1997 Chapter 908

908.03(13) (13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

908.03(14) (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office.

908.03(15) (15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

908.03(16) (16) Statements in ancient documents. Statements in a document in existence 20 years or more whose authenticity is established.

908.03(17) (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

908.03(18) (18) Learned treatises. A published treatise, periodical or pamphlet on a subject of history, science or art is admissible as tending to prove the truth of a matter stated therein if the judge takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in the writer's profession or calling as an expert in the subject.

908.03(18)(a) (a) No published treatise, periodical or pamphlet constituting a reliable authority on a subject of history, science or art may be received in evidence, except for impeachment on cross-examination, unless the party proposing to offer such document in evidence serves notice in writing upon opposing counsel at least 40 days before trial. The notice shall fully describe the document which the party proposes to offer, giving the name of such document, the name of the author, the date of publication, the name of the publisher, and specifically designating the portion thereof to be offered. The offering party shall deliver with the notice a copy of the document or of the portion thereof to be offered.

908.03(18)(b) (b) No rebutting published treatise, periodical or pamphlet constituting a reliable authority on a subject of history, science or art shall be received in evidence unless the party proposing to offer the same shall, not later than 20 days after service of the notice described in par. (a), serve notice similar to that provided in par. (a) upon counsel who has served the original notice. The party shall deliver with the notice a copy of the document or of the portion thereof to be offered.

908.03(18)(c) (c) The court may, for cause shown prior to or at the trial, relieve the party from the requirements of this section in order to prevent a manifest injustice.

908.03(19) (19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, relationship by blood, adoption, or marriage, ancestry, whether the person is a marital or nonmarital child, or other similar fact of this personal or family history.

908.03(20) (20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.

908.03(21) (21) Reputation as to character. Reputation of a person's character among the person's associates or in the community.

908.03(22) (22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of no contest), adjudging a person guilty of a felony as defined in ss. 939.60 and 939.62 (3) (b), to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

908.03(23) (23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

908.03(24) (24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.

908.03 History History: Sup. Ct. Order, 59 W (2d) R250; Sup. Ct. Order, 67 W (2d) vii (1975); 1983 a. 447; Sup. Ct. Order, 158 W (2d) xxv (1990); 1991 a. 32, 269; 1993 a. 105; 1995 a. 27 s. 9126 (19); 1997 a. 67, 156; s. 13.93 (2) (c).

Effective date note Judicial Council Note, 1990: Sub. (6m) is repealed and recreated to extend the self-authentication provision to other health care providers in addition to hospitals. That such records may be authenticated without the testimony of their custodian does not obviate other proper objections to their admissibility. The revision changes the basic self-authentication procedure for all health care provider records (including hospitals) by requiring the records to be served on all parties or made reasonably available to them at least 40 days before the trial or hearing. The additional 30 days facilitates responsive discovery, while elimination of the filing requirement reduces courthouse records management impacts. [Re Order eff. 1-1-91]

908.03 Annotation Hearsay in a juvenile court worker's report not admissible under (6) or (8) at a juvenile court delinquency hearing. Rusecki v. State, 56 W (2d) 299, 201 NW (2d) 832.

908.03 Annotation A medical record containing a diagnosis or opinion is admissible but may be excluded if the entry requires explanation or a detailed statement of judgmental factors. Noland v. Mutual of Omaha Ins. Co. 57 W (2d) 633, 205 NW (2d) 388.

908.03 Annotation Statement of operator that the press had repeated 3 times, which was made 5 minutes after the malfunction causing his injury, was admissible under the excited utterance exception to the hearsay rule. (2) cited in footnote. Nelson v. L. & J. Press Corp. 65 W (2d) 770, 223 NW (2d) 607.

908.03 Annotation Under the "res gestae" exception to the hearsay rule (described as the "excited utterance" exception under (2)), testimony by the victim's former husband that his daughter called him at 5 a.m. the morning after the murder and told him, "daddy, daddy, Wilbur killed mommy," was admissible. State v. Davis, 66 W (2d) 636, 225 NW (2d) 505.

908.03 Annotation Official minutes of the highway committee were admissible under (6) as "Records of regularly conducted activity." State v. Nowakowski, 67 W (2d) 545, 227 NW (2d) 697.

