Wisconsin Court of Appeals
Evidence – hearsay — right to present defense
A defendant charged with sexual assault was denied the right to present evidence when the court excluded his testimony about what the complainant said to him as hearsay.
“WISCONSIN STAT. § 908.03 governs hearsay exceptions. As to the ‘state of mind’ exception, it provides: (3) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION. 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. As the State points out, the 1974 Judicial Council Committee’s Note to this provision indicates that when a cause of action or a defense depends upon a person’s state of mind, ‘the declarations of the person whose state of mind is at issue are often a primary source of evidence on this matter.’ Wisconsin Rules of Evidence, 59 Wis. 2d R261 (1974). Thus, because KAC’s lack of consent was an element of the sexual assault charges, her alleged remarks would be a primary source of evidence. As the State correctly observes, whether KAC actually made the alleged remarks and, if so, whether they indicated consent to sexual activity with Prineas or rather reflected acquiescence to force by Prineas would be jury questions. See id. at R260 (trustworthiness concerns are ‘directed to the weight and sufficiency of the evidence and the credibility of the declarant, not to the admissibility of the statement’).”
Recommended for publication in the official reports.
Dist. II, Walworth County, Kennedy, J., Neubauer, J.
Attorneys: For Appellant: Henak, Robert R., Milwaukee; For Respondent: Koss, Phillip A., Elkhorn; Freimuth, James M., Madison