hearsay rule in Wisconsin

2003Chambers did not limit its rule only to evidence labeled "critical," instead it stated: "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers, 410 U.S. at 302 .

2003Chambers did not limit its rule only to evidence labeled "critical," instead it stated: "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers, 410 U.S. at 302 .

2019As to that fact, there is no more objection to permitting a witness to testify as to what he heard said than as to what he may have observed, and he may be cross-examined as to both.”); State v. Curbello- Rodriguez, 119 Wis. 2d 414, 427 , 351 N.W.2d 758 (Ct. App. 1984) (“The hearsay rule does not prevent a witness from testifying as to what he [or she] heard; it is rather a restriction on the proof of fact through extrajudicial statements.” (quoting Dutton v. Evans, 400 U.S. 74, 88 (1970)). 6 No. 2018AP2251-CR ¶12 While we believe the circuit court erred in not permitting Holland’s testimony t

1984“The hearsay rule does not prevent a witness from testifying as to what he heard; it is rather a restriction on the proof of fact through extrajudicial statements.” Dutton v. Evans, 400 U.S. 74, 88 (1970).

2023But, as G.T.H. alerted the circuit court in his motion in limine, while experts may rely on inadmissible evidence that includes hearsay in forming opinions, it remains that “the underlying evidence is still inadmissible.” See S.Y., 156 Wis. 2d at 328 (citing § 907.03); see also State v. Weber, 174 Wis. 2d 98, 108 , 496 N.W.2d 762 (Ct. App. 1993) (opinion evidence may be based upon hearsay, but the underlying hearsay data may not be admitted unless it is otherwise admissible under a hearsay exception). ¶35 Thus, for example, in S.Y. the county petitioning for commitment relied on expert testimo

2023But, as G.T.H. alerted the circuit court in his motion in limine, while experts may rely on inadmissible evidence that includes hearsay in forming opinions, it remains that “the underlying evidence is still inadmissible.” See S.Y., 156 Wis. 2d at 328 (citing § 907.03); see also State v. Weber, 174 Wis. 2d 98, 108 , 496 N.W.2d 762 (Ct. App. 1993) (opinion evidence may be based upon hearsay, but the underlying hearsay data may not be admitted unless it is otherwise admissible under a hearsay exception). ¶35 Thus, for example, in S.Y. the county petitioning for commitment relied on expert testimo

2002Instead, the Court held that because the evidence had "sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause [was] satisfied." Id. at 356 . [8] The parties' waiver arguments primarily involve reconciling the present case with State v. Villarreal, 153 Wis. 2d 323 (Ct. App. 1989), and State v. Benoit, 229 Wis. 2d 630 (Ct. App. 1999).

2002Instead, the Court held that because the evidence had "sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause [was] satisfied." Id. at 356 .

2003Thus, the right to confrontation has a similar purpose as the hearsay rule and its exceptions: "to ensure that the trier of fact has a satisfactory basis for evaluating the truthfulness of the evidence admitted in a criminal case." State v. Tomlinson, 2002 WI 91, ¶ 40 , 254 Wis. 2d 502 , 648 N.W.2d 367 (citing Bauer, 109 Wis. 2d at 210 ).

2003Thus, the right to confrontation has a similar purpose as the hearsay rule and its exceptions: "to ensure that the trier of fact has a satisfactory basis for evaluating the truthfulness of the evidence admitted in a criminal case." State v. Tomlinson, 2002 WI 91, ¶ 40 , 254 Wis. 2d 502 , 648 N.W.2d 367 (citing Bauer, 109 Wis. 2d at 210 ).

2021See Simpson, 250 Wis. 2d 214, ¶¶20-22 ; Sorenson, 143 Wis. 2d at 242 ; § 908.03 (“The following [statements] are not excluded by the hearsay rule, even though the declarant is available as a witness ….”). ¶16 In sum, McShan was afforded the due process protection to which he was entitled under the case law and administrative code.

2021In Sorenson, our supreme court held that, “[i]n the absence of a specific hearsay exception governing young children’s statements in sexual assault cases, use of the residual [hearsay] exception is an appropriate method to admit these statements if they are otherwise proven sufficiently trustworthy.” Id. at 243 .

2013The confrontation clause is narrower than the hearsay rule; its "impetus . . . was the practice of trying defendants on 'evidence' which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact." Id. at 156 .

1990California v. Green, 399 U.S. 149, 160-64 (1970) (holding that where a declarant is present to testify and to submit to cross-examination, admission of his out-of-court statements under a hearsay exception does not create a confrontation problem); see also State v. Burns, 112 Wis. 2d 131, 144 , 332 N.W.2d 757, 764 (1983) (holding that confrontation rights under the Wisconsin and United States Constitutions are the same). *216 Tarantino also complains that the statute depicts him as the "villain" to the jury because the child may be called for live testimony at his instance.

