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Hearsay Rule – Applicability – Reverse (Juvenile) Waiver, § 970.032(2)

State v. Corey Kleser, 2009 WI App 43, PFR filed 4/9/09
For Kleser: Robin E. Dorman, SPD Milwaukee Trial; Debra Flynn-Parrino, Devon M. Lee, SPD, Milwaukee Juvenile

Issue/Holding:

¶46      Wisconsin Stat. § 970.032(2) makes no provision for the admission of hearsay at a reverse waiver hearing. Where a statute does not specifically authorize hearsay, it is generally prohibited, see Wis. Stat. § 908.02. It is true that an adult preliminary examination under Wis. Stat. § 970.03(11) permits hearsay in a few very limited circumstances, as to ownership of property or absence of consent, but counsel for Corey does not argue that any of those exceptions apply here.¶47      The testimony of Dr. Beyer as to what Corey said happened during the offenses is clearly hearsay. There is no dispute about that from any party. Additionally, Corey does not attempt to justify the admission of that hearsay by any statute or rule. Corey admits the hearsay here would not be permitted at trial, but argues, without reference to any authority, that it is permissible at a reverse waiver hearing because this is not as significant a proceeding as a trial. While a reverse waiver hearing is certainly not as significant as a trial, it is nonetheless significant in that it determines jurisdiction. Corey argues that because the reverse waiver hearing is not a trial, there is no risk of hearsay being used improperly. But, as we have shown above, that is precisely what happened here. Accordingly, we conclude that the trial court erred in substantively relying on hearsay.

 

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