The Wisconsin Rules of Evidence -- The State of Mind Hearsay Exception

By John DiMotto

Wisconsin Statutes section 908.03(3) sets forth the "State of Mind" exception to the general prohibition on the admissibility of hearsay. It encompasses:

"A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."

This exception is a limited one. It only applies to the then existing state of mind, emotion, etc and does not apply if the state of mind is with respect to a memory or belief. Thus, if a witness is on the stand and says that when she was with the declarant, the declarant seemed distant and distracted and when she asked the declarant if anything is wrong the declarant said he was extremely upset because he has been diagnosed with cancer, this declaration would be admissible because it describes the current circumstances of the declarant's state of mind. However, if the declarant would answer by saying that the declarant is reflecting on the assassination of JFK from 47 years ago, this would not be admissible because it is a statement of memory.

While the State of Mind exception allows a witness to testify as to what a declarant's current state of mind is, it does not allow the admission of a declarant's statements of conduct of others to prove the truth of that conduct solely because that conduct is relevant to the declarant's state of mind. see State v. Kutz, 267 Wis.2d 531 (Ct. App. 2003). The State of Mind exception allows a declarant's statements about his/her state of mind to prove his/her state of mind. see State v. Johnson, 187 Wis.2d 431 (Ct. App. 1994). Under 908.03(3), a statement of a present intent to do an act in the future is admissible to prove the declarant acted in conformity. see State v. Everett, 231 Wis.2d 616 (Ct. App. 1999).

The State of Mind exception had its genesis in Mutual Life Ins. Co. of NY v. Hillmon, 145 US 285 (1882). In this case, the admissibility of letters which set forth the intentions of a declarant was at issue. The Kansas trial court excluded the letters as being hearsay. The United States Supreme Court reversed and remanded for a new trial ruling that the letters should be admitted. SCOTUS held that:

"The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be. After his death these can hardly be any other way of proving it, and while he is still alive his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander's recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation."

"The rule applicable to this case has been thus stated by this court: 'Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.'"

In my next blog, I will look at the exception dealing with Statements for Purposes of Medical Diagnosis or Treatment.

The Wisconsin Rules of Evidence - The Excited Utterance Hearsay Exception

By John DiMotto

Wisconsin Statutes section 908.03(2) sets forth the "Excited Utterance" hearsay exception. It encompasses:

"A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

There are three elements to this hearsay exception:

1) Need for a startling event or condition.

2) Statement related to the startling event or condition.

3) Statement made while under stress of excitement caused by the startling event or condition.

Case law gives lawyers and judges guidance on the parameters and outer limits of this exception.

The excited utterance is a firmly rooted hearsay exception. State v. Patino, 177 Wis.2d 348 (Ct. App. 1993). It is based upon spontaneity and stress which endows the statement with sufficient trustworthiness to overcome reasons for exclusion. Essentially, it must be shown that the statement was made so spontaneously or under such psychological or physical pressure or excitement that the rational mind could not interpose itself between the spontaneous statement stimulated by the event and the event itself. State v. Huntington, 216 Wis.2d 671 (1998). Under the excited utterance, time is measured by the duration of the condition of excitement rather than the mere lapse of time from the event/condition. State v. Moats, 156 Wis.2d 74 (1990). The excited utterance exception is based on the notion that excitement or agitation stills the declarant's capacity for conscious reflection thus reducing the risks associated with fabricated or insincere testimony. State v. Gerald L.C., 194 Wis.2d 549 (Ct. App. 1995).

In the context of child sexual abuse cases, the excited utterance is expansively applied. The Wisconsin Supreme Court has formulated, by case law, a special species of excited utterance for statements made by young children alleged to have been victims of sexual assault. A broad and liberal interpretation is given. State v. Padilla, 110 Wis.2d 414 (Ct. App. 1983). Excited utterance time is measured by the duration of the condition. Young children produce declarations free of conscious fabrication for longer time than adults. It is unlikely a young child will review the incident and calculate the effect of his or her statement. State v. Teynor, 141 Wis.2d 187 (Ct. App. 1987). In fact, a statement from an alleged victim may be an excited utterance even though the alleged victim did not appear emotionally upset and even if the statements were made in response to questions. State v. Gollon, 115 Wis.2d 592 (Ct. App. 1983); State v. Lindberg, 175 Wis.2d 332 (Ct. App. 1993). What matters is spontaneity and stress. Contemporaneity, unlike the present sense impression, is not needed. Moats.

The excited utterance exception is a vehicle to bring evidence before the trier of fact by taking the trier of fact back in time. The excited utterance is a legal "time machine."

In my next blog, I will examine the "State of Mind" exception.

The Wisconsin Rules of Evidence - Present Sense Impression Hearsay Exception

By John DiMotto

Section 908.03(1) sets forth the "Present Sense Impression" hearsay exception. It encompasses:

"A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

These statements describe or explain what the declarant has seen, heard, smelled or tasted.

