CHAPTER 908
EVIDENCE — HEARSAY
908.03 Hearsay exceptions; availability of declarant immaterial.
908.04 Hearsay exceptions; declarant unavailable; definition of unavailability.
908.045 Hearsay exceptions; declarant unavailable.
908.05 Hearsay within hearsay.
908.06 Attacking and supporting credibility of declarant.
908.07 Preliminary examination; hearsay allowable.
908.08 Videotaped statements of children.
Ch. 908 Note
NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 W (2d). The court did not adopt the comments but ordered them printed with the rules for information purposes.
908.01
908.01
Definitions. The following definitions apply under this chapter:
908.01(1)
(1) Statement. A "statement" is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by the person as an assertion.
908.01(2)
(2) Declarant. A "declarant" is a person who makes a statement.
908.01(3)
(3) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
908.01(4)
(4) Statements which are not hearsay. A statement is not hearsay if:
908.01(4)(a)
(a)
Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
908.01(4)(a)2.
2. Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or
908.01(4)(a)3.
3. One of identification of a person made soon after perceiving the person; or
908.01(4)(b)
(b)
Admission by party opponent. The statement is offered against a party and is:
908.01(4)(b)1.
1. The party's own statement, in either the party's individual or a representative capacity, or
908.01(4)(b)2.
2. A statement of which the party has manifested the party's adoption or belief in its truth, or
908.01(4)(b)3.
3. A statement by a person authorized by the party to make a statement concerning the subject, or
908.01(4)(b)4.
4. A statement by the party's agent or servant concerning a matter within the scope of the agent's or servant's agency or employment, made during the existence of the relationship, or
908.01(4)(b)5.
5. A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
908.01 History
History: Sup. Ct. Order, 59 W (2d) R1, R220 (1973);
1991 a. 31.
908.01 Annotation
Witness' claimed nonrecollection of prior statement may constitute inconsistent testimony under (4) (a) 1. State v. Lenarchick, 74 W (2d) 425, 247 NW (2d) 80.
908.01 Annotation
Admissibility under (4) (a) 2 and 3 of prior consistent statements discussed. Green v. State, 75 W (2d) 631, 250 NW (2d) 305.
908.01 Annotation
Where defendant implied that plaintiff recently fabricated professed belief that contract did not exist, financial statement which showed plaintiff's nonbelief in existence of contract was admissible under (4) (a) 2. Gerner v. Vasby, 75 W (2d) 660, 250 NW (2d) 319.
908.01 Annotation
Under (4) (b) 4, there is no requirement that the statement be authorized by the employer or principal. Mercurdo v. County of Milwaukee, 82 W (2d) 781, 264 NW (2d) 258.
908.01 Annotation
Under (4) (b) 1, any prior out-of-court statements by a party, whether or not they are "against interest", are not hearsay. State v. Benoit, 83 W (2d) 389, 265 NW (2d) 298 (1978).
908.01 Annotation
Sub. (4) (a) 3. applies to statements of identification made soon after perceiving the suspect or his likeness in the identification process. State v. Williamson, 84 W (2d) 370, 267 NW (2d) 337 (1978).
908.01 Annotation
Statements under (4) (b) 5 discussed. Bergeron v. State, 85 W (2d) 595, 271 NW (2d) 386 (1978).
908.01 Annotation
Robber's representation that bottle contained nitroglycerine was admissible under (4) (b) 1 to prove that robber was armed with dangerous weapon. Beamon v. State, 93 W (2d) 215, 286 NW (2d) 592 (1980).
908.01 Annotation
Prior inconsistent statement by a witness at a criminal trial is admissible under (4) (a) 1. as substantive evidence. Vogel v. State, 96 W (2d) 372, 291 NW (2d) 850 (1980).
908.01 Annotation
See note to art. I, sec. 7, citing State v. Dorcey, 103 W (2d) 152, 307 NW (2d) 612 (1981).
