On Point blog, page 9 of 11
Evidence – Hearsay – Co-Conspirator’s Statement, § 908.01(4)(b)5.
State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis
Issue/Holding: ¶32, n. 4:
A statement made by a coconspirator in furtherance of the conspiracy is not a hearsay “exception”; it expressly is not hearsay. Wis. Stat. § 908.01(4)(b)5. (2003-04). While hearsay “exemption” is a more appropriate term, statements made under this subsection commonly are analyzed as hearsay and termed hearsay “exceptions.” See,
Confrontation – Hearsay – Impeachment as Exception to Crawford / § 908.06 – Admissibility of Hearsay Statement to Attack Credibility of Declarant
State v. Jermaine Smith, 2005 WI App 152, PFR filed
For Smith: Glen B. Kulkoski
Issue: Whether a co-actor’s in-custody pretrial statements were admissible as impeachment on rebuttal after the defense introduced a different hearsay statement by that declarant.
Holding:
¶10 The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis. Stat. § 908.06 ….
¶11 A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant.
Videotaped Statements of Children, § 908.08 – Constitutionality
State v. Kevin D. James, 2005 WI App 188
For James: Terry W. Rose
Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request. In effect, the videotape stands as the direct examination,
Hearsay – Against-Penal Interest Statement Exculpating Defendant, § 908.045(4)
State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals
For Guerard: Joseph L. Sommers
Issue/Holding:
¶23. The central issue in this case is the extent of corroboration required under Wis. Stat. § 908.045(4) for statements tending to expose the declarant to criminal liability and offered to exculpate the accused. We addressed this issue at length in Anderson,
Residual Exception, § 908.03(24): Videotaped Statements of Children
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A child’s videotaped statement may be admitted under the residual exception, § 908.03(24), without satisfying all the requirements of § 908.08. ¶40. The trial court properly applied the trustworthiness test of State v. Sorenson, 143 Wis. 2d 226, 245-46,
Hearsay – Recent Perception, § 908.045(2)
State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly
Issue/Holding:
¶16. Weed argues that the circuit court erroneously exercised its discretion in admitting Michael’s statement regarding unloading the .357 because the statement did not meet the statutory requirements for admissibility under Wis. Stat. § 908.045(2). Weed principally argues that Michael’s statement was inadmissible under the exception due to the lack of a proper foundation;
Hearsay – Against-Interest Statement, § 908.045(4) — Exculpating Defendant
State v. Sherrie S. Tucker, 2003 WI 12, on certification
For Tucker: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:
¶32. At the postconviction hearing, the circuit court upheld its prior ruling that McCray’s statements were not admissible as either statements against penal interest or under the residual exception to the hearsay rule. The circuit court noted that McCray’s statements attempted to exculpate Tucker without inculpating himself.
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,
§ 908.03(2), Excited Utterance
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue: Whether the declarant’s statement to another relating a threat by the defendant was admissible as an excited utterance, § 908.03(2).
Holding:
¶65. We agree with the State that the first two elements of this exception are met: Daniel’s threat to Elizabeth is a startling event and her statement to Bobholz certainly relates to it.