5.May 13 Interview Cross-Examination Dispute
12 lines(Reconvened at 1:00 p.m.; jurors not present.)
THE COURT: Counsel, I'm informed that, uh, one or both of you have something to put on the record at this point?
MR. FALLON: Uh, yes. Good
afternoon, Your Honor. The, uh, State would like to take up one evidentiary matter as it may pertain to anticipated cross-examination on a rule of evidence before the jury arrives. I'm not sure if opposing counsel has anything they wish to discuss.
THE COURT: Hearing none?
MR. FALLON: Hearing none, um, uh, we noticed during the, um, opening statement, uh, of the defense that there was reference to the, uh, May 13, uh, interview of, uh, the defendant, Mr. Dassey. Uh, we wanted to, uh, take time to point out that, um, first of all, the State was contemplating, if at all, use of that information as part of its rebuttal case and, in all likelihood, would not be introducing that evidence in its case in chief.
Uh, as such, um, the law is quite clear that those statements of the defendant can only be offered by the prosecution because then they would be offered by a party opponent, and, uh, uh, as further evidence in support of that proposition, I would cite State v. Pepin, 110 Wis. 2d 431, and State v. Johnson, 181 Wis. 2d 470, for the proposition that the defense would not be entitled to elicit that information on cross-examination of an officer unless and until the State introduces that evidence first.
So we just wanted to make sure that we're clear on the rules of evidence, because if it were to be elicited by the defense, then it would not be a statement of a party opponent, it would be elicited by the same party.
THE COURT: Mr. Fremgen or Mr. Edelstein, any response?
MR. EDELSTEIN: Your Honor, at this time, uh, having heard the argument of Counsel, I would ask the Court reserve any ruling on that matter and allow us an opportunity to review the authority cited by Counsel. Um, we did discuss it very briefly before court convened, uh, after noon here.
We have not had the chance to review that matter and, of course, the basis of, uh, some of the State's evidence, which they clearly indicated they intend to introduce, including, in their case in chief, not the least of which is the May 13 telephone call so intricately tied to that statement of May 13, um, I think this needs further examination before we can appropriately respond to the State's, uh, anticipatory objection.
MR. FALLON: Well, uh, just two minor points. Uh, we never mentioned anything about any May 13 statement in the opening remarks, and, uh, number two, just so the record is clear, um, the objection right now, the appropriate objection, to attempt at cross on that would be a hearsay objection. So if the Court chooses to defer ruling until later, that's fine, but we do have an officer taking the stand later this afternoon so...
THE COURT: Yeah. I -- I -- I will defer ruling, but it's my understanding, Mr. Edelstein, that the proposed -- or I shouldn't say the proposed -- the statements of -- of the -- from the May 13 interview would be admissions by a party opponents under 9-0-8-0-1 (4) (b1), and, uh, it seems to me, uh, you are precluded at this stage, at least, from asking about them. Uh, again, we'll -- we'll flush this out a little later on but, uh, uh, if that's what you're asking --
MR. EDELSTEIN: Your Honor, it may -- it -- it -- I think it's going to depend upon precisely what the officer testifies to. If he goes anywhere near any statements that he participated in, be they con -- characterized as statements or confessions that involved our client, I think irregardless of the date, there are certain areas that we have, particularly on cross, um, leeway to get into.
I don't know if that's the purpose of any of his testimony here this afternoon, but if he does go there, I would, uh, ask that -- that we be notified in advance, or at least certainly be given an opportunity prior to any cross, to have this matter addressed by the Court, including an opportunity to review the case as cited by the State.
THE COURT: All right. Let's proceed. Mr. Kratz? We'll get the jury in here and we'll get your witness.
(Jurors in at 1:07 p.m.)