On Point blog, page 2 of 2
Hearsay, Definitions – “Assertion,” § 908.01(1) – Expression of Fact, Condition or Opinion
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding1: “(W)e conclude that ‘assertion,’ as used in § 908.01(1) means an expression of a fact, condition, or opinion.” ¶38. And, the speaker must intend the utterance to be an “assertion” as thus defined, because “when a speaker does not intend to communicate anything, his or her sincerity is not in question and the need for cross-examination to test perception,
Hearsay, Definitions – “Statement,” § 908.01(1) – Truth of Matter Asserted
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was a hearsay “statement,” as defined in § 908.01(1), i.e., offered for the truth of the matter asserted.
Holding:
¶36. There is no dispute that an out-of-court instruction to do something is not hearsay when offered to prove that the instruction was given and,
Hearsay — Statement — Truth of Matter Asserted — Probative Value
State v. Michael A. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998)
For Sveum: Robert T. Ruth
Issue/Holding: Where the defendant sought admissibility of a statement by a non-testifying declarant on the basis that it was not offered for its truthfulness, but the statement would have probative value only if offered for truth of the matter asserted, it was inadmissible hearsay.