State must show by preponderance of evidence that declarant's absence is due to defendant's misconduct under (2). State v. Frambs, 157 W (2d) 700, 460 NW (2d) 811 (Ct. App. 1990).
See note to Art. I, sec. 7, citing Burns v. Clusen, 599 F Supp. 1438 (1984).
Hearsay exceptions; declarant unavailable.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony.
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered.
(2) Statement of recent perception.
A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant's recollection was clear.
(3) Statement under belief of impending death.
A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death.
(4) Statement against interest.
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.
(5) Statement of personal or family history. 908.045(5)(a)(a)
A statement concerning the declarant's own birth, adoption, marriage, divorce, relationship by blood, adoption or marriage, ancestry, whether the person is a marital or nonmarital child, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (b) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
(6) Other exceptions.
A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.
Sup. Ct. Order, 59 W (2d) R1, R308 (1973); 1975 c. 94
s. 91 (12)
; 1975 c. 199
; 1983 a. 447
; 1991 a. 32
Sub. (2) cited. State v. Dean, 67 W (2d) 513, 227 NW (2d) 712.
Good-faith effort to obtain witness' presence at trial is prerequisite to finding that witness is "unavailable" for purposes of invoking hearsay exception respecting former testimony. La Barge v. State, 74 W (2d) 327, 246 NW (2d) 794.
See note to Art. I, sec. 7, citing Nabbefeld v. State, 83 W (2d) 515, 266 NW (2d) 292 (1978).
Statement against penal interest may be admissible under (4) if four factors indicating trustworthiness of statement are present. Ryan v. State, 95 W (2d) 83, 289 NW (2d) 349 (Ct. App. 1980).
See note to Art. I, sec. 7, citing State v. Zellmer, 100 W (2d) 136, 301 NW (2d) 209 (1981).
Corroboration under (4) must be sufficient to permit reasonable person to conclude, in light of all facts and circumstances, that statement could be true. State v. Anderson, 141 W (2d) 653, 416 NW (2d) 276 (1987).
Under "totality of factors" test, statements by 7-year-old sexual abuse victim to social worker possessed sufficient guarantees of trustworthiness to be admissible under (6) at preliminary hearing. State v. Sorenson, 143 W (2d) 226, 421 NW (2d) 77 (1988).
The exception for a statement of recent perception under sub. (2) does not apply to the aural perception of an oral statement privately told to a person. State v. Stevens, 171 W (2d) 106, 490 NW (2d) 753 (Ct. App. 1992).
The exception under sub. (4) for a statement that makes the declarant an object of hatred, ridicule or disgrace requires that the declarant have a personal interest in keeping the statement secret. State v. Stevens, 171 W (2d) 106, 490 NW (2d) 753 (Ct. App. 1992).
Similar motive and interest requirement of sub. (1) discussed. State v. Hickman, 182 W (2d) 318, 513 NW (2d) 657 (Ct. App. 1994).
Corroboration requirement for statements against penal interest. 1989 WLR 403 (1989).
Hearsay within hearsay.
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in this chapter.
History: Sup. Ct. Order, 59 W (2d) R1, R323 (1973).
See note to Art I, sec. 7, citing State v. Lenarchick, 74 W (2d) 425, 247 NW (2d) 80.
Attacking and supporting credibility of declarant.
When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
Sup. Ct. Order, 59 W (2d) R1, R325 (1973); 1991 a. 32
Preliminary examination; hearsay allowable.
A statement which is hearsay, and which is not otherwise excluded from the hearsay rule under ss. 908.02
, may be allowed in a preliminary examination as specified in s. 970.03 (11)
History: 1979 c. 332
Videotaped statements of children. 908.08(1)
In any criminal trial or hearing, juvenile fact-finding hearing under s. 48.31
or revocation hearing under s. 304.06 (3)
or 973.10 (2)
, the court or hearing examiner may admit into evidence the videotaped oral statement of a child who is available to testify, as provided in this section.
