Wisconsin Statutes

Wis. Stat. § 908.045 (2026)

Hearsay exceptions; declarant unavailable

✓ current as of July 2026

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908.045908.045 Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

908.045(1)(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered.

908.045(2)(2) Statement of recent perception. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant’s recollection was clear.

908.045(3)(3) Statement under belief of impending death. A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.

908.045(4)(4) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.

908.045(5)(5) Statement of personal or family history of declarant. A statement concerning the declarant’s own birth, adoption, marriage, divorce, relationship by blood, adoption or marriage, ancestry, whether the person is a marital or nonmarital child, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated.

908.045(5m)(5m) Statement of personal or family history of person other than the declarant. A statement concerning the birth, adoption, marriage, divorce, relationship by blood, adoption or marriage, ancestry, whether the person is a marital or nonmarital child, or other similar fact of personal or family history and death of a person other than the declarant, if the declarant was related to the other person by blood, adoption or marriage or was so intimately associated with the other person’s family as to be likely to have accurate information concerning the matter declared.

908.045(6)(6) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.

908.045 HistoryHistory: Sup. Ct. Order, 59 Wis. 2d R1, R308 (1973); 1975 c. 94 s. 91 (12); 1975 c. 199; 1983 a. 447; 1991 a. 32; 1999 a. 85.

908.045 AnnotationA good-faith effort to obtain a witness’s presence at trial is a prerequisite to finding that the witness is “unavailable” for purposes of invoking the hearsay exception respecting former testimony. La Barge v. State, 74 Wis. 2d 327, 246 N.W.2d 794 (1976).

908.045 AnnotationThe defendant’s right of confrontation was not violated by the admission at trial of preliminary examination testimony of a deceased witness when the defendant had an unlimited opportunity to cross-examine the witness and the testimony involved the same issues and parties as at trial. Nabbefeld v. State, 83 Wis. 2d 515, 266 N.W.2d 292 (1978).

908.045 AnnotationA statement against penal interest may be admissible under sub. (4) if four factors indicating trustworthiness of the statement are present. Ryan v. State, 95 Wis. 2d 83, 289 N.W.2d 349 (Ct. App. 1980).

908.045 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 the witness. State v. Zellmer, 100 Wis. 2d 136, 301 N.W.2d 209 (1981).

908.045 AnnotationCorroboration under sub. (4) must be sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true. State v. Anderson, 141 Wis. 2d 653, 416 N.W.2d 276 (1987).

908.045 AnnotationUnder the “totality of factors” test, statements by a seven-year-old sexual abuse victim to a social worker possessed sufficient guarantees of trustworthiness to be admissible under sub. (6) at a preliminary hearing. State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).

908.045 AnnotationThe exception for a statement of recent perception under sub. (2) does not apply to the aural perception of an oral statement privately told to a person. State v. Stevens, 171 Wis. 2d 106, 490 N.W.2d 753 (Ct. App. 1992).

908.045 AnnotationThe exception under sub. (4) for a statement that makes the declarant an object of hatred, ridicule, or disgrace requires that the declarant have a personal interest in keeping the statement secret. State v. Stevens, 171 Wis. 2d 106, 490 N.W.2d 753 (Ct. App. 1992).

908.045 AnnotationDiscussing the similar motive and interest requirement of sub. (1). State v. Hickman, 182 Wis. 2d 318, 513 N.W.2d 657 (Ct. App. 1994).

908.045 AnnotationThe sub. (6) residual exception should be applied only to novel or unanticipated categories of hearsay. The testimony of a five-year-old girl against her mother fell within the sub. (6) exception when there were adequate assurances of trustworthiness. Requiring the girl to incriminate her mother at trial presented an exigency similar to the psychological scarring of a child victim. State v. Petrovic, 224 Wis. 2d 477, 592 N.W.2d 238 (Ct. App. 1999), 97-3403.

908.045 AnnotationThere are objective and subjective poles to the “social interest” exception under sub. (4) for statements that would subject the declarant to hatred, ridicule, or disgrace. The objective pole is the determination that the declarant actually faced a risk of hatred, ridicule, or disgrace. The subjective pole is the declarant’s appreciation of that risk. State v. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, 00-0812. But see Murillo v. Frank, 402 F.3d 786 (2005).

908.045 AnnotationIf a hearsay statement falls within a firmly rooted hearsay exception, it is automatically admitted; such statements are reliable without cross-examination. Hearsay that is not within a firmly rooted exception requires particularized showings of trustworthiness to be admitted. The social interest exception under sub. (4) is not firmly rooted, but there were sufficient showings of trust worthiness in this case. State v. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, 00-0812. But see Murillo v. Frank, 402 F.3d 786 (2005).

