State v. Glenn T. Zamzow ( 2017 )


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    2017 WI 29
    SUPREME COURT           OF   WISCONSIN
    CASE NO.:              2014AP2603-CR
    COMPLETE TITLE:        State of Wisconsin,
    Plaintiff-Respondent,
    v.
    Glenn T. Zamzow,
    Defendant-Appellant-Petitioner.
    REVIEW 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
    OPINION FILED:         April 6, 2017
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:         October 13, 2016
    SOURCE OF APPEAL:
    COURT:              Circuit
    COUNTY:             Fond du Lac
    JUDGE:              Gary R. Sharpe
    JUSTICES:
    CONCURRED:
    DISSENTED:          ABRAHAMSON, J. joined by BRADLEY, A. W., J.
    dissent (opinion filed).
    NOT PARTICIPATING:
    ATTORNEYS:
    For the defendant-appellant-petitioner, there was a brief
    and oral argument by Thomas B. Aquino, assistant state public
    defender.
    For 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.
    
    2017 WI 29
                                                                                NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.       2014AP2603-CR
    (L.C. No.    2011CT145)
    STATE OF WISCONSIN                                      :                IN SUPREME COURT
    State of Wisconsin,
    Plaintiff-Respondent,                                             FILED
    v.                                                                    APR 6, 2017
    Glenn T. Zamzow,                                                              Diane M. Fremgen
    Clerk of Supreme Court
    Defendant-Appellant-Petitioner.
    REVIEW of a decision of the Court of Appeals.                           Affirmed.
    ¶1      REBECCA      GRASSL    BRADLEY,          J.     We    review      a    published
    opinion of the court of appeals,1 which determined that use of a
    deceased police officer's recorded statements at a suppression
    hearing2     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
    1
    State       v.    Zamzow,     2016    WI   App       7,     
    366 Wis. 2d 562
    ,       
    874 N.W.2d 328
    .
    2
    The Honorable Gary R. Sharpe, Fond du Lac County Circuit
    Court, presiding.
    No.     2014AP2603-CR
    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.
    I.    BACKGROUND
    ¶2     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.3
    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.
    ¶3     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
    3
    See Wis. Stat. § 346.63(1)(a)-(b) (2011-12).
    2
    No.     2014AP2603-CR
    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 uninterrupted segment.
    ¶4     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.
    ¶5     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
    3
    No.    2014AP2603-CR
    heard audio in which Birkholz explained his basis for the stop
    to     the   arriving       officers.4         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.
    ¶6        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.
    From       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."
    4
    In its reasonable suspicion determination, the court did
    not rely on Birkholz's statement to the arriving officers.
    4
    No.     2014AP2603-CR
    ¶7    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
    (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 therefore admissible.
    ¶8    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
    .                          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
    5
    No.      2014AP2603-CR
    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.
    ¶9     Zamzow filed a petition for review, which we granted.
    II.    STANDARD OF REVIEW
    ¶10    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
    .
    III.     ANALYSIS
    A.    The Confrontation Right
    ¶11    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
    6
    No.     2014AP2603-CR
    Clause applies to the states through the Due Process Clause of
    the Fourteenth Amendment.          
    Id. at 403,
    405.5
    ¶12      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).6              He also draws analogies to
    the Court's decisions regarding other Sixth Amendment rights,
    noting the Public Trial Clause applies at suppression hearings,
    5
    Zamzow has not raised any argument that his right to
    confrontation differs under the Wisconsin Constitution, which
    provides that "[i]n all criminal prosecutions the accused shall
    enjoy the right . . . to meet the witnesses face to face." Wis.
    Const. art. I, § 7.   "We have observed that [the Confrontation
    Clause   and   Wis.   Const.   art. I,   § 7]  are   'generally'
    coterminous . . . ."   State v. Rhodes, 
    2011 WI 73
    , ¶28, 
    336 Wis. 2d 64
    , 
    799 N.W.2d 850
    (citing State v. Hale, 
    2005 WI 7
    ,
    ¶43, 
    277 Wis. 2d 593
    , 
    691 N.W.2d 637
    ).
    6
    In support of this argument, Zamzow directs us to
    Professor LaFave's Search and Seizure, which asserts, "It should
    not be assumed that the right of confrontation has no
    application at a Fourth Amendment suppression hearing, for such
    is not the case."      6 Wayne R. LaFave, Search and Seizure
    § 11.2(d), at 92 (5th ed. 2012). But see 3 Wayne R. LaFave et
    al., Criminal Procedure § 10.5(e), at 618 (4th ed. 2015)
    ("[D]efendant's right of cross-examination at the suppression
    hearing may be substantially narrower than that available at
    trial." (citing McCray v. Illinois, 
    386 U.S. 300
    (1967))); cf.
    Nancy Hollander et al., Wharton's Criminal Procedure § 8:10, at
    8-28 (14th ed. 2015) ("At the federal level, the defendant's
    right to confront a witness, embodied in the Sixth Amendment of
    the Constitution, was early held not to apply to the preliminary
    hearing." (footnote omitted)).
    7
    No.     2014AP2603-CR
    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 testimony.
    ¶13        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.
    ¶14        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
    8
    No.      2014AP2603-CR
    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.
    ¶15    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
    9
    No.   2014AP2603-CR
    voce"7 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.
    ¶16   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 articulation:
    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 243.8
    7
    "By word of mouth; orally. . . . In reference to the
    examination of witnesses, the term means that oral rather than
    written testimony was taken." Viva Voce, Black's Law Dictionary
    1804 (10th ed. 2014).
    8
    We make no pretense of replicating Crawford's encyclopedic
    review of the Sixth Amendment's history, but the dissent faults
    the depth and breadth of our inquiry into the common law right
    of confrontation and the original public meaning of the
    Confrontation Clause.   See Dissent ¶41 n.7, ¶49.     As contrary
    evidence of historical meaning, however, the dissent cites two
    twenty-first century law review articles about confrontation at
    (continued)
    10
    No.   2014AP2603-CR
    ¶17    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).9    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
    sentencing, two modern treatises, a 1924 case from this court,
    contradictory separate writings in Gannet Co. v. DePasquale, 
    443 U.S. 368
    (1979), and a non-precedential 1974 dissent from denial
    of certiorari. Only the dissent's quotation from Joseph Chitty,
    A Practical Treatise on the Criminal Law (5th ed. 1847), even
    begins to offer any persuasive insight into common law practice
    at the time of the Sixth Amendment's framing.       Although the
    dissent's authorities assuredly provide thoughtful commentary
    for any court reconciling the Sixth Amendment's protections with
    modern criminal procedure, after-the-fact analysis is no
    substitute for contemporaneous evidence when examining original
    meaning.
    9
    Although the exclusionary rule originally applied only in
    federal criminal cases, the Supreme Court later held in Mapp v.
    Ohio, 
    367 U.S. 643
    (1961), that the exclusionary rule also
    applies in state criminal cases through the Due Process Clause
    of the Fourteenth Amendment.
    11
    No.     2014AP2603-CR
    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. at 175.
    ¶18    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
    12
    No.   2014AP2603-CR
    confidential   informant's    absence    did    not   violate    the    Sixth
    Amendment.10
    ¶19   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. 1
    49 (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   criminal
    case:
    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.
    10
    A few years later, the Court confirmed the Sixth
    Amendment implications of its decision in McCray, observing that
    it had "specifically rejected the claim that defendant's right
    to confrontation under the Sixth Amendment and Due Process
    Clause of the Fourteenth Amendment had in any way been
    violated." United States v. Matlock, 
    415 U.S. 164
    , 175 (1974).
    13
    No.        2014AP2603-CR
    ¶20   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
    (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
    .
    ¶21   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.
    14
    No.   2014AP2603-CR
    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 to
    trial.").
    ¶22     Although we now address, for the first time, whether
    the     Confrontation       Clause       applies      at   suppression           hearings,11
    11
    In State v. Frambs, 
    157 Wis. 2d 700
    , 
    460 N.W.2d 811
    (Ct.
