2021 WI 27

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP1952-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Mark D. Jensen,

 Defendant-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED: March 18, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: November 17, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Kenosha 

JUDGE: Chad G. Kerkman 

JUSTICES:

DALLET, J., delivered the majority opinion of the Court, in 

which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL 

BRADLEY, and HAGEDORN, JJ., joined, and in which ZIEGLER and 

KAROFSKY, JJ., joined except for ¶35. KAROFSKY, J., filed a 

concurring opinion, in which ZIEGLER, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs 

filed by Aaron R. O’Neil, assistant attorney general; with whom 

on the briefs was Joshua L. Kaul, attorney general. There was an 

oral argument by Aaron O’Neil.

For the defendant-appellant, there was a brief filed by 

Lauren J. Breckenfelder and Dustin C. Haskell, assistant state 

public defenders. There was an oral argument by Lauren Jane 

Breckenfelder.
2021 WI 27

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP1952-CR

(L.C. No. 2002CF314)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Mark D. Jensen,

 Defendant-Appellant.

FILED

MAR 18, 2021

Sheila T. Reiff

Clerk of Supreme Court

DALLET, J., delivered the majority opinion of the Court, in 

which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL 

BRADLEY, and HAGEDORN, JJ., joined, and in which ZIEGLER and 

KAROFSKY, JJ., joined except for ¶35. KAROFSKY, J., filed a 

concurring opinion, in which ZIEGLER, J., joined.

REVIEW of a decision of the Court of Appeals. Modified 

and, as modified, affirmed.

¶1 REBECCA FRANK DALLET, J. Fourteen years ago, Mark 

Jensen was on trial for killing his wife, Julie.1 Before the 

start of that trial, we held that certain hearsay statements 

made by Julie were testimonial. State v. Jensen

(Jensen I), 2007 WI 26, ¶2, 299 Wis. 2d 267, 727 N.W.2d 518. 

 

1 To avoid confusion——and to remain consistent with previous 

decisions in this case——we refer to Mark Jensen as "Jensen" and 

Julie Jensen as "Julie."
No. 2018AP1952-CR 

2

For that reason, and because Jensen had no opportunity to crossexamine Julie about those statements, the statements were 

inadmissible under the Confrontation Clause.2 We are now asked 

to determine whether the law on testimonial hearsay has since 

changed to such a degree that, at Jensen's new trial,3 the 

circuit court was no longer bound by Jensen I. We hold that it 

has not. We therefore affirm the court of appeals' decision.4

I

¶2 Julie died from poisoning in 1998. Prior to her 

death, she made several statements suggesting that, if she died, 

the police should investigate Jensen. She wrote a letter and 

gave it to her neighbor with instructions to give the letter to 

the police should anything happen to her. She also left two 

voicemails with Pleasant Prairie Police Officer Ron Kosman two 

weeks before she died stating that if she were found dead, 

Jensen should be Kosman's "first suspect." In 2002, Jensen was 

charged with first-degree intentional homicide. Over the next 

several years, the circuit court held a series of pretrial 

hearings addressing the admissibility of Julie's letter and 

voicemails.

 

2 U.S. Const. amend. VI, cl. 4 ("In all criminal 

prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him . . . .").

3 The Honorable Chad G. Kerkman of the Kenosha County 

Circuit Court presiding.

4 State v. Jensen, No. 2018AP1952-CR, unpublished slip op. 

(Wis. Ct. App. Feb. 26, 2020).
No. 2018AP1952-CR 

3

¶3 The circuit court initially ruled that Julie's letter 

was admissible but her voicemails were not. After that ruling, 

however, the United States Supreme Court decided Crawford v. 

Washington, 541 U.S. 36 (2004), which established that an 

unavailable witness's hearsay statement is inadmissible under 

the Confrontation Clause if the statement is testimonial and the 

defendant had no prior opportunity to cross-examine the witness. 

Id. at 50-54. In light of that decision, Jensen asked the 

circuit court to reconsider its previous ruling. Upon 

reconsideration, the circuit court determined that, under 

Crawford, Julie's letter and voicemails ("Julie's statements") 

were testimonial hearsay and were inadmissible because Jensen 

had no opportunity to cross-examine Julie.

¶4 The State appealed and we affirmed, applying Crawford

and the United States Supreme Court's subsequent decision, Davis 

v. Washington, 547 U.S. 813 (2006).5 Jensen I, 299 Wis. 2d 267. 

Davis set out what has come to be known as the "primary purpose 

test": a statement is testimonial if its primary purpose is "to 

establish or prove past events potentially relevant to later 

criminal proceedings." 547 U.S. at 822. The Court explained 

that although statements made in response to police questioning 

are generally testimonial, such statements are nontestimonial if 

their primary purpose is to help the police "meet an ongoing 

emergency." Id. at 822. Applying that test, we determined in 

 

5 Unless otherwise noted, all references to Davis v. 

Washington, 547 U.S. 813 (2006), are also references to Hammon 

v. Indiana, which the Court consolidated with Davis.
No. 2018AP1952-CR 

4

Jensen I that the primary purpose of Julie's statements was not 

to help the police resolve an active emergency but to 

"investigate or aid in prosecution in the event of her death." 

Jensen I, 299 Wis. 2d 267, ¶¶27, 30. Thus, under Crawford and 

Davis's interpretation of the Confrontation Clause, Julie's 

statements were inadmissible. Id., ¶34.

¶5 We remanded the cause to the circuit court to 

determine whether Julie's statements were nevertheless 

admissible under the forfeiture-by-wrongdoing doctrine, which we 

adopted in Jensen I. See id., ¶¶2, 52. At the time, that

doctrine stated that a defendant forfeits his constitutional 

right to confront a witness when the defendant caused that 

witness's unavailability. See id., ¶57. On remand, the circuit 

court found that the State had shown by a preponderance of the 

evidence that Jensen caused Julie's unavailability. Therefore, 

the Confrontation Clause notwithstanding, Julie's statements 

were admissible after all. Relying at least in part on those 

statements, a jury convicted Jensen of Julie's murder.

¶6 Jensen again appealed. State v. Jensen

(Jensen II), 2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482. 

While that appeal was pending, the United States Supreme Court 

decided another case directly affecting Jensen, Giles v. 

California, 554 U.S. 353 (2008). There, the Court refined the 

forfeiture-by-wrongdoing doctrine, holding that it applies only 

when the defendant caused the witness's unavailability with the 

specific intent of preventing the witness from testifying. See

id. at 361-68. In Jensen II, the court of appeals "assum[ed]" 
No. 2018AP1952-CR 

5

that Jensen had not killed Julie specifically to keep her from 

testifying at trial; therefore, under Giles, Jensen had not 

forfeited his Confrontation Clause rights and the circuit court 

had erred in admitting Julie's statements. But the court of 

appeals also held that the circuit court's error was harmless,

given the "voluminous" other evidence supporting the jury's 

guilty verdict. See Jensen II, 331 Wis. 2d 440, ¶35.