908.03 Annotation A public document, filed under oath, notarized by the defendant, is one having "circumstantial guarantees of trustworthiness" under (24). State v. Nowakowski, 67 W (2d) 545, 227 NW (2d) 697.

908.03 Annotation Statements made by the 5-year-old child to his mother one day after an alleged sexual assault by defendant were admissible under the excited utterance exception to the hearsay rule, since a more liberal interpretation is provided for that exception in the case of a young child alleged to have been the victim of a sexual assault. State ex rel. Harris v. Schmidt, 69 W (2d) 668, 230 NW (2d) 890.

908.03 Annotation Department of H&SS probation files and records are public records and admissible as such at probation revocation hearing. State ex rel. Prellwitz v. Schmidt, 73 W (2d) 35, 242 NW (2d) 227.

908.03 Annotation Statement by victim within minutes after stabbing that defendant "did this to me" was admissible under (2). La Barge v. State, 74 W (2d) 327, 246 NW (2d) 794.

908.03 Annotation Personal observation of startling event is not required under (2). State v. Lenarchick, 74 W (2d) 425, 247 NW (2d) 80.

908.03 Annotation Admission of hospital records did not deprive defendant of right to confrontation. State v. Olson, 75 W (2d) 575, 250 NW (2d) 12.

908.03 Annotation Observations of prior trial judge in decision approving jury's award of damages were properly excluded as hearsay in later trial. Johnson v. American Family Mut. Ins. Co. 93 W (2d) 633, 287 NW (2d) 729 (1980).

908.03 Annotation See note to Art. I, sec. 7, citing Hagenkord v. State, 100 W (2d) 452, 302 NW (2d) 421 (1981).

908.03 Annotation Chiropractor could testify as to patient's self-serving statements when those statements were used to form medical opinion under (4). Klingman v. Kruschke, 115 W (2d) 124, 339 NW (2d) 603 (Ct. App. 1983).

908.03 Annotation Interrogator's account of child witness's out of court statements made four days after murder, where notes of the conversation were available although not introduced, held admissible under (24). State v. Jenkins, 168 W (2d) 175, 483 NW (2d) 262 (1992).

908.03 Annotation A defendant has a burden of production to come forward with some evidence of a negative defense to warrant jury consideration. State v. Pettit, 171 W (2d) 627, 492 NW (2d) 633 (Ct. App. 1992).

908.03 Annotation For a statement to be an excited utterance there must be a "startling event or condition" and the declarant must have made the statement "while under the stress of excitement caused by the event or condition". State v. Boshcka, 173 W (2d) 387 reprinted at 178 W (2d) 628, 496 NW (2d) 627 (Ct. App. 1992).

908.03 Annotation Where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception, the confrontation clause is satisfied. State v. Patino, 177 W (2d) 348, 502 NW (2d) 601 (Ct. App. 1993).

908.03 Annotation In applying the excited utterance exception in child sexual assault cases, a court must consider factors including the child's age and the contemporaneousness and spontaneity of the assertions in relation to the alleged assault. In applying the sub. (24) residual exception in such a case, the court must consider the attributes of the child, the person to whom the statement was made, the circumstances under which the statement was made, the content of the statement and corroborating evidence. State v. Gerald L.C. 194 W (2d) 549, 535 NW (2d) 777 (Ct. App. 1995).

908.03 Annotation The sub. (2) excited utterance and the sub. (24) residual exceptions discussed in relation to child sexual assault cases. State v. Huntington, 216 W (2d) 671, 575 NW (2d) 268 (1998).

908.03 Annotation The hearsay exception for medical diagnosis or treatment under sub. (4) does not apply to statements made to counselors or social workers. State v. Huntington, 216 W (2d) 671, 575 NW (2d) 268 (1998).

908.03 Annotation The requirement in sub. (18) that the writer of a statement in a treatise be recognized as an expert is not met by finding that the periodical containing the article was authoritative and reliable. Broadhead v. State Farm Mutual Insurance Co. 217 W (2d) 231, 579 NW (2d) 761 (Ct. App. 1998).