908.01 Annotation
Testimony as to conversation in which defendant was accused of murder and did not deny it was admissible under adoptive admissions exception under (4) (b) 2. State v. Marshall, 113 W (2d) 643, 335 NW (2d) 612 (1983).
908.01 Annotation
See note to Art I, sec. 7, citing State v. Webster, 156 W (2d) 510, 458 NW (2d) 373 (Ct. App. 1990).
908.01 Annotation
Confession made in Spanish to detective who took notes and reported in English is admissible under (4) (b). State v. Arroyo, 166 W (2d) 74, 479 NW (2d) 549 (Ct. App. 1991).
908.01 Annotation
Rule 901.04 (1) permits an out-of-court declaration by a party's alleged co-conspirator to be considered by the trial court in determining whether there was a conspiracy under (4) (b) 5. State v. Whitaker, 167 W (2d) 247, 481 NW (2d) 649 (Ct. App. 1992).
908.01 Annotation
When a person relies on a translator for communication the statements of the translator are regraded as the speaker's for hearsay purposes. State v. Patino, 177 W (2d) 348, 502 NW (2d) 601 (Ct. App. 1993).
908.01 Annotation
Admissibility of one inconsistent sentence under sub. (4) (a) 1. does not bring the declarant's entire statement within the scope of that rule. Wikrent v. Toys "R" Us, 179 W (2d) 297, 507 NW (2d) 130 (Ct. App. 1993).
908.01 Annotation
While polygraph tests are inadmissible, post-polygraph interviews found distinct both as to time and content from the examination which precedes them and the statements made therein are admissible. State v. Johnson, 193 W (2d) 382, 535 W (2d) 441 (Ct. App. 1995).
908.01 Annotation
There must be facts that support a reasonable conclusion that a defendant has "embraced the truth" of someone else's statement as a condition precedent to finding an adoptive admission under sub. (4) (b) 2. State v. Rogers, 199 W (2d) 817, 539 NW (2d) 897 (Ct. App. 1995).
908.01 Annotation
Statements made by a prosecutor, not under oath, in a prior proceeding may be considered admissions if 1) the court is convinced the prior statement is inconsistent with the statement at the later trial, 2) the statements are the equivalent of testimonial statements and 3) the inconsistency is a fair one and an innocent explanation does not exist. State v. Cardenas-Hernandez, 214 W (2d) 71, 571 NW (2d) 406 (Ct. App. 1997).
908.01 Annotation
A party's use of an out-of-court statement to show an inconsistency does not automatically give the opposing party the right to introduce the whole statement. Under the rule of completeness, the court has discretion to admit only those statements necessary to provide context and prevent distortion. State v. Eugenio, 219 W (2d) 391, 579 NW (2d) 642 (1998).
908.01 Annotation
Existence of conspiracy under (4) (b) 5 must be shown by preponderance of evidence by party offering statement. Bourjaily v. United States, 483 US 171 (1987).
908.01 Annotation
Under (4) (b) 4, a party introducing a statement of an agent as the admission of a principal need not show that the agent had authority to speak for the principal. The rule only requires that the agent's statement concern "a matter within the scope of his agency or employment." Perzinski v. Chevron Chemical Co. 503 F (2d) 654.
908.01 Annotation
Bourjaily v. United States: New rule for admitting coconspirator hearsay statements. 1988 WLR 577 (1988).
908.02
908.02
Hearsay rule. Hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute.
908.02 History
History: Sup. Ct. Order, 59 W (2d) R1, R248 (1973).
908.02 Annotation
The rule of completeness requires a statement, including otherwise inadmissible evidence including hearsay, be admitted in its entirety when necessary to explain an admissible portion of the statement. The rule is not restricted to writings or recorded statements. State v. Sharp, 180 W (2d) 640, 511 NW (2d) 316 (Ct. App. 1993).
908.03
908.03
Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
908.03(1)
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
908.03(2)
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
908.03(3)
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