¶7 That harmless error conclusion formed the basis for 

Jensen's federal habeas corpus litigation.6 There, the federal 

courts agreed with Jensen that it was not harmless error to 

admit Julie's testimonial statements in violation of the 

Confrontation Clause. Jensen v. Schwochert, No. 11-C-0803, 2013 

WL 6708767 (E.D. Wis. Dec. 18, 2013), aff'd, Jensen v. 

Clements, 800 F.3d 892, 908 (7th Cir. 2015) (holding that was it 

was "beyond any possibility for fairminded disagreement" that 

admitting Julie's statements "had a substantial and injurious 

effect" on the jury's verdict (quoted source omitted)). 

Concluding that the Wisconsin court of appeals' decision in 

Jensen II was an "unreasonable application of clearly 

established federal law," the federal court ordered Jensen's 

conviction vacated. Schwochert, 2013 WL 6708767, at *16-17. 

The State immediately initiated new proceedings against Jensen.

 

6 We denied Jensen's petition for review regarding 

Jensen II. See Jensen v. Schwochert, No. 11-C-0803, 2013 

WL 6708767, at *5 (E.D. Wis. Dec. 18, 2013), aff'd, Jensen v. 

Clements, 800 F.3d 892 (7th Cir. 2015).
No. 2018AP1952-CR 

6

¶8 In this new pretrial period, Jensen filed a motion to 

exclude Julie's statements, per our holding in Jensen I. The 

State urged the circuit court to address anew whether Julie's 

statements were admissible, arguing that the United States 

Supreme Court had since "narrowed" the definition of 

"testimonial" to such a degree that the circuit court was not 

bound by Jensen I. The circuit court agreed. It explained that 

"a lot has happened" since Jensen I and that "based upon the law 

that we have today," Julie's statements were not testimonial. 

The circuit court reached that conclusion by "applying the 

factors in Ohio v. Clark, the more recent cases including 

Michigan v. Bryant, and other cases that came out since Crawford 

v. Washington and Jensen I."7 The State then moved the circuit 

court to forgo a new trial and reinstate Jensen's original 

conviction and life sentence on the grounds that, if Julie's 

statements were again admissible, the evidence now was identical 

to that in Jensen's first trial. The circuit court granted the 

State's motion. Jensen appealed.

¶9 The court of appeals reversed, holding that neither it 

nor the circuit court was "at liberty to decide" that Julie's 

statements were nontestimonial, given our holding in Jensen I. 

State v. Jensen (Jensen III), No. 2018AP1952-CR, unpublished 

slip op., at 12 (Wis. Ct. App. Feb. 26, 2020). The court of 

 

7 The circuit court noted, incorrectly, that Davis (and 

Hammon) was decided after Jensen I. Not only was Davis decided 

before Jensen I but in Jensen I we expressly followed Davis. 

See State v. Jensen (Jensen I), 2007 WI 26, ¶19, 299 

Wis. 2d 267, 727 N.W.2d 518.
No. 2018AP1952-CR 

7

appeals explained that under Cook v. Cook, 208 Wis. 2d 166, 560 

N.W.2d 246 (1997), this court is the only one with the power to 

modify or overrule one of our previous decisions. The court of 

appeals concluded that, because we have never modified or 

overruled Jensen I, the circuit court erred in finding Julie's 

statements admissible and, in turn, failing to hold a new trial. 

It then remanded the cause "for a new trial at which Julie's 

letter and [voicemails] may not be admitted into evidence." Id. 

Having decided Jensen's appeal under Cook, the court of appeals 

declined to address Jensen's other challenges, including claims 

that the circuit court judge was biased against him and that the 

circuit court violated the federal court's habeas order by 

reinstating his conviction without a trial.

¶10 We granted the State's petition for review of the 

following three issues: (1) whether the court of appeals erred 

in reviewing the circuit court's decision under Cook instead of 

the law of the case; (2) if so, whether the circuit court 

permissibly deviated from the law of the case and correctly 

determined that Julie's statements are nontestimonial hearsay; 

and (3) whether we should remand the cause to the court of 

appeals to decide Jensen's remaining challenges.

¶11 Although we agree with the court of appeals' ultimate 

conclusion that the circuit court is bound by Jensen I, we hold 

that the court of the appeals erred in relying on Cook to reach 

that decision. In Cook, we held that the court of appeals has 

no power to overrule, modify, or withdraw language from one of 

its own published decisions; only this court has that power.
No. 2018AP1952-CR 

8

See Cook, 208 Wis. 2d at 189. The issue here, however, is about 

the law of the case, to which Cook does not apply. Accordingly, 

we modify the court of appeals' decision to the extent it relies 

on Cook. Our analysis proceeds under the doctrine of the law of 

the case.

II

¶12 Whether a decision establishes the law of the case is 

a question of law that we review de novo. State v. Stuart

(Stuart I), 2003 WI 73, ¶20, 262 Wis. 2d 620, 664 N.W.2d 82. 

Although lower courts have the discretion to depart from the law 

of the case when a "controlling authority has since made a 

contrary decision of the law," State v. Brady, 130 

Wis. 2d 443, 448, 388 N.W.2d 151 (1986), whether such a contrary 

decision has been made is a question of law that we review de 

novo. See Kocken v. Wis. Council, 2007 WI 72, ¶¶25-26, 301 

Wis. 2d 266, 732 N.W.2d 828.

¶13 The law of the case is a "longstanding rule" that 

requires courts to adhere to an appellate court's ruling on a 

legal issue "in all subsequent proceedings in the trial court or 

on later appeal." Stuart I, 262 Wis. 2d 620, ¶23 (quoting 

Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435 

N.W.2d 234 (1989)). The rule ensures stability for litigants 

and reinforces the finality of a court's decisions. See Univest 

Corp., 148 Wis. 2d at 37-38. Courts in subsequent proceedings 

should therefore "be loathe" to revisit an appellate court's 

decision absent "extraordinary circumstances." Christianson v. 

Colt Indus. Oper. Corp., 486 U.S. 800, 817 (1988). That 
No. 2018AP1952-CR 

9

admonition aside, absolute adherence to the law of the case is 

not required. As is relevant here, lower courts may depart from 

the initial decision if "a controlling authority has since made 

a contrary decision of the law" on the same issue.8 Stuart I, 

262 Wis. 2d 620, ¶24 (quoting Brady, 130 Wis. 2d at 448).

¶14 Our analysis thus proceeds in two parts. First, we 

determine which case established the law of the case that 

Julie's statements are testimonial hearsay. Second, we analyze 

whether a controlling court has since issued a contrary decision 

on the same point of law.

