SCOW: No right to confront witnesses at suppression hearings

State v. Glenn T. Zamzow, 2017 WI 29, 4/6/17, affirming a published court of appeals decision; case activity (including briefs)

“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.’ …. 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.” (¶31).

Zamzow was charged with OWI after a traffic stop. He moved to suppress, arguing the officer lacked reasonable suspicion to stop him. The officer died before the suppression hearing, so the state introduced the recording from his squad car. The recording turned out to have video and audio, and on the recording the officer is heard telling Zamzow that “[t]he 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.” (¶¶2-5). The video was inconclusive as to whether Zamzow crossed the center line, but the circuit court denied the motion to suppress based on the officer’s statement about his observations. The court rejected Zamzow’s argument that the Confrontation Clause prohibited the court from using the officer’s recorded statement. (¶¶6-7). So did the court of appeals. And now, for the same basic reasons, the supreme court affirms.

Unable to find much guidance in the text of the Sixth Amendment itself, which says “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him,” U.S. Const. amend. VI (¶14), the majority decides that “prosecution” means “trial,” not pretrial evidentiary proceeding. It reaches this conclusion based on a cursory canvass of: the common law (with a few obligatory, unenlightening quotations from Blackstone’s Commentaries) (¶15); prior Supreme Court decisions that, in the course of addressing other issues, refer offhandedly to confrontation being a “trial” right (¶¶16-19); and decisions from other jurisdictions (¶¶21-23).

¶24     We agree with [other] 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 [Pennsylvania v.] Ritchie, 480 U.S. [39,] 52 [(1987)] (plurality); [California v.] Green, 399 U.S. [149,] 157 [(1970)]; Barber [v. Page], 390 U.S. [719,] 725 [(1968)]; Brinegar [v. United States], 338 U.S. [160,] 174-75 [(1949)]. ….

¶25     It is important to recognize the dissimilarity between the inquiry at trial and the inquiry at suppression hearings: while the purpose of a trial is to ascertain a defendant’s guilt or innocence, the function of a suppression hearing is to determine whether the police violated the defendant’s constitutional rights. In McCray [v. Illinois], 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. [300,] 307 [(1967)] (citation omitted) …. The proceedings here reveal the gulf between these inquiries. Although the circuit court did consider [Officer] 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.

The majority also gives short shrift to Zamzow’s argument that using the recording violated his right to due process. (¶¶28-30).

A dissent (Abrahamson, joined by A.W. Bradley) cogently explains how the majority fails to give careful attention to the text and history of the Sixth Amendment or to engage in a substantial analysis of the relevant cases. Invoking decisions of Justices Rehnquist and Scalia, among others, the dissent argues the Sixth Amendment’s reference to “all criminal prosecutions” is not limited to trial proceedings, for at the time of the adoption of the Sixth Amendment suppression hearings were generally conducted at trial. (¶¶38-50). Thus, “[t]hat a suppression hearing has [for reasons of convenience and efficiency] 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.” (¶51). Further, while the U.S. Supreme Court has never directly addressed the right to confrontation at suppression hearings, it has applied enumerated Sixth Amendment rights other than confrontation to pre-trial proceedings; that supports the conclusion that confrontation should apply in pretrial proceedings, too. (¶¶54-64). Most prominently, Waller v. Georgia, 467 U.S. 39, 46 (1984), held the defendant has a right to a public suppression hearing because the aims and interests protected at trial “are no less pressing in a hearing to suppress wrongfully seized evidence.” (¶¶65-67). Indeed, given that in many cases a suppression hearing is outcome-determinative and to that extent supplants the trial, application of the Sixth Amendment should be the same at both suppression hearings and trials. (¶¶68-77).

The majority’s reliance on McCray is symptomatic of the weakness of its analysis. As Zamzow notes, McCray assumes a right to confront at suppression hearings. In that case police officers testifying at a suppression hearing were allowed to withhold the identity of an informant under the state’s informant privilege. 386 U.S. at 308-09. The Court rejected McCray’s argument that application of the privilege violated his confrontation right because the suppression issue was not about the truth of the informant’s statements, but whether the officers had reasonably relied on the informant’s statements in arresting the defendant. The officers testified in detail under oath about what the informer told them and why they had reason to believe his information was trustworthy, and they were subjected to “searching cross-examination.” Id. at 312-14. If the Confrontation Clause didn’t apply at the suppression hearing, there would be no reason to note the arresting officers were subjected to cross-examination or address whether evidentiary privileges trump the Confrontation Clause; instead, the Court could have held that there was no right to cross-examine the officers or the informant at a pretrial suppression hearing. That the Court didn’t go that route strongly implies there is a confrontation right at suppression hearings.

Weak as the majority’s reasoning is, however, the outcome here isn’t surprising, given that most courts looking at this issue have reached the same conclusion. The one ray of hope is that this decision creates a very nice opportunity to ask the U.S. Supreme Court to decide this issue once for all. If Zamzow petitions, and the Court takes the case, you’ll read all about here at On Point.