ARGUMENT: October 13, 2016
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
Court Fond du Lac County L.C. No. 2011CT145 Gary R. Sharpe
the defendant-appellant-petitioner, there was a brief and
oral argument by Thomas B. Aquino, assistant state public
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.
REBECCA GRASSL BRADLEY, J.
We review a published opinion of the court of appeals,
which determined that use of a deceased police officer's
recorded statements at a suppression hearing 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 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.
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.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.
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 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
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.
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 heard audio in which Birkholz
explained his basis for the stop to the arriving
officers. 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.
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.
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."
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');">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
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');">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 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.
Zamzow filed a petition for review, which we granted.
STANDARD OF REVIEW
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 de 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.
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 Clause applies to the
states through the Due Process Clause of the Fourteenth
Amendment. Id. at 403, 405.
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). He also draws analogies to the Court's
decisions regarding other Sixth Amendment rights, noting the
Public Trial Clause applies at suppression hearings,
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
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.
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 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.
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 voce" 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.
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
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.
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). 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 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.
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 confidential
informant's absence did not violate the Sixth
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
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.
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');">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.
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. 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
Although we now address, for the first time, whether the
Confrontation Clause applies at suppression hearings,
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).
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 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');">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).
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,  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.
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, 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
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.
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 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.
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
audio statement to make a reasonable suspicion determination,
the circuit court did not deny Zamzow his right to
confrontation under the Sixth Amendment.
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."
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 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.
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 hearsay statement did not offend the reduced standard
for due process of law required at a suppression hearing.
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
decision of the court of appeals is affirmed.
SHIRLEY S. ABRAHAMSON, J. (dissenting).
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.
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.
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.)
The instant case involves a Fourth Amendment suppression
hearing,  not a preliminary examination. The two
are very different. Cases cited by the majority opinion
relating to preliminary examinations are not relevant to the
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 whether the evidence is testimonial under
Crawford. 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
I conclude that the Sixth Amendment confrontation right
applies at suppression hearings. My analysis will proceed as
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 of the Sixth
Amendment, suppression hearings were generally conducted at
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