    App. 1990), the court of appeals observed that it saw "no
    evidence that the Supreme Court intended the protection of the
    confrontation   clause   to   be  available   to   a   defendant
    in . . . pretrial situations." 
    Id. at 704.
    The statement arose
    during an analysis based on Ohio v. Roberts, 
    448 U.S. 56
    (1980),
    (continued)
    15
    No.    2014AP2603-CR
    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
    ).
    ¶23       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
    which the Supreme Court overruled in Crawford v. Washington, 
    541 U.S. 36
    (2004).     Any effect on Frambs following Crawford's
    overruling of Roberts is irrelevant for our purposes here, as we
    conduct   an   independent,    comprehensive   review   of   the
    applicability of the Confrontation Clause at suppression
    hearings.
    16
    No.    2014AP2603-CR
    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
    ("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).
    17
    No.     2014AP2603-CR
    ¶24   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,12 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.
    ¶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
    12
    We therefore do not share the concern, articulated by the
    dissents both here and at the court of appeals, that our holding
    will reduce suppression hearings "to a paper review in which
    trial courts read police reports and review evidence such as
    dash cam videos to determine whether a warrantless search or
    seizure was nevertheless lawful." Dissent, ¶85 (quoting Zamzow,
    
    366 Wis. 2d 562
    , ¶22 (Reilly, J., dissenting)). Because of the
    weight live testimony carries when it emerges intact from the
    gauntlet of cross-examination, a prosecutor has no incentive to
    intentionally weaken the State's own case by failing to bring an
    available witness before the court to defend against a
    defendant's suppression motion.
    18
    No.       2014AP2603-CR
    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 
    truth. 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. ¶26 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
    19
    No.     2014AP2603-CR
    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.13
    ¶27     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
    13
    Accusing us of placing form ahead of substance, the
    dissent insists that "the temporal factor does not control"
    whether the Confrontation Clause applies. Dissent, ¶¶51-52. We
    agree. As demonstrated by our review of historical evidence and
    Supreme Court decisions, we choose to join other jurisdictions
    in holding that the confrontation right is a trial right not out
    of "cursor[y] rel[iance] on . . . references to 'at trial' in
    United States Supreme Court cases," dissent, ¶48, but because we
    are persuaded that the confrontation right applies to testimony
    before a finder of fact weighing the ultimate question of a
    defendant's guilt or innocence.
    20
    No.   2014AP2603-CR
    audio statement to make a reasonable suspicion determination,
    the circuit court did not deny Zamzow his right to confrontation
    under the Sixth Amendment.14
    B.    Due Process
    ¶28     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."
    ¶29     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
    14
    Because we conclude the Confrontation Clause did not
    require confrontation at the suppression hearing, we need not
    determine whether Birkholz's statement was testimonial.
    21
    No.    2014AP2603-CR
    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.
    ¶30    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
    22
    No.     2014AP2603-CR
    hearsay statement did not offend the reduced standard for due
    process of law required at a suppression hearing.
    IV.     CONCLUSION
    ¶31    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 suppression hearing.
    By    the   Court.—The       decision       of   the   court     of    appeals       is
    affirmed.
    23
    No.    2014AP2603-CR.ssa
    ¶32    SHIRLEY S. ABRAHAMSON, J.               (dissenting).          The 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.
    ¶33    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.
    ¶34    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.)
    ¶35    The   instant       case      involves      a     Fourth       Amendment
    suppression hearing,1 not a preliminary examination.                     The two are
    1
    The defendant asserts that the stop of his vehicle was
    unlawful and therefore that all evidence derivative of the stop
    should be suppressed.
    1
    No.   2014AP2603-CR.ssa
    very different.            Cases cited by the majority opinion relating to
    preliminary examinations are not relevant to the instant case.2
    ¶36      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
    2
    Neither a constitutional nor a statutory right of
    confrontation exists in a preliminary examination in Wisconsin.
    Wis. Stat. § 970.038; State v. O'Brien, 
    2014 WI 54
    , ¶¶30-31, 
    354 Wis. 2d 753
    , 
    850 N.W.2d 8
    .
    In a preliminary examination, the question is whether there
    is probable cause to hold the accused for trial.    See majority
    op., ¶17.
    The United States Supreme Court has held that a probable
    cause determination for the sole purpose of pretrial detention
    does not require the full panoply of adversarial safeguards,
    including confrontation. This type of pretrial proceeding does
    not impair the accused's defense on the merits. Gerstein v.
    Pugh, 
    420 U.S. 103
    , 119 (1975); United States v. Green, 
    670 F.2d 1148
    , 1154 n.8 (D.C. Cir. 1981).
    In a suppression hearing, the question is what evidence
    will be admitted at trial to determine guilt.    A suppression
    hearing is a more searching exploration into the merits of the
    case than a preliminary examination.
    2
    No.   2014AP2603-CR.ssa
    whether the evidence is testimonial under Crawford.3                      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 opinion does.
    ¶37      I   conclude    that   the       Sixth    Amendment       confrontation
    right applies at suppression hearings.                  My analysis will proceed
    as follows:
    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
    3
    "Testimonial statements of witnesses absent from trial"
    violate a defendant's confrontation right unless "the declarant
    is unavailable, and . . . the defendant has had a prior
    opportunity to cross-examine." Crawford v. Washington, 
    541 U.S. 36
    , 59 (2004).      Whether statements of different types and
    contexts are testimonial has been progressively defined by the
    Court since Crawford: "[T]o rank as 'testimonial,' a statement
    must have a 'primary purpose' of 'establish[ing] or prov[ing]
    past events potentially relevant to later criminal prosecution."
    Bullcoming v. New Mexico, 
    564 U.S. 647
    , 659 n.6 (2011) (quoting
    Davis v. Washington, 
    547 U.S. 813
    , 822 (2006)).
    Court of Appeals Judge Paul Reilly concluded that Officer
    Birkholz's statement that Zamzow crossed the center line prior
    to the stop was testimonial, as it described a past event with
    the purpose of establishing or proving that event in a later
    criminal prosecution and was made by an officer who intended to
    bear testimony in that prosecution.    State v. Zamzow, 2016 WI
    App 7, ¶17, 
    366 Wis. 2d 562
    , 
    874 N.W.2d 328
    .
    3
    No.   2014AP2603-CR.ssa
    of the Sixth Amendment, suppression hearings were
    generally conducted at trial.
    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   Counsel,   Compulsory   Process,    and
    Confrontation Clauses are structurally identical.
    A. Enumerated Sixth Amendment rights attach to
    non-trial    critical stages  in   a   criminal
    prosecution.
    B. The purpose and function of a proceeding in a
    criminal prosecution determines the application
    of an enumerated Sixth Amendment right.
    I
    ¶38   I start where the majority opinion starts——with the
    text of the Sixth Amendment enumerating rights "in all criminal
    prosecutions."    The   text   informs   the   interpretation    of   the
    confrontation right.    Majority op., ¶13.
    ¶39   The constitutional text alone might not resolve the
    instant case, but it helps a great deal.4      The very words "in all
    criminal prosecutions" signify that the confrontation right is
    guaranteed in proceedings before, during, and after the trial.5
    Unfortunately, the majority opinion does not seriously engage
    with the text of the Sixth Amendment.
    4
    In writing Crawford, a seminal Confrontation Clause case,
    Justice Scalia acknowledged that the Sixth Amendment's text
    alone does not resolve how to apply the Confrontation Clause.
    
    Crawford, 541 U.S. at 42-43
    .
    5
    Coleman v. Alabama, 
    399 U.S. 1
    , 14 (1970) (Douglas, J.,
    concurring).
