908.03(6m)(a)(a)
Definition. In this subsection, "health care provider" means a massage therapist or bodyworker issued a certificate under
ch. 460, a chiropractor licensed under
ch. 446, a dentist licensed under
ch. 447, a physician assistant licensed under
ch. 448, or a health care provider as defined in
s. 655.001 (8).
908.03(6m)(b)
(b)
Authentication witness unnecessary. A custodian or other qualified witness required by
sub. (6) is unnecessary if the party who intends to offer health care provider records into evidence at a trial or hearing does one of the following at least 40 days before the trial or hearing:
908.03(6m)(b)1.
1. Serves upon all appearing parties an accurate, legible and complete duplicate of the health care provider records for a stated period certified by the record custodian.
908.03(6m)(b)2.
2. Notifies all appearing parties that an accurate, legible and complete duplicate of the health care provider records for a stated period certified by the record custodian is available for inspection and copying during reasonable business hours at a specified location within the county in which the trial or hearing will be held.
908.03(6m)(c)
(c)
Subpoena limitations. Health care provider records are subject to subpoena only if one of the following conditions exists:
908.03(6m)(c)2.
2. The subpoena is authorized by an ex parte order of a judge for cause shown and upon terms.
908.03(6m)(c)3.
3. If upon a properly authorized request of an attorney, the health care provider refuses, fails or neglects to supply within 2 business days a legible certified duplicate of its records for the fees established under
par. (d).
908.03(6m)(d)
(d)
Fees. After December 31, 2002, the department of health and family services shall, by rule, prescribe uniform fees that are based on an approximation of actual costs. The fees, plus applicable tax, are the maximum amount that a health care provider may charge for certified duplicate patient health care records. The rule shall also allow the health care provider to charge for actual postage or other actual delivery costs. For duplicate patient health care records and duplicate X-ray reports or the referral of X-rays to another health care provider that are requested before commencement of an action,
s. 146.83 (1) (b) and
(c) and
(3m) applies.
908.03 Cross-reference
Cross Reference: See also ch.
HFS 117, Wis. adm. code.
908.03(7)
(7) Absence of entry in records of regularly conducted activity. Evidence that a matter is not included in the memoranda, reports, records or data compilations, in any form, of a regularly conducted activity, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
908.03(8)
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law, or (c) in civil cases and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
908.03(9)
(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
908.03(10)
(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with
s. 909.02, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
908.03(11)
(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, whether a child is marital or nonmarital, ancestry, relationship by blood, marriage or adoption, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
908.03(12)
(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
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 Wis. 2d R250; Sup. Ct. Order, 67 Wis. 2d vii (1975);
1983 a. 447; Sup. Ct. Order, 158 Wis. 20d xxv (1990);
1991 a. 32,
269;
1993 a. 105;
1995 a. 27 s.
9126 (19);
1997 a. 67,
156;
1999 a. 32,
85,
162;
2001 a. 74,
109.
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
The res gestae exception is given a broader view when assertions of a young child are involved and will allow admitting statements by a child victim of a sexual assault to a parent 2 days later. Bertrang v. State,
50 Wis. 2d 702,
184 N.W.2d 867 (1971).
908.03 Annotation
Hearsay in a juvenile court worker's report was not admissible under sub. (6) or (8) at a delinquency hearing. Rusecki v. State,
56 Wis. 2d 299,
201 N.W.2d 832 (1972).
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 Insurance Co.
57 Wis. 2d 633,
205 N.W.2d 388 (1973).
908.03 Annotation
The statement of the 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. Nelson v. L. & J. Press Corp.
65 Wis. 2d 770,
223 N.W.2d 607 (1974).
908.03 Annotation
Under the res gestae exception to the hearsay rule, the "excited utterance" exception under sub. (2), testimony by the victim's former husband that his daughter called him at 5 a.m. the morning after a murder and told him, "daddy, daddy, Wilbur killed mommy," was admissible. State v. Davis,
66 Wis. 2d 636,
225 N.W.2d 505 (1975).
908.03 Annotation
The official minutes of a highway committee were admissible under sub. (6) as "records of regularly conducted activity." State v. Nowakowski,
67 Wis. 2d 545,
227 N.W.2d 697 (1975).
908.03 Annotation
A public document, filed under oath and notarized by the defendant, was one having "circumstantial guarantees of trustworthiness" under sub. (24). State v. Nowakowski,
67 Wis. 2d 545,
227 N.W.2d 697 (1975).
908.03 Annotation
Statements made by a 5-year -old child to his mother one day after an alleged sexual assault by the 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 Wis. 2d 668,
230 N.W.2d 890 (1975).
908.03 Annotation
Probation files and records are public records and admissible at a probation revocation hearing. State ex rel. Prellwitz v. Schmidt,
