Merry Christmas and Happy New Year

By John DiMotto

Today, I want to wish all those persons who have followed this blog a Merry Christmas and a Happy New Year. I have enjoyed sharing my thoughts on various points of law and look forward to continuing to do so in 2011.

With the end of the year in full swing and with a number of things "on my plate" this will be my last post for 2010. I will be back "with fervor" after the first of the year.

"See you all next year."

The Wisconsin Rules of Evidence -- The "Business Records" Hearsay Exception

By John DiMotto

Wisconsin Statutes section 908.03(6) sets forth the "Business Records" exception to the general prohibition on the admissibility of hearsay. It encompasses:

1) a memorandum, report, record, or data compilation;

2) in any form;

3) of acts, events, conditions, opinions, or diagnoses;

4) made at or near the time by, or from information transmitted by;

5) a person with knowledge;

6) all in the course of a regularly conducted activity;

7) as shown by the testimony of the custodian or other qualified witness, or by certification that complies with 909.02(12) or (13), or a statute permitting certification;

8) unless the sources of information or other circumstances indicate lack of trustworthiness.

In my experience, this is one of the most misunderstood hearsay exceptions by trial attorneys. Many lawyers believe that any entry in a business record is admissible. Nothing could be farther from the truth.

In order for an entry in a business record to be admissible, all declarants involved in making the specific entry record must be part of the organization which prepared it. If one of the declarants is not part of the organization, an additional level of hearsay is present which must fall into an exception. see State v. Gilles, 173 Wis.2d 101 (Ct. App. 1992); 908.05; 7 D. BLINKA, WISCONSIN PRACTICE, EVIDENCE sec. 803.06, at 481 (1991). In the scenario of a corporation, if an employee of the corporation sets forth in a document made in the course of regularly conducted activity what he saw and did at a meeting, the "Business Records" exception would allow for the introduction of that information. However, if that same employee sets forth what a person, who is not a member of the corporation, said at that same meeting, the statement of that person is not admissible unless some other hearsay exception applies. The "Business Records" exception does not allow admission of a second level of hearsay. The reports cannot establish more than their maker could if he was testifying in court on their subject. see State v. Mitchell, 84 Wis.2d 325, 330 (1978).

It is also important to note that while the custodian, or other qualified witness, who is utilized to introduce the record need not be the author of the records or have personal knowledge of the events recorded in order to be qualified to testify to the requirements of 908.03(6), the witness must have personal knowledge of how the records are made so the witness can say they were made "at or near the time of the event by or form information transmitted by a person with knowledge" and in the ordinary course of regularly conducted activity. see Palisades Collection LLC v. Kalel, 324 Wis.2d 180 (Ct. App. 2010). In the context of collections actions, where a plaintiff buys a debt from a credit card company, the plaintiff, not being a member of the credit card company, could not be the conduit for the introduction of the credit card company's "business records." Personal knowledge as to how the records are kept is foundational.

An interesting issue that I have faced in Termination of Parental Rights (TPR) cases, is whether records that are prepared by a social service agency under contract with the Bureau of Milwaukee Child Welfare (BMCW) to provide services to the subject child and parents and which must be provided to BMCW come under the umbrella of 908.03(6) and are admissible. I have held that if the State can establish that there is an agency relationship between the service providers and BMCW and if the State can establish that the records are kept according to standards set by BMCW, that 908.03(6) applies.

The "Business Records" exception is an important and necessary exception but it can be subject to abuse. A trial court must ensure that the conditions precedent to introduction of evidence under it are met.

In my next blog, I will look at the Public Records exception.

The Wisconsin Rules of Evidence - The "Statements for Purposes of Medical Diagnosis or Treatment" Hearsay Exception

By John DiMotto

Wisconsin Statutes section 908.03(4) sets forth the "Statements for Purposes of Medical Diagnosis or Treatment" exception to the general prohibition on the admissibility of hearsay. It encompasses:

"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

In order for the exception to apply, not only must the statements be made for purposes of medical diagnosis or treatment but they must describe:

1) medical history, or

2) past or present symptoms, or

3) pain or sensations, or

4) inception of the cause or external source, or

5) general character of the cause or external source

insofar as the statements are reasonably pertinent to the diagnosis or treatment.

It is critical that what is being said is "reasonably pertinent to the diagnosis or treatment. The fact that statements are made, in and of themselves, does not make them admissible. For example if a patient is seeing his/her doctor for a sprained ankle and the doctor asks the patient how it happened and the patient says that he/she tripped and fell on a bump in the sidewalk and then adds, "oh by the way, one year ago I was sexually assaulted while on a date by John Doe", the report of the sexual assault would not be admissible under 908.03(4) because it could not be successfully argued that it was reasonably pertinent to the diagnosis or treatment of a sprained ankle. There must be a link between the statement and the diagnosis or treatment.

The reason for admissibility under 908.03(4) is that the declarant's motive is for obtaining improved health. This guarantees trustworthiness since a physician relies on what a person says to diagnose and treat. In fact, in a child abuse case, the identity of the perpetrator is deemed reasonably necessary to provide treatment to the child. see State v. Nelson, 138 Wis.2d 418 (1987). For this reason, the statement may come from the patient himself/herself (first party) or from the mother of a child (third party). see State v. Huntington, 216 Wis.2d 671 (1998). This exception is a firmly rooted one. This exception, however, does have limits. For example, while it applies to physicians and psychologists it does not extend to counselors or social workers. see Huntington.

It is believed that when people speak with their doctor that they will be honest and candid since their health, their life is at stake. The law recognizes this as a fact and as such endows these statements with sufficient reliability that they can be admitted regardless of the presence or even availability of the declarant.

In my next post, I will address the Business and Public Records exceptions.

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.