    4
    No.   2014AP2603-CR.ssa
    ¶40    The   majority      opinion       in    the    instant      case,       without
    careful   attention     to   Justice     Scalia's         historical        analyses    of
    confrontation in      Crawford,    looks to history.                   It limits its
    historical research and its originalist view of "in all criminal
    prosecutions"     and    the    Confrontation             Clause       to     some     old
    dictionaries,    Blackstone's      Commentaries,           and     one      1895    United
    States Supreme Court case.6         See majority op., ¶¶14-16.                     As the
    majority opinion correctly acknowledges, its historical analysis
    is not illuminating.
    ¶41    Justice      Scalia's       and        Chief     Justice         Rehnquist's
    historical analyses of the Confrontation Clause in Crawford are
    helpful in the instant case.            To understand the meaning of the
    Sixth Amendment Confrontation Clause, Justice Scalia turned to
    the historical background of the Clause, devoting a significant
    part of his opinion to this endeavor.                       The Justice examined
    details of English common law, colonial American practice, and
    American cases.       He used diverse sources such as English and
    6
    Mattox v. United States, 
    156 U.S. 237
    (1895).         The
    majority opinion, ¶15, cites Mattox for the proposition that the
    Constitution is interpreted in light of the law existing when it
    was adopted. In ¶16, the majority opinion quotes from Mattox to
    emphasize the trial-oriented protections of the confrontation
    right.    The Mattox language quoted by the majority opinion
    states that the "primary object" of the Confrontation Clause is
    to prevent convictions based on depositions and ex parte
    affidavits.   Applying the Confrontation Clause at a suppression
    hearing may result in the suppression of the use of depositions
    and ex parte affidavits at trial.
    Justice Scalia explains Mattox's holding to be that prior
    trial or preliminary hearing testimony is admissible at trial
    only if the defendant had an adequate opportunity to cross-
    examine the witness before trial. 
    Crawford, 541 U.S. at 57
    .
    5
    No.     2014AP2603-CR.ssa
    American cases; histories of English law; histories of the Sixth
    Amendment; evidence, criminal law, and constitutional law texts;
    law review articles; and nineteenth-century treatises.                               Chief
    Justice    Rehnquist's        concurrence         in    the     Crawford        judgment
    proffered its own extensive view of historical evidence on the
    meaning of the Confrontation Clause.7
    ¶42    These       analyses     are    edifying      for   purposes        of     this
    writing.          The     history        demonstrates      that        the     right     of
    confrontation was very important in Roman, English, and American
    legal history.          From this history, the following precepts can be
    drawn from Crawford about the confrontation right:
    • The     English       common-law      tradition       is     one    of     live
    testimony in court subject to adversarial testing.8
    • "Nothing        can     be     more   essential       than       the     cross
    examining       [of]    witnesses,      and    generally         before     the
    triers of the facts in question . . . ."9
    7
    For additional historical analyses of the Confrontation
    Clause, see Benjamin C. McMurray, Challenging Untested Facts at
    Sentencing:   The Applicability of Crawford at Sentencing After
    Booker, 37 McGeorge L. Rev. 589, 605-08 (2006); Shaakirrah R.
    Sanders, Unbranding Confrontation as Only a Trial Right, 65
    Hastings L.J. 1257, 1261-66 (2014).
    Cf. California v. Green, 
    399 U.S. 1
    49, 173-74 (1970)
    (Harlan, J., concurring) ("[T]he Confrontation Clause comes to
    us on faded parchment.   History seems to give us very little
    insight into the intended scope of the Sixth Amendment
    Confrontation Clause.").
    8
    
    Crawford, 541 U.S. at 43
    .
    9
    
    Crawford, 541 U.S. at 49
    (quoted source omitted).
    6
    No.   2014AP2603-CR.ssa
    • Many     early        American      cases      demonstrate           that
    prosecutions are carried on to conviction by witnesses
    confronted    by      the   accused    and     subjected       to    the
    accused's personal examination.10
    • "[T]he common law in 1791 [when the Sixth Amendment
    was adopted] conditioned admissibility of an absent
    witness's examination on unavailability and a prior
    opportunity      to   cross-examine.         The    Sixth    Amendment
    therefore incorporates those limitations."11
    • The    historical     sources    do   not     say    "that    a     prior
    opportunity to cross-examine was merely a sufficient,
    rather than a necessary, condition for admissibility
    of    testimonial     statements.      They    suggest       that    this
    requirement was dispositive."12
    • The Confrontation Clause reflects the judgment that
    reliability of evidence is tested "in the crucible of
    cross-examination."13
    10
    
    Crawford, 541 U.S. at 49
    -50 (citations omitted).
    11
    
    Crawford, 541 U.S. at 54
    .
    12
    
    Crawford, 541 U.S. at 55
    .
    13
    
    Crawford, 541 U.S. at 61
    . "Where testimonial statements
    are at issue, the only indicium of reliability sufficient to
    satisfy constitutional demands is the one the Constitution
    actually prescribes: confrontation." 
    Crawford, 541 U.S. at 68
    -
    69.
    "Dispensing   with  confrontation   because  testimony   is
    obviously reliable is akin to dispensing with jury trial because
    a defendant is obviously guilty.    This is not what the Sixth
    Amendment prescribes." 
    Crawford, 541 U.S. at 62
    .
    7
    No.    2014AP2603-CR.ssa
    ¶43    In    sum,    the    text     and    historical            analyses       of     the
    Confrontation      Clause        lead     to         the     conclusion             that    the
    confrontation right is of great significance in Anglo-American
    jurisprudence     and    that    the     significance            of    the    confrontation
    right lies in the accused's right to cross-examine a witness.
    II
    ¶44    The    majority      opinion        rests       its       conclusion      on     its
    certitude that the accused's right of confrontation is limited
    to the trial.      Majority op., ¶¶17-21.                  This purported certitude
    has no basis in the text of the Sixth Amendment.                                The text of
    the Sixth Amendment does not use the word "trial" in stating the
    accused's    confrontation        right.        In    comparison,            the     accused's
    Sixth Amendment right to "enjoy the right to a speedy and public
    trial"    explicitly     refers    to     "speedy          and    public"       as    a    trial
    right.
    ¶45    Indeed,      the    United    States        Supreme         Court       has    never
    explicitly held that the Confrontation Clause is an accused's
    right at trial only.14
    14
    In McCray v. Illinois, 
    386 U.S. 300
    , 305 (1967), the
    Court tacitly assumed that the Confrontation Clause applies to a
    suppression hearing.   In that case, the Court concluded that a
    defendant could not ask for the name of a confidential informant
    during cross-examination at a suppression hearing, citing the
    confidential informant privilege.    McCray held that the Clause
    was not violated by limiting cross-examination; it did not hold
    that the Clause was inapplicable to a suppression hearing. The
    McCray Court distinguished between suppression hearings and
    trials (in which guilt is determined) in balancing the
    application of an informer privilege. 
    McCray, 386 U.S. at 307
    .
    (continued)
    8
    No.   2014AP2603-CR.ssa
    ¶46    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.15    It makes good sense to confine an
    opinion's discussion to the facts presented——which, in each of
    the Court's cases referenced by the majority opinion, was a
    trial.     It does not make good sense to extrapolate from these
    decisions that the confrontation right is exclusively a right at
    trial.16
    Recognizing a Sixth Amendment confrontation right at a
    suppression hearing does not mean that the confrontation right
    at the suppression hearing has no limits. Indeed the limits on
    the right to confrontation at a suppression hearing and at trial
    are not necessarily the same. The majority opinion misses this
    point when it implies that Professor LaFave's writings are
    inconsistent on the question whether a right to confrontation
    exists at a suppression hearing. See majority op., ¶12 n.6.
    15
    See, e.g., California v. Green, 
    399 U.S. 1
    49, 157 (1970)
    ("it is this literal right to 'confront' the witness at the time
    of trial that forms the core of the values furthered by the
    Confrontation Clause"); Barber v. Page, 
    390 U.S. 719
    , 725-26
    (1968) (the confrontation right encompasses "the opportunity to
    cross-examine and the occasion for the jury to weigh the
    demeanor of the witness").
