Chapter 908

908.05 908.05 Hearsay within hearsay. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in this chapter.

908.05 History History: Sup. Ct. Order, 59 Wis. 2d R1, R323 (1973).

908.05 Annotation The admission of double hearsay did not violate the defendant’s right to confront witnesses. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976).

908.05 Annotation Evidence of 911 calls, including tapes and transcripts of the calls, is not inadmissible hearsay. Admission does not violate the right to confront witnesses. State v. Ballos, 230 Wis. 2d 495, 602 N.W.2d 117 (Ct. App. 1999), 98-1905.

908.05 Annotation Before entertaining the question of whether proffered evidence is hearsay or falls under a hearsay exception, courts must engage in an analysis of whether the evidence is relevant. In this case, because testimony as to the victim’s character and personal history was not relevant to the defendant’s guilt or innocence, testimony on those issues was not admissible regardless of the applicability of any hearsay exceptions. State v. Jacobs, 2012 WI App 104, 344 Wis. 2d 142, 822 N.W.2d 885, 11-1852.

908.06 908.06 Attacking and supporting credibility of declarant. When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

908.06 History History: Sup. Ct. Order, 59 Wis. 2d R1, R325 (1973); 1991 a. 32.

908.08 908.08 Audiovisual recordings of statements of children.

908.08(1) (1) In any criminal trial or hearing, juvenile fact-finding hearing under s. 48.31 or 938.31 or revocation hearing under s. 302.113 (9) (am), 302.114 (9) (am), 304.06 (3), or 973.10 (2), the court or hearing examiner may admit into evidence the audiovisual recording of an oral statement of a child who is available to testify, as provided in this section.

908.08(2) (2) 

908.08(2)(a) (a) Not less than 10 days before the trial or hearing, or such later time as the court or hearing examiner permits upon cause shown, the party offering the statement shall file with the court or hearing officer an offer of proof showing the caption of the case, the name and present age of the child who has given the statement, the date, time and place of the statement and the name and business address of the camera operator. That party shall give notice of the offer of proof to all other parties, including notice of reasonable opportunity for them to view the statement before the hearing under par. (b).

908.08(2)(b) (b) Before the trial or hearing in which the statement is offered and upon notice to all parties, the court or hearing examiner shall conduct a hearing on the statement’s admissibility. At or before the hearing, the court shall view the statement. At the hearing, the court or hearing examiner shall rule on objections to the statement’s admissibility in whole or in part. If the trial is to be tried by a jury, the court shall enter an order for editing as provided in s. 885.44 (12).

908.08(3) (3) The court or hearing examiner shall admit the recording upon finding all of the following:

908.08(3)(a) (a) That the trial or hearing in which the recording is offered will commence:

908.08(3)(a)1. 1. Before the child’s 12th birthday; or

908.08(3)(a)2. 2. Before the child’s 16th birthday and the interests of justice warrant its admission under sub. (4).

908.08(3)(b) (b) That the recording is accurate and free from excision, alteration and visual or audio distortion.

908.08(3)(c) (c) That the child’s statement was made upon oath or affirmation or, if the child’s developmental level is inappropriate for the administration of an oath or affirmation in the usual form, upon the child’s understanding that false statements are punishable and of the importance of telling the truth.

908.08(3)(d) (d) That the time, content and circumstances of the statement provide indicia of its trustworthiness.

908.08(3)(e) (e) That admission of the statement will not unfairly surprise any party or deprive any party of a fair opportunity to meet allegations made in the statement.

908.08(4) (4) In determining whether the interests of justice warrant the admission of an audiovisual recording of a statement of a child who is at least 12 years of age but younger than 16 years of age, among the factors which the court or hearing examiner may consider are any of the following:

908.08(4)(a) (a) The child’s chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.

908.08(4)(b) (b) The child’s general physical and mental health.

908.08(4)(c) (c) Whether the events about which the child’s statement is made constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.

908.08(4)(d) (d) The child’s custodial situation and the attitude of other household members to the events about which the child’s statement is made and to the underlying proceeding.

908.08(4)(e) (e) The child’s familial or emotional relationship to those involved in the underlying proceeding.

908.08(4)(f) (f) The child’s behavior at or reaction to previous interviews concerning the events involved.

908.08(4)(g) (g) Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the child’s prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child’s subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.

908.08(4)(h) (h) Whether the child manifests or has manifested symptoms associated with posttraumatic stress disorder or other mental disorders, including, without limitation, reexperiencing the events, fear of their repetition, withdrawal, regression, guilt, anxiety, stress, nightmares, enuresis, lack of self-esteem, mood changes, compulsive behaviors, school problems, delinquent or antisocial behavior, phobias or changes in interpersonal relationships.

908.08(4)(i) (i) Whether admission of the recording would reduce the mental or emotional strain of testifying or reduce the number of times the child will be required to testify.

908.08(5) (5) 

908.08(5)(a) (a) If the court or hearing examiner admits a recorded statement under this section, the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the statement is shown to the trier of fact. Except as provided in par. (b), if that party does not call the child, the court or hearing examiner, upon request by any other party, shall order that the child be produced immediately following the showing of the statement to the trier of fact for cross-examination.

908.08(5)(am) (am) The testimony of a child under par. (a) may be taken in accordance with s. 972.11 (2m), if applicable.

908.08(5)(b) (b) If a recorded statement under this section is shown at a preliminary examination under s. 970.03 and the party who offers the statement does not call the child to testify, the court may not order under par. (a) that the child be produced for cross-examination at the preliminary examination.

908.08(6) (6) Recorded oral statements of children under this section in the possession, custody or control of the state are discoverable under ss. 48.293 (3), 304.06 (3d), 971.23 (1) (e) and 973.10 (2g).

908.08(7) (7) At a trial or hearing under sub. (1), a court or a hearing examiner may also admit into evidence an audiovisual recording of an oral statement of a child that is hearsay and is admissible under this chapter as an exception to the hearsay rule.

908.08 History History: 1985 a. 262; 1989 a. 31; 1993 a. 98; 1995 a. 77, 387; 1997 a. 319; 2001 a. 109; 2005 a. 42.

908.08 Note Judicial Council Note, 1985: See the legislative purpose clause in Section 1 of this act.

908.08 Note Sub. (1) limits this hearsay exception to criminal trials and hearings in criminal, juvenile and probation or parole revocation cases at which the child is available to testify. Other exceptions may apply when the child is unavailable. See ss. 908.04 and 908.045, stats. Sub. (5) allows the proponent to call the child to testify and other parties to have the child called for cross-examination. The right of a criminal defendant to cross-examine the declarant at the trial or hearing in which the statement is admitted satisfies constitutional confrontation requirements. California v. Green, 399 U.S. 149, 166 and 167 (1970); State v. Burns, 112 Wis. 2d 131, 144, 332 N.W.2d 757 (1983). A defendant who exercises this right is not precluded from calling the child as a defense witness.

908.08 Note Sub. (2) requires a pretrial offer of proof and a hearing at which the court or hearing examiner must rule upon objections to the admissibility of the statement in whole or in part. These objections may be based upon evidentiary grounds or upon the requirements of sub. (3). If the trial is to be to a jury, the videotape must be edited under one of the alternatives provided in s. 885.44 (12), stats.

908.08 Note Sub. (3) (a) limits the applicability of this hearsay exception to trials and hearings which commence prior to the child’s 16th birthday. If the trial or hearing commences after the child’s 12th birthday, the court or hearing examiner must also find that the interests of justice warrant admission of the statement. A nonexhaustive list of factors to be considered in making this determination is provided in sub. (4).

908.08 Note Sub. (6) refers to the statutes making videotaped oral statements of children discoverable prior to trial or hearing. [85 Act 262]

908.08 Annotation Sub. (5) does not violate due process. State v. Tarantino, 157 Wis. 2d 199, 458 N.W.2d 582 (Ct. App. 1990).

908.08 Annotation Interviewers need not extract the exact understanding that “false statements are punishable” in order to meet the requirement of sub. (3) (c) if the tape, assessed in its totality, satisfies the requirement. State v. Jimmie R.R., 2000 WI App 5, 232 Wis. 2d 138, 606 N.W.2d 196, 98-3046.

908.08 Annotation Sub. (7) permits the admission of a child’s videotaped statement under any applicable hearsay exception regardless of whether the requirements of subs. (2) and (3) have been met. State v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784, 02-1628.