A

¶15 The parties largely agree that Jensen I established 

the law of the case. Jensen also argues that either federal 

habeas case, Schwochert or Clements, could establish the law of 

the case because both concluded that admitting Julie's 

statements violated the Confrontation Clause. But a federal 

habeas proceeding cannot establish the law of the case because 

it "is not a subsequent stage of the underlying criminal 

proceedings; it is a separate civil case." E.g., Edmonds v. 

Smith, 922 F.3d 737, 739 (6th Cir. 2019). Therefore, Jensen I

 

8 Courts may also depart from the law of the case in two 

other situations: when the evidence at a subsequent trial is 

"substantially different" than that at the initial trial; and 

when following the law of the case would result in a "manifest 

injustice." See State v. Stuart, 2003 WI 73, 262 

Wis. 2d 620, 664 N.W.2d 82. Neither of those situations applies 

here.
No. 2018AP1952-CR 

10

is the only decision establishing the law of the case that 

Julie's hearsay statements are testimonial.9

B

¶16 We next analyze whether the current law regarding the 

admissibility of testimonial hearsay is contrary to that relied 

upon in Jensen I. We decided Jensen I under both Crawford and 

Davis. Therefore, we must determine whether the United States 

Supreme Court has since contradicted Crawford or Davis. See

State v. Stuart (Stuart II), 2005 WI 47, ¶3 n.2, 279 

Wis. 2d 659, 695 N.W.2d 259. As Jensen's Confrontation Clause 

issue arises under the federal Constitution, we are bound by the 

United States Supreme Court's jurisprudence interpreting that 

clause. See, e.g., State v. Delebreau, 2015 WI 55, ¶43, 362 

Wis. 2d 542, 864 N.W.2d 852.

¶17 Since Jensen I, the United States Supreme Court has 

decided two cases that address the definition of testimonial 

hearsay: Michigan v. Bryant, 562 U.S. 344 (2011), and Ohio v. 

Clark, 576 U.S. 237 (2015). The State argues that Bryant and 

Clark narrowed the definition of "testimonial" so extensively 

that Jensen I no longer applies, thereby allowing the circuit 

 

9 Even if Schwochert or Clements could establish the law of 

the case, our conclusion would be the same because both agreed 

with our holding in Jensen I that Julie's statements are 

testimonial hearsay. See Schwochert, 2013 WL 6708767, at *17

("Jensen's rights under the Confrontation Clause of the Sixth 

Amendment were violated when the trial court admitted" Julie's 

statements); Clements, 800 F.3d at 908 (adding that "there is no 

doubt that" admitting Julie's statements violated "Jensen's 

rights under the Confrontation Clause").
No. 2018AP1952-CR 

11

court to re-evaluate Julie's statements and conclude that they 

are admissible nontestimonial statements. Jensen counters that 

neither Bryant nor Clark altered the Confrontation Clause

analysis set forth in Crawford and Davis in any way that 

undermines our reasoning in Jensen I.

¶18 We agree with Jensen. At the time we decided 

Jensen I, the Confrontation Clause barred the admission at trial 

of an unavailable witness's hearsay statement that the defendant 

had no prior meaningful opportunity to cross-examine and that 

was made for the primary purpose of creating prosecutorial 

evidence. Bryant and Clark represent developments in applying 

the primary purpose test, but neither is contrary to it.

1

¶19 Prior to Crawford, an unavailable witness's hearsay 

statement was admissible under the Confrontation Clause if it 

met a certain "reliability" threshold. See Ohio v. Roberts, 448 

U.S. 56, 66 (1980). A statement met that threshold if it fell 

within a "firmly rooted hearsay exception" or if it bore some 

other "indicia of reliability." Id. The United States Supreme 

Court had read traditional hearsay rules and the Confrontation 

Clause as somewhat redundant, reasoning that "certain hearsay 

exceptions rest upon such solid foundations that admission of 

virtually any evidence within them comports with" the 

Confrontation Clause. See id.

¶20 Crawford "fundamentally change[d]" that analysis. 

Jensen I, 299 Wis. 2d 267, ¶14. Crawford first focused the 

scope of the Confrontation Clause analysis on the circumstances 
No. 2018AP1952-CR 

12

in which one makes a statement, explaining that the Constitution 

is "acute[ly]"——but not exclusively——concerned with "formal 

statement[s] to government officers" rather than "casual 

remark[s] to an acquaintance." Crawford, 541 U.S. at 51. The 

Court then turned to the statement itself, holding that the 

Confrontation Clause's application to an unavailable witness's 

hearsay statement turns on two key factors: the statement's 

purpose and whether the statement had been "tested" on crossexamination. Id. at 50-56.10

¶21 On the former, Crawford held that the Confrontation 

Clause applied only to statements that are "testimonial," which 

it defined as a statement "made for the purpose of establishing 

or proving some fact." Id. at 51 (quoted source omitted). The 

Court declined, however, to "spell out a comprehensive 

definition of 'testimonial.'" Id. at 68; see also Davis, 547 

U.S. at 822 (declining to "produce an exhaustive classification 

of all conceivable statements"). Rather, it identified three 

broad "formulations" of testimonial statements: (1) "ex parte 

in-court testimony," such as "prior testimony that the defendant 

was unable to cross-examine"; (2) out-of-court statements 

"contained in formalized testimonial materials," such as an 

 

10 Before Crawford, cross-examination was but one method of 

proving that a testimonial hearsay statement was acceptably 

reliable. See Ohio v. Roberts, 448 U.S. 56, 70-73 (1980); 

Mancusi v. Stubbs, 408 U.S. 204, 216 (1972). But Crawford went 

further, holding that a prior opportunity for meaningful crossexamination was the only way to show that a testimonial hearsay 

statement was sufficiently reliable under the Confrontation 

Clause. Crawford v. Washington, 541 U.S. 36, 55-56 (2004).
No. 2018AP1952-CR 

13

affidavit or a deposition; and (3) "statements that were made 

under circumstances [that] would lead an objective witness 

reasonably to believe that the statement would be available for 

use at a later trial." Crawford, 541 U.S. at 51-52 (quoted 

sources omitted). Putting these factors together, but again 

declining to limit its holding to the specific facts in 

Crawford, the Court held that, "at a minimum," the definition of 

"testimonial" includes prior testimony and a statement made 

during police interrogation. Id. at 68.

¶22 In Davis and its companion case, Hammon, however, the 

Court explained that not all statements to police are 

testimonial. There, the Court analyzed statements made to 

police during their response to two domestic violence incidents. 