    16
    Indeed the Court has recently indicated that the "trial
    right" reading of the Confrontation Clause may be erroneous.
    See, e.g., Melendez-Diaz v. Massachusetts, 
    557 U.S. 305
    , 315
    (2009) (in discussing a paradigmatic historical example of a
    violation of the Confrontation Clause, the Court noted that the
    rejection of ex parte affidavits at trial is "the core of the
    right to confrontation, not its limits.").
    I   conclude   that   although   an   accused's right   of
    confrontation at a suppression hearing may not be the "core" of
    the Confrontation Clause, it is within its limits.
    9
    No.     2014AP2603-CR.ssa
    ¶47   A   suppression          hearing       affects       the        trial    and     the
    ultimate    question    of     a    defendant's          guilt       or    innocence.         If
    evidence is not suppressed at the suppression hearing, it can be
    introduced at trial.              An issue not discussed by the majority
    opinion but of importance is the defendant's ability to raise
    the   suppression      issue       again      at   trial.17           If     the     right    of
    confrontation     is    not        available        to     the       defendant        at     the
    suppression     hearing,       but       is   available         at        trial,    will     the
    defendant have the right to relitigate the suppression ruling at
    trial when the constitutional guarantee of confrontation is in
    effect?     If so, what is the purpose of the suppression hearing?
    If the defendant pleads guilty, does he or she waive the right
    to raise the confrontation issue on appeal?                                 If so, is the
    Wisconsin statute allowing a defendant to appeal the denial of a
    motion to suppress effective?                  See majority op., ¶26 n.13; see
    also Curry v. Texas, 
    228 S.W.3d 292
    , 298 (Tex. Ct. App. 2007).
    ¶48   Nevertheless,          the    majority       opinion          joins     courts    in
    other jurisdictions cursorily relying on these references to "at
    trial" in United States Supreme Court cases to eliminate the
    confrontation    right       at    a     suppression       hearing.18              See,    e.g.,
    majority op., ¶21 (collecting cases).
    17
    See 6 Wayne R. LaFave et                          al.,    Search        and    Seizure
    § 11.2(f), at 110-22 (5th ed. 2012).
    18
    See e.g., State v. Rivera, 
    192 P.3d 1213
    , ¶14 (N.M. 2008)
    ("[T]he United States Supreme Court has held that a defendant's
    right to confront witnesses against him is primarily a trial
    right . . . ."); State v. Woinarowicz, 
    720 N.W.2d 635
    , 641 (N.D.
    2006) ("The Sixth Amendment right to confrontation is a trial
    right, which does not apply to pretrial suppression hearings.").
    10
    No.    2014AP2603-CR.ssa
    ¶49   Not    only   is   this   conclusion   devoid       of     substantial
    analysis and support in the cases cited, it is also devoid of
    historical     support.19       Historically,     the         suppression     of
    unconstitutionally obtained evidence occurred during the trial.20
    "Indeed, the modern suppression hearing, unknown at common law,
    is a type of objection to evidence such as took place at common
    law . . . in    open    court . . . ."       Gannett          Co.,     Inc.   v.
    DePasquale, 
    443 U.S. 368
    , 437 (1979) (Blackmun, J., concurring
    in part and dissenting in part).21        See also I Joseph Chitty, A
    19
    By contrast, see 6 Wayne R. LaFave et al., Search and
    Seizure § 11.2(d), at 92 (5th ed. 2012), concluding that the
    right of confrontation applies at a Fourth Amendment suppression
    hearing.
    20
    See, e.g., 3 Wayne R. LaFave, Criminal Procedure
    § 10.1(a) (4th ed. 2016) ("At one time, it was not uncommon for
    states to treat objections to illegally obtained evidence as
    subject to the usual principle that the admissibility of
    evidence is determined when it is tendered and not in advance of
    trial.       A    few    jurisdictions    still   follow   [this
    approach] . . . .") (internal quotation marks omitted).
    See, e.g., State v. Allen, 
    183 Wis. 323
    , 
    197 N.W. 808
    (1924) (motion to suppress illegally obtained evidence brought
    during trial, when prosecution seeks to use the evidence).
    21
    See also Gannett Co., Inc. v. DePasquale, 
    443 U.S. 368
    ,
    395-96 (1979) (Burger, C.J., concurring) ("When the Sixth
    Amendment was written, and for more than a century after that,
    no one could have conceived that the exclusionary rule and
    pretrial motions to suppress evidence would be part of our
    criminal jurisprudence.").
    See also North Carolina v. Wrenn, 
    417 U.S. 973
    (1974)
    (White, J., dissenting from denial of certiorari) ("Evidence
    used against [the defendant] at trial was seized under a search
    warrant issued by a magistrate on an affidavit which was
    sustained at trial after an evidentiary hearing out of the
    presence of a jury.").
    11
    No.   2014AP2603-CR.ssa
    Practical Treatise on the Criminal Law 571 (5th ed. 1847) ("The
    practice . . . at present, is for the prosecutor's counsel, on
    his examination of his own evidence in chief, to inquire of the
    witnesses all the facts, so as to satisfy the jury that the
    confession was voluntarily made, and duly taken.").
    ¶50    As   the   years   passed,   however,   courts   began   hearing
    suppression motions before trial instead of at trial.                 Moving
    the suppression hearing up in time in a criminal prosecution to
    precede    the   trial   offered   greater    judicial   convenience      and
    efficiency, and it prevented delay while a jury was sitting.22
    Indeed, federal and Wisconsin rules of criminal procedure now
    generally require that defendants bring a motion to suppress
    evidence before trial.23
    
    22 Jones v
    . United States, 
    362 U.S. 257
    , 264 (1960),
    overruled on other grounds by United States v. Salvucci, 
    448 U.S. 83
    (1980):
    In the interest of normal procedural orderliness, a
    motion to suppress, under Rule 41(e), must be made
    prior to trial, if the defendant then has knowledge of
    the grounds on which to base the motion. . . . This
    provision of Rule 41(e), requiring the motion to
    suppress to be made before trial, is a crystallization
    of decisions of this Court requiring that procedure,
    and is designed to eliminate from the trial disputes
    over police conduct not immediately relevant to the
    question of guilt.
    23
    See, e.g., Federal Rule of Criminal Procedure Rule 12(e);
    United States v. White, 
    584 F.3d 935
    , 948 (10th Cir. 2009):
    Rule 12(b)(3)(C) of the Federal Rules of Criminal
    Procedure requires that a party raise a motion to
    suppress before trial.   A party who fails to do so
    "waives any Rule 12(b)(3) defense, objection, or
    request," although "[f]or good cause, the court may
    grant relief from the waiver."     Fed. R. Crim. P.
    (continued)
    12
    No.    2014AP2603-CR.ssa
    ¶51    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      confrontation            right.
    Interpreting the accused's constitutional confrontation right on
    the basis of when it is asserted is contrary to the general rule
    that form is not placed over substance and is contrary to tenets
    of constitutional law.           "A rule of practice must not be allowed
    for   any    technical      reason     to    prevail    over      a     constitutional
    right."      Gouled v. United States, 
    255 U.S. 298
    , 313 (1921);
    abrogated     on    other    grounds     by      Warden,    Md.       Penitentiary     v.
    Hayden, 
    387 U.S. 294
    (1967).
    ¶52    Justice Blackmun got it right.                He concluded that "for
    purposes of applying the public-trial provision of the Sixth
    Amendment" to a suppression hearing, the temporal factor does
    not control the analysis.              Gannett Co., Inc. v. 
    DePasquale, 443 U.S. at 436-37
    (Blackmun, J., concurring in part and dissenting
    in part).
    ¶53    In sum, the broad text of the Sixth Amendment in the
    phrase      "in    all   criminal      prosecutions"        and        the   fact    that
    suppression hearings were conducted at trial at the time of the
    12(e).    This waiver rule applies not only when a
    defendant fails to file any pretrial motion to
    suppress, but also when a defendant fails to assert a
    particular argument in a pretrial suppression motion
    that he did file.