908.08 Annotation A defendant who introduces testimony from an unavailable declarant cannot later claim that the defendant was harmed by an inability to cross-examine the declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant. State v. Smith, 2005 WI App 152, 284 Wis. 2d 798, 702 N.W.2d 850, 04-1077.

908.08 Annotation This section does not violate the separation of powers doctrine by dictating the admissibility and order in which the court receives videotape evidence and in-court testimony. State v. James, 2005 WI App 188, 285 Wis. 2d 783, 703 N.W.2d 727, 04-2391.

908.08 Annotation This section, dealing specifically with the admissibility and presentation of videotaped statements by child witnesses, controls over ss. 904.03 and 906.11, more general statutes regarding the court’s authority to control the admission, order, and presentation of evidence. State v. James, 2005 WI App 188, 285 Wis. 2d 783, 703 N.W.2d 727, 04-2391.

908.08 Annotation There is no conflict between subs. (3) (e) and (5) (a). Sub. (3) (e) asks the trial court to discern whether, given what it knows at the time it assesses admissibility, allowing a videotaped statement into evidence would deprive any party of a fair opportunity to meet allegations made in the statement. State v. James, 2005 WI App 188, 285 Wis. 2d 783, 703 N.W.2d 727, 04-2391.

908.08 Annotation The recorded oral statement of a child who is available to testify, made admissible by this section, is the testimony of that child irrespective of whether that oral statement is sworn. Whether the child is sworn has no bearing on whether that evidence is testimony that must be taken down by the court reporter. State v. Ruiz-Velez, 2008 WI App 169, 314 Wis. 2d 724, 762 N.W.2d 449, 08-0175.

908.08 Annotation This section makes no room for admission of the recordings once the child turns age 16. Because the recorded witness was about to turn 16 and the state would have lost the ability to introduce audiovisual recordings of the victim under this section if the defendant had been allowed to withdraw a guilty plea, the circuit court’s conclusion that “this is an absolutely clear and easy call . . . to find that if the State was not allowed to use the (named) tapes it would result in substantial prejudice to the State” was quite defensible. State v. Lopez, 2014 WI 11, 353 Wis. 2d 1, 843 N.W.2d 390, 11-2733.

908.08 Annotation The decision on how much of a video-recording a circuit court is to review under this section is limited to those portions necessary to make the requisite findings under sub. (3); this is a discretionary decision made on a case-by-case basis. State v. Mercado, 2021 WI 2, 395 Wis. 2d 296, 953 N.W.2d 337, 18-2419.

908.08 Annotation The purpose of sub. (5) (a) is to direct what happens immediately after a child’s recorded forensic interview is shown, not what happens before the showing. As sub. (5) (a) does not control what occurs prior to the finder of fact viewing a video-recording of a child’s statement, in this case, permitting the child to testify beforehand fell under the circuit court’s general authority to reasonably control the mode and order of presenting evidence under s. 906.11. State v. Mercado, 2021 WI 2, 395 Wis. 2d 296, 953 N.W.2d 337, 18-2419.

908.08 Annotation This section provides two methods by which a party may introduce a child’s video-recording. The first is by meeting the various requirements set forth in subs. (2) and (3). Alternatively, under sub. (7), a court may admit into evidence a videotape oral statement of a child that is hearsay and is admissible under this chapter as an exception to the hearsay rule. In this case, by requiring a video-recording to satisfy subs. (2) and (3) despite the plain language of sub. (7), the court improperly read one of the two modes of admission out of the statute. State v. Mercado, 2021 WI 2, 395 Wis. 2d 296, 953 N.W.2d 337, 18-2419.

908.08 Annotation The merger of video with separately recorded audio, so as to produce a final recording with clear, continuous sound, did not run afoul of the requirements of sub. (3) (b) because the resulting recording was free from excision, alteration, and visual or audio distortion. State v. Marks, 2022 WI App 20, 402 Wis. 2d 285, 975 N.W.2d 238, 20-1746.

908.08 Annotation Whether a recording complies with sub. (3) (c) does not involve a rigid determination as to whether the child correctly answered every question. Rather, a court must examine the child’s statement in its entirety. State v. Marks, 2022 WI App 20, 402 Wis. 2d 285, 975 N.W.2d 238, 20-1746.