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)1. 1. Inconsistent with the declarant’s testimony, or

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 Wis. 2d R1, R220 (1973); 1991 a. 31.

908.01 Annotation A witness’s claimed nonrecollection of a prior statement may constitute inconsistent testimony under sub. (4) (a) 1. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976).

908.01 Annotation Prior consistent statements can be introduced: 1) to rebut an implied or express charge that the testimony was recently fabricated or was the product of improper motive or influence; or 2) if the testimony concerns the identification of a person and a prior statement of identification was made soon after the perception of the individual. Green v. State, 75 Wis. 2d 631, 250 N.W.2d 305 (1977).

908.01 Annotation When a defendant implied that the plaintiff recently fabricated a professed belief that a contract did not exist, a financial statement that showed the plaintiff’s nonbelief in the existence of the contract was admissible under sub. (4) (a) 2. Gerner v. Vasby, 75 Wis. 2d 660, 250 N.W.2d 319 (1977).

908.01 Annotation Under sub. (4) (b) 4., there is no requirement that the statement be authorized by the employer or principal. Mercurdo v. County of Milwaukee, 82 Wis. 2d 781, 264 N.W.2d 258 (1978).

908.01 Annotation Under sub. (4) (b) 1., any prior out-of-court statements by a party, whether or not made “against interest,” is not hearsay. State v. Benoit, 83 Wis. 2d 389, 265 N.W.2d 298 (1978).

908.01 Annotation Sub. (4) (a) 3. applies to statements of identification made soon after perceiving the suspect or the suspect’s likeness in the identification process. State v. Williamson, 84 Wis. 2d 370, 267 N.W.2d 337 (1978).

908.01 Annotation Under sub. (4) (b) 5., statements of co-conspirators made during the course and in furtherance of the conspiracy are technically not exceptions to the hearsay rule, but are deemed not to be hearsay and are therefore outside the exclusionary principles of the hearsay rule. The issue of admissibility is dependent upon a factual question as to when the conspiracy began and terminated. A conspiracy commences with an agreement between two or more persons to direct their conduct toward the realization of a criminal objective, and each member of the conspiracy must individually and consciously intend the realization of the particular criminal venture. Each conspirator must have an individual stake in the conspiracy. Bergeron v. State, 85 Wis. 2d 595, 271 N.W.2d 386 (1978).

908.01 Annotation A robber’s representation that a bottle contained nitroglycerine was admissible under sub. (4) (b) 1. to prove that the robber was armed with a dangerous weapon. Beamon v. State, 93 Wis. 2d 215, 286 N.W.2d 592 (1980).

908.01 Annotation A prior inconsistent statement by a witness at a criminal trial is admissible under sub. (4) (a) 1. as substantive evidence. Vogel v. State, 96 Wis. 2d 372, 291 N.W.2d 838 (1980).

908.01 Annotation The admission of a statement by a deceased coconspirator did not violate the right of confrontation and was within sub. (4) (b) 5. State v. Dorcey, 103 Wis. 2d 152, 307 N.W.2d 612 (1981).

908.01 Annotation Testimony as to a conversation in which the defendant was accused of murder and did not deny it was admissible under the adoptive admissions exception under sub. (4) (b) 2. State v. Marshall, 113 Wis. 2d 643, 335 N.W.2d 612 (1983).

908.01 Annotation The statement of a coconspirator under sub. (4) (b) 5. may be admitted without proof of the declarant’s unavailability or a showing of particular indicia of reliability; the court must determine whether circumstances exist warranting exclusion. State v. Webster, 156 Wis. 2d 510, 458 N.W.2d 373 (Ct. App. 1990).

908.01 Annotation A confession made in Spanish to a detective who took notes and reported in English was admissible under sub. (4) (b). State v. Arroyo, 166 Wis. 2d 74, 479 N.W.2d 549 (Ct. App. 1991).

908.01 Annotation Rule 901.04 (1) permits an out-of-court declaration by a party’s alleged coconspirator to be considered by the trial court in determining whether there was a conspiracy under sub. (4) (b) 5. State v. Whitaker, 167 Wis. 2d 247, 481 N.W.2d 649 (Ct. App. 1992).

908.01 Annotation When a person relies on a translator for communication, the statements of the translator are regarded as the speaker’s for hearsay purposes. State v. Patino, 177 Wis. 2d 348, 502 N.W.2d 601 (Ct. App. 1993).