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Hearsay – Against-Interest Statement Exculpating Defendant, § 908.045(4) — Declarant Unavailable, Due Diligence to Locate

State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate

Issue: Whether Williams satisfied the unavailability requirement necessary to admit a declarant’s against-interest hearsay statement exculpating the defendant, § 908.045(4).

Holding: Unavailability is determined by § 908.04(1)(e), and requires a “good-faith effort” and due diligence” in attempting to secure the declarant’s presence, ¶62. The proponent has the burden of showing unavailability, and a mere assertion of good-faith is insufficient, ¶63.

¶66. Due diligence is not a standard that lends itself well to bright line rules. Nonetheless, given that there was at least some reason to believe that Winston was from Chicago, due diligence required that Williams make at least some minimal attempt to check in Illinois. Because Williams did not establish that he made any such attempts, he failed to carry his burden to establish due diligence.

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