908.045 AnnotationWhen ruling on a narrative’s admissibility, a court must determine the separate admissibility of each single declaration or remark, which should be interpreted within the context of the circumstances under which it was made to determine if that assertion is in fact sufficiently against interest. State v. Joyner, 2002 WI App 250, 258 Wis. 2d 249, 653 N.W.2d 290, 01-3049.

908.045 AnnotationWhen a witness’s memory, credibility, or bias was not at issue at trial, the inability of the defendant to cross-examine the witness at the preliminary hearing with questions that went to memory, credibility, or bias did not present an unusual circumstance that undermined the reliability of the witness’s testimony. Admission of the unavailable witness’s preliminary hearing testimony did not violate the defendant’s constitutional right to confrontation. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303.

908.045 AnnotationThe recent perception exception under sub. (2) is intended to allow more time between the observation of the event and the statement, as opposed to the exceptions for present sense impression and excited utterances. In analyzing the recency of an event under the exception, the mere passage of time, while important, is not controlling but depends on the particular circumstances of the case. State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01-1476.

908.045 AnnotationNeither sub. (4) nor Anderson, 141 Wis. 2d 653 (1987), imposes a fixed requirement of corroboration that is independent of the declarant’s self-inculpatory statement. That a declarant’s confession is repeated to more than one witness may well be sufficient, in light of all the facts and circumstances, to permit a reasonable person to conclude that it could be true, even in the absence of corroboration that is independent of the confession itself. State v. Guerard, 2004 WI 85, 273 Wis. 2d 250, 682 N.W.2d 12, 02-2404.

908.045 AnnotationSub. (2) is not a firmly rooted hearsay exception. It lacks historical longevity and enjoys very limited acceptance. However, hearsay admitted under sub. (2) may satisfy the confrontation clause so long as the evidence bears particularized guarantees of trustworthiness. State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811, 03-0113.

908.045 AnnotationThe admission of a dying declaration statement does not violate the constitutional right to confront witnesses. The confrontation right does not apply when an exception to that right was recognized at common law at the time of the founding, which the dying declaration exception was. The fairest way to resolve the tension between the state’s interest in presenting a dying declaration and concerns about its potential unreliability is to freely permit the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case. State v. Beauchamp, 2011 WI 27, 333 Wis. 2d 1, 796 N.W.2d 780, 09-0806.

908.045 AnnotationThe sub. (4) declaration against social interest exception is an unusual exception to the hearsay doctrine and cannot support the use of confessions and affidavits when the long-established, and better supported, penal-interest exception does not. Murillo v. Frank, 402 F.3d 786 (2005).

908.045 AnnotationThe Corroboration Requirement (or Lack Thereof) for Statements Against Penal Interest in Wisconsin: State v. Anderson. Best. 1989 WLR 403.

Notes of Decisions

Cited in 116 cases (11 in the last 5 years), 1976–2025 · leading case: State v. Guerard, 2004 WI 85 (Wis. 2004).

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State v. Guerard, 2004 WI 85 (Wis. 2004). · cites it 82× “This case concerns the corroboration requirement for the admission of a hearsay statement against penal interest under Wis. Stat. § 908.045 (4) (2001-02). [1] The issue arises in the context of a claim of ineffective assistance of trial counsel.”

State v. Weed, 2003 WI 85 (Wis. 2003). · cites it 30× “The State argued that the statement was admissible under Wis. Stat. § 908.045 (2) as a statement of recent perception.”

State v. Hale, 2005 WI 7 (Wis. 2005). · cites it 30× “It determined that the evidence fit the "former testimony" hearsay exception of Wis. Stat. § 908.045 (1) (2001-02) because Jones's interest in cross-examining Sullivan was "similar" to Hale's and Sullivan was unavailable.”

State v. Sorenson, 421 N.W.2d 77 (Wis. 1988). · cites it 34× “'s statements under an expanded interpretation of the hearsay exception for former testimony, sec. 908.045(1), Stats. [4] The court found *235 sufficient veracity to support the admission of L.”

State v. Tomlinson, 2002 WI 91 (Wis. 2002). · cites it 24× “04 (1)(a) and (b), and to have Coleman's preliminary hearing testimony admitted under the hearsay exception in Wis. Stat. § 908.045 (1). The circuit court granted the State's motion, and allowed Coleman's preliminary hearing testimony to be introduced.”

State v. Stuart, 2003 WI 73 (Wis. 2003). · cites it 22× “The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) FORMER TESTIMONY. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another…”

State v. Anderson, 2005 WI 54 (Wis. 2005). · cites it 24× “03 (2), or a statement of recent perception under Wis. Stat. § 908.045 (2), and bears comparable guarantees of trustworthiness.”

