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COA rejects hearsay challenge in ch. 51 commitment; says no need for personal colloquy to stipulate to extension

Rock County v. J.B., 2021AP1157 & 2021AP1883, 4/14/22, District 4 (one-judge decision; ineligible for publication); case history

This is a consolidated appeal of J.B.’s original, six-month commitment and a subsequent nine-month extension of that commitment.

J.B. was detained after his father reported that he’d not had anything to eat or drink for four days. He was treated in the local emergency room and eventually transferred to the Winnebago Mental Health Institute.

At the bench trial on committing J.B., two experts testified for the county. J.B.’s counsel made one hearsay objection to the testimony when an expert claimed that J.B.’s father had feared for his safety. That was overruled. He also objected to the introduction of the experts’ reports, saying they contained “multiple layers … of hearsay.” That was overruled too. The court found that J.B. met the standard in Wis. Stat. § 51.20(1)(a)2.d.

On appeal, J.B. argues that the experts’ testimony was properly objectionable because, though they could rely on inadmissible hearsay in forming opinions, See Wis. Stat. § 907.03, they impermissibly acted as conduits for the substance of this hearsay, so that inadmissible facts were introduced to, and relied upon by, the court.

The court of appeals finds this claim forfeited. It notes that though trial counsel objected to the introduction of the experts’ reports, with the one exception noted above counsel did not lodge hearsay objections against their testimony. And if counsel had objected, the court says, “the County may have been able to introduce that evidence through other means or explain why a hearsay exception applied. It is fundamentally unfair to the County to consider objections that are raised for the first time on appeal, where a timely objection may have resulted in the admission of that evidence. ” (¶¶27-28).

Regarding the extension, J.B. was not at the hearing where it was entered; rather, his counsel appeared and stipulated to another nine months. J.B. doesn’t argue he lacked notice or the opportunity to be present, or that he didn’t consent to the stipulation. But, he says, the court should have engaged him in a colloquy to ensure that the stipulation was understanding and voluntary on his part. The court of appeals disagrees, saying there’s no legal authority mandating the colloquy J.B. proposes. (¶31).

 

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