It applied Crawford to both situations, but factual differences 

between the two cases led the Court to divergent conclusions. 

In Davis, the victim told the 911 operator that Davis was 

"jumpin' on [her] again" and beating her with his fists. She 

"described the context of the assault" and gave the 911 operator 

other identifying information about Davis. Davis, 547 U.S. 

at 817-18. In Hammon, the police had responded to a report of 

domestic violence, finding the victim on the front porch and 

Hammon inside the house. The victim allowed the police to go

inside, where they first questioned Hammon and then her. At the 

end of that questioning, the victim "fill[ed] out and sign[ed] a 

battery affidavit" in which she explained that Hammon broke a 

glass heater, pushed her into the broken glass, hit her in the 
No. 2018AP1952-CR 

14

chest, damaged her van so that she could not leave, and attacked 

her daughter. Id. at 819-21.

¶23 The Court held that the victim's statements in Davis

were not testimonial because their primary purpose was to 

"enable police assistance with an ongoing emergency." Id.

at 828. The Court differentiated these "frantic" statements, 

made "as they were actually happening" and while the victim was 

"in immediate danger," from those in Crawford, which were made 

"hours after the events . . . described had occurred." Id.

at 827, 831 (emphasis removed). The statements also helped the 

police "assess the situation, the threat to their own safety, 

and possible danger to the potential victim." Id. at 832 

(quoting Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177, 186

(2004)). Thus, the victim "simply was not . . . testifying" 

because "[n]o 'witness' goes into court to proclaim an 

emergency." Id. at 828.

¶24 The Court reached the opposite conclusion in Hammon. 

There, it held that the victim's statements were testimonial 

because their primary purpose was to provide a "narrative of 

past events." Id. at 832. Even though Hammon was present while 

the police took the victim's statements, there "was no emergency 

in progress." Id. at 829. Her statements did not describe what 

was happening at that very moment, as in Davis, but rather what 

happened before the police arrived. Id. at 830.

¶25 We decided Jensen I by analyzing Julie's statements 

under the primary purpose test as explained in Davis. See

Jensen I, 299 Wis. 2d 267, ¶¶18-19. We must therefore examine 
No. 2018AP1952-CR 

15

the United States Supreme Court's more recent decisions in 

Bryant and Clark to determine if either decision is contrary to 

that test, thereby justifying the circuit court's departure from 

Jensen I.

2

¶26 The Court's main task in Bryant was to clarify what it 

means, outside of Davis's specific factual context, for a 

statement to have the primary purpose of "enabl[ing] police 

assistance to meet an ongoing emergency." See Bryant, 562 U.S. 

at 359 (quoting Davis, 547 U.S. at 822). Indeed, the Court 

noted that it "confront[ed] for the first time circumstances in 

which the 'ongoing emergency' discussed in Davis extends beyond 

an initial victim to a potential threat to the responding police 

and the public at large." Id. In Bryant, the police found the 

victim, Covington, at a gas station bleeding badly from a 

gunshot wound and having trouble speaking. They asked Covington 

who shot him and where the shooting occurred. Covington told 

the police that Bryant shot him through the back door of 

Bryant's house. Covington was then taken to a hospital, where 

he died a few hours later. Id. at 349-50. The Michigan Supreme 

Court held that Covington's statements were inadmissible 

testimonial hearsay similar to those in Hammon because he made 

them after the shooting occurred and the police did not 

"perceive[] an ongoing emergency at the gas station." Id.

at 351.

¶27 The United States Supreme Court reversed. It held

that the primary purpose of Covington's statements was to help 
No. 2018AP1952-CR 

16

the police resolve an ongoing emergency, because when the police 

arrived on the scene, they did not know whether the person who 

shot Covington posed an ongoing threat to the public. Id.

at 371-72. Covington's behavior——profusely bleeding from the 

stomach, repeatedly asking when an ambulance would arrive, 

having difficulty breathing——objectively revealed that he was 

answering the officers' questions only to give them information 

about what might be an active-shooter scenario. Id. at 373-74. 

Other evidence supporting that conclusion included the fact 

that, like the 911 call in Davis, Covington's statements were 

"harried" and made during a "fluid and somewhat confused" 

situation. Id. at 377. Because the primary purpose of the 

statements was to help the police resolve an ongoing emergency, 

they were not testimonial.

¶28 In reaching that conclusion, Bryant emphasized that 

the test for determining a statement's primary purpose is an 

objective one. Id. at 360. When deciding whether a statement 

is made to assist the police in resolving an ongoing emergency, 

courts must consider the overall circumstances in which the 

statement is made, such as whether the statement is made near 

the scene of the crime or later at the police station. Id.

at 360–61. Ultimately, the crux of the inquiry is whether the 

statement is made to "end[] a threatening situation" (not 

testimonial) or to "prove[] past events potentially relevant to 

later criminal prosecution" (testimonial). Id. at 361 (quoting 

Davis, 547 U.S. at 822, 832). On that point, the Court 
No. 2018AP1952-CR 

17

cautioned against construing Davis's "ongoing emergency" 

definition too narrowly:

Domestic violence cases like Davis and Hammon often 

have a narrower zone of potential victims than cases 

involving threats to public safety. An assessment of 

whether an emergency that threatens the police and 

public is ongoing cannot narrowly focus on whether the 

threat solely to the first victim has been neutralized 

because the threat to the first responders and public 

may continue.

Id. at 363–64.

¶29 Bryant also reminded courts that whether an ongoing 

emergency exists is only one factor for determining a 

statement's primary purpose. Id. at 366. Other factors are 

also relevant, such as the statements and actions of both the 

declarant and the interrogators and formality of the encounter. 

Id. at 366-67. But just as formal police interrogations do not 

always produce testimonial statements, informal questioning 

"does not necessarily indicate . . . the lack of testimonial 

intent." Id. at 366; see also Davis, 547 U.S. at 822 & n.1. 

Courts must objectively analyze the declarant's and the 

interrogator's "actions and statements." Bryant, 562 U.S. 

at 367-68. The Court noted that this approach was the one it 

"suggested in Davis" when it first articulated that statements 

made to resolve an ongoing emergency are not testimonial. Id.

at 370.

3

¶30 Whereas Bryant's contextual analysis focused on the 

person making the statement, Clark focused on the person to whom 
No. 2018AP1952-CR 

18

the statement was made. In Clark, the Court was asked to 

resolve "whether statements to persons other than law 

enforcement officers are subject to the Confrontation 

Clause." 576 U.S. at 246. There, Clark had been convicted of 

assaulting his girlfriend's three-year-old child due, in part, 

to statements the child made to his teachers identifying Clark 

as his abuser. The child made those statements in response to 

his teachers' inquiries about visible injuries on his body. 

Concerned that the child was being abused, the teachers asked 

him questions "primarily aimed at identifying and ending the 

threat" of potentially letting him go home that day with his 

abuser. Id. at 247. When the teachers were questioning the 

child, their objective was "to protect" him, "not to arrest or 

punish his abuser"; they "were not sure who had abused him or 

how best to secure his safety." Id.

¶31 The Court held that the Confrontation Clause applied 

to "at least some statements made to individuals who are not law 

enforcement," but not the child's statements here. Id. at 246. 

Reiterating Bryant's guidance to consider all of the relevant 

circumstances, the Court explained that "[c]ourts must evaluate 

challenged statements in context, and part of that context is 

the questioner's identity." Id. at 249 (explaining that it is 

"common sense that the relationship between a student and his 

teacher is very different from that between a citizen and the 

police"). The Court then considered "all the relevant 

circumstances," including the child's age, the school setting, 

the teachers' objective, and the overall informality of the 
No. 2018AP1952-CR 

19

situation, and concluded that the primary purpose of the child's 

statements was not to "creat[e] evidence" for Clark's 

prosecution. Id. at 246. Although the Court again "decline[d] 

to adopt a categorical rule" on the issue, id., it pointed out 

that statements by someone as young as this child "will rarely, 

if ever, implicate the Confrontation Clause," id. at 248.

C

¶32 Bryant and Clark neither contradicted Crawford or 

Davis nor drastically altered the Confrontation Clause analysis. 

Given that both Crawford and Davis declined to 

"comprehensive[ly]" define "testimonial statement," it was 

inevitable that future cases like Bryant and Clark would further 

refine that term. See Crawford, 541 U.S. at 68; Davis, 547 U.S. 

at 821-22. In the "new context" of a potential threat to the 

responding police and the public at large, Bryant "provide[d] 

additional clarification with regard to what Davis meant by 'the 

primary purpose of the interrogation is to enable police 

assistance to meet an ongoing emergency.'" Bryant, 562 U.S.

at 359. Similarly, in Clark, the Court applied the primary 

purpose test to answer a question it had "repeatedly 

reserved: whether statements made to persons other than law 

enforcement officers are subject to the Confrontation Clause." 

Clark, 576 U.S. at 246.

¶33 The Court's own reflections on its post-Crawford

decisions demonstrate that it did not see those decisions as 

contradicting Crawford or Davis but rather as efforts to "flesh 

out" the test it first articulated there. See id. at 243-46; 
No. 2018AP1952-CR 

20

see also id. at 252 (Scalia, J., concurring) (plainly stating 

in 2015 that Crawford "remains the law"). Federal courts of 

appeals' interpretations of Bryant and Clark confirm that 

progression. See, e.g., United States v. Norwood, 982 

F.3d 1032, 1043-44 (7th Cir. 2020); Issa v. Bradshaw, 910 

F.3d 872, 876 (6th Cir. 2018); United States v. Lebeau, 867 

F.3d 960, 980 (8th Cir. 2017). The Seventh Circuit Court of 

Appeals, for instance, recently noted that Bryant "further 

elaborated" on Davis's ongoing emergency analysis by "ma[king] 

clear that the totality of the circumstances guides the primary 

purpose test, not any one factor." Norwood, 982 F.3d at 1043-44 

(emphasis removed). That court has likewise cited Clark as a 

continuation in the primary purpose test's development. See, 

e.g., United States v. Amaya, 828 F.3d 518, 528-29, 529 n.4 (7th 

Cir. 2016).

¶34 Our recent jurisprudence also reveals that Crawford

and Davis——and therefore our analysis in Jensen I——have not been 

contradicted. Even after Bryant and Clark, we continue to cite 

Crawford and Davis in resolving whether an unavailable witness's 

statement is testimonial. See State v. Reinwand, 2019 WI 25, 

¶¶19-22, 385 Wis. 2d 700, 924 N.W.2d 184; State v. Nieves, 2017 

WI 69, ¶¶26-29, 376 Wis. 2d 300, 897 N.W.2d 363; State v. 

Zamzow, 2017 WI 29, ¶13, 374 Wis. 2d 220, 892 N.W.2d 367; State 

v. Mattox, 2017 WI 9, ¶¶24-25, 373 Wis. 2d 122, 890 N.W.2d 256. 

Even more to the point, on the limited occasions we have cited 

Bryant or Clark, we have interpreted them as continuing to apply 

the primary purpose test. See Reinwand, 385 Wis. 2d 700, 
No. 2018AP1952-CR 

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¶¶22, 24; Mattox, 373 Wis. 2d 122, ¶32 ("Clark reaffirms the 

primary purpose test"). We have never interpreted Bryant or 

Clark to be a departure from Crawford or Davis, much less the 

type of drastic departure required to justify deviating from the 

law of the case.

¶35 In some ways, Jensen I anticipated Bryant and Clark. 

For instance, we decided Jensen I by not only analyzing the 

content of Julie's statements but also objectively evaluating 

the relevant "circumstances" under which she made them. 

Jensen I, 299 Wis. 2d 267, ¶¶26-30. That is what the United 

States Supreme Court held in Bryant. See 562 U.S. at 359 

(requiring courts to "objectively evaluate the circumstances" 

surrounding the statement's creation when determining its 

primary purpose). In Jensen I, we rejected the State's argument 

that "the government needs to be involved in the creation of the 

statement" for that statement to be testimonial. See

Jensen I, 299 Wis. 2d 267, ¶24. This mirrors the holding in 

Clark. See 576 U.S. at 246 (recognizing that "at least some 

statements to individuals who are not law enforcement officers 

could conceivably raise confrontation concerns"). Far from 

being contrary to Jensen I, Bryant and Clark are consistent with 

it.

IV

¶36 Our decision in Jensen I that Julie's statements 

constituted testimonial hearsay established the law of the case. 

Subsequent developments in the law on testimonial hearsay are 

not contrary to Jensen I. Therefore, the circuit court was not 
No. 2018AP1952-CR 

22

permitted to deviate from our holding in Jensen I. Accordingly, 

we affirm the court of appeals' decision. We modify that 

decision, however, to the extent that the court of appeals 

incorrectly relied upon Cook.

By the Court.—The decision of the court of appeals is 

modified, and as modified, affirmed.
No. 2018AP1952-CR.jjk

1

¶37 JILL J. KAROFSKY, J. (concurring). I join the 

majority opinion, with the exception of ¶35, because I agree 

that our decision in Jensen I that Julie's statements 

constituted testimonial hearsay established the law of the case

and a controlling court has not issued a contrary decision on 

the same point of law. State v. Jensen (Jensen I), 2007 WI 26, 

299 Wis. 2d 267, 727 N.W.2d 518. I write separately, however,

because I disagree with the majority's assertion that the Jensen 

I court "objectively evaluat[ed] the relevant 'circumstances'

under which she made [her statements]." Majority op., ¶35. In 

other words, I conclude that the Jensen I court completely 

failed to consider the context in which Julie made her 

statements. 

