.4 Writing for the majority, Justice Sonia Sotomayor, one of the new arrivals, indicated that the primary purpose test should focus on whether the statement at issue was intended to “creat[e] an out-of-court substitute for trial testimony.” This was said to be a “highly context-dependent inquiry” that involved consideration of multiple factors, including “standard rules of hearsay, designed to identify some statements as reliable.”

    Dissenting in Bryant, Scalia accused the majority of “distort[ing] our Confrontation Clause jurisprudence and leav[ing] it in a shambles.” In Scalia’s view, the primary purpose test was not about the intent to create a substitute for trial testimony per se. Rather,

    [f]or an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.5

    This broader understanding of “testimonial” might encompass nearly all accusations knowingly made to law enforcement officers.

    Scalia accused the majority of “reced[ing] from Crawford” in two specific respects. First, the majority’s invocation of reliability as a relevant consideration marked a seeming revival of the Court’s pre-Crawford jurisprudence, which had made reliability the touchstone of Confrontation Clause analysis. Second, the majority’s approach embodied just the sort of “multifactor balancing” that had been “disavow[ed]” in Crawford.

    Similar jurisprudential dynamics were on display four years later in Ohio v. Clark.6 A majority opinion, written by Justice Samuel Alito and joined by Sotomayor and others, reiterated the same commentary about the Confrontation Clause that had so provoked Scalia’s ire in Bryant.

    For his part, Scalia chose to concur in the judgment only and wrote separately “to protest the Court's shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford.”7 At the same time, Scalia found some comfort in that “there [we]re evidently not the votes to [overturn Crawford explicitly]; and that dicta, even calculated dicta, are nothing but dicta.”

    Some considerable awkwardness has been created for the bench and bar by the apparent emergence of majority support among the Justices for a revival of at least some aspects of the pre-Crawford jurisprudence, but without an explicit overruling of Crawford. Of particular concern may be the status of lower-court cases decided before Bryant that were based on Crawford and Davis, and that now seem out of sync with the more recent cases.

    State v. Jensen, the Wisconsin Supreme Court, and ‘Testimonial’ Statements

    Such was the messy jurisprudential background when the nationally notable case of State v. Jensen returned for a second time to the Wisconsin Supreme Court.

    Julie Jensen died of poisoning in 1998. Her husband Mark was charged with killing her. He contended that her death was suicide. The state’s evidence against Mark included a letter from Julie indicating that she feared he might kill her. Julie asked a neighbor to forward the letter to the police if anything happened to her. The evidence also included two voicemails she left with a police officer stating similar concerns.

    In pretrial litigation predating Bryant, the Wisconsin Supreme Court held that these out-of-court statements were “testimonial” under Crawford and Davis. However, the trial judge ruled the statements admissible anyway under the “forfeiture by wrongdoing” exception to the general ban on testimonial hearsay.

    The case went to trial, and Mark was convicted.

    Later, in 2008 in Giles v. California,8 the U.S. Supreme Court adopted a narrowing interpretation of the forfeiture doctrine that cast fresh doubt on the admissibility of Julie’s statements against Mark.

    After several years of additional litigation in state and federal court, Jensen returned to the state circuit court for a new trial. Yet, the new trial was never conducted. Instead, the circuit court ruled that Bryant and Clark had so changed Confrontation Clause law that the court no longer had to adhere to the Wisconsin Supreme Court’s earlier determination that Julie’s statements were “testimonial.” Applying Bryant and Clark, the trial judge held that the statements were nontestimonial and, on that basis, reinstated Mark’s conviction.

    Did the circuit court’s ruling violate the “law of the case” doctrine? In its new Jensen decision, the Wisconsin Supreme Court described the doctrine this way:

    The law of the case is a “longstanding rule” that requires courts to adhere to an appellate court’s ruling on a legal issue in all subsequent proceedings in the trial court or on later appeal. The rule ensures stability for litigants and reinforces the finality of a court’s decisions. Courts in subsequent proceedings should therefore be loathe to revisit an appellate court’s decision absent extraordinary circumstances. That admonition aside, absolute adherence to the law of the case is not required. As is relevant here, lower courts may depart from the initial decision if a controlling authority has since made a contrary decision of the law on the same issue (internal quotation marks and citation omitted).

