## Facts

- Julie Jensen died on December 3, 1998; the cause of death was ethylene-glycol poisoning.
- The State charged her husband, Mark D. Jensen, with first-degree intentional homicide.
- Before trial, the State sought to admit Julie’s out-of-court statements describing her fear that Jensen intended to kill her, including:
  - A letter Julie gave to a neighbor with instructions that it be delivered to police if anything happened to her.
  - Communications (including voicemails) to a police officer stating that if she were found dead, Jensen should be a suspect.
  - Oral statements to a neighbor and to her child’s teacher about her suspicions and fear.
- The circuit court ruled that the letter and police-directed statements were testimonial and inadmissible under the Confrontation Clause absent prior cross-examination, but admitted the neighbor/teacher statements as non-testimonial.
- The State appealed the exclusion of the letter and police-directed statements; Jensen cross-appealed the admission of the neighbor/teacher statements.
- The case reached the state supreme court on interlocutory review of the pretrial evidentiary order.

## Issues

1. Whether Julie Jensen’s letter and other statements were “testimonial” under the Confrontation Clause framework and thus barred absent prior cross-examination.
2. Whether the jurisdiction should recognize forfeiture by wrongdoing, and what burden of proof governs the State’s showing that the defendant caused the declarant’s unavailability.
3. Whether, if forfeiture applies, otherwise testimonial statements may be admitted despite the defendant’s confrontation objection.

## Decision

- The court affirmed the classification that the letter and police-directed statements were testimonial, while statements to the neighbor and teacher were non-testimonial.
- The court adopted the forfeiture-by-wrongdoing doctrine, holding that a defendant who causes a declarant’s unavailability loses the right to object on confrontation grounds to that declarant’s out-of-court statements.
- The court held the State must prove forfeiture by a preponderance of the evidence.
- The court reversed the circuit court’s refusal to consider forfeiture and remanded for fact-finding on whether Jensen caused Julie’s unavailability so as to forfeit confrontation objections to the testimonial statements.

## Legal Principles

- Testimonial hearsay from an unavailable declarant is inadmissible under the Confrontation Clause if the defendant had no prior opportunity to cross-examine, absent a recognized exception.
- Statements directed to law enforcement, or made with the purpose of potential use in prosecution, are testimonial; informal statements to private individuals in non-law-enforcement settings are generally non-testimonial.
- Forfeiture by wrongdoing permits admission of a declarant’s out-of-court statements when the defendant wrongfully caused the declarant’s unavailability.
- The State’s burden to establish forfeiture by wrongdoing is a preponderance of the evidence, to be determined by the trial court through appropriate fact-finding.

## Conclusion

The court held that the victim’s police-directed letter and related communications were testimonial under confrontation doctrine, but adopted forfeiture by wrongdoing (proved by a preponderance) and remanded for a determination whether the defendant caused the victim’s unavailability, which would permit admission of the testimonial statements despite confrontation objections.


State v. Jensen, 299 Wis. 2d 267, 727 N.W.2d 518 (Wis. 2007)