2009 Chapter 908

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 4 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), 96-1775.

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), 96-1775.

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), 97-0904.

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), 96-3376.

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), 98-1905.

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, 00-3065.

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 Unavailability for confrontation purposes requires both that the hearsay declarant not appear at the trial and, critically, that the state make a good-faith effort to produce that declarant at trial. If there is a remote possibility that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. The lengths to which the prosecution must go to produce a witness is a question of reasonableness. State v. King, 2005 WI App 224, 287 Wis. 2d 756, 706 N.W.2d 181, 04-2694.

908.03 Annotation To be qualified to testify to the requirements of sub. (6), the witness must have personal knowledge of how the records were made so that the witness is qualified to testify that they were made "at or near the time [of the event] by, or from information transmitted by, a person with knowledge" and "in the course of a regularly conducted activity." Palisades Collection LLC v. Kalal, 2010 WI App 38, ___ Wis. 2d ___, 781 N.W.2d 503, 09-0482.

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.

908.03 Annotation Thinking Outside the "Business Records" Box: Evidentiary Foundations for Computer Records. O'Shea. Wis. Law. Feb. 2008.

908.03 Annotation Business Records & Self Authentication: Together at Last. Hanson. Wis. Law. Sep. 2010.

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 U.S. 36, 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.

908.045 History History: Sup. Ct. Order, 59 Wis. 2d R1, R308 (1973); 1975 c. 94 s. 91 (12); 1975 c. 199; 1983 a. 447; 1991 a. 32; 1999 a. 85.

908.045 Annotation A good-faith effort to obtain a witness's presence at trial is a prerequisite to finding that the witness is "unavailable" for purposes of invoking the hearsay exception respecting former testimony. La Barge v. State, 74 Wis. 2d 327, 246 N.W.2d 794 (1976).

908.045 Annotation The defendant's right of confrontation was not violated by the admission at trial of preliminary examination testimony of a deceased witness when the defendant had an unlimited opportunity to cross-examine the witness and the testimony involved the same issues and parties as at trial. Nabbefeld v. State, 83 Wis. 2d 515, 266 N.W.2d 292 (1978).

908.045 Annotation A statement against penal interest may be admissible under sub. (4) if 4 factors indicating trustworthiness of the statement are present. Ryan v. State, 95 Wis. 2d 83, 289 N.W.2d 349 (Ct. App. 1980).

908.045 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 the witness. State v. Zellmer, 100 Wis. 2d 136, 301 N.W.2d 209 (1981).

908.045 Annotation Corroboration under sub. (4) must be sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true. State v. Anderson, 141 Wis. 2d 653, 416 N.W.2d 276 (1987).

908.045 Annotation Under the "totality of factors" test, statements by a 7-year-old sexual abuse victim to a social worker possessed sufficient guarantees of trustworthiness to be admissible under sub. (6) at a preliminary hearing. State v. Sorenson, 143 Wis. 2d 226, 421 N.W.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 Wis. 2d 106, 490 N.W.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 Wis. 2d 106, 490 N.W.2d 753 (Ct. App. 1992).

908.045 Annotation The similar motive and interest requirement of sub. (1) is discussed. State v. Hickman, 182 Wis. 2d 318, 513 N.W.2d 657 (Ct. App. 1994).

908.045 Annotation The sub. (6) residual exception should be applied only to novel or unanticipated categories of hearsay. The testimony of a 5-year-old girl against her mother fell within the sub. (6) exception when there were adequate assurances of trustworthiness. Requiring the girl to incriminate her mother at trial presented an exigency similar to the psychological scarring of a child victim. State v. Petrovic, 224 Wis. 2d 477, 592 N.W.2d 238 (Ct. App. 1999), 97-3403.

908.045 Annotation There are objective and subjective poles to the "social interest" exception under sub. (4) for statements that would subject the declarant to hatred, ridicule, or disgrace. The objective pole is the determination that the declarant actually faced a risk of hatred, ridicule, or disgrace. The subjective pole is the declarant's appreciation of that risk. State v. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, 00-0812. But see Murillo v. Frank, 402 F.3d 786 (2005).