73 Wis. 2d 35,
242 N.W.2d 227 (1976).
908.03 Annotation
A statement made by a victim within minutes after a stabbing that the defendant "did this to me" was admissible under sub. (2). La Barge v. State,
74 Wis. 2d 327,
246 N.W.2d 794 (1976).
908.03 Annotation
Personal observation of a startling event is not required under sub. (2). State v. Lenarchick,
74 Wis. 2d 425,
247 N.W.2d 80 (1976).
908.03 Annotation
Admission of hospital records did not deprive the defendant of the right to confrontation. State v. Olson,
75 Wis. 2d 575,
250 N.W.2d 12 (1977).
908.03 Annotation
Observations made by a prior trial judge in a decision approving the jury's award of damages were properly excluded as hearsay in a later trial. Johnson v. American Family Mutual Insurance Co.
93 Wis. 2d 633,
287 N.W.2d 729 (1980).
908.03 Annotation
Medical records as explained to the jury by a medical student were sufficient to support a conviction; the right to confrontation was not denied. Hagenkord v. State,
100 Wis. 2d 452,
302 N.W.2d 421 (1981).
908.03 Annotation
A chiropractor could testify as to a patient's self-serving statements when those statements were used to form his medical opinion under sub. (4). Klingman v. Kruschke,
115 Wis. 2d 124,
339 N.W.2d 603 (Ct. App. 1983).
908.03 Annotation
An interrogator's account of a child witness's out of court statements made four days after a murder, when notes of the conversation were available although not introduced, was admissible under sub. (24). State v. Jenkins,
168 Wis. 2d 175,
483 N.W.2d 262 (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 Wis. 2d 387 reprinted at
178 Wis. 2d 628,
496 N.W.2d 627 (Ct. App. 1992).
908.03 Annotation
When proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception, the confrontation clause is satisfied. State v. Patino,
177 Wis. 2d 348,
502 N.W.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 Wis. 2d 549,
535 N.W.2d 777 (Ct. App. 1995).
908.03 Annotation
The sub. (2) excited utterance and the sub. (24) residual exceptions are discussed in relation to child sexual assault cases. State v. Huntington,
216 Wis. 2d 671,
575 N.W.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 Wis. 2d 671,
575 N.W.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 Wis. 2d 231,
579 N.W.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 Wis. 2d 458,
578 N.W.2d 596 (1998).
908.03 Annotation
Evidence of 911 calls, including tapes and transcripts of the calls, is not inadmissible hearsay. Admission does not violate the right to confront witnesses. State v. Ballos,
230 Wis. 2d 495,
602 N.W.2d 117 (Ct. App. 1999).
908.03 Annotation
A state crime lab report prepared for a prosecution was erroneously admitted as a business record under sub. (6). State v. Williams, 2002 WI 58,
253 Wis. 2d 99,
644 N.W.2d 919.
908.03 Annotation
Sub. (3) allows admission of a declarant's statement of his or her feelings to prove only how the declarant feels and not to admit a declarant's statements of the cause of those feelings to prove certain events occurred. State v. Kutz, 2003 WI App 205,
267 Wis. 2d 531,
671 N.W.2d 660,
02-1670.
908.03 Annotation
Portions of investigatory reports containing opinions or conclusions are admissible under the sub. (8) exception. Beech Aircraft Corp. v. Rainey,
488 U.S. 153,
102 L. Ed. 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.
908.03 Annotation
Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.
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 Wis. 2d R1, R302 (1973);
1991 a. 32.
908.04 Annotation
Adequate medical evidence of probable psychological trauma is required to support an unavailability finding based on trauma, absent an emotional breakdown on the witness stand. State v. Sorenson,
152 Wis. 2d 471,
449 N.W.2d 280 (Ct. App. 1989).
908.04 Annotation
The state must show by a preponderance of the evidence that the declarant's absence is due to the defendant's misconduct under sub. (2). State v. Frambs,
157 Wis. 2d 700,
460 N.W.2d 811 (Ct. App. 1990).
908.04 Annotation
When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. "Testimonial statements" applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to police interrogations. Crawford v. Washington, 541 US ___,
158 L. Ed 2d 177,
124 S. Ct. 1354 (2004).
908.04 Annotation
A finding of unavailability of a witness due to mental illness, made on the basis of a confused and stale record, deprived the defendant of the right to confront witnesses, but the error was harmless. Burns v. Clusen,
599 F. Supp. 1438 (1984).
908.04 Annotation
Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.
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 of declarant. 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.
908.045(5m)
(5m) Statement of personal or family history of person other than the declarant. A statement concerning the 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 and death of a person other than the declarant, if the declarant was related to the other person by blood, adoption or marriage or was so intimately associated with the other person'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.
