if witness is present false statements are less likely due to solemnity of trial and declar-ant's presence before accused
How later courts described this case
- if witness is present false statements are less likely due to solemnity of trial and declar-ant's presence before accused
- state remedies held to be exhausted in the absence of an appeal because post-conviction relief had been denied on the authority of a recent Wisconsin Supreme Court decision squarely upholding the challenged jury instruction
- habeas petitioner denied right of confrontation by admission of unavailable witness’s prior testimony from witness’s own trial where defendant had no opportunity for cross-examination
- court must consider whether petitioner succeeded in exhausting his state remedies as required by § 2254(b), “although the parties do not raise the question”
Written by the judges who cited it.
The opinion
MORAN, District Judge,
concurring.
While I agree with Judge Wood’s analysis, particularly since the disputed evidence was equally consistent with the defendant’s theory of the case, I add but one comment respecting the contested instruction. Instructions are often selected during instruction conferences, from those which have survived on appeal. Substantially similar “presumption” instructions have now survived constitutional attack in Pigee v. Israel, 670 F.2d 690 (7th Cir.1982) and, accordingly, here. The conclusion that they do not offend the Constitution is, however, solely a conclusion that they may be permissible, not that they are desirable. One would hope that trial courts will heed the admonition to trial judges in Pigee v. Israel, supra, at p. 696 , that they “would be wise in the future to avoid ‘presumption’ language in this area, in favor of language pointing out inferences which can permissibly be drawn from conduct and emphasis on the prosecution’s burden at all times to prove guilt beyond a reasonable doubt.”