State v. Manuel, 2004 WI App 111 (Wis. Ct. App. 2004). · cites it 23× “Manuel claims that: (1) the trial court erroneously exercised its discretion in admitting certain hearsay evidence under the "recent perception" exception, Wis. Stat. § 908.045 (2) (2001-02) ; 1 (2) the admission of this evidence violated Manuel's constitutional right of…”

State v. Kutz, 2003 WI App 205 (Wis. Ct. App. 2003). · cites it 15× “was not hearsay and therefore was not inadmissible on hearsay grounds; (2) Elizabeth's hearsay statements to others that Daniel was following her came within the recent perception exception in Wis. Stat. § 908.045 (2) (2001-02) 1 and therefore were properly admitted; and (3)…”

State v. Knapp, 2003 WI 121 (Wis. 2003). · cites it 22× “The State concedes that there is no evidence to indicate that Farrell was untruthful.”

State v. Williams, 2002 WI 58 (Wis. 2002). · cites it 9× “§ 908.045(4) contains the hearsay exception for statements against interest.”

State v. Anderson, 416 N.W.2d 276 (Wis. 1987). · cites it 30× “We hold that the standard of corroboration required by sec. 908.045(4), Stats., is corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true.”

Show all 116 citing cases →

— Wis. Stat. § 908.045(1) — 28 cases

State v. Sorenson, 421 N.W.2d 77 (Wis. 1988). “'s statements under an expanded interpretation of the hearsay exception for former testimony, sec. 908.045(1), Stats. [4] The court found *235 sufficient veracity to support the admission of L.”

State v. Stuart, 2003 WI 73 (Wis. 2003). “The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) FORMER TESTIMONY. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another…”

State v. Hale, 2005 WI 7 (Wis. 2005). “It determined that the evidence fit the "former testimony" hearsay exception of Wis. Stat. § 908.045 (1) (2001-02) because Jones's interest in cross-examining Sullivan was "similar" to Hale's and Sullivan was unavailable.”

State v. Webb, 467 N.W.2d 108 (Wis. 1991).

State v. Norman, 2003 WI 72 (Wis. 2003).

— Wis. Stat. § 908.045(2) — 17 cases

State v. Weed, 2003 WI 85 (Wis. 2003). “The State argued that the statement was admissible under Wis. Stat. § 908.045 (2) as a statement of recent perception.”

State v. Anderson, 2005 WI 54 (Wis. 2005). “03 (2), or a statement of recent perception under Wis. Stat. § 908.045 (2), and bears comparable guarantees of trustworthiness.”

State v. Kutz, 2003 WI App 205 (Wis. Ct. App. 2003). “was not hearsay and therefore was not inadmissible on hearsay grounds; (2) Elizabeth's hearsay statements to others that Daniel was following her came within the recent perception exception in Wis. Stat. § 908.045 (2) (2001-02) 1 and therefore were properly admitted; and (3)…”

State v. Manuel, 2004 WI App 111 (Wis. Ct. App. 2004). “Manuel claims that: (1) the trial court erroneously exercised its discretion in admitting certain hearsay evidence under the "recent perception" exception, Wis. Stat. § 908.045 (2) (2001-02) ; 1 (2) the admission of this evidence violated Manuel's constitutional right of…”

State v. Ballos, 602 N.W.2d 117 (Wis. Ct. App. 1999).

— Wis. Stat. § 908.045(3) — 2 cases

State v. Weed, 2003 WI 85 (Wis. 2003). “The State argued that the statement was admissible under Wis. Stat. § 908.045 (2) as a statement of recent perception.”

State v. Owens, 2016 WI App 32 (Wis. Ct. App. 2016).

— Wis. Stat. § 908.045(4) — 39 cases

State v. Williams, 2002 WI 58 (Wis. 2002). “§ 908.045(4) contains the hearsay exception for statements against interest.”

State v. Anderson, 416 N.W.2d 276 (Wis. 1987). “We hold that the standard of corroboration required by sec. 908.045(4), Stats., is corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true.”

State v. Stevens, 490 N.W.2d 753 (Wis. Ct. App. 1992).

State v. Weed, 2003 WI 85 (Wis. 2003). “The State argued that the statement was admissible under Wis. Stat. § 908.045 (2) as a statement of recent perception.”

— Wis. Stat. § 908.045(5) — 1 case

State v. Jacobs, 2012 WI App 104 (Wis. Ct. App. 2012).

— Wis. Stat. § 908.045(6) — 14 cases

State v. Anderson, 2005 WI 54 (Wis. 2005). “03 (2), or a statement of recent perception under Wis. Stat. § 908.045 (2), and bears comparable guarantees of trustworthiness.”

State v. Kevin L. C., 576 N.W.2d 62 (Wis. Ct. App. 1997).

State v. Petrovic, 592 N.W.2d 238 (Wis. Ct. App. 1999).

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.