2019Blinka, Wisconsin Practice Series: Wisconsin Evidence *247 § 801.302 at 768 (4th ed. 2017); see State v. Medrano , 84 Wis. 2d 11 , 19-20, 267 N.W.2d 586 (1978) (reasoning that the testimony was properly admitted "because it was not offered for the truth of the statement"); Caccitolo v. State , 69 Wis. 2d 102 , 107, 230 N.W.2d 139 (1975) ("the hearsay rule is inapplicable to out-of-court assertions ... if the statement is not offered to prove the truth of the matter asserted.") ¶20 Our first inquiry, pursuant to Crawford , is to determine whether the testimony is hearsay.

2019Blinka, Wisconsin Practice Series: Wisconsin Evidence *247 § 801.302 at 768 (4th ed. 2017); see State v. Medrano , 84 Wis. 2d 11 , 19-20, 267 N.W.2d 586 (1978) (reasoning that the testimony was properly admitted "because it was not offered for the truth of the statement"); Caccitolo v. State , 69 Wis. 2d 102 , 107, 230 N.W.2d 139 (1975) ("the hearsay rule is inapplicable to out-of-court assertions ... if the statement is not offered to prove the truth of the matter asserted.") ¶20 Our first inquiry, pursuant to Crawford , is to determine whether the testimony is hearsay.

2003A hearsay exception is "firmly rooted" if "in light of `longstanding judicial and legislative experience,' it `rest[s] [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the substance of the constitutional protection.'" Lilly, 527 U.S. at 126 (quoting Idaho v. Wright, 497 U.S. 805, 817 (1990); Roberts, 448 U.S. at 66 ).

2003A hearsay exception is "firmly rooted" if "in light of 'longstanding judicial and legislative experience,' it 'rest[s] [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the substance of the constitutional protection.'" Lilly, 527 U.S. at 126 (quoting Idaho v. Wright, 497 U.S. 805, 817 (1990); Roberts, 448 U.S. at 66 ).

1989In State v. Lenarchik, 74 Wis. 2d [425, 432, 247 N.W.2d 80, 84 (1976)], we held that "compliance with a state's hearsay rule does not ipso facto ensure compliance with the constitutional mandate for confrontation in a criminal case." Therefore, in determining whether hearsay evidence is admissible in a criminal case, it is necessary to look beyond the hearsay rules.

1982In State v. Lenarchick, 74 Wis. 2d at 432 , we held that “compliance with a state’s hearsay rule does not ipso facto insure compliance with the constitutional mandate for confrontation in a criminal case.” Therefore, in determining whether hearsay evidence is admissible in a criminal case, it is necessary to look beyond the hearsay rules.

2003A hearsay exception is "firmly rooted" if "in light of `longstanding judicial and legislative experience,' it `rest[s] [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the substance of the constitutional protection.'" Lilly, 527 U.S. at 126 (quoting Idaho v. Wright, 497 U.S. 805, 817 (1990); Roberts, 448 U.S. at 66 ).

2003A hearsay exception is "firmly rooted" if "in light of 'longstanding judicial and legislative experience,' it 'rest[s] [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the substance of the constitutional protection.'" Lilly, 527 U.S. at 126 (quoting Idaho v. Wright, 497 U.S. 805, 817 (1990); Roberts, 448 U.S. at 66 ).

2025Finally, the “statement must be made while the declarant 9 No. 2024AP1041-CR is still ‘under the stress of excitement caused by the event or condition.’” Id. (citation omitted); see also § 908.03(2). ¶22 “‘The excited utterance exception ... is based upon spontaneity and stress’ which, like the bases for all exceptions to the hearsay rule, ‘endow such statements with sufficient trustworthiness to overcome the reasons for exclusion of hearsay.’” Huntington, 216 Wis. 2d at 681-82 (citation omitted; ellipsis in Huntington).

2025Finally, the “statement must be made while the declarant 9 No. 2024AP1041-CR is still ‘under the stress of excitement caused by the event or condition.’” Id. (citation omitted); see also § 908.03(2). ¶22 “‘The excited utterance exception ... is based upon spontaneity and stress’ which, like the bases for all exceptions to the hearsay rule, ‘endow such statements with sufficient trustworthiness to overcome the reasons for exclusion of hearsay.’” Huntington, 216 Wis. 2d at 681-82 (citation omitted; ellipsis in Huntington).

