State v. Jensen

Supreme Court of Wisconsin · 2021 · Evidence

2021 WI 27

Updated August 22, 2026

EvidenceConfrontation ClauseHearsayLaw of the Casetestimonial statementsprimary purposeongoing emergencyCrawford

Facts

Before her 1998 death by poisoning, Julie Jensen wrote a letter for police and left two voicemails for a police officer stating that if she were found dead, Jensen should be investigated or treated as a suspect. In Jensen I, the Wisconsin Supreme Court held those statements were testimonial hearsay and inadmissible because Jensen had no prior opportunity to cross-examine Julie. After Jensen's conviction was later vacated in federal habeas proceedings, the circuit court concluded that later United States Supreme Court decisions had narrowed the definition of testimonial hearsay and made Julie's statements admissible. The circuit court then reinstated Jensen's prior conviction rather than conducting a new trial.

Issue

Whether the circuit court, at Jensen's new trial stage, was free to depart from Jensen I's holding that Julie's letter and voicemails were testimonial hearsay because later United States Supreme Court decisions had made contrary law. Also, whether the court of appeals correctly treated the matter as controlled by Cook rather than by the law-of-the-case doctrine.

Rule

Under the law-of-the-case doctrine, a legal issue decided by an appellate court must be followed in all subsequent proceedings in the same case unless extraordinary circumstances justify departure, including when a controlling authority has since made a contrary decision of law on the same issue. Later decisions that merely refine or further apply an existing Confrontation Clause framework do not constitute contrary law permitting a lower court to disregard the earlier appellate ruling.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a homicide prosecution in Milwaukee, the state supreme court previously held on interlocutory review that a deceased witness's recorded statement to police was testimonial and inadmissible because the defendant never had a prior opportunity to cross-examine her. After the conviction was later vacated for unrelated reasons and the case returned for retrial, the trial judge concluded that more recent United States Supreme Court cases had added nuance to the primary-purpose analysis and admitted the recording.

Was the trial judge permitted to disregard the earlier appellate ruling?

Explanation. The governing doctrine is law of the case. An appellate ruling on a legal issue binds later proceedings in the same case. A lower court may depart only in extraordinary circumstances, including when controlling authority has since made a contrary decision of law on the same issue. Later cases that merely refine or elaborate on the existing primary-purpose framework do not qualify as contrary law, so the trial judge could not revisit the earlier testimonial-hearsay ruling.