Chapter 908

CHAPTER 908

EVIDENCE — HEARSAY

908.01   Definitions.

908.02   Hearsay rule.

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.

908.08   Audiovisual recordings of 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 Wis. 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)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).

908.01 Annotation The 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, Inc., 179 Wis. 2d 297, 507 N.W.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 that preceded them and the statements made therein, are admissible. State v. Johnson, 193 Wis. 2d 382, 535 N.W.2d 441 (Ct. App. 1995). See also State v. Greer, 2003 WI App 112, 265 Wis. 2d 463, 666 N.W.2d 518, 01-2591.

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, 196 Wis. 2d 817, 539 N.W.2d 897 (Ct. App. 1995), 94-1912.

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 Wis. 2d 71, 571 N.W.2d 406 (Ct. App. 1997), 96-3605.

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 Wis. 2d 391, 579 N.W.2d 642 (1998), 96-1394.

908.01 Annotation To use a prior consistent statement under sub. (4) (a) 2., the proponent must show that the statement predated the alleged recent fabrication and that there was an express or implied charge of fabrication at trial. Ansani v. Cascade Mountain, Inc., 223 Wis. 2d 39, 588 N.W.2d 321 (Ct. App. 1998), 97-3514.

908.01 Annotation Although s. 907.03 allows an expert to base an opinion on hearsay, it does not transform the testimony into admissible evidence. The court must determine when the underlying hearsay may reach the trier of fact through examination of the expert, with cautioning instructions, and when it must be excluded altogether. State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), 95-1067.

908.01 Annotation When a criminal defendant objects to testimony of the defendant’s out-of-court statement as incomplete or attempts to cross-examine the witness on additional parts of the statement, the court must make a discretionary determination regarding completeness as required by Eugenio, 219 Wis. 2d 391 (1998). Additional portions of the defendant’s statement are not inadmissible solely because the defendant chooses not to testify. State v. Anderson, 230 Wis. 2d 121, 600 N.W.2d 913 (Ct. App. 1999), 98-3639.

908.01 Annotation An “assertion” under sub. (1) is an expression of a fact, condition, or opinion. Nothing is an assertion unless intended to be one. An instruction to do something is not an assertion when offered to prove that the instruction was given and to explain the effect on the person to whom the instruction was given, but an expression of a fact, opinion, or condition that is implicit in the words of an utterance, as long as the speaker intended to express that fact, opinion, or condition, is an assertion. The burden is on the party claiming that an utterance contains an implicit assertion to show that a particular expression of fact, opinion, or condition was intended by the speaker. State v. Kutz, 2003 WI App 205, 267 Wis. 2d 531, 671 N.W.2d 660, 02-1670.

908.01 Annotation Sub. (4) (b) deals with admissions by a party as a general rule, but admissions incidental to an offer to plead are a special kind of party admission: they are impossible to segregate from the offer itself because the offer is implicit in the reasons advanced therefor. Section 904.10 trumps sub. (4) (b) because it excludes only this particular category of party admissions and therefore is more specialized than the latter statute. State v. Norwood, 2005 WI App 218, 287 Wis. 2d 679, 706 N.W.2d 683, 04-1073.

908.01 Annotation A statement is made in furtherance of a conspiracy under sub. (4) (b) 5. when the statement is part of the information flow between conspirators intended to help each perform the conspirator’s role. A statement of a coconspirator that is not hearsay may be used as evidence against another member of the conspiracy. State v. Savanh, 2005 WI App 245, 287 Wis. 2d 876, 707 N.W.2d 549, 04-2583.

908.01 Annotation When there was evidence in the record that the defendant approved his attorney’s letter to the alleged victim, the letter fell clearly within sub. (4) (b) 3. as a “statement by a person authorized by the party to make a statement concerning the subject.” State v. Adamczak, 2013 WI App 150, 352 Wis. 2d 34, 841 N.W.2d 311, 13-0310.

908.01 Annotation The existence of a conspiracy under sub. (4) (b) 5. must be shown by a preponderance of the evidence by the party offering the statement. Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987).

908.01 Annotation Under sub. (4) (b) 4., a party introducing the 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 (1974).

908.01 Annotation Bourjaily v. United States: New Rule for Admitting Coconspirator Hearsay Statements under Federal Rule of Evidence 801(d)(2)(E). Sullivan. 1988 WLR 577.

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 Wis. 2d R1, R248 (1973).

908.02 Annotation The rule of completeness requires that 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 Wis. 2d 640, 511 N.W.2d 316 (Ct. App. 1993).

908.02 Annotation Prisoner disciplinary hearings are governed by administrative rules that permit consideration of hearsay evidence. State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 585 N.W.2d 640 (Ct. App. 1998), 97-2972.

908.02 Annotation As long as motive and opportunity have been shown and there is also some evidence to directly connect a third person to the crime charged that is not remote in time, place, or circumstances, the evidence should be admissible. State v. Knapp, 2003 WI 121, 265 Wis. 2d 278, 666 N.W.2d 881, 00-2590.

908.02 Annotation A mechanistic application of the law of hearsay should not defeat a defendant’s right to obtain a fair trial through the presentation of reliable hearsay evidence. Evidence that qualifies for admission under an exception to the hearsay rule and is critical to the defense implicates constitutional rights directly affecting the ascertainment of guilt and should be admitted under Chambers, 410 U.S. 284 (1973). State v. Knapp, 2003 WI 121, 265 Wis. 2d 278, 666 N.W.2d 881, 00-2590.

908.02 Annotation Computer-stored records, which memorialize the assertions of human declarants, are distinct from computer-generated records, which are the result of a process free of human intervention. The hearsay rule is designed to protect against the four testimonial infirmities of ambiguity, insincerity, faulty perception, and erroneous memory. A record created as a result of a computerized or mechanical process cannot lie, forget, or misunderstand and is not hearsay. Because such a report is not hearsay, it is subject only to the statutory authentication requirements, and it is properly authenticated under s. 909.01 through the testimony of experienced operators. State v. Kandutsch, 2011 WI 78, 336 Wis. 2d 478, 799 N.W.2d 865, 09-1351.

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, or by certification that complies with s. 909.02 (12) or (13), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.

908.03(6m) (6m) Patient health care records.

908.03(6m)(a) (a) Definition. In this subsection:

908.03(6m)(a)1. 1. “Health care provider” has the meanings given in ss. 146.81 (1) and 655.001 (8).

908.03(6m)(a)2. 2. “Patient health care records” has the meaning given in s. 146.81 (4).