¶38 Had this court in Jensen I truly considered that 

context, it would have recognized that Julie was undeniably a 

victim of domestic abuse and that prior to her death she lived 

in terror born of the unimaginable fear that her husband was 

going to kill her and claim that her death was a suicide. It 

was under these circumstances that she left two voicemails for 

Pleasant Prairie Police Officer Ron Kosman and wrote a letter 

which she gave to a neighbor with instructions to give it to the 

police should anything happen to her. 

¶39 This writing begins with a discussion of domestic 

abuse and how Crawford v. Washington, 541 U.S. 36 (2004),

impacted the prosecution of domestic abuse cases. Next, I 

summarize the United States Supreme Court's decisions in 

Crawford, Davis v. Washington, 547 U.S. 813 (2006), and Davis'
No. 2018AP1952-CR.jjk

2

companion case, Hammon v. Indiana. I follow with an examination 

of Jensen I, since it was decided less than a year after Davis

and Hammon, and with a discussion of three cases from the United 

States Supreme Court and this court that were decided 

post-Jensen I. This case overview reveals how the United States 

Supreme Court and this court have increasingly given weight to

context when assessing whether the hearsay statement of an 

unavailable witness is testimonial in nature. Next, to assist 

future courts in assessing context, I supply a non-exhaustive 

list of contextual questions based off the previously summarized 

cases. Finally, I conclude this concurrence with a discussion 

of assessing context in domestic abuse cases and an objective 

evaluation of the circumstances under which Julie made her 

statements. 

I. DOMESTIC ABUSE AND VICTIMLESS PROSECUTION

¶40 Domestic abuse, or interpersonal violence, is a 

significant public health issue. About one in four women and 

one in seven men have experienced an act of physical violence 

from an intimate partner in their lifetime. Caitlin Valiulis, 

Domestic Violence, 15 Geo. J. Gender & L. 123, 124 (2014). In 

addition, and far more sobering, the nation's crime data 

suggests that over half of female homicide victims in the United 

States are killed by a current or former intimate partner. See

Natalie Nanasi, Disarming Domestic Abusers, 14 Harv. L. & Pol'y 

Rev. 559, 563 & n.16 (2020) (citing statistics from the Center 

for Disease Control and Prevention regarding the role of 

intimate partner violence).
No. 2018AP1952-CR.jjk

3

¶41 To counteract this public health issue, prosecutors 

have worked to hold abusers accountable. This is often a 

difficult, if not impossible, task because abusers' actions 

often render their victims unavailable to testify. Beginning in 

the mid-1990s, prosecutors pursued these so-called "victimless" 

prosecutions by seeking to introduce reliable evidence using 

victims' out-of-court statements through 911 operators, medical 

professionals, social workers, and law enforcement officers. 

See Andrew King-Ries, Crawford v. Washington: The End of 

Victimless Prosecution?, 28 Seattle U. L. Rev. 301 (2005). 

Victim advocates and prosecutors applauded this approach because 

it maintained victims' safety and avoided retraumatization. Id. 

This practice, however, came to a screeching halt after the 

United States Supreme Court's decision in Crawford,1 in which the 

Court profoundly altered the analysis as to when an unavailable 

witness's hearsay statement is admissible under the 

Confrontation Clause of the Sixth Amendment. 

 

1 In a 2004 survey of 64 prosecutors' offices in California, 

Oregon, and Washington, 63 percent of respondents reported that 

Crawford v. Washington, 541 U.S. 36 (2004) had significantly 

impeded domestic violence prosecution. Tom Lininger, 

Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 750

(2005). Further, 76 percent of respondents indicated that after 

Crawford their offices were more likely to dismiss domestic

violence charges when the victims refused to cooperate or were 

unavailable. Id. at 773.
No. 2018AP1952-CR.jjk

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II. PRECEDENT FROM THE UNITED STATES SUPREME COURT 

ABOUT NONTESTIMONIAL HEARSAY

¶42 In Crawford, the United States Supreme Court 

fundamentally changed the analysis regarding the admissibility 

of an out-of-court witness's statement by deciding that when 

such a statement is testimonial in nature, the witness must

testify and face cross-examination. 541 U.S. at 68. 

Consequently, if that witness is unavailable, his or her 

testimony will be excluded. Id. The Crawford Court did not 

further explain what it meant by "testimonial." Writing for the 

majority, Justice Scalia reasoned:

Where testimonial evidence is at issue, however, the 

Sixth Amendment demands what the common law required: 

unavailability and a prior opportunity for crossexamination. We leave for another day any effort to 

spell out a comprehensive definition of 'testimonial.' 

Whatever else the term covers, it applies at a minimum 

to prior testimony at a preliminary hearing, before a 

grand jury, or at a former trial; and to police 

interrogations.

Id. (Footnote omitted.)

¶43 The United States Supreme Court first applied its 

reasoning in Crawford to situations of domestic abuse in Davis 

and Hammon. In doing so, the Court created a primary-purpose 

test to determine whether or not a statement is testimonial. In 

short, the test is designed to ascertain whether the primary 

purpose of an interrogation is to enable police to meet an 

ongoing emergency. Statements are "testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is 

to establish or prove past events potentially relevant to later 

criminal prosecution." Davis, 547 U.S. at 822.
No. 2018AP1952-CR.jjk

5

¶44 In Davis, the Court analyzed a 911 call in which the 

victim reported that Davis was "jumpin' on [her] again" and 

beating her with his fists. Id. at 817. The victim also 

"described the context of the assault" and gave identifying 

information about Davis. Id. at 818. The Court held that these 

statements were admissible because their primary purpose was to 

"enable police assistance to meet an ongoing emergency." Id. at 

828.2 The Court distinguished this statement from the one at 

issue in Crawford, reasoning that the statements were made "as 

they were actually happening" and while the victim was "in 

immediate danger." Id. at 827, 831 (emphasis in original). The 

Court also determined that the statements were helpful to the 

police because they allowed them to assess any potential threats 

towards them or the victim. Id. at 832. In sum, the Court 

decided that the victim was not testifying because "[n]o 

'witness' goes into court to proclaim an emergency and seek 

help." Id. at 828.

