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.
908.03(4)
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
908.03(5)
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made when the matter was fresh in the witness's memory and to reflect that knowledge correctly.
908.03(6)
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness.
908.03(6m)(a)(a)
Definition. In this subsection, "health care provider" means a massage therapist or bodyworker issued a license of registration under
subch. X [XI] of
ch. 440, 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 Note
NOTE: Par. (a) is shown as affected 2-1-99 by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language indicates the correct cross-reference as renumbered by the revisor under s. 13.93 (1) (b). Prior to 2-1-99 it reads:
Effective date text
(a) Definition. In this subsection, "health care provider" means 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. The department of health and family services shall, by rule, prescribe uniform fees based on an approximation of the actual costs that a health care provider may charge under
par. (c) 3. for certified duplicate health care records. The rule shall also allow the health care provider to charge for postage or other delivery costs.
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 or marriage, 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.
