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Hearsay – Authentication of Document

State v. Gary L. Gordon, 2002 WI App 53, affirmed, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether proof-of-service documents, introduced to show defendant’s knowledge of a domestic violence injunction, violated the hearsay rule.


¶43. … However, these documents were not made under oath or attested to in any way; thus, they were not affidavits. See Black’s Law Dictionary 58 (7th ed. 1999) (An ‘affidavit’ is a ‘voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.’). Further, because the State did not enter these documents into evidence through a witness, such as the officer who allegedly served the defendant or the records custodian from the Milwaukee County Sheriff’s Department, these documents were never properly authenticated. See State v. Garner, 54 Wis. 2d 100, 107, 194 N.W.2d 649 (1972) (stating that under the public records exception to the hearsay rule, custodianship is important, and a competent witness must provide the required identification of official records). Given the absence of proper authentication combined with the trial court’s mistaken belief that these documents were affidavits, we conclude that the trial court erroneously exercised its discretion in admitting these documents into evidence pursuant to Wis. Stat. § 908.03(8). See Daniel-Nordin v. Nordin, 173 Wis. 2d 635, 654, 495 N.W.2d 318 (1993) (‘A circuit court erroneously exercises its discretion when it makes a mistake with respect to the facts upon which its decision is based.’).

Like effect: People v. Jambor, MI App No. 259014, 5/2/06 (failure to adduce proper authentication precluded admissibility as business or public record: “But even if an exception to the hearsay rule would allow admission of the evidence, the exception does not absolve the offering party from the usual requirements of authentication.”)


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