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Hearsay – Recent Perception, § 908.045(2) — Generally; Aural Perception of Private Statement

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue/Holding1:

¶51. The recent perception exception is similar to the hearsay exceptions for present sense impression and excited utterances, but was intended to allow more time between the observation of the event and the statement in cases where the declarant is unavailable and the evidence would otherwise be lost. State v. Weed, 2003 WI 85, ¶15, ___ Wis. 2d ___, 666 N.W.2d 485. Given the longer lapse of time allowed between the declarant’s perception and description of the event, the exception contains safeguards to insure trustworthiness and accuracy: (1) the event or condition must be recently perceived in relation to the declarant’s describing it; (2) the statement must be made while the declaration’s recollection is clear; and (3) the statement must not be in response to the instigation of a person engaged in investigating, litigating, or settling a claim and must be made in good faith with no contemplation of pending or anticipated litigation in which the declarant would be an interested party. Id., ¶¶14-15. The trial court has wide discretion in deciding whether the time lapse is sufficiently short and whether the statement was made in good faith without contemplation of anticipated litigation. See Christensen v. Economy Fire & Cas. Co., 77 Wis. 2d 50, 63-64, n.13, 252 N.W.2d 81 (1976). In Kluever v. Evangelical Reformed Immanuels Congregation, 143 Wis. 2d 806, 813-15, 422 N.W.2d 874 (Ct. App. 1988), the court held that a time lapse of eight to ten weeks between the event and the statement describing constituted a “recent” perception.

Various statements upheld as recent perceptions, where it was reasonable to infer that the declarant was relating conduct that had occurred within the prior day or two, and there was no indication she lacked clear recall. ¶52. The possibility of the declarant’s lack of “good faith” was factored into the trial court’s ruling. ¶53. And, “the existence of corroboration is not a general requirement under Wis. Stat. § 908.045(2).” ¶54.

Issue/Holding2:

¶63. The State contends that these six statements are admissible under the recent perception exception because the evidence showed that Daniel had made the threats to her a short time before she related them to others, there is corroboration, and the other conditions of the rule are met. However, as we have stated above, in Stevens, 171 Wis. 2d at 119, we held that the exception “does not apply to the aural perception of an oral statement privately told to a person.” The State’s reading of Stevens — that “event or condition” may include a private oral statement aurally perceived if there is corroboration — is not viable after Weed, 666 N.W.2d ¶21 n.6. See supra ¶54. While there may be good arguments for construing “event or condition recently perceived” by the declarant to include an oral statement heard by a declarant, we conclude we are bound by Stevens as interpreted by Weed.

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