 

2 The Davis Court described these statements as "frantic," 

547 U.S. at 827, a word that connotes a lack of thought or good 

judgment. This type of language is emblematic of the obstacles 

domestic abuse victims face in effectively conveying the truth 

of their experiences to institutional gatekeepers. "[D]omestic 

violence complainants can find themselves in a double bind. The 

symptoms of their trauma—the reliable indicators that abuse has 

in fact occurred—are perversely wielded against their own 

credibility in court. [Post-traumatic stress disorder] symptoms 

can . . . contribute to credibility discounts that may be 

imposed by police, prosecutors, and judges." Deborah Epstein & 

Lisa A. Goodman, Discounting Women: Doubting Domestic Violence 

Survivors' Credibility and Dismissing Their Experiences, 167 U. 

Penn. L. Rev. 399, 422 (2019).
No. 2018AP1952-CR.jjk

6

¶45 The Court reached a different conclusion in Hammon, in 

which police called to a domestic violence incident found the 

victim on the front porch and Hammon inside the house. Id. at 

819. As part of their investigation, the officers asked the 

victim to fill out and sign a "battery affidavit." Id. at 820. 

In filling out the affidavit, the victim described how Hammon 

broke a glass heater, pushed her into the broken glass, hit her 

in the chest, prevented her from leaving by damaging her van, 

and attacked her daughter. Id. The Court determined the 

primary purpose of this statement was to provide a "narrative of 

past events," and the Court reasoned that giving a statement 

about past events meant there was "no emergency in progress." 

Id. at 829, 832. For these reasons, the Court decided the 

victim's affidavit was inadmissible hearsay. Id. at 834.

III. JENSEN I

¶46 Shortly after the United States Supreme Court decided 

Davis and Hammon, this court determined in Jensen I that the 

primary purpose of Julie's letter was not to help the police in 

an ongoing emergency, but to "investigate or aid in prosecution 

in the event of her death." Jensen I, 299 Wis. 2d 267, ¶27. 

Additionally, the court also reasoned that the voicemails "were 

entirely for accusatory and prosecutorial purposes." Id., ¶30.

¶47 In Julie's second voicemail, she told Officer Kosman 

that she thought Jensen was going to kill her. The letter that 

Julie gave her neighbor read as follows: 

I took this picture [and] am writing this on Saturday 

11-21-98 at 7AM. This 'list' was in my husband's 

business daily planner—not meant for me to see, I 

don't know what it means, but if anything happens to 
No. 2018AP1952-CR.jjk

7

me, he would be my first suspect. Our relationship 

has deteriorated to the polite superficial. I know 

he's never forgiven me for the brief affair I had with 

that creep seven years ago. Mark lives for work [and] 

the kids; he's an avid surfer of the Internet.... 

Anyway—I do not smoke or drink. My mother was an 

alcoholic, so I limit my drinking to one or two a 

week. Mark wants me to drink more—with him in the 

evenings. I don't. I would never take my life 

because of my kids— they are everything to me! I 

regularly take Tylenol [and] multi-vitamins; 

occasionally take OTC stuff for colds, Zantac, or 

Immodium; have one prescription for migraine tablets, 

which Mark use[s] more than I. 

I pray I'm wrong [and] nothing happens . . . but I am 

suspicious of Mark's suspicious behaviors [and] fear 

for my early demise. However, I will not leave David 

[and] Douglas. My life's greatest love, 

accomplishment and wish: "My 3 D's"—Daddy (Mark), 

David [and] Douglas. 

Id., ¶7.

¶48 Although the record in this case was replete with 

references to domestic abuse and the Jensen I majority took 

great pains to explain that it reached its decision by examining 

"[t]he content and the circumstances surrounding the letter" and 

applied the same reasoning to the voicemails, id., ¶27, nowhere 

in the majority opinion, not even in a passing phrase or 

fleeting word, did this court acknowledge that Julie was the 

victim of domestic abuse. Instead, employing an ill-suited

analogy, the majority compared Julie's letter and voicemails to 

Lord Cobham's letter at Sir Walter Raleigh's trial for treason. 

Id., ¶29. Drawing a parallel between a 1603 treason trial—where 

Cobham, the missing (but still very much alive) accomplice, 

wrote a letter maintaining his innocence while accusing Raleigh—

and a 1998 domestic homicide makes for a particularly inapt 
No. 2018AP1952-CR.jjk

8

analogy; it draws a comparison remote in time, place, content, 

and circumstance in every possible aspect.

IV. POST-JENSEN I

¶49 Post-Jensen I, the United States Supreme Court issued 

two decisions that further illuminated the import of assessing 

context when courts are determining the primary purpose of an 

unavailable witness's hearsay statement, Michigan v. Bryant, 562 

U.S. 344 (2011), and Ohio v. Clark, 576 U.S. 237 (2015). In 

Bryant, the police found a gunshot victim at a gas station. 562 

U.S. at 349. Although the victim was bleeding profusely and was 

having trouble speaking, he told police that Bryant shot him 

through the back door of Bryant's house. Id. Unfortunately, 

the victim died within hours. Id. The Bryant Court decided 

that the victim's statement was admissible because its primary 

purpose was to help the police resolve an ongoing emergency, 

especially in light of the fact that Bryant posed an ongoing 

threat to the community at large. Id. at 371-73. The Court 

emphasized that determining the primary purpose of a statement 

is an objective test and clarified that an ongoing emergency is 

only one factor to be considered. Id. at 360, 366. The Court 

outlined other important factors, including the statements and 

actions of both the declarant and the interrogators, and the 

formality of the encounter. Id. at 366-67. The court noted 

that victims may have "mixed motives" when making a statement to 

the police. Id. at 368 ("During an ongoing emergency, a victim 

is most likely to want the threat to her and to other potential 
No. 2018AP1952-CR.jjk

9

victims to end, but that does not necessarily mean that the 

victim wants or envisions prosecution of the assailant.").

¶50 Clark, 576 U.S. 237, involved a different type of 

violence in the home: child abuse. In that case, Clark was 

accused of abusing his girlfriend's three-year old son after the 

victim disclosed the abuse to a teacher who observed visible 

injuries on the boy's body. Id. at 240-41. The statements to 

the teacher were determined to be nontestimonial because the 

teacher's objective in asking questions was to protect the 

victim, not to arrest or punish his abuser. Id. at 247. The 

Clark Court reiterated the importance of context, explaining 

"[c]ourts must evaluate challenged statements in context, and 

part of that context is the questioner's identity." Id. at 249. 

In considering "all the relevant circumstances," including the 

child's age, the school setting, the teacher's objective, and 

the overarching informality of the situation, the Court 

concluded that the primary purpose of the victim's statements 

was not to "creat[e] evidence" for Clark's prosecution. Id. at 

246. Rather, the teacher's questions were intended to identify 

the abuser "to protect the victim from future attacks." Id. at 

247.

¶51 Subsequently, we interpreted Clark in Reinwand, in 

which Joseph Reinwand was convicted of first-degree intentional 

homicide for killing his daughter's former partner. State v. 