    See also Wis. Stat. § 971.31(2) ("[O]bjections based
    on . . . the use of illegal means to secure evidence shall be
    raised before trial by motion or be deemed waived. . . .")
    13
    No.   2014AP2603-CR.ssa
    adoption of the Sixth Amendment lead to the conclusion that the
    accused's Sixth Amendment confrontation right may be asserted at
    the suppression hearing.
    III
    ¶54     I   next   examine     the    United       States    Supreme   Court's
    interpretations of the Sixth Amendment text "in all criminal
    prosecutions" in applying an enumerated Sixth Amendment right
    other     than   the    confrontation          right.     These    interpretations
    inform the interpretation of the Sixth Amendment confrontation
    right because the Sixth Amendment Counsel, Compulsory Process,
    and Confrontation Clauses are structurally identical.
    A
    ¶55     In its cases interpreting and applying the enumerated
    Sixth Amendment right to counsel, the Court has interpreted the
    Sixth Amendment text "in all criminal prosecutions" to mean at
    "critical    stages"     of   the   criminal        prosecution.       Coleman   v.
    Alabama, 
    399 U.S. 1
    , 7 (1970).24
    24
    See Coleman v. Alabama, 
    399 U.S. 1
    , 7 (1970) (an accused
    "requires the guiding hand of counsel at every step in the
    proceedings against him") (quoting Powell v. Alabama, 
    287 U.S. 45
    , 69 (1932)); United States v. Wade, 
    388 U.S. 218
    , 336 (1967)
    ("It is central to that principle that in addition to counsel's
    presence at trial, the accused is guaranteed that he need not
    stand alone against the State at any stage of the prosecution,
    formal or informal, in court or out, where counsel's absence
    might derogate from the accused's right to a fair trial.")
    (emphasis added).
    Coleman involved a pretrial hearing to determine whether
    there was sufficient evidence against the accused to warrant
    proceeding with the criminal prosecution.
    14
    No.    2014AP2603-CR.ssa
    ¶56    A     critical          stage         is     any       stage     in       a    criminal
    prosecution,          "formal       or    informal,            in    court        or   out,      where
    counsel's absence might derogate from the accused's right to a
    fair trial . . . as affected by his right to meaningfully cross-
    examine     the    witnesses         against        him. . . ."              United        States    v.
    Wade, 
    388 U.S. 218
    , 226-27 (1967) (emphasis added) (relating to
    counsel at post indictment line-up).25                           In applying the right to
    counsel and determining the critical stage, a court scrutinizes
    the   pretrial            proceeding          to    determine         whether          counsel      is
    "necessary to preserve the defendant's basic right to a fair
    trial as affected by his right meaningfully to cross-examine the
    witnesses        against      him    and       to       have    effective          assistance       of
    counsel at the trial itself."                           
    Coleman, 399 U.S. at 7
    .                     The
    efficacy of an accused's right to counsel is diminished without
    an accused's confrontation right.                              Examining witnesses is an
    area of counsel's expertise.
    ¶57    The Court's focus on giving a defendant the right to
    counsel     at    a       pretrial       proceeding        to       ensure    the      defendant's
    constitutional            right   to      a    fair      trial       and     cross-examination
    implies     that      a    suppression         hearing         (inherently         tied     to    fair
    25
    The Sixth Amendment right to counsel applies at "critical
    stages" of the criminal prosecution when there is "potential
    substantial   prejudice    to  [the]  defendant's   rights"  that
    "confrontation   and    the   ability  of   counsel   [helps  to]
    avoid. . . ." 
    Wade, 388 U.S. at 227
    .
    See also State v. Curry, 
    147 P.3d 483
    , 485-86 (Utah Ct.
    App. 2006) (concluding that the suppression hearing is a
    critical stage where counsel must be present to cross-examine
    the prosecution's witness).
    15
    No.   2014AP2603-CR.ssa
    trial and cross-examination) is a critical stage in criminal
    prosecutions.26
    ¶58   The Wisconsin supreme court has long recognized that
    the    confrontation    right       "is    an     essential     and    fundamental
    requirement for a fair trial."             State v. Bauer, 
    109 Wis. 2d 204
    ,
    208, 
    325 N.W.2d 857
    (1982) (citation omitted).
    ¶59   Courts    in    several           jurisdictions        recognize     the
    applicability     of   the   Sixth    Amendment       confrontation       right    at
    suppression hearings on the ground that the suppression hearing
    is    a critical stage in       a    criminal prosecution            that requires
    cross-examination to ensure a fair trial.27               The Seventh Circuit
    26
    "The security of that right is as much the aim of the
    right to counsel as it is of the other guarantees of the Sixth
    Amendment . . . [including] his right to be confronted with the
    witnesses against him . . . ." United States v. Wade, 
    388 U.S. 218
    , 226–27 (1967).
    27
    See, e.g., Curry v. State, 
    228 S.W.3d 292
    , 297 (Tex. Ct.
    App. 2007) (the Confrontation Clause applies at a suppression
    hearing because it is a "critical stage" of the criminal
    prosecution); State v. Sigerson, 
    282 So. 2d 649
    , 651 (Fla. App.
    1973) ("The hearing on the motion to suppress, while not
    deciding the guilt or innocence of the appellee, is clearly a
    critical stage of the prosecution and the confrontation clause
    of the Sixth Amendment to the United States constitution
    guarantees an accused in a criminal case the right to confront
    the witnesses against him."); United States v. Hodge, 
    19 F.3d 51
    , 53 (D.C. Cir. 1994) (a suppression hearing is a
    critical stage of the prosecution and "any limitations on the
    right of cross-examination . . . must be justified by weighty
    considerations")   (internal   quotation  marks   and  citations
    omitted). See also United States v. Clark, 
    475 F.2d 240
    , 246-47
    (2d Cir. 1973) (the defendant has a right to be present at a
    pretrial   suppression    hearing   "held   to   determine   the
    constitutionality of a seizure of evidence from an accused";
    defendant was "entitled to assist his counsel in cross-examining
    [the prosecution's] witnesses and in developing [ ] matters
    further at the suppression hearing.").
    (continued)
    16
    No.   2014AP2603-CR.ssa
    Court         of   Appeals   has    declared       that   "a   pretrial   suppression
    hearing is a critical stage."                      United States v. Johnson, 
    859 F.2d 1289
    , 1294 (7th Cir. 1988).28
    ¶60       Judge Harry Edwards wrote that the suppression hearing
    is   a        critical   stage     of   the   prosecution      because    it   "affects
    substantial rights of an accused person; the outcome of the
    Professor LaFave in 6 Search & Seizure, § 11.2(d), at 93 n.
    217, cites the following cases in support of a confrontation
    right at suppression hearings:
    • United States v. Mejia, 
    69 F.3d 309
    (9th Cir. 1995)
    (where suppression hearing aborted because of illness
    of judge and new hearing held before another judge, it
    error for that judge merely to read transcript of some
    prosecution witnesses' testimony at aborted hearing;
    continuance should have been granted "so that the
    government's two main witnesses would testify in
    person and be cross-examined in front of the judge who
    would be required to assess their credibility").
    • People v. Levine, 
    585 N.W.2d 770
    (Mich. App. 1998)
    (citing cases from other states in support of
    conclusion that "the protections of the Confrontation
    Clause extend to a pretrial suppression hearing") (the
    Michigan Supreme Court vacated this decision on other
    grounds, and did not address the appellate court's
    decision that the Confrontation Clause applies at
    suppression hearings).
    • State v. Ehtesham, 
    309 S.E.2d 82
    (W. Va. 1983)
    (suppression hearing should be "a meaningful hearing,
    at which both the state and the defendant should be
    afforded the opportunity to produce evidence and to
    examine and cross-examine witnesses"; defendant's
    right denied where judge refused defense opportunity
    to cross examine officer who obtained search warrant).
    28
    See also People v. Strothers, 
    928 N.Y.S.2d 28
    (N.Y. App.
