The Rules of Evidence: Hearsay Exceptions

By John DiMotto

The Wisconsin Rules of Evidence are set forth in Chapters 901 - 911 of the Wisconsin Statutes. They were enacted by Supreme Court Order, 59 Wis.2d R1, R9 (1973). Today, I would like to begin a series on the hearsay exceptions codified in 908.03 and 908.045.

Hearsay is defined in 908.01(3). "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence, to prove the truth of the matter asserted." Ordinarily, hearsay is excluded because it is not based on the personal observation or knowledge of the witness. 908.02 specifically sets forth that "hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute.

Black's Law Dictionary, 5th Ed. reports that hearsay is:

1) "Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say."

2) "That which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons."

3) "The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity."

That having been said, the exceptions -- specified cases from necessity -- are numerous.

There are two sets of hearsay exceptions:

1) Those where the availability of the declarant is immaterial.

2) Those where the declarant is unavailable.

908.03 delineates the hearsay exceptions where the availability of the declarant is immaterial. There are twenty three specific exceptions and one "catchall" exception. Many of these exceptions are firmly rooted while others are not.

With respect to these exceptions, while availability of the declarant may be statutorily immaterial, in criminal cases the issue of confrontation must be addressed when testimonial hearsay is at issue. In Crawford v. Washington, the United States Supreme Court held that the only indicium of reliability to satisfy constitutional demands with respect to testimonial statements is confrontation - by testing in the crucible of cross examination. Where the hearsay is nontestimonial, the States have flexibility in their development of hearsay law. It is important to note that Crawford applies in criminal cases not in civil cases.

In my next blog, I will begin looking at the various hearsay exceptions in 908.03 and 908.045 as they pertain to civil cases.