1993Our supreme court outlined the prerequisites of admissibility under the excited utterance hearsay exception as it applies to children alleged to have been victims of sexual assault in State v. Moats, 156 Wis. 2d 74, 97 , 457 N.W.2d 299, 309 (1990): The excited utterance exception to the hearsay rule is based in the spontaneity of the statements and the stress of the incident which endow the statements with the requisite trustworthiness necessary to overcome the general rule against admitting hearsay evidence. ... "[T]ime is measured by the duration of the condition of excitement rather than me

1993Our supreme court outlined the prerequisites of admissibility under the excited utterance hearsay exception as it applies to children alleged to have been victims of sexual assault in State v. Moats, 156 Wis. 2d 74, 97 , 457 N.W.2d 299, 309 (1990): The excited utterance exception to the hearsay rule is based in the spontaneity of the statements and the stress of the incident which endow the statements with the requisite trustworthiness necessary to overcome the general rule against admitting hearsay evidence. ... "[T]ime is measured by the duration of the condition of excitement rather than me

2021Watson, 227 Wis. 2d at 198-99 ; see also State v. Weber, 174 Wis. 2d 98, 107 , 496 N.W.2d 762 (Ct. App. 1993) (“Hearsay data upon which the expert’s opinion is predicated may not be automatically admitted into evidence by the proponent and used for the truth of the matter asserted unless the data are otherwise admissible under a recognized exception to the hearsay rule.”).

2020See State v. Watson, 227 Wis. 2d 167, 191, 195 , 595 N.W.2d 403 (1999); see also Weber, 174 Wis. 2d at 108 (stating that the circuit court “correctly recognized that [§] 907.03 … allowed [the expert] to offer an opinion based in part upon hearsay data thatwas otherwise inadmissible”).21 However, “§ 907.03 is not a hearsay exception” and it “does not permit” the disclosure of hearsay evidence during direct examination.

1987In Mitchell v. State, 84 Wis. 2d 325, 331 , 267 N.W.2d 349, 352 (1978), quoting Federal Advisory Committee’s Note, 59 Wis. 2d at R302, the supreme court recognized that "[t]he residual exception to the hearsay rule in sec. 908.03(24) is designed to allow for the growth of the evidence code to provide for 'unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically stated exceptions,”’ and that the character of the statements made and the surrounding circumstances are the focus of the admissibility determination.

1987In Mitchell v. State, 84 Wis. 2d 325, 331 , 267 N.W.2d 349, 352 (1978), quoting Federal Advisory Committee’s Note, 59 Wis. 2d at R302, the supreme court recognized that "[t]he residual exception to the hearsay rule in sec. 908.03(24) is designed to allow for the growth of the evidence code to provide for 'unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically stated exceptions,”’ and that the character of the statements made and the surrounding circumstances are the focus of the admissibility determination.

2015The defendant's wife did not testify "because of the state marital privilege, which generally [barred] a spouse from testifying without the other spouse's consent." Id. "[The] privilege [did] not extend to a spouse's out-of-court statements admissible under a hearsay exception." Id.

2015The defendant's wife did not testify "because of the state marital privilege, which generally [barred] a spouse from testifying without the other spouse's consent." Id. "[The] privilege [did] not extend to a spouse's out-of-court statements admissible under a hearsay exception." Id.

2020“Only after it is established that evidence is admissible pursuant to a hearsay exception is it necessary to consider the confrontation clause.” Id. ¶18 The State argues that Detective Enk’s testimony regarding the confidential informant’s information regarding “Tito” was not introduced for the truth of the matter asserted, and therefore was not hearsay.

2003The concurrence in State v. Weed, 2003 WI 85 , 263 Wis. 2d 434 , 666 N.W.2d 485 (Bradley, J., concurring), which I joined, discusses the foundation necessary to meet this hearsay exception and emphasizes that the exception is to be narrowly applied.

2005A hearsay exception is firmly rooted "if, in light of longstanding judicial and legislative experience, it rests on such a solid foundation that admission of virtually any evidence within it comports with the substance of the constitutional protection." Lilly v. Virginia, 527 U.S. 116, 126 (1999) (citations, quotations and alterations omitted).

2004A hearsay exception is firmly rooted if, "in light of longstanding judicial and legislative experience" it "rest[s] [on] such [a] solid foundatio[n] that admission of virtually any evidence within [it] comports with the substance of the constitutional protection." Lilly v. Virginia, 527 U.S. 116, 126 (1999) (citations omitted).

