908.045 Hearsay exceptions; declarant unavailable. 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 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.

(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.

(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.

(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.

(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.

(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.

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

History: 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.

A 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).

The 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).

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

A 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).

Corroboration 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).

Under the “totality of factors" test, statements by a 7-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).

The 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).

The 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).

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

The sub. (6) residual exception should be applied only to novel or unanticipated categories of hearsay. The testimony of a 5-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.

There 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).

If 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).

When 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.

When 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 82, 01-3303.

The recent perception exception under sub. (2) was 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, 01-1746.

Neither sub. (4) nor Anderson 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.

Sub. (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.

The 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.

The 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).

Corroboration requirement for statements against penal interest. 1989 WLR 403 (1989).