For example:

1) I just saw a car strike a person crossing the street in the crosswalk.

2) I smelled an odor of gas just before the explosion.

3) I just heard a woman screaming "leave me alone" and then saw a man slap her in the face.

4) I just took a bite out of an apple and it caused my mouth to pucker up.

It is important to note that these statements pertain to facts; matters that are concrete. The exception is not intended to encompass opinions.

These statements must be made at the time of the perception or immediately thereafter. They are considered to be reliable because of their spontaneity and contemporaneity. There should be no appreciable time between the observation and statement. This is unlike the Statement of Recent Perception exception found in 908.045(2). The temporal relationship between an event and a statement describing the event is not as critical when dealing with the Statement of Recent Perception as it is with the Present Sense Impression. 908.045(2) concerns that which is recent. 908.03(1) concerns that which is present. see State v. Knapp, 265 Wis.2d 278 (2003). The Statement of Recent Perception was intended to allow more time between the observation of the event and the statement. see State v. Weed, 263 Wis.2d 434 (2003); Kluever v. Evangelical Reformed Immanuels Congregation, 143 Wis.2d 806 (Ct. App. 1988); State v. Ballos, 230 Wis.2d 495 (Ct. App. 1999).

The Present Sense Impression is akin to a 908.03(2) "excited utterance" without the excitement requirement and with a contemporaneity requirement. They are both "firmly rooted" hearsay exceptions. see State v. Hemphill, 287 Wis.2d 600 (Ct. App. 2000).

The Present Sense Impression exception to the general rule barring hearsay allows the introduction of a statement which is deemed to have sufficient indicia of reliability by virtue of the circumstances in which the statement is made.

In my next blog, I will look at the 908.03(2) Excited Utterance Exception.

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.

Jury Trial Issues -- The Twelve Person Jury

By John DiMotto

Did you ever wonder why, in Wisconsin, a criminal defendant is entitled to a trial by a twelve person jury?

The 6th Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." There is no reference as to how many jurors shall constitute the jury.

Article I, Section 7 of the Wisconsin Constitution provides that "In all criminal prosecutions the accused shall enjoy the right ... to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed..." Once again, there is no reference as to how many jurors shall constitute the jury.

If there is no direct language as to how many jurors shall constitute a jury, how is it that in Wisconsin we have settled on twelve in every criminal case? The answer lies in case law.

In State v. Hansford, 219 Wis.2d 226 (1998), the Wisconsin Supreme Court addressed the issue in the context of whether a six person jury in misdemeanor cases is constitutional. In absence of any direct language in the constitution itself, the Court resorted to extrinsic evidence to ascertain the intent of the framers of our constitution.

The Court looked to records from the constitutional conventions of 1846 and 1847. However, they found almost no debate about the guarantee of the right to a jury trial let alone as to the number of jurors. What the Court did find was a comment by a delegate to the convention, Charles H. Lakin, during a debate regarding whether Article I, Section 5 should prohibit judges from instructing juries other than as provided by statute. In his remarks, Lakin stated, "If it be the name of trial by jury that enamours you, you can get something that will do as well, perhaps better, than flesh, and blood, and bones. Erect within your temples of justice twelve hollow, graven, brazen images. Have them so constructed that they will case an echo; and as the dicta of the bench shall be hurled at them, the same will be reflected back to record; and if you will, you may call this, trial by jury." Far from definitive, but the starting point.

In Norval v. Rice, 2 Wis. 17 (1853), the Wisconsin Supreme Court concluded that the right to trial jury guaranteed by the Wisconsin Constitution is the right to a jury of twelve persons as recognized by common law as it existed at the time the constitution was adopted. Subsequent cases - Bennett v. State, 57 Wis. 69 (1883), In re Staff, 63 Wis. 285 (1885), Jennings v. State, 134 Wis. 307 (1908) and State ex rel Sauk County District Attorney v. Gollmar, 32 Wis.2d 406 91966) - reaffirmed this conclusion. It does not matter whether the accused is charged with a misdemeanor or a felony. The jury shall consist of twelve person.

In ensuring the right to a twelve person jury for all persons charged with a crime, the Wisconsin Constitution parted ways from the United States Constitution. Wisconsin provides greater protection to its citizens than the 6th Amendment to the United State Constitution does. In Williams v. Florida, 399 U.S. 78 (1970), SCOTUS concluded that the refusal to impanel a jury of more than six persons did not violate the criminal defendant's rights to a trial by jury guaranteed by the 6th Amendment. SCOTUS reasoned that although juries at common law generally consisted of twelve members, there is "absolutely no indication" that the framers intended to "equate the constitutional and common-law characteristics of the jury." SCOTUS held that a twelve person jury is not "an indispensable component of the 6th Amendment."