2025“Whether a statement is admissible under a hearsay exception ... is a question of law that we review de novo.” State v. Joyner, 2002 WI App 250, ¶16 , 258 Wis. 2d 249 , 653 N.W.2d 290 . ¶21 Fisher argues that Gibbs’s recantation is admissible through Voge under WIS.

2025“Whether a statement is admissible under a hearsay exception ... is a question of law that we review de novo.” State v. Joyner, 2002 WI App 250, ¶16 , 258 Wis. 2d 249 , 653 N.W.2d 290 . ¶21 Fisher argues that Gibbs’s recantation is admissible through Voge under WIS.

2023Id. ¶43 During the hearing in this case, the circuit court admitted several of Clarence’s out-of-court statements, citing the hearsay exception in WIS.

2022This court “may review the record to determine if a statement is admissible under a particular hearsay exception even though the [circuit] court did not admit the statement on that basis.” State v. Kutz, 2003 WI App 205, ¶33 , 267 Wis. 2d 531 , 671 N.W.2d 660 .

1986They are admissible under the hearsay rule for that very reason ... and... are sufficient to satisfy the confrontation clause ...” Id. at 476 , 302 N.W.2d at 434 .

1986They are admissible under the hearsay rule for that very reason ... and... are sufficient to satisfy the confrontation clause ...” Id. at 476 , 302 N.W.2d at 434 .

2023Boyer v. State, 91 Wis. 2d 647, 661-62 , 284 N.W.2d 30 (1979); Wis. Stat. § 908.05 ("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.").

2023Boyer v. State, 91 Wis. 2d 647, 661-62 , 284 N.W.2d 30 (1979); Wis. Stat. § 908.05 ("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.").

2021However, "an out-of-court statement, even though hearsay, may be admissible if it fits within a recognized exception to the hearsay rule." Virgil v. State, 84 Wis. 2d 166, 185 , 267 N.W.2d 852 (1978). ¶41 Video-recordings of a child's statements are admissible if the child is available to testify and the child's statements fall into one of the provisions of Wis. Stat. 18 No. 2018AP2419-CR § 908.08.

2021However, "an out-of-court statement, even though hearsay, may be admissible if it fits within a recognized exception to the hearsay rule." Virgil v. State, 84 Wis. 2d 166, 185 , 267 N.W.2d 852 (1978). ¶41 Video-recordings of a child's statements are admissible if the child is available to testify and the child's statements fall into one of the provisions of Wis. Stat. 18 No. 2018AP2419-CR § 908.08.

2017Gemini spends a considerable portion of its respondent's brief on appeal arguing that the assignment documents attached to Neustadt's affidavit are admissible, either because: (1) they fall under the hearsay exception for records of regularly conducted activity, see Wis. Stat. § 908.03 (6) and Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶ 11 , 324 Wis. 2d 180 , 781 N.W.2d 503 ; or (2) they are not hearsay, pursuant to Bank of America NA v. Neis, 2013 WI App 89, ¶ 49 , 349 Wis. 2d 461 , 835 N.W.2d 527 , and Lyon Financial Services, Inc. v. Dr. Manelle Fernando Medical Clinic, Inc., No. 2

2017Gemini spends a considerable portion of its respondent's brief on appeal arguing that the assignment documents attached to Neustadt's affidavit are admissible, either because: (1) they fall under the hearsay exception for records of regularly conducted activity, see Wis. Stat. § 908.03 (6) and Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶ 11 , 324 Wis. 2d 180 , 781 N.W.2d 503 ; or (2) they are not hearsay, pursuant to Bank of America NA v. Neis, 2013 WI App 89, ¶ 49 , 349 Wis. 2d 461 , 835 N.W.2d 527 , and Lyon Financial Services, Inc. v. Dr. Manelle Fernando Medical Clinic, Inc., No. 2

2008In State v. Watson, 227 Wis. 2d 167, 195 , 595 N.W.2d 403 (1999), the supreme court explained: "In Kolpin v. Pioneer Power & Light, 162 Wis. 2d 1, 37 , 469 N.W.2d 595 (1991), we stated that 'even if [the expert] arguably relied on hearsay in forming [the expert's] opinion, [the expert's] opinion is still admissible.'" We note, however, that [Wisconsin Stat. §] 907.03 is not a hearsay exception.

2008In State v. Watson, 227 Wis. 2d 167, 195 , 595 N.W.2d 403 (1999), the supreme court explained: "In Kolpin v. Pioneer Power & Light, 162 Wis. 2d 1, 37 , 469 N.W.2d 595 (1991), we stated that 'even if [the expert] arguably relied on hearsay in forming [the expert's] opinion, [the expert's] opinion is still admissible.'" We note, however, that [Wisconsin Stat. §] 907.03 is not a hearsay exception.