On Point blog, page 170 of 214
Hearsay – Authentication of Document
State v. Gary L. Gordon, 2002 WI App 53, affirmed, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether proof-of-service documents, introduced to show defendant’s knowledge of a domestic violence injunction, violated the hearsay rule.
Holding:
¶43. … However, these documents were not made under oath or attested to in any way; thus, they were not affidavits.
Narrative Statement — Distinct Assertions — Admissibility Methodology
State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶18. Shelleen Joyner argues that Trudy Joyner’s statement is against her penal interest, however, because Trudy Joyner admitted that she “knowingly helped a robber escape.” We disagree. “[W]hen ruling upon a narrative’s admissibility … a court must break it down and determine the separate admissibility of each ‘single declaration or remark.’”
Prior Inconsistent Statement — Foundational Requirement, §§ 906.11(1), 906.13(2)(a)2
State v. Zebelum Smith, 2002 WI App 118, PFR filed 5/9/02
For Smith: Erich C. Straub
Issue: Whether, as a foundational requirement for introducing a witness’s prior inconsistent statement, the witness must be given the opportunity to explain or deny the statement.
Holding: Although § 906.13(2)(a)1 suggests that the witness must first be given opportunity to explain or deny, it adds that the prior inconsistent statement is admissible if the witness hasn’t been excused from testifying:
¶13.
Hearsay – Residual Exception — Child Sexual Assault Victim
State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02
Issue/Holding: Child-sexual-assault-victim’s hearsay statement in this revocation case satisfies test for admissibility under residual exception, State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).
Against-Penal Interest Statement Exculpating Defendant, § 908.045(4)
State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether the pretrial statement of defendant’s sister, who failed to appear at trial, was admissible as a statement against penal interest, § 908.045(4).
Holding: A hearsay statement must be broken into its constituent parts, each viewed separately. ¶18. This statement has two parts.
Confrontation – Hearsay: Penal-Interest Statement, § 908.045(4) — Statement to Prison Cell-Mate / Non-Custodial Statement to Police
State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski
Issue/Holding: Confessions to fellow inmates are sufficiently reliable to allow admissibility without confrontation.
Issue/Holding: The codefendant’s (defendant’s brother) against-penal-interest statement to the police didn’t violate the confrontation clause, where the declarant “was not in custody and there is no indication he was threatened with prosecution or asked leading questions.”
Hearsay – Against-Penal Interest Statement Inculpating Defendant, § 908.045(4)
State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski
Issue: Whether the codefendant’s noncustodial statement to the police — which, although not acknowledging responsibility for the murder, did admit to threatening the victim and placing both defendants at the scene —
Witness – Impeachment — Interplay with Fifth Amendment
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness’s “real and appreciable apprehension” of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony.
Witness – Impeachment – Deferred Prosecution Agreement
State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.
Holding:
¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not ‘evidence that the witness has been convicted of a crime.’
Witness – Impeachment — Gang Affiliation — Admissibility on Bias
State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe
Issue/Holding: Evidence of gang affiliation is admissible (if state shows that defendant in fact was affiliated) to show witness’ bias, per United States v. Abel, 469 U.S. 45, 52 (1984). ¶¶17-19.