908.045 Annotation If a hearsay statement falls within a firmly rooted hearsay exception, it is automatically admitted; such statements are reliable without cross-examination. Hearsay that is not within a firmly rooted exception requires "particularized showings of trustworthiness" to be admitted. The social interest exception under sub. (4) is not firmly rooted, but there were sufficient showings of trust worthiness in this case. State v. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, 00-0812. But see Murillo v. Frank, 402 F.3d 786 (2005).

908.045 Annotation When ruling on a narrative's admissibility, a court must determine the separate admissibility of each single declaration or remark, which should be interpreted within the context of the circumstances under which it was made to determine if that assertion is in fact sufficiently against interest. State v. Joyner, 2002 WI App 250, 258 Wis. 2d 249, 653 N.W.2d 290, 01-3049.

908.045 Annotation When a witness's memory, credibility, or bias was not at issue at trial, the inability of the defendant to cross-examine the witness at the preliminary hearing with questions that went to memory, credibility, or bias did not present an unusual circumstance that undermined the reliability of the witness's testimony. Admission of the unavailable witness's preliminary hearing testimony did not violate the defendant's constitutional right to confrontation. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 82, 01-3303.

908.045 Annotation The recent perception exception under sub. (2) was intended to allow more time between the observation of the event and the statement, as opposed to the exceptions for present sense impression and excited utterances. In analyzing the recency of an event under the exception, the mere passage of time, while important, is not controlling but depends on the particular circumstances of the case. State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01-1746.

908.045 Annotation Neither sub. (4) nor Anderson imposes a fixed requirement of corroboration that is independent of the declarant's self-inculpatory statement. That a declarant's confession is repeated to more than one witness may well be sufficient, in light of all the facts and circumstances, to permit a reasonable person to conclude that it could be true, even in the absence of corroboration that is independent of the confession itself. State v. Guerard, 2004 WI 85, 273 Wis. 2d 250, 682 N.W.2d 12, 02-2404.

908.045 Annotation Sub. (2) is not a firmly rooted hearsay exception. It lacks historical longevity and enjoys very limited acceptance. However, hearsay admitted under sub. (2) may satisfy the confrontation clause so long as the evidence bears particularized guarantees of trustworthiness. State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811, 03-0113.

908.045 Annotation Belief of impending death may be made to appear from what the injured person said or from the nature and extent of the wounds inflicted being obviously such that the person must have felt or known that he or she could not survive. In light of the circumstances surrounding the victim's injuries, his frantic concern that he not die, his being upset when the ambulance passed one hospital on its way to another, and his significant pain and breathing difficulties, coupled with his spontaneous repeated assertions as to who shot him, the trial court did not erroneously exercise its discretion in ruling that the victim's fingerings of the defendant as his shooter were dying declarations. State v. Beauchamp, 2010 WI App 42, ___ Wis. 2d ___, 781 N.W.2d 254, 09-0806.

908.045 Annotation The sub. (4) declaration against social interest exception is an unusual exception to the hearsay doctrine and cannot support the use of confessions and affidavits when the long-established, and better supported, penal-interest exception does not. Murillo v. Frank, 402 F.3d 786 (2005).

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 Wis. 2d R1, R323 (1973).

908.05 Annotation The admission of double hearsay did not violate the defendant's right to confront witnesses. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976).

908.05 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), 98-1905.

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 Wis. 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  Audiovisual recordings of 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. 302.113 (9) (am), 302.114 (9) (am), 304.06 (3), or 973.10 (2), the court or hearing examiner may admit into evidence the audiovisual recording of an 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 before 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 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 statement before the hearing under par. (b).

908.08(2)(b) (b) Before 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 before the hearing, the court shall view the statement. 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).

908.08(3) (3) The court or hearing examiner shall admit the recording upon finding all of the following:

908.08(3)(a) (a) That the trial or hearing in which the recording is offered will commence:

908.08(3)(a)1. 1. Before the child's 12th birthday; or

908.08(3)(a)2. 2. Before the child's 16th birthday and the interests of justice warrant its admission under sub. (4).

908.08(3)(b) (b) That the recording is accurate and free from excision, alteration and visual or audio distortion.

908.08(3)(c) (c) 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.

908.08(3)(d) (d) That the time, content and circumstances of the statement provide indicia of its trustworthiness.

908.08(3)(e) (e) 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.

908.08(4) (4) In determining whether the interests of justice warrant the admission of an audiovisual recording of a 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: