Wisconsin Statutes
Wis. Stat. § 908.04 (2026)
Hearsay exceptions; declarant unavailable; definition of unavailability
✓ current as of July 2026
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908.04(1)(a)(a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or
908.04(1)(b)(b) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the judge to do so; or
908.04(1)(c)(c) Testifies to a lack of memory of the subject matter of the declarant’s statement; or
908.04(1)(d)(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
908.04(1)(e)(e) Is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance by process or other reasonable means.
908.04(2)(2) A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.
908.04 AnnotationAdequate medical evidence of probable psychological trauma is required to support an unavailability finding based on trauma, absent an emotional breakdown on the witness stand. State v. Sorenson, 152 Wis. 2d 471, 449 N.W.2d 280 (Ct. App. 1989).
908.04 AnnotationThe state must show by a preponderance of the evidence that the declarant’s absence is due to the defendant’s misconduct under sub. (2). State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990).
908.04 AnnotationWhen 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, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
908.04 AnnotationA 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 (1984).
908.04 AnnotationHearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.
Notes of Decisions
Cited in 53
cases (9 in the last 5 years), 1976–2023 · leading case: State v. Tomlinson, 2002 WI 91 (Wis. 2002).
State v. Tomlinson, 2002 WI 91 (Wis. 2002). “After Coleman was excused, the State moved to have Coleman declared unavailable under Wis. Stat. § 908.04 (1)(a) and (b), and to have Coleman's preliminary hearing testimony admitted under the hearsay exception in Wis.”
State v. Nelis, 2007 WI 58 (Wis. 2007). “¶ 34 During the direct examination of Police Chief Stone, Nelis' counsel objected to the oral statements of Steve Stone on the grounds that the statements were inadmissible pursuant to Wis.”
State v. Sorenson, 421 N.W.2d 77 (Wis. 1988). “was declared an unavailable witness pursuant to sec. 908.04(1)(b), Stats. [3] The court did not formally order L.”
State v. Drusch, 407 N.W.2d 328 (Wis. Ct. App. 1987). “was unavailable to testify within the meaning of sec. 908.04, Stats., so that her testimony at the preliminary hearing could be read into the record *316 pursuant to sec.”
State v. Burns, 332 N.W.2d 757 (Wis. 1983). “Section 908.04(1) (d) defines unavailability of a witness to include situations where the declarant is “unable to .”
State v. Williams, 2002 WI 58 (Wis. 2002). “045(4) is determined by Wis. Stat. § 908.04 (1)(e), which requires that the declarant is "absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means.”
State v. Stuart, 2003 WI 73 (Wis. 2003). “There is also no dispute in this case that the witness is, indeed, unavailable as defined in Wis. Stat. § 908.04 (1)(b), because he asserted his Fifth Amendment *642 rights, refusing to answer questions even after being offered use immunity and being warned that he could be held…”
State v. Marks, 533 N.W.2d 730 (Wis. 1995). “NOTES [1] Section 908.04, Stats., provides in part: Hearsay exceptions; declarant unavailable; definition of unavailability.”
State v. Guerard, 2004 WI 85 (Wis. 2004). “The judge held that Daniel was unavailable to testify under Wis. Stat. § 908.04 . ¶ 13. Kurzynski then informed the court that Daniel had also confessed to his sister, Judy Cole, and that Cole was prepared to testify.”
State v. Manuel, 2005 WI 75 (Wis. 2005). “The State recognizes Manuel's contention but does not respond, instead choosing to focus its argument on whether there are sufficient guarantees of trustworthiness.”
State v. Bintz, 2002 WI App 204 (Wis. Ct. App. 2002). “Here, the court determined *185 David was unavailable because he invoked his Fifth Amendment right against self-incrimination as provided in Wis. Stat. § 908.04 (1)(a). ¶ 9. Robert argues those portions of the 1987 statement which inculpate him by placing him at the scene of the…”
State v. Norman, 2003 WI 72 (Wis. 2003). “8 Section 908.04(l)(d) *520 defines unavailability of a witness as including situations in which a declarant "is unable to be present or to testify at the hearing because of.”
— Wis. Stat. § 908.04(1) — 7 cases
State v. Nelis, 2007 WI 58 (Wis. 2007). “¶ 34 During the direct examination of Police Chief Stone, Nelis' counsel objected to the oral statements of Steve Stone on the grounds that the statements were inadmissible pursuant to Wis.”
State v. Burns, 332 N.W.2d 757 (Wis. 1983). “Section 908.04(1) (d) defines unavailability of a witness to include situations where the declarant is “unable to .”
State v. Sorenson, 449 N.W.2d 280 (Wis. Ct. App. 1989).
State v. Oliver, 467 N.W.2d 211 (Wis. Ct. App. 1991).
State v. Kevin L. C., 576 N.W.2d 62 (Wis. Ct. App. 1997).
— Wis. Stat. § 908.04(1)(a) — 1 case
State v. Marks, 533 N.W.2d 730 (Wis. 1995). “NOTES [1] Section 908.04, Stats., provides in part: Hearsay exceptions; declarant unavailable; definition of unavailability.”
— Wis. Stat. § 908.04(1)(b) — 2 cases
State v. Sorenson, 421 N.W.2d 77 (Wis. 1988). “was declared an unavailable witness pursuant to sec. 908.04(1)(b), Stats. [3] The court did not formally order L.”
Avonelle M. Kissack Living Trust v. Am. Transmission Co., LLC (Wis. Ct. App. 2020).
— Wis. Stat. § 908.04(1)(c) — 1 case
State v. Richard A. Boie (Wis. Ct. App. 2020).
— Wis. Stat. § 908.04(1)(d) — 6 cases
State v. Burns, 332 N.W.2d 757 (Wis. 1983). “Section 908.04(1) (d) defines unavailability of a witness to include situations where the declarant is “unable to .”
State v. Drusch, 407 N.W.2d 328 (Wis. Ct. App. 1987). “was unavailable to testify within the meaning of sec. 908.04, Stats., so that her testimony at the preliminary hearing could be read into the record *316 pursuant to sec.”
State v. McGinnis, 927 N.W.2d 922 (Wis. Ct. App. 2019).
State v. James Richard Coleman (Wis. Ct. App. 2021).
ADEM LLC v. Wade Weckler (Wis. Ct. App. 2021).
— Wis. Stat. § 908.04(1)(e) — 6 cases
State v. Williams, 2002 WI 58 (Wis. 2002). “045(4) is determined by Wis. Stat. § 908.04 (1)(e), which requires that the declarant is "absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means.”
State v. Baldwin, 2010 WI App 162 (Wis. Ct. App. 2010).
Kenneth J. Stankowski v. City of Wausau (Wis. Ct. App. 2023).
State v. Brian D. Triplett (Wis. Ct. App. 2023).
State v. Jason Luis Rodriguez (Wis. Ct. App. 2022).
— Wis. Stat. § 908.04(2) — 1 case
State v. Frambs, 460 N.W.2d 811 (Wis. Ct. App. 1990).
— Wis. Stat. § 908.04(l)(a) — 3 cases
State v. Whiting, 402 N.W.2d 723 (Wis. Ct. App. 1987).
State v. Marks, 533 N.W.2d 730 (Wis. 1995). “NOTES [1] Section 908.04, Stats., provides in part: Hearsay exceptions; declarant unavailable; definition of unavailability.”
State v. Peck, 422 N.W.2d 160 (Wis. Ct. App. 1988).
— Wis. Stat. § 908.04(l)(b) — 3 cases
State v. Sorenson, 421 N.W.2d 77 (Wis. 1988). “was declared an unavailable witness pursuant to sec. 908.04(1)(b), Stats. [3] The court did not formally order L.”
State v. Kevin L. C., 576 N.W.2d 62 (Wis. Ct. App. 1997).
State v. Dwyer, 422 N.W.2d 121 (Wis. Ct. App. 1988).
— Wis. Stat. § 908.04(l)(c) — 2 cases
State v. Petrovic, 592 N.W.2d 238 (Wis. Ct. App. 1999).
State v. Kevin L. C., 576 N.W.2d 62 (Wis. Ct. App. 1997).
— Wis. Stat. § 908.04(l)(d) — 3 cases
State v. Drusch, 407 N.W.2d 328 (Wis. Ct. App. 1987). “was unavailable to testify within the meaning of sec. 908.04, Stats., so that her testimony at the preliminary hearing could be read into the record *316 pursuant to sec.”
State v. Norman, 2003 WI 72 (Wis. 2003). “8 Section 908.04(l)(d) *520 defines unavailability of a witness as including situations in which a declarant "is unable to be present or to testify at the hearing because of.”
Burns v. Clusen, 599 F. Supp. 1438 (E.D. Wis. 1984).
— Wis. Stat. § 908.04(l)(e) — 1 case
State v. Keith, 573 N.W.2d 888 (Wis. Ct. App. 1997).
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