Chapter 908

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).

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 patient health care 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 patient health care 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 patient health care 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)(bm) (bm) Presumption. Billing statements or invoices that are patient health care records are presumed to state the reasonable value of the health care services provided and the health care services provided are presumed to be reasonable and necessary to the care of the patient. Any party attempting to rebut the presumption of the reasonable value of the health care services provided may not present evidence of payments made or benefits conferred by collateral sources.

908.03(6m)(c) (c) Subpoena limitations. Patient health care records are subject to subpoena only if one of the following conditions exists:

908.03(6m)(c)1. 1. The health care provider is a party to the action.

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 under s. 146.83 (1f) or (3f), whichever is applicable.

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; Sup. Ct. Order No. 04-09, 2005 WI 148, 283 Wis. 2d xv; 2007 a. 20 s. 9121 (6) (a); 2009 a. 28; 2011 a. 32; 2013 a. 166 s. 77.

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 Comment, October 2005: This amendment conforms Wisconsin’s rule to the 2000 amendment of Rule 803 (6) of the Federal Rule of Evidence. The Judicial Council advised the court of its concern and desire that the proposed amendment to Wis. Stat. § 908.03 (6) not be viewed to change the law as expressed in State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, regarding records of an investigation conducted for the particular purpose of litigation. [Re Sup. Ct. Order No. 04-09]

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 two 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 a punch press operator that the press had repeated three times, made five 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 a 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 five-year-old child to the child’s 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 (Ct. App. 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. Boschka, 173 Wis. 2d 387, 496 N.W.2d 627, 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 548, 535 N.W.2d 777 (Ct. App. 1995).

908.03 Annotation Discussing the sub. (2) excited utterance and the sub. (24) residual exceptions 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 is authoritative and reliable. Broadhead v. State Farm Mutual Automobile Insurance Co., 217 Wis. 2d 231, 579 N.W.2d 761 (Ct. App. 1998), 97-0904.