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Hearsay – Recent Perception, § 908.045(2)

State v. Matthew J. Knapp, 2003 WI 121, on certification
For Knapp: Robert G. LeBell

Issue/Holding:

¶184. We find no clear error in the circuit court’s determination that the third-party hearsay evidence in item 21(a) of Knapp’s offer of proof comes within the recent perception exception under Wis. Stat. § 908.045(2),29 to the hearsay rule. Farrell’s inability to recall, 12 years after the fact, exactly when Borchardt made the statements to her does not undermine the requirements of the exception. The focus should be on the circumstances when the statement was originally made.30 Further, the lack of clarity as to timing is almost certainly due to the failure to prosecute this case earlier.

Details of the statement are a bit fuzzy; maybe that’s because the statement was itself fuzzy. But the court may have been persuaded by Knapp’s equitable points:

¶169. Knapp states that the lack of specificity as to when Borchardt made his statement is a product of the State’s failure to interview Borchardt before his death, and the State had ample opportunity to do so. Knapp points out that the circuit court found that the lack of specificity was due to the failure to interview Borchardt and the conscious decision of the police not to prosecute Knapp until 12 years had passed and critical witnesses had died.

Couple that with the court’s own perception that “the evidence is critical” to the defense because it establishes a “direct link, in time and proximity, between Brunner” and the murder, and you’ve got a winning, if highly fact-specific argument. ¶192. But there’s broader principle, which the dissent identifies: “the majority not only broadly applies the exception, but it also completely ignores a foundational requirement: the event or condition must be recently perceived…. because the timing of the conversation between Borchardt and Farrell is uncertain, it is impossible to determine if the statement was made recently after the event.” ¶¶216, 218.

 

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