Not less than 10 days prior to the trial or hearing, or such later time as the court or hearing examiner permits upon cause shown, the party offering the statement shall file with the court or hearing officer an offer of proof showing the caption of the case, the name and present age of the child who has given the statement, the date, time and place of the statement and the name and business address of the videotape camera operator. That party shall give notice of the offer of proof to all other parties, including notice of reasonable opportunity for them to view the videotape prior to the hearing under par. (b)
Prior to the trial or hearing in which the statement is offered and upon notice to all parties, the court or hearing examiner shall conduct a hearing on the statement's admissibility. At or prior to the hearing, the court shall view the videotape. At the hearing, the court or hearing examiner shall rule on objections to the statement's admissibility in whole or in part. If the trial is to be tried by a jury, the court shall enter an order for editing as provided in s. 885.44 (12)
The court or hearing examiner shall admit the videotape statement upon finding all of the following:
That the trial or hearing in which the videotape statement is offered will commence:
Before the child's 16th birthday and the interests of justice warrant its admission under sub. (4)
That the videotape is accurate and free from excision, alteration and visual or audio distortion.
That the child's statement was made upon oath or affirmation or, if the child's developmental level is inappropriate for the administration of an oath or affirmation in the usual form, upon the child's understanding that false statements are punishable and of the importance of telling the truth.
That the time, content and circumstances of the statement provide indicia of its trustworthiness.
That admission of the statement will not unfairly surprise any party or deprive any party of a fair opportunity to meet allegations made in the statement.
In determining whether the interests of justice warrant the admission of a videotape statement of a child who is at least 12 years of age but younger than 16 years of age, among the factors which the court or hearing examiner may consider are any of the following:
The child's chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.
The child's general physical and mental health.
Whether the events about which the child's statement is made constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.
The child's custodial situation and the attitude of other household members to the events about which the child's statement is made and to the underlying proceeding.
The child's familial or emotional relationship to those involved in the underlying proceeding.
The child's behavior at or reaction to previous interviews concerning the events involved.
Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the child's prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child's subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.
Whether the child manifests or has manifested symptoms associated with posttraumatic stress disorder or other mental disorders, including, without limitation, reexperiencing the events, fear of their repetition, withdrawal, regression, guilt, anxiety, stress, nightmares, enuresis, lack of self-esteem, mood changes, compulsive behaviors, school problems, delinquent or antisocial behavior, phobias or changes in interpersonal relationships.
Whether admission of the videotape statement would reduce the mental or emotional strain of testifying or reduce the number of times the child will be required to testify.
If the court or hearing examiner admits a videotape statement under this section, the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the videotape statement is shown to the trier of fact. Except as provided in par. (b)
, if that party does not call the child, the court or hearing examiner, upon request by any other party, shall order that the child be produced immediately following the showing of the videotape statement to the trier of fact for cross-examination.
If a videotape statement under this section is shown at a preliminary examination under s. 970.03
and the party who offers the statement does not call the child to testify, the court may not order under par. (a)
that the child be produced for cross-examination at the preliminary examination.
At a trial or hearing under sub. (1)
, a court or a hearing examiner may also admit into evidence a videotape oral statement of a child that is hearsay and is admissible under this chapter as an exception to the hearsay rule.
Judicial Council Note, 1985: See the legislative purpose clause in Section 1 of this act.
Sub. (1) limits this hearsay exception to criminal trials and hearings in criminal, juvenile and probation or parole revocation cases at which the child is available to testify. Other exceptions may apply when the child is unavailable. See ss. 908.04 and 908.045, stats. Sub. (5) allows the proponent to call the child to testify and other parties to have the child called for cross-examination. The right of a criminal defendant to cross-examine the declarant at the trial or hearing in which the statement is admitted satisfies constitutional confrontation requirements. California v. Green, 399 U.S. 149
, 166 and 167 (1970); State v. Burns, 112 Wis. 2d 131
, 144, 332 N.W. 2d 757
(1983). A defendant who exercises this right is not precluded from calling the child as a defense witness.
Sub. (2) requires a pretrial offer of proof and a hearing at which the court or hearing examiner must rule upon objections to the admissibility of the statement in whole or in part. These objections may be based upon evidentiary grounds or upon the requirements of sub. (3). If the trial is to be to a jury, the videotape must be edited under one of the alternatives provided in s. 885.44 (12), stats.
Sub. (3) (a) limits the applicability of this hearsay exception to trials and hearings which commence prior to the child's 16th birthday. If the trial or hearing commences after the child's 12th birthday, the court or hearing examiner must also find that the interests of justice warrant admission of the statement. A nonexhaustive list of factors to be considered in making this determination is provided in sub. (4).
Sub. (6) refers to the statutes making videotaped oral statements of children discoverable prior to trial or hearing. [85 Act 262]
Sub. (5) does not violate due process. State v. Tarantino, 157 W (2d) 199, 458 NW (2d) 582 (Ct. App. 1990).