    What Is 'Contradiction'?

    Resolution of the case thus required the Wisconsin Supreme Court to decide whether Bryant or Clark “contradicted” Crawford or Davis.

    The answer, it seems to me, is a resounding “sort of.” If “contradiction” requires explicit overruling, then, no, the later cases did not contradict the earlier cases.

    On the other hand, if “contradiction” can be achieved through a strained interpretation of a precedent that seems intended to substantially narrow the reach of that precedent, a reasonable argument could be made that Bryant and Clark did just that. Indeed, Justice Scalia essentially said as much in his Bryant and Clark opinions.

    Yet, the Wisconsin Supreme Court nonetheless ruled in Jensen’s favor, finding no contradiction between the earlier and later cases. The Court provided neither any explication of what “contradiction” means in this context, nor any discussion of the significance of Scalia’s critical commentary in Bryant and Clark. (The Court did quote Scalia’s statement in Clark that Crawford “remains the law,” but in a decontextualized manner that omitted any reference to Scalia’s harsh words regarding the majority opinion.)

    Instead, the court simply concluded that “Bryant and Clark represent developments in applying the primary purpose test, but neither is contrary to it.”

    More Questions

    Yet – whether or not it was reached in this case – isn’t there a line beyond which “developments” become functionally “contradiction?”

    For instance, commentators have characterized the U.S. Supreme Court’s recent decision in Jones v. Mississippi in much these terms– and not unfairly so. Did Bryant do to Davis what ​ Jones did to Miller v. Alabama?

    The Wisconsin Supreme Court did try to finesse the difficulties by suggesting that its first Jensen opinion actually “anticipated” Bryant and Clark. However, the identified similarities in the reasoning of the three opinions did not include the key aspects of Bryant and Clark to which Scalia objected.

    In any event, by downplaying the tensions between the earlier and later Confrontation Clause cases, the new Jensen opinion lifts the shadow hanging over Jensen I, at least for now.

    Left for another day (and perhaps another court) is the question of how seriously to take the language in Bryant and Clark that elevates reliability as a key consideration in determining admissibility – language that seems directly contrary to Crawford.

    What It May M​atter

    Interestingly, the Jensen facts themselves may provide a good illustration of the practical importance of the contrasting approaches of Scalia and Sotomayor to the primary purpose test.

    To the extent that Julie’s statements were intended to put the police on Mark’s scent, they would seem to have been made “with the understanding that [they] may be used to invoke the coercive machinery of the State,” as Scalia put it in Bryant.

    It is more doubtful, however, whether the statements were made specifically with a “purpose … to create a record for trial,” in the words of Sotomayor’s opinion in Bryant.9

    Read for all it’s worth, Sotomayor’s specific intent requirement might leave few, if any, unsolicited criminal accusations by laypeople within the scope of what is “testimonial.” After all, how many laypeople have sufficient understanding of the rules of evidence to contemplate the potential use of their statements at a trial?

    Indeed, this strong reading of the Sotomayor language finds support in Clark, in which a young child’s statements were held to be nontestimonial. In support of this holding, the Court observed, “Few preschool students understand the details of our criminal justice system.”10

    Couldn’t the same be said of most adults, too?


    This article was originally published on the State Bar of Wisconsin’s Criminal Law Section Blog. Visit the State Bar sections or the Criminal Law Section webpages to learn more about the benefits of section membership.


    1Crawford v. Washington, 541 U.S. 36 (2004).

    2Davis v. Washington, 547 U.S. 813 (2006).

    3Id. at 822.

    4Michigan v. Bryant, 562 U.S. 344 (2011).

    5Id. (Scalia, J., dissenting).

    6Ohio v. Clark, 576 U.S. 237 (2015).

    7Id. at 252 (Scalia, J., concurring in judgment).

    8Giles v. California​, 554 U.S. 353 (2008).

    9 562 U.S. at 358.

    10 576 U.S. at 248.


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    Criminal Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Michael O'Hear and review Author Submission Guidelines. Learn more about the Criminal Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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