In the final analysis, when it comes to the right to a jury trial in a criminal case, Wisconsin affords great protection to persons charged than is afforded to those accused of crimes than the United States Constitution provides.

Jury Trial Issues - The Anonymous Jury

By John DiMotto

In a previous blog, I have discussed the right to a public trial. While every criminal defendant is entitled to a public trial under the Sixth Amendment to the US Constitution and Article I, Section 7 of the Wisconsin Constitution, this right is not conferred without boundaries. Under limited circumstances, an anonymous jury may be impanelled.

Before the trial court can impanel an anonymous jury, the court must articulate compelling circumstances on the record. It must be shown that there is a strong reason to believe that the jury needs protection. In addition, the court must take reasonable precautions to minimize any prejudicial effects on the defendant and ensure that fundamental rights are protected. [see State v. Britt, 203 Wis.2d 25 (Ct. App. 1996)]

Examples of compelling circumstances have included participants' histories of violence -- including the defendant/s or victim/s; history of potentially threatening associations; witness intimidation; defendant involvement in organized crime; defendant involvement in a group with capacity to harm jurors; defendant's past attempts to interfere with judicial process; extensive publicity that could enhance the possibility that juror names would become public and expose them to intimidation or harassment. [see State v. Tucker, 259 Wis.2d 484 (2003)]

When the court concludes that an anonymous jury is warranted based on articulable facts, the court must take action to minimize any prejudicial effect. Usually this is accomplished by doing "voir dire by number." When this approach is utilized, the court ordinarily advises the jury that this practice is routine to avoid the inference that the jury should fear the defendant. The court should give a special presumption of innocence instruction that the use of numbers is not a reflection on the defendant's guilt. This instruction must not mislead the jury. Also, at the outset of the voir dire the attorneys are provided with a list of the names of the jurors as well as juror questionnaires. This way they have a "knowledge base" on the jurors. Under this scenario, when addressing jurors only their numbers are used.

Trial courts must take great care to balance the right to a public trial with the right of jurors to be free from fear and intimidation. Judges must always remember that anonymous juries should not be routine or standard practice. They are the exception not the rule.

Jury Trial Issues -- The Parameters of Character and Other Acts Evidence

By John DiMotto

In criminal jury trials, it is the job of the jury to determine if the state has presented "sufficient evidence" to overcome the defendant's presumption of innocence. "Sufficient evidence" is that amount/degree of evidence with respect to each element of the offense charged whereby the jury can say, beyond a reasonable doubt, that the defendant is guilty. Ordinarily, the evidence addresses two questions: was the crime committed and did the defendant commit the crime. It sounds simple, but that is far from the truth.

In many trials, evidence unrelated to the commission of the crime charged is offered. This evidence usually falls within two categories: character and other acts. Sometimes it is admissible; sometimes it is not. One thing is sure, the trial judge must be on his/her toes in terms of what to admit and what not to admit in order to protect the record.

Under the rules of evidence "general character" evidence [904.04(1)] is normally not admissible to prove that a person acted in conformity therewith on a particular occasion. This is because guilt should be determined based on "crime related" conduct. There is, of course, an exception. Under 904.04(1)(a), evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same is admissible. The defendant is in control of what character evidence may come in since the State may only admit character evidence to rebut character evidence offered in the first instance by the defendant. As a practical matter, a defendant rarely puts in character evidence since it opens the door for the State to put in "negative" character evidence. (Usually "negative" character evidence far exceeds "good" character evidence.) However, while character evidence is ordinarily not admissible, this does not preclude the introduction of "other acts" evidence when offered for a legitimate purpose.

"Other acts" evidence [904.04(2)] may be admissible if it is offered for a purpose other than character. By statute, it may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. By case law, it may be introduce to prove context or for background. However, while it may fit into one of those categories, it must be relevant in the context of the case under 904.01 and, most importantly, under 904.03, the probative value of the other acts evidence must not be outweighed by unfair prejudice. It is the trial court that is the gatekeeper of other acts evidence.

Over the past twenty years, the introduction of other acts evidence has grown by leaps and bounds. There are some who say it is becoming more the rule, rather than the exception. I disagree with that assessment. I believe judges are careful when it comes to deciding whether to admit other acts evidence.

I am actively engaged in judicial education in Wisconsin. Marquette University Law School Professor Daniel Blinka, one of the most foremost evidence experts in Wisconsin, and I have taught on the subject of character and other acts evidence at numerous evidence workshops. Wisconsin judges understand that it is incumbent on the trial judge to undertake a careful "Sullivan" analysis (State v. Sullivan) and make a good record. If the proponent can meet its burden under 904.04(2), 904.01 and 904.03 then the evidence will be admitted with a strong cautionary instruction. However, if not, then the evidence is barred.

In the final analysis, the burden is on the trial judge to enforce the rules of evidence to ensure that a fair trial results.