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
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
Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.
Hearsay exceptions; declarant unavailable.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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.
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.
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.
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.
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.
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.
A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.
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
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
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
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).
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
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
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
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).
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).
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).
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
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
. But see Murillo v. Frank, 402 F.3d 786
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
. But see Murillo v. Frank, 402 F.3d 786
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
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
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
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
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
The admission of a dying declaration statement does not violate the constitutional right to confront witnesses. The confrontation right does not apply when an exception to that right was recognized at common law at the time of the founding, which the dying declaration exception was. The fairest way to resolve the tension between the state's interest in presenting a dying declaration and concerns about its potential unreliability is to freely permit the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case. State v. Beauchamp, 2011 WI 27
, 333 Wis. 2d 1
, 796 N.W.2d 780
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
Corroboration requirement for statements against penal interest. 1989 WLR 403 (1989).
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.
History: Sup. Ct. Order, 59 Wis. 2d R1, R323 (1973).
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
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
Before entertaining the question of whether proffered evidence is hearsay or falls under a hearsay exception, courts must engage in an analysis of whether the evidence is relevant. In this case, because testimony as to the victim's character and personal history was not relevant to the defendant's guilt or innocence, testimony on those issues was not admissible regardless of the applicability of any hearsay exceptions. State v. Jacobs, 2012 WI App 104
, 344 Wis. 2d 142
, 822 N.W.2d 885
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.
Sup. Ct. Order, 59 Wis. 2d R1, R325 (1973); 1991 a. 32
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 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.
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)
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)
The court or hearing examiner shall admit the recording upon finding all of the following:
That the trial or hearing in which the recording is offered will commence:
Before the child's 16th birthday and the interests of justice warrant its admission under sub. (4)
That the recording is accurate and free from excision, alteration and visual or audio distortion.
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.
That the time, content and circumstances of the statement provide indicia of its trustworthiness.
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.
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:
The child's chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.
The child's general physical and mental health.
Whether the events about which the child's statement is made constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.
The child's custodial situation and the attitude of other household members to the events about which the child's statement is made and to the underlying proceeding.
The child's familial or emotional relationship to those involved in the underlying proceeding.
The child's behavior at or reaction to previous interviews concerning the events involved.
Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the child's prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child's subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.
Whether the child manifests or has manifested symptoms associated with posttraumatic stress disorder or other mental disorders, including, without limitation, reexperiencing the events, fear of their repetition, withdrawal, regression, guilt, anxiety, stress, nightmares, enuresis, lack of self-esteem, mood changes, compulsive behaviors, school problems, delinquent or antisocial behavior, phobias or changes in interpersonal relationships.
Whether admission of the recording would reduce the mental or emotional strain of testifying or reduce the number of times the child will be required to testify.
If the court or hearing examiner admits a recorded statement under this section, the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the statement is shown to the trier of fact. Except as provided in par. (b)
, if that party does not call the child, the court or hearing examiner, upon request by any other party, shall order that the child be produced immediately following the showing of the statement to the trier of fact for cross-examination.
If a recorded statement under this section is shown at a preliminary examination under s. 970.03
and the party who offers the statement does not call the child to testify, the court may not order under par. (a)
that the child be produced for cross-examination at the preliminary examination.
At a trial or hearing under sub. (1)
, a court or a hearing examiner may also admit into evidence an audiovisual recording of an oral statement of a child that is hearsay and is admissible under this chapter as an exception to the hearsay rule.
Judicial Council Note, 1985: See the legislative purpose clause in Section 1 of this act.
Sub. (1) limits this hearsay exception to criminal trials and hearings in criminal, juvenile and probation or parole revocation cases at which the child is available to testify. Other exceptions may apply when the child is unavailable. See ss. 908.04 and 908.045, stats. Sub. (5) allows the proponent to call the child to testify and other parties to have the child called for cross-examination. The right of a criminal defendant to cross-examine the declarant at the trial or hearing in which the statement is admitted satisfies constitutional confrontation requirements. California v. Green, 399 U.S. 149
, 166 and 167 (1970); State v. Burns, 112 Wis. 2d 131
, 144, 332 N.W.2d 757
(1983). A defendant who exercises this right is not precluded from calling the child as a defense witness.
Sub. (2) requires a pretrial offer of proof and a hearing at which the court or hearing examiner must rule upon objections to the admissibility of the statement in whole or in part. These objections may be based upon evidentiary grounds or upon the requirements of sub. (3). If the trial is to be to a jury, the videotape must be edited under one of the alternatives provided in s. 885.44 (12), stats.
Sub. (3) (a) limits the applicability of this hearsay exception to trials and hearings which commence prior to the child's 16th birthday. If the trial or hearing commences after the child's 12th birthday, the court or hearing examiner must also find that the interests of justice warrant admission of the statement. A nonexhaustive list of factors to be considered in making this determination is provided in sub. (4).
Sub. (6) refers to the statutes making videotaped oral statements of children discoverable prior to trial or hearing. [85 Act 262]
Interviewers need not extract the exact understanding that “false statements are punishable" in order to meet the requirement of sub. (3) (c) if the tape, assessed in its totality, satisfies the requirement. State v. Jimmie R.R. 2000 WI App 5
, 232 Wis. 2d 138
, 606 N.W.2d 196
Sub. (7) permits the admission of a child's videotaped statement under any applicable hearsay exception regardless of whether the requirements of subsections (2) and (3) have been met. State v. Snider, 2003 WI App 172
, 266 Wis. 2d 830
, 668 N.W.2d 784
A defendant who introduces testimony from an unavailable declarant cannot later claim that he or she was harmed by an inability to cross-examine the declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant. State v. Smith, 2005 WI App 152
, 284 Wis. 2d 798
, 702 N.W.2d 850
This section does not violate the separation of powers doctrine by dictating the admissibility and order in which the court receives videotape evidence and in-court testimony. State v. James, 2005 WI App 188
, 285 Wis. 2d 783
, 703 N.W.2d 727
This section, dealing specifically with the admissibility and presentation of videotaped statements by child witnesses, controls over ss. 904.03 and 906.11, more general statutes regarding the court's authority to control the admission, order, and presentation of evidence. State v. James, 2005 WI App 188
, 285 Wis. 2d 783
, 703 N.W.2d 727
There is no conflict between subs. (3) (e) and (5) (a). Sub. (3) (e) asks the trial court to discern whether, given what it knows at the time it assesses admissibility, allowing a videotaped statement into evidence would deprive any party of a fair opportunity to meet allegations made in the statement. State v. James, 2005 WI App 188
, 285 Wis. 2d 783
, 703 N.W.2d 727
The recorded oral statement of a child who is available to testify, made admissible by this section, is the testimony of that child irrespective of whether that oral statement is sworn. Whether the child is sworn has no bearing on whether that evidence is testimony that must be taken down by the court reporter. State v. Ruiz-Velez, 2008 WI App 169
, 314 Wis. 2d 724
, 762 N.W.2d 449
This section makes no room for admission of the recordings once the child turns age 16. Because the recorded witness was about to turn 16 and the state would have lost the ability to introduce audiovisual recordings of the victim under this section if the defendant had been allowed to withdraw a guilty plea, the circuit court's conclusion that “this is an absolutely clear and easy call . . . to find that if the State was not allowed to use the (named) tapes it would result in substantial prejudice to the State" was quite defensible. State v. Lopez, 2014 WI 11
, 353 Wis. 2d 1
, 843 N.W.2d 390