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Circuit court erred in admitting video statements of children under § 908.08

State v. Angel Mercado, 2020 WI App 14, petition for review granted, 5/19/20; reversed 1/20/20; case activity (including briefs)

The court of appeals orders a new trial for Mercado on the grounds the circuit court erred in admitting the video statements of three children who accused him of sexually assaulting them. The circuit court didn’t comply with the requirements of § 908.08(2) and (3) in admitting the videos, and the videos also weren’t admissible under the residual hearsay exception or as prior inconsistent statements.

The circuit court erred in determining admissibility of the videos under § 908.08 because it didn’t view the videos in their entirety, but only what it said were “relevant portions.” Reading § 908.08 as a whole, and comparing it to § 885.44(11), which governs videotaped depositions, the court of appeals holds the trial court must review the whole videotaped statement to determine whether the criteria under § 908.08 are met. (¶¶34-41).

Because it failed to review the videos in their entirety, it would be “difficult” for the circuit court couldn’t make the findings for admissibility required by § 908.08(3)(b) and (d). (¶¶42-43). And, based on the court of appeals review of the videos, the finding in § 908.08(3)(c) simply could not be made with respect to two of the three videos. (¶44).

As a back-up argument, the state claims the videos were admissible under the residual hearsay exception. The court rejects this claim because they don’t meet all of the five factors under State v. Huntington, 216 Wis. 2d 671, 575 N.W.2d 268 (1998). The statements of two of  the children did not demonstrate they understood “the difference between the truth and falsehood,” as required by the first factor, and by not reviewing the videos in their entirety prior to admitting them, the trial court did not fully review the content of the statement to determine whether there was false information. (¶¶46-49).

Finally, as to the statement of one child, N.L.G., who said she did not remember the forensic interview at all, the state argues the video was admissible as prior inconsistent statement. The court rejects this argument as essentially proving too much: “We conclude that permitting the admission of N.L.G.’s video as a prior inconsistent statement pursuant to Wis. Stat. § 906.13(2)(a), when the requirements of Wis. Stat. § 908.08 had not been met, would be an unreasonable result: it would effectively render the requirements of § 908.08—the statute that regulates the admission of such videos, which includes a determination of their trustworthiness—superfluous.” (¶¶52-57).

A dissenting judge (Fitzpatrick) concludes, among other things, that Mercado forfeited his arguments (¶¶61-67, 76-79, 86-89) (a point the majority essentially concedes in explaining that it may and is ignoring forfeiture (¶32 n.6)); that the circuit court complied with 908.08 (¶¶80-85); and that N.L.G.’s statement was admissible as a prior inconsistent statement (¶¶96-104).

Carnac the Magnificent held a copy of this decision to his turban and said: Expect a PFR from the state, and a grant of that petition.

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