The Sixth Amendment gives every criminal defendant the right to confront the witnesses against them. In practice, this means the State generally cannot use a witness’s out-of-court statement at trial — a recorded police interview, a prior written account, an emergency call — unless the person who made the statement appears at trial and can be cross-examined. The Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), defines how courts apply that guarantee, and it remains one of the most important protections available to criminal defendants in Wisconsin and across the country.
The facts of Crawford are straightforward. Michael Crawford was prosecuted for assaulting a man he believed had attempted to rape his wife, Sylvia. He claimed self-defense. The State, unable to call Sylvia as a witness because Crawford invoked Washington’s marital privilege and declined to waive it, played a tape recording of her statement to police — a statement that undercut Crawford’s account of the night. The Supreme Court held that using that recording violated the Confrontation Clause. When a statement is “testimonial” — made under circumstances where a reasonable person would expect it to be used in a criminal investigation or prosecution — the prosecution may only offer it into evidence if the declarant is unavailable and the defendant previously had a meaningful opportunity to cross-examine them. The Court rejected the prior rule, which had asked simply whether a statement seemed reliable. Cross-examination, not judicial assessment of reliability, is the constitutional test.
Crawford left an important question open: which statements are “testimonial”? The Court answered that in Davis v. Washington, 547 U.S. 813 (2006), establishing what courts now call the primary purpose test. If police questioning is directed at responding to an ongoing emergency, the statements produced are not testimonial and Crawford does not bar their use. If questioning is aimed at investigating a completed crime — gathering facts to be used in a future prosecution — the statements are testimonial and Crawford applies. In concrete terms: a 911 call reporting an attack in progress is generally treated as non-testimonial. A statement given to police at the station two hours after the fact, describing what happened, is generally testimonial. The distinction turns on the circumstances at the moment the statement was made.
Domestic violence cases present Crawford issues with particular frequency. Victims often make recorded statements to police immediately after an incident, then decline to testify at trial — sometimes because the relationship has been reconciled, sometimes under pressure, sometimes for their own reasons. When that happens, the prosecution may want to offer the recorded statement in place of live testimony. Whether it can do so depends on whether the statement is testimonial under Davis: if the primary purpose of the questioning was to investigate rather than to respond to an ongoing emergency, the statement is likely barred unless the defendant had a prior opportunity to cross-examine the declarant. Domestic violence charges in Wisconsin already carry severe consequences; the admissibility of a victim’s prior statement can be the pivotal issue in the case.
Crawford and Davis apply equally to co-defendant statements, witness affidavits, grand jury testimony, and any other out-of-court statement the prosecution wants to use against you. When a case depends heavily on out-of-court statements from witnesses who won’t appear at trial, challenging the admissibility of those statements is often the most consequential pretrial motion available. If you are facing criminal charges in Wisconsin where witness statements are central to the State’s case, that question deserves close attention from the start. Contact Carson Law Office for a free consultation.
About the author. Christopher S. Carson, J.D., M.A., has practiced law in Milwaukee for 34 years. He holds an M.A. in International Security Studies from Georgetown University, where he was the Bradley Fellow, was formerly with the American Enterprise Institute, and is a contributing editor at the New English Review. Read the full biography.
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This article is general information about Wisconsin law, not legal advice about your situation, and reading it does not create an attorney-client relationship.