    Div. 2011) (the suppression hearing is a critical stage and
    trial judge's decision to proceed without defendant's counsel,
    who was running late, was reversible error).
    17
    No.    2014AP2603-CR.ssa
    hearing——the          suppression      vel        non     of      evidence——may           often
    determine       the    eventual      outcome       of   conviction        or     acquittal."
    United States v. Green, 
    670 F.2d 1148
    , 1154 (D.C. Cir. 1981).
    The Green        court declared that because of the historical and
    practical       importance      of    the    right      of      cross-examination,          any
    limitations on the right at the suppression hearing must be
    justified by weighty considerations.                      
    Green, 670 F.2d at 1154
    .29
    I agree.
    ¶61       In    interpreting     the        Sixth      Amendment      Confrontation
    Clause, the majority opinion errs in failing to consider the
    right      to   a    fair   trial     and    the    significant           role      of   cross-
    examination.
    ¶62       A federal court of appeals has written of the right of
    cross-examination as follows:                "So basic is the right [to cross-
    examine witnesses] that the Supreme Court has held that its
    denial, 'without waiver . . . would be constitutional error of
    the   first         magnitude   and    no    amount        of    showing       of    want   of
    prejudice would cure it.'"                  Proffitt v. Wainwright, 
    685 F.2d 29
           A limitation on the right of confrontation                                         at a
    suppression hearing is an informer's privilege.        See                               United
    States v. Green, 
    670 F.2d 1148
    , 1154 (D.C. Cir. 1981).
    18
    No.    2014AP2603-CR.ssa
    1227, 1251 (11th Cir. 1982) (quoting Smith v. Illinois, 
    390 U.S. 129
    , 131 (1968)).30
    ¶63     In sum, the United States Supreme Court has indicated
    that       the     Sixth     Amendment    text       "in   all     criminal      proceedings"
    includes a pretrial proceeding that lays the groundwork for a
    fair trial and enables the accused to cross-examine witnesses.
    Thus the Court's cases have kept the door open for an accused's
    Sixth Amendment confrontation right to apply at a suppression
    hearing.           Looking to the critical stage analysis, I conclude
    that       the      confrontation        right       should      apply      at   suppression
    hearings          to   permit    cross-examination,           which      promotes     a    fair
    trial.
    B
    ¶64     In   its    cases   interpreting           and    applying       enumerated
    Sixth Amendment rights, the Court has interpreted and applied
    the       Sixth     Amendment     text    "in        all   criminal      prosecutions"      by
    examining the purpose and function of the particular criminal
    proceeding.            Whether the Court applies a Sixth Amendment right
    in    a        pretrial    proceeding     requires         comparing     the     purpose    and
    30
    See also Davis v. Alaska, 
    415 U.S. 308
    , 315 (1974)
    (holding that adequate cross-examination is required by the
    Sixth Amendment and stating that "[c]ross-examination is the
    principal means by which the believability of a witness and the
    truth of his testimony are tested."); Douglas v. Alabama, 
    380 U.S. 415
    , 418 (1965) (stating that "[o]ur cases construing the
    [confrontation] clause hold that a primary interest secured by
    it is the right of cross-examination . . . .").
    19
    No.       2014AP2603-CR.ssa
    function      of    the    pretrial          proceeding        with        the       purpose     and
    functions of the enumerated right and the trial.31
    ¶65     For    example,         the    United      States       Supreme          Court     has
    declared that an accused's Sixth Amendment right to a public
    trial      grants    an    accused       the     right    to     a    public          suppression
    hearing.      In Waller v. Georgia, 
    467 U.S. 39
    (1984), the Court
    described the function of the accused's Sixth Amendment public
    trial right as "ensuring that judge and prosecutor carry out
    their      duties    responsibly,"           "encourag[ing]           witnesses            to   come
    forward," and "discourage[ing] perjury."                             
    Waller, 467 U.S. at 46
    .
    ¶66     The    Waller      Court      reasoned      that       the     accused's          Sixth
    Amendment's        right    to    a    public         trial   extends           to    a   pretrial
    suppression         hearing      because          "[t]hese       aims           and       interests
    [protected     at    trial]      are        no   less    pressing          in    a    hearing     to
    suppress wrongfully seized evidence."                     
    Waller, 467 U.S. at 46
    .
    31
    See Shaakirrah R. Sanders, Unbranding Confrontation as
    Only a Trial Right, 65 Hastings L.J. 1257 (2014) (arguing that a
    defendant's right to confrontation at a non-trial proceeding is
    determined by analogizing the protection afforded by the Sixth
    Amendment at trial).
    Although I do not further discuss these cases in the
    instant dissent, I note that other Sixth Amendment rights apply
    in criminal prosecutions beyond the trial.     See, e.g., United
    States v. Bowe, 
    698 F.2d 560
    , 565 (2d Cir. 1983) (the Compulsory
    Process Clause applies at a suppression hearing, unless that
    witness invoked the Fifth Amendment); Mempa v. Riley, 
    389 U.S. 128
    , 136-37 (1967) (Counsel Clause applies at sentencing in
    Washington state probation revocation proceeding); Apprendi v.
    New Jersey, 
    530 U.S. 466
    , 476 (2000) (Jury Clause applies at
    sentencing fact-finding); Alleyne United States, 
    133 S. Ct. 2151
    (2013) (Jury Clause applies at sentencing for fact-finding for a
    fact that increases the penalty).
    20
    No.   2014AP2603-CR.ssa
    ¶67   Furthermore, the pretrial suppression hearing has in
    many    instances       supplanted          the   trial.          The      Waller        Court
    recognized that for many defendants the suppression hearing is
    "the    only       trial,    because      the     defendants        [will]       thereafter
    plead[]      guilty . . . ."              
    Waller, 467 U.S. at 47
    .       The
    suppression        hearing       resembles    a   bench     trial:         witnesses       are
    called; the defendant has a right to counsel who can question
    witnesses; the judge must find facts and apply legal principles
    to the facts found; the conduct of law enforcement officials is
    often   reviewed       at    a    suppression      hearing.         The        Waller    Court
    elaborated as follows:
    [A] suppression hearing often resembles a bench trial:
    witnesses are sworn and testify, and of course counsel
    argue their positions. The outcome frequently depends
    on a resolution of factual matters.    The need for an
    open proceeding may be particularly strong with
    respect to suppression hearings.   A challenge to the
    seizure of evidence frequently attacks the conduct of
    police and prosecutor. . . . [S]trong pressures are
    naturally at work on the prosecution's witnesses to
    justify the propriety of their conduct in obtaining
    the evidence.
    
    Waller, 467 U.S. at 46-47
        (internal        quotation         marks     and
    citations omitted).
    ¶68   In      effect,        the      Waller       court       recognized          that
    suppression hearings are tantamount to trials, in both form and
    importance.
    ¶69   The     purpose        and   function        of   an     accused's          Sixth
    Amendment right to a public trial echo the purpose and function
    of the exclusionary rule.             The exclusion of evidence at trial is
    an accused's objective in a suppression hearing.                           The Wisconsin
    Supreme Court first adopted and applied the exclusionary rule in
    21
    No.   2014AP2603-CR.ssa
    Hoyer v. State, 
    180 Wis. 407
    , 
    193 N.W. 89
    (1923).                          Since then,
    evidence    has   been      excluded     as    a   check     on    law    enforcement.
    "Unlawful police conduct is deterred when evidence recovered in
    unreasonable searches is not admissible in courts."32                          State v.
    Tompkins, 
    144 Wis. 2d 116
    , 133–34, 
    423 N.W.2d 823
    (1988); State
    v. Gums, 
    69 Wis. 2d 513
    , 516–17, 
    230 N.W.2d 813
    (1975).                                See
    also Conrad v. State, 
    63 Wis. 2d 616
    , 635, 
    218 N.W.2d 252
    (1974)
    (explaining    that     judicial        integrity      could      be    compromised    if
    unlawful police conduct were sanctioned by the use of evidence
    obtained in violation of the Fourth Amendment).