908.03 Annotation The description of the effects of alcohol on a person contained in the Wisconsin Motorists Handbook produced by the Department of Transportation was admissible under sub. (8). Sullivan v. Waukesha County, 218 W (2d) 458, 578 NW (2d) 596 (1998).

908.03 Annotation Portions of investigatory reports containing opinions or conclusions are admissible under (8) exception. Beech Aircraft Corp. v. Rainey, 488 US 153, 102 LEd 2d 445 (1988).

908.03 Annotation Convictions through hearsay in child sexual abuse cases. Tuerkheimer. 72 MLR 47 (1988).

908.03 Annotation Children's out-of-court statements. Anderson, 1974 WBB No. 5.

908.03 Annotation Evidence review: Past recollections refreshed v. past recollection recorded. Fine. WBB March 1984.

908.03 Annotation Evidence review - Business records and government reports: Hearsay Trojan horses? Fine. WBB April 1984.

908.03 Annotation Medical records discovery in Wisconsin personal injury litigation. 1974 WLR 524.

908.04 908.04  Hearsay exceptions; declarant unavailable; definition of unavailability.

908.04(1) (1) "Unavailability as a witness" includes situations in which the declarant:

908.04(1)(a) (a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

908.04(1)(b) (b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the judge to do so; or

908.04(1)(c) (c) Testifies to a lack of memory of the subject matter of the declarant's statement; or

908.04(1)(d) (d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

908.04(1)(e) (e) Is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means.

908.04(2) (2) A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.

908.04 History History: Sup. Ct. Order, 59 W (2d) R1, R302 (1973); 1991 a. 32.

908.04 Annotation Adequate medical evidence of probable psychological trauma is required to support unavailability finding based on trauma, absent emotional breakdown on witness stand. State v. Sorenson, 152 W (2d) 471, 449 NW (2d) 280 (Ct. App. 1989).

908.04 Annotation 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).

908.04 Annotation See note to Art. I, sec. 7, citing Burns v. Clusen, 599 F Supp. 1438 (1984).

908.045 908.045  Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

908.045(1) (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.

908.045(2) (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.

908.045(3) (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.

908.045(4) (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.

908.045(5) (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.

908.045(6) (6) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.

908.045 History History: Sup. Ct. Order, 59 W (2d) R1, R308 (1973); 1975 c. 94 s. 91 (12); 1975 c. 199; 1983 a. 447; 1991 a. 32.

908.045 Annotation Sub. (2) cited. State v. Dean, 67 W (2d) 513, 227 NW (2d) 712.

908.045 Annotation 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.

908.045 Annotation See note to Art. I, sec. 7, citing Nabbefeld v. State, 83 W (2d) 515, 266 NW (2d) 292 (1978).

908.045 Annotation 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).

908.045 Annotation See note to Art. I, sec. 7, citing State v. Zellmer, 100 W (2d) 136, 301 NW (2d) 209 (1981).

908.045 Annotation 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).

908.045 Annotation 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).

908.045 Annotation 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).

908.045 Annotation 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).

908.045 Annotation Similar motive and interest requirement of sub. (1) discussed. State v. Hickman, 182 W (2d) 318, 513 NW (2d) 657 (Ct. App. 1994).

908.045 Annotation Corroboration requirement for statements against penal interest. 1989 WLR 403 (1989).

908.05 908.05  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.

908.05 History History: Sup. Ct. Order, 59 W (2d) R1, R323 (1973).

908.05 Annotation See note to Art I, sec. 7, citing State v. Lenarchick, 74 W (2d) 425, 247 NW (2d) 80.

908.06 908.06  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.

908.06 History History: Sup. Ct. Order, 59 W (2d) R1, R325 (1973); 1991 a. 32.

908.07 908.07  Preliminary examination; hearsay allowable. A statement which is hearsay, and which is not otherwise excluded from the hearsay rule under ss. 908.02 to 908.045, may be allowed in a preliminary examination as specified in s. 970.03 (11).

908.07 History History: 1979 c. 332.

908.08 908.08  Videotaped statements of children.

908.08(1) (1) In any criminal trial or hearing, juvenile fact-finding hearing under s. 48.31 or 938.31 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.

908.08(2) (2) 

908.08(2)(a) (a) 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).