The decision is the second by the court of appeals this year to apply the rule of Williamson that a court must determine the admissibility of each declaration separately to determine if it is a statement against interest. In July, the court decided State v. Bintz, 2002 WI App 204, applying the same test.
However, a petition for review is currently pending in that case, and is a good candidate to be accepted by the Wisconsin Supreme Court, because Williamson, and these two recent cases following it, are not consistent with current precedent of the court, or the legislative history of the declaration against interest exception, sec. 908.045(4).
The Williamson standard adopted by the U.S. Supreme Court and applied here differs from the Wisconsin Supreme Courts holding in Meyer v. Mutual Service Casualty Ins. Co., 13 Wis.2d 156, 164-165, 108 N.W.2d 278 (1961), that evidence of so much of a hearsay declaration is admissible as consists of a declaration against interest and such additional parts thereof, including matter incorporated by reference, as the judge finds to be so closely connected with the declaration against interest as to be equally trustworthy. (quoting the ALI Model Code of Evidence).
It also conflicts with the Judicial Council Committees Notes, which provide, Note that a statement under belief of impending death is limited to the cause or circumstances surrounding the death while a statement against interest embraces facts contained in the statement other than the mere against-interest declaration.
The notes further state, This sub. does not modify the rule of Meyer that evidence of so much of a hearsay declaration is admissible as consists of a declaration against interest and such additional parts thereof, including matter incorporated by reference, as the judge finds to be so closely connected with the declaration against interest as to be equally trustworthy.
If the Wisconsin Supreme Court should accept a case for the opportunity to clarify the statement against interest exception, it is more likely to be the Bintz case than this one, however, because of a flaw in Joyners case that neither the majority, nor the dissent, discussed.
When the court set forth the text to sec. 908.045(4), it did not state the entire text, but only the first sentence, and omitted the second, which provides, A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.
In the case at bar, even if the court found that Trudys statement did expose her to criminal liability, it would not be admissible unless corroborated, something which appears to be lacking. Because the Supreme Court could affirm the court of appeals on this ground, it is not as good a vehicle to decide whether Williamson should be adopted as the law in Wisconsin, compared to the Bintz case.
– David Ziemer
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David Ziemer can be reached by email.