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Defense win! Absent hearsay, evidence insufficient for ch. 51 extension

Winnebago County v. D.E.S., 2023AP460, 9/20/23, District 2 (one-judge decision; ineligible for publication); case activity

This is a nice case to know, both for its careful, thorough analysis of a common ch. 51 problem–commitments based entirely or extensively on hearsay–and its collection of other cases analyzing the same issue. The sole witness at D.E.S. (“Dennis”)’s extension hearing was a Dr. Anderson, who had witnessed none of the behaviors she relied on to conclude that Dennis was dangerous, instead reading them from his institutional records. Over objection, the trial court relied on them anyway. The court of appeals now reverses the commitment because absent the hearsay, there was no evidence tending to show that Dennis would be dangerous if treatment were withdrawn.

The circuit court found Dennis dangerous under the second standard: that he presents a threat to others. The behaviors it cited for this conclusion included one incident in which Dennis allegedly shoved staff at Mendota, along with vaguer claims that without his medication, Dennis had in the past become “more violent,” “more disoriented,” and “more psychotic.” The records Anderson relied on to relay these factual claims were not introduced into evidence; nor was her report. The only evidence of these behaviors was her testimony, which the court admitted, saying it was “part of the medical records” and that it was “reasonable for the physician to rely upon that.”

As the court of appeals notes, this testimony appears to fall squarely into the  definition of “hearsay”: Anderson related out-of-court statements that were plainly relevant for the truth of what they asserted: i.e. that Dennis had behaved in a particular way. The county does not attempt to show that the testimony falls into any hearsay exception; instead it contends that the statements were not offered for their truth, but rather solely as a basis for Anderson’s opinion.

But that doesn’t get the county anywhere, as the court of appeals aptly notes. Though experts may rely on inadmissible hearsay in forming their opinions, Wis. Stat. § 907.03,

such reliance “does not transform the hearsay into admissible evidence.” Therese B., 267 Wis. 2d 310, ¶8. WISCONSIN STAT. § 907.03 does not allow an expert to serve “as a conduit for the hearsay opinions of others.” Therese B., 267 Wis. 2d 310, ¶9. Hearsay upon which an expert relies may only be admitted as substantive evidence if it fits within an exception to the hearsay rule. State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993).

(¶25). And here, the circuit court plainly did rely on the hearsay for the truth asserted:

it is apparent that the circuit court went beyond considering Anderson’s testimony merely as a basis for her opinions and instead relied on the truth of the specific statements she made in determining Dennis to be dangerous. The court specifically determined Dennis to be dangerous under the second standard based on the truth of Anderson’s statement that his treatment records showed that he shoved a staff member in May 2022. And it determined Dennis to be dangerous under the recommitment standard in WIS. STAT. § 51.20(1)(am) based on information Anderson relayed from Dennis’s records and other staff members about prior instances in which he became more violent and psychotic after not taking medication. Though Anderson could rely on inadmissible evidence in forming her opinions, the court could not admit and “rely[] on the substance of the inadmissible hearsay” in determining Dennis to be dangerous. See State v. Kleser, 2010 WI 88, ¶¶90-92 & n.9, 328 Wis. 2d 42, 786 N.W.2d 144 (holding that circuit court erred in determining seriousness of offense in juvenile waiver proceeding “based on the purported ‘facts’ of the offense” as described by doctor who lacked personal knowledge of them).


The court of appeals, noting that there was no other evidence of dangerousness, holds that the county failed to present sufficient evidence that Dennis was dangerous under the second standard. It also rejects the county’s argument that this error was harmless because Dennis was actually dangerous under the fifth standard, saying D.J.W. doesn’t permit such post-hoc changes of theory (and that there was insufficient evidence there, too).

The above is the summary and the post is getting a little long. But in the hope of providing a convenient place to find helpful authorities, what follows are linked-up portions of the opinion we think you may find useful. Note that many cited cases are one-judge opinions that are citable, but only for persuasive value and following the procedures laid out in Wis. Stat. Rule 809.23(3). Also, not cited by the court here but very much in the same vein is Brown County v. Z.W.L., which came out just a few days earlier.

This court has repeatedly held that such use of hearsay testimony in a commitment hearing constitutes an erroneous exercise of discretion. For example, in S.Y. v. Eau Claire County, 156 Wis. 2d 317, 457 N.W.2d 326 (Ct. App. 1990), aff’d, 162 Wis. 2d 320, 469 N.W.2d 836 (1991),8 a doctor who “had only limited personal contact with S.Y.” and relied “almost completely” on his medical records “testified that, according to reports, S.Y. had committed an unprovoked assault … prior to his commitment.” Id. at 327. This court held that the testimony was hearsay which the circuit court had erroneously exercised its discretion in admitting. Id. at 328.

More recently, in Rusk County v. A.A., Nos. 2019AP839 and 2020AP1580, unpublished slip op. (WI App July 20, 2021), review denied (WI Oct. 18, 2021) (Nos. 2019AP839 and 2020AP1580),10 a psychiatrist testified that A.A. was dangerous under WIS. STAT. § 51.20(1)(am) “based on ‘events’ described in [his] medical records.” A.A., Nos. 2019AP839 and 2020AP1580, ¶35. Over A.A.’s objection, the circuit court allowed the psychiatrist to testify as to the events, about which the psychiatrist had no personal knowledge. Id., ¶¶3536. Citing S.Y., this court ruled that the circuit court had erroneously exercised its discretion in allowing the testimony. A.A., Nos. 2019AP839 and 2020AP1580, ¶¶37-39. Though the events served as the basis for the psychiatrist’s opinion, the county did not introduce the medical records or call a witness with personal knowledge of the events. A.A., Nos. 2019AP839 and 2020AP1580, ¶¶37-39. A.A. is squarely on point with the present case in this respect. See also Kenosha County v. L.A.T., No. 2022AP1730, unpublished slip op. ¶¶25, 28, 31 (WI App Aug. 23, 2023) (concluding that psychiatrist’s testimony about incidents relied on by circuit court in finding committee dangerous was inadmissible hearsay because psychiatrist obtained information about incidents from collateral sources); Waupaca County v. G.T.H., No. 2022AP2146, unpublished slip op. ¶¶26-33 (WI App Aug. 24, 2023) (holding that circuit court erroneously admitted hearsay testimony from two experts regarding incidents cited by circuit court in finding committee dangerous).

The County relies on this court’s decision in Waukesha County v. I.R.T., No. 2020AP996, unpublished slip op. (WI App Nov. 4, 2020), but that case is materially distinguishable.12 In I.R.T., the subject individual argued that the circuit court had erred in relying on the hearsay testimony of several witnesses concerning events that led to his initial commitment and his prior condition. Id., ¶10. This court disagreed, noting that one of the experts had provided only “general statements regarding I.R.T.’s past behavior,” the experts’ reports had been received in evidence, and the circuit court had relied on the experts’ opinions, not “the underlying hearsay facts,” in extending the commitment. Id., ¶12. In contrast, the County here did not introduce Anderson’s report into evidence and the circuit court based its determination of dangerousness on the specific events described in Anderson’s hearsay testimony.




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