Reinwand, 2019 WI 25, 385 Wis. 2d 700, 924 N.W.2d 184. 

Reinwand's daughter and the victim were planning to mediate a 

custody dispute and in the days leading up to the mediation,
No. 2018AP1952-CR.jjk

10

Reinwand threatened to harm or kill the victim if he continued 

to seek custody. Id., ¶6. The victim reported these threats to 

family and friends, saying he was scared for his life and that

if anything happened to him, people should look to Reinwand. 

Id. A short time later, the victim was found dead in his home. 

This court looked to four relevant factors in deciding whether 

Reinwand's statements were testimonial:

(1) the formality/informality of the situation 

producing the out-of-court statement; (2) whether the 

statement is given to law enforcement or a non-law 

enforcement individual; (3) the age of the declarant;

and (4) the context in which the statement was given.

Id., ¶25 (citing State v. Mattox, 2017 WI 9, ¶32, 373 Wis. 2d 

122, 890 N.W.2d 256). 

¶52 The Reinwand court concluded that the statements were 

nontestimonial because: (1) they were given in informal 

situations, primarily inside people's houses and at an Arby's

restaurant; (2) none of the statements were given to law 

enforcement or intended for law enforcement; (3) the age of the 

victim was irrelevant; and (4) the victim's statements were made 

to friends and family and his demeanor suggested genuine concern 

because he seemed "concerned, stressed, agitated . . . and 

genuinely frightened." Id., ¶¶27-30. The court concluded that 

the victim's "demeanor suggests that he was expressing genuine 

concern and seeking advice, rather than attempting to create a 

substitute for trial testimony." Id., ¶30.

V. ASSESSING CONTEXT

¶53 The post-Crawford cases emphasized the importance of 

assessing context when courts are determining whether the 
No. 2018AP1952-CR.jjk

11

hearsay statement of an unavailable witness is testimonial. The 

following non-exhaustive list of questions summarizes the 

contextual inquiries the United States Supreme Court and this 

court made in post-Crawford cases:

 Is there an ongoing emergency? (Davis)

 Do the statements help the police assess whether there 

is a potential threat? (Davis)

 Is the victim in immediate danger? (Davis)

 Is the statement a narrative of past events? (Hammon)

 Is the statement related to an ongoing threat to the 

community at large? (Bryant)

 What's the declarant's actual statement? (Bryant)

 What are the actions of the declarant? (Bryant)

 What are the actions and statements of the 

interrogators? (Bryant)

 Are the interrogators' intentions to protect the 

victim or arrest/prosecute the abuser? (Clark)

 Is the encounter formal (at a police station) or 

informal? (Bryant)

 Was the statement given to law enforcement? (Clark)

 Were the statements intended for law enforcement? 

(Clark)

 How old is the declarant? (Clark)

 What is the relationship between the declarant and the 

suspect? (Clark)

 What was the demeanor of the declarant at the time the 

statements were made? (Reinwand)
No. 2018AP1952-CR.jjk

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 Is the statement a prediction of future events? 

(Reinwand)

VI. CONTEXT IN DOMESTIC ABUSE CASES

¶54 Applying the above considerations to situations of 

domestic abuse can be challenging because domestic abuse rarely 

takes place in a vacuum. That is, there are often multiple 

incidents and the abuse can span the course of days, weeks, 

months, or years. See, e.g., Eleanor Simon, Confrontation and 

Domestic Violence Post-Davis: Is There and Should There Be a 

Doctrinal Exception?, 17 Mich. J. Gender & L. 175, 206 (2011) 

("[A] domestic violence victim exists in a relationship defined 

by long-term, ongoing, powerful, and continuous abuse . . . it 

is illogical and impractical to attempt to find the beginning 

and end of an 'emergency' in such a context."). In addition, 

victims of domestic abuse are often afraid to report acts of 

violence, or they recant or refuse to cooperate after initially 

providing information because they fear retaliation. Id. at 

184-85. Therefore, victims may not make a report or they may 

minimize or deny incidents of abuse. It is also important to 

understand that no one knows an abuser better than the abuser's 

victim. And the most dangerous time for a victim of domestic 

abuse is when he or she decides to leave the relationship. See

Lisa A. Goodman & Deborah Epstein, Listening to Battered Women: 

A Survivor-Centered Approach to Advocacy, Mental Health, and 

Justice 76 (2008) ("Substantial data show that separation from 

the batterer is the time of greatest risk of serious violence 

and homicide for battered women and for their children.").
No. 2018AP1952-CR.jjk

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¶55 Having suggested some contextual questions and 

acknowledging the challenges of understanding context in cases 

of domestic abuse, I conclude this concurrence by objectively 

evaluating the relevant circumstances under which Julie made her 

statements, a task the majority opinion erroneously claims the 

Jensen I court did. That evaluation reveals that Julie:

 was a victim of domestic abuse;

 believed there was an ongoing emergency as she feared 

her husband was going to kill her;

 perceived herself to be in immediate danger because 

her husband was engaging in behavior that did not make 

sense to her;

 had significant safety concerns;

 was afraid her death was going to be made to look like 

a suicide;

 loved her sons;

 wanted her sons to know she did not intend to kill 

herself;

 was making a prediction about her husband's future 

behavior;

 was not questioned/interrogated in this case; and

 did not have a formal encounter in a police station.

¶56 When looking at this evidence in context, it is 

apparent that Julie was a victim of domestic abuse and that 

prior to her death she lived in terror born of the unimaginable 

fear that her husband was going to kill her and claim that her 

death was a suicide. It was under these circumstances that she 
No. 2018AP1952-CR.jjk

14

left the voicemail messages for Officer Kosman and wrote the

letter which she gave to a neighbor with instructions to give it 

to the police should anything happen to her. 

¶57 With this context in mind, we must ask: Was Julie 

making statements for the future prosecution of her husband for 

her murder? Or was she a woman trying to survive ongoing 

domestic abuse, fearing and predicting an imminent attempt on 

her life, telling her sons that she loved them too much to 

commit suicide? This is the voice——Julie's voice——that this 

court failed to acknowledge in Jensen I.

¶58 Although the law of the case prohibits this court from 

reconsidering the determinations reached by the Jensen I court, 

had the Jensen I court actually "objectively evaluat[ed] the 

relevant circumstances" surrounding Julie's statements, it would 

have recognized the atmosphere of domestic abuse that suffused 

the factual background and the relationship at the center of 

this case and possibly reached a different conclusion.

¶59 For the foregoing reasons, I concur.

¶60 I am authorized to state that Justice ANNETTE 

KINGSLAND ZIEGLER joins this concurrence.
No. 2018AP1952-CR.jjk

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