    ¶70    Both the Public Trial Clause and the exclusionary rule
    are aimed at deterring unlawful conduct.                    This deterrent effect
    would be weakened if the Sixth Amendment right to public trial
    did   not    apply     to   a     suppression       hearing       or    the   right    to
    confrontation        were   not     recognized       in    suppression        hearings.
    Without an accused's confrontation right, the state's evidence
    will not be examined adequately at the suppression hearing.
    ¶71    In determining whether the Sixth Amendment right to a
    public trial applies to render a suppression hearing public,
    Justice     Blackmun     compared       the    purpose     and     function     of    the
    suppression hearing to the purpose and function of a trial.
    Justice Blackmun reasoned that the pretrial suppression hearing
    "resembles     and    relates      to    the    full      trial    in    almost      every
    32
    See also 1 Wayne R. LaFave et al., Search & Seizure
    § 1.1(f) (5th ed. 2012) ("[T]he deterrence of unreasonable
    searches and seizures is a major purpose of the exclusionary
    rule.").
    22
    No.    2014AP2603-CR.ssa
    particular," and therefore the Sixth Amendment right to a public
    trial requires a public suppression hearing.                       "[T]he pretrial
    suppression hearing . . . must be considered part of the trial."
    
    Gannett, 443 U.S. at 434
    , 436-37 (Blackmun, J., concurring in
    part and dissenting in part).        The following characteristics of
    a suppression hearing led the Justice to this conclusion:
    • "Evidence    is    presented     by       means    of     live    testimony,
    witnesses are sworn, and those witnesses are subject
    to cross-examination."
    • "Determination of the ultimate issue depends in most
    cases    upon     the   trier   of    fact's       evaluation        of    the
    evidence, and credibility is often crucial."
    • "[T]he pretrial suppression hearing often is critical,
    and   it   may     be   decisive,     in     the    prosecution           of    a
    criminal case.          If the defendant prevails, he will
    have dealt the prosecution's case a serious, perhaps
    fatal,     blow;    the    proceeding         often        then    will        be
    dismissed    or     negotiated       on    terms    favorable        to    the
    defense.     If the prosecution successfully resists the
    motion to suppress, the defendant may have little hope
    of success at trial (especially where a confession is
    23
    No.    2014AP2603-CR.ssa
    in issue), with the result that the likelihood of a
    guilty plea is substantially increased."33
    • "The suppression hearing often is the only judicial
    proceeding of substantial importance that takes place
    during a criminal prosecution."
    Gannett, 
    443 U.S. 434-36
    (Blackmun, J., concurring in part and
    dissenting in part).
    ¶72    For   Justice   Blackmun,   these   factors    led    him   to
    conclude that the suppression hearing——so much like a trial——
    must, like a trial, be public under the Sixth Amendment.
    ¶73    These factors lead me to conclude that the suppression
    hearing——so much like a trial——must, like a trial, afford an
    accused the confrontation right.34
    33
    "[A] decision on the motion to suppress is often outcome
    determinative if it is adverse to the government.    Thus, from
    the prosecution's viewpoint, if evidence is suppressed, at
    worst, the case will be dismissed; at best, valuable evidence
    will be lost and the defendant will be in an enhanced plea
    bargaining position."   Elizabeth Phillips Marsh, Does Evidence
    Law Matter in Criminal Suppression Hearings?, 25 Loy. L.A. L.
    Rev. 987, 996 (1992).
    34
    The Fifth Circuit Court of Appeals stated that "we
    safeguard the right to cross-examination at the suppression
    hearing because the aims and interests involved in a suppression
    hearing are just as pressing as those in the actual trial."
    United States v. Stewart, 
    93 F.3d 189
    , 192 n.1 (5th Cir. 1996).
    Justice Blackmun offered a similar approach in Kentucky v.
    Stincer, 
    482 U.S. 730
    (1987), and Pennsylvania v. Ritchie, 
    480 U.S. 39
    (1987). Justice Blackmun was persuaded that "there are
    cases in which a state rule that precludes a defendant from
    access to information before trial may hinder that defendant's
    opportunity for effective cross-examination at trial, and thus
    that such a rule equally may violate the Confrontation Clause."
    Kentucky v. 
    Stincer, 482 U.S. at 738
    n.9.
    (continued)
    24
    No.    2014AP2603-CR.ssa
    ¶74    The most striking aspect of the suppression hearing
    that leads me to this conclusion is that the suppression hearing
    is   the     turning    point    in    many       criminal      prosecutions.35          The
    majority      opinion     concedes          (as    it   must)     that        "suppression
    hearings have become an important stage in many criminal cases
    since the Supreme Court adopted the exclusionary rule . . . ."
    Majority op., ¶17.          Yet the majority opinion strangely suggests
    that    guilt   or     innocence      is    not    at   stake    in     the    suppression
    hearing.      The majority opinion asserts that its conclusion that
    the confrontation right does not apply at suppression hearings
    is     compelled       because        the     "confrontation          right         protects
    defendants      at     trial——when      guilt      or   innocence       is     at    stake."
    Majority op., ¶24; see also majority op., ¶29.
    Justice Blackmun raised the same point in his separate
    writing in Ritchie, in which he faulted the majority for
    limiting its confrontation analysis to whether cross-examination
    is available and not inquiring into the "effectiveness of cross-
    examination."   
    Ritchie, 480 U.S. at 62
    ; see also 
    Ritchie, 480 U.S. at 71
    (Brennan, J., dissenting) ("The creation of a
    significant impediment to the conduct of cross-examination thus
    undercuts the protections of the Confrontation Clause, even if
    that impediment is not erected at the trial itself.") (emphasis
    added).
    In 
    Ritchie, 480 U.S. at 54
    n.10, Justice Powell, however,
    observed in his plurality opinion that the Court has not yet
    recognized a Confrontation Clause violation prior to trial.
    35
    The significance of a decision in a suppression case is
    seen in Wis. Stat. § 808.03(3)(b), providing: "An order denying
    a motion to suppress evidence or a motion challenging the
    admissibility of a statement of a defendant may be reviewed upon
    appeal from a judgment or order notwithstanding the fact that
    the judgment or order was entered upon a plea of guilty or no
    contest to the information or criminal complaint."
    25
    No.     2014AP2603-CR.ssa
    ¶75       But    guilt       or        innocence        is      often       at    stake    at
    suppression          hearings.         In     drug       offenses        and       drunk-driving
    prosecutions,         for    instance,            the     result      of     the      suppression
    hearing is often determinative of the case.36                                    Often, when a
    defendant's      motion       to   suppress             fails,     the      defendant     pleads
    guilty.        "Something in the neighborhood of 85 percent of all
    criminal       charges      are    resolved             by   guilty        pleas,     frequently
    after . . . motions to suppress evidence have been ruled upon."
    Gannett 
    Co., 443 U.S. at 397
    (1979) (Burger, C.J., concurring).37
    The United States Supreme Court has recognized that because our
    criminal justice system has become "'for the most part a system
    of pleas, not a system of trials,' it is insufficient simply to
    point     to   the    guarantee        of     a   fair       trial    as     a   backstop      that
    36
    See, e.g., Vill. of Granville v. Graziano, 
    858 N.E.2d 879
    , 882 (Ohio Mun. 2006) (applying the confrontation clause at
    a suppression hearing because the distinction between trial and
    pretrial suppression hearings has become particularly blurred in
    drunk driving cases, in which defendants must raise issues of
    the admissibility of test results in a pretrial motion to
    suppress); Curry v. State, 
    228 S.W.3d 292
    , 297 (Tex. Ct. App.
    2007) ("In drug possession cases like the one before us, the
    outcome of the suppression hearing often determines the outcome
    of the trial itself."); Olney v. United States, 
    433 F.2d 161
    ,
    163 (9th Cir. 1970) ("We think that a motion to suppress
    evidence can well be [a critical] stage of prosecution,
    particularly in narcotics cases, where the crucial issue may
    well be the admissibility of narcotics allegedly found in the
    possession of the defendant.").
