Just prior to the judge’s decision, the U.S. Supreme Court made a decision in the case of Crawford v Washington 541 U.S. 36 (2004) which changed the hearsay evidence law.
Previous hearsay rules of Ohio v. Roberts 448 U.S. 56, had been the standard. They were found by the U.S. Supreme Court to be arbitrary and subject to judicial discretion, with the judge deciding how they were applied, and this was unpredictable. They allowed out of court statements to be heard on a reliability finding and admitted core testimonial statements the confrontation clause meant to exclude.
Then there was Crawford in 2004 which changed the hearsay law, and held that core testimonial statements needed to be tested by confrontation or they would not be allowed. Core testimonial statements were the primary target of the confrontation clause. It was a procedural guarantee that you had the right to confront your accuser. Julie letter is core testimonial and should not have been admitted in court.
The Wisconsin Supreme Court was asked by the Attorney General to rule whether Julie’s letter would be admissible in court. The 6th Amendment of the U.S. Constitution states that evidence is not admissible if it cannot be cross examined. Julie was dead, so she could not be cross examined.
The Wisconsin Supreme Court, to circumvent the Constitution, ruled new state law that said the lower court judge should hold a hearing to determine if the defendant had killed his wife and made it impossible for Julie to be cross examined, which he did in august, 2007. If the judge determined by the preponderance of evidence that Mark had killed Julie, the letter would be admissible. The judge in August 2007 ruled following the hearing that the letter was admissible because he believed Mark had killed Julie.
This August 2007 hearing was a mini trial prior to the January 7, 2008 trial. Mark went into the January trial with the judge already having determined that Mark was guilty of murder. The judge, therefore, had a bias and allowed the prosecution to do and say things that caused the defense to ask for a mistrial over 17 times.
The states did not like Crawford because they liked being able to admit evidence that could not be challenged, because it made it easier to convict people. So the states started adopting abroad expansion of the forfeiture doctrine by eliminating the historical “intent to prevent testimony” test. Now they could claim forfeiture and in doing so ignore whether the evidence was testimonial at all since they had found somebody to have forfeited the right to confront, and did so through judicial discretion in a forfeiture finding.
This resulted in a broad expansion of what statements came in above and beyond what was originally intended by the hearsay rules of Ohio vs. Roberts. Once you find “forfeiture”, everything is allowable. This forfeiture finding was what allowed Tadeusz Wojt to testify that Julie had told him that Mark’s sister, Laura, had told Julie “you don’t know what he is capable of”; while at the same time Laura was denying that she said it. The prosecutor was then attacking Laura as being a liar because it was not in agreement with what Tadeusz says Julie said Laura said. This is allowed under a finding of forfeiture, but never would have been allowed under hearsay laws.