    37
    By all accounts, this statistic is up:    "In fiscal year
    2015 the vast majority of offenders (97.1%) pleaded guilty."
    United States Sentencing Commission,       Overview of Federal
    Criminal     Cases     Fiscal     Year     2015     4      (2016),
    http://www.ussc.gov/sites/default/files/pdf/research-and-
    publications/research-
    publications/2016/FY15_Overview_Federal_Criminal_Cases.pdf
    26
    No.    2014AP2603-CR.ssa
    inoculates any errors in the pretrial process."                                   Missouri v.
    Frye,      
    566 U.S. 133
    ,    143-44       (2012)       (internal       citations      and
    quotation marks omitted).38
    ¶76        Because the suppression hearing is frequently outcome-
    determinative,          involves         adversarial       and    trial-like          practices,
    and requires the circuit court to weigh testimony as a fact-
    finder     and       apply    the    law    to    the    facts,       the     Sixth   Amendment
    compels       the      conclusion          that    an    accused's          Sixth     Amendment
    confrontation right applies.
    ¶77        I   conclude       on   the     basis    of    the    text     of    the   Sixth
    Amendment, the history of the suppression hearing as a trial
    proceeding, the purpose and function of the suppression hearing,
    and     the      United      States        Supreme       Court's       interpretation        and
    application of the enumerated Sixth Amendment rights to non-
    trial proceedings, that Zamzow has a Sixth Amendment right to
    confront witnesses at the suppression hearing.
    38
    Missouri v. Frye, 
    566 U.S. 133
    , 143-44 (2012):
    The reality is that plea bargains have become so
    central to the administration of the criminal justice
    system that defense counsel have responsibilities in
    the plea bargain process, responsibilities that must
    be met to render the adequate assistance of counsel
    that the Sixth Amendment requires in the criminal
    process at critical stages. Because ours 'is for the
    most part a system of pleas, not a system of trials,'
    it is insufficient simply to point to the guarantee of
    a fair trial as a backstop that inoculates any errors
    in the pretrial process (internal citations omitted).
    27
    No.   2014AP2603-CR.ssa
    ¶78    The    majority     opinion     nullifies     the   accused's    Sixth
    Amendment's        confrontation     right    at    suppression      hearings    by
    adopting an absolute, no-exceptions-allowed holding.
    * * * *
    ¶79    To    conclude      briefly,    the   Sixth    Amendment    right   to
    confrontation applies at suppression hearings.
    ¶80    Suppression hearings are historically and functionally
    a   part    of    the   trial.      Indeed,    a   suppression     hearing    often
    supplants the trial.             The suppression hearing is a critical
    stage of the "criminal prosecution"; a defendant's right to a
    fair trial is dependent on counsel's ability to cross-examine
    adverse witnesses.          The deterrence effect of the exclusionary
    rule will not be realized if the right to confrontation does not
    exist at the suppression hearing.
    ¶81    Because the suppression hearing involves adversarial
    and trial-like practices, is frequently outcome-determinative,
    and requires the circuit court to weigh testimony as fact-finder
    and apply the law to the facts, the Sixth Amendment, in my
    opinion, compels a court to recognize that defendants have a
    right to confrontation at a suppression hearing.                   By refusing to
    give Zamzow a confrontation right at the suppression hearing in
    the   instant      case,   the    majority    opinion      nullifies    the   Sixth
    28
    No.    2014AP2603-CR.ssa
    Amendment's guarantee that the "accused" shall have the right to
    confrontation "in all criminal prosecutions."39
    ¶82   Finally, the majority opinion seems to pose a serious
    problem for future suppression hearings.                     The State generally
    has   the   burden   of   proof      at   a    suppression     hearing      that    the
    evidence    is   admissible     at    the      hearing.       Rules    of   evidence
    apparently are not fully applicable at a suppression hearing.
    See Wis. Stat. §§ 901.04(1), 911.01(4)(a); State v. Jiles, 
    2003 WI 66
    , ¶¶25-30, 
    262 Wis. 2d 457
    , 
    663 N.W.2d 798
    .40
    ¶83   In the future, according to the majority opinion, the
    State may offer hearsay evidence in a suppression hearing.                         As a
    practical    matter,      the   defendant        may   not    ever     be   able     to
    effectively cross-examine the witness.                 Isn't the result of the
    39
    Christine Holst, in The Confrontation Clause and Pretrial
    Hearings: A Due Process Solution, 2010 U. Ill. L. Rev. 1599,
    1624, proposes that the best avenue to protect a defendant's
    right to confrontation is under the Due Process Clause, rather
    than the Confrontation Clause.        She concludes that "[a]
    restriction on confrontation at a pretrial hearing would then be
    unconstitutional if it denied the defendant his or her right to
    fundamentally fair procedure in the criminal prosecution
    process."
    40
    See also United States v. Matlock, 
    415 U.S. 164
    , 172–74
    (1974) ("[T]he rules of evidence normally applicable in criminal
    trials do not operate with full force at hearings before the
    judge to determine the admissibility of evidence.") (discussing
    Brinegar v. United States, 
    338 U.S. 160
    (1949); Fed. R. Evid.
    104(a) & 1101(d)(1); and citing 5 J. Wigmore, Evidence § 1385
    (3d ed. 1940); C. McCormick, Evidence § 53 n.91 (2d ed. 1972));
    see also United States v. Raddatz, 
    447 U.S. 667
    , 679 (1980) ("At
    a suppression hearing, the court may rely on hearsay and other
    evidence, even though that evidence would not be admissible at
    trial.").
    29
    No.   2014AP2603-CR.ssa
    suppression     hearing       that   the        unsuppressed    evidence     may    be
    introduced at trial?          See 
    ¶47, supra
    .
    ¶84    Court of Appeals Judge Paul Reilly, dissenting from
    the court of appeals decision in the instant case, posed the
    problem as follows:           A paper review in which trial courts read
    police reports and review evidence such as dash cam videos to
    determine whether evidence should be suppressed may become the
    norm.    The possible effect of the court of appeals decision (and
    the majority opinion in the instant case), according to Judge
    Reilly, is that hearsay and double hearsay testimony may be used
    at   a     suppression        hearing   to        support    the     constitutional
    reasonableness    of      a    search      and     seizure     and   therefore     the
    admissibility of contraband, for example, when the same hearsay
    would likely not be admitted at trial.
    ¶85    Judge Reilly wrote as follows:
    The effect of the majority's decision is that
    evidentiary hearings are no longer necessary to the
    determination of whether a warrantless search and/or
    seizure was constitutional.   Suppression hearings may
    be reduced to a paper review in which trial courts
    read police reports and review evidence such as dash
    cam videos to determine whether a warrantless search
    or seizure was nevertheless lawful.       The majority
    mistakes us for a civil law country rather than
    recognizing our common law foundation.
    . . . .
    The majority provides no guidance in how it expects
    courts to protect the Fourth Amendment rights of a
    criminal defendant such as Zamzow absent the Sixth
    Amendment's   "crucible   of   cross-examination"   in
    evaluating the government's accusations.    By relying
    on Frambs, the majority disregards the Crawford
    Court's lament over the legacy of Roberts as one of
    "fail[ure] to provide meaningful protection from even
    30
    No.   2014AP2603-CR.ssa
    core confrontation violations." . . . As I fear this
    case continues that unfortunate legacy, I dissent.
    State v. Zamzow, 
    2016 WI App 7
    , ¶¶22, 23, 
    366 Wis. 2d 562
    , 
    874 N.W.2d 328
    (Reilly, J., dissenting).
    ¶86   For the reasons set forth, I dissent.
    ¶87   I   am   authorized   to    state   that   Justice   ANN   WALSH
    BRADLEY joins this dissenting opinion.
    31
    No.   2014AP2603-CR.ssa
    1