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Hearsay, Definitions – “Assertion,” § 908.01(1) – Expression of Fact, Condition or Opinion

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue/Holding1: “(W)e conclude that ‘assertion,’ as used in § 908.01(1) means an expression of a fact, condition, or opinion.” ¶38. And, the speaker must intend the utterance to be an “assertion” as thus defined, because “when a speaker does not intend to communicate anything, his or her sincerity is not in question and the need for cross-examination to test perception, memory, and narration is much diminished.” ¶40. Issue2: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was necessarily excluded from the definition of “assertion,” § 908.01(1), because it was an “instruction.”


¶41. The State contends that Elizabeth’s utterance to her mother cannot be considered an assertion because it is an instruction. It is generally true that commands, instructions, and questions are not considered assertions under the federal rule because they are not expressions of a fact, opinion, or condition, but instead are telling someone to do something or asking someone for information. However, this principle is not as rigid as the State suggests….¶42. We can see no logical reason why the grammatical form of an utterance-whether a declarative sentence, command/instruction or question-should conclusively determine whether an utterance is intended by the speaker as an assertion within the meaning of Wis. Stat. § 908.01(1). We therefore conclude that the fact that Elizabeth’s utterance to her mother was in the form of an instruction does not automatically mean it was not an assertion.

Issue3: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was necessarily excluded from the definition of “assertion,” § 908.01(1), because it was an implied rather than express statement of fact, opinion, or condition.


¶46. We conclude that the preferable approach is to include within the meaning of “assertion” in Wis. Stat. § 908.01(1) an expression of a fact, opinion, or condition that is implicit in the words of an utterance as long as the speaker intended to express that fact, opinion, or condition. From the standpoint of the principles underlying the rule against hearsay, we see no reason to distinguish between an explicit and an implicit assertion. As for determining whether the speaker intends an implicit assertion and if so what, we adopt the framework described in the Judicial Council Committee’s Note and the Federal Advisory Committee’s Note for determining whether non-verbal conduct is intended as an assertion. The burden is on the party claiming that an utterance contains an implicit assertion to show that a particular expression of fact, opinion, or condition was intended by the speaker, and the trial court determines this as a preliminary matter. See supra note 14. See also United States v. Jackson, 88 F.3d 845, 848 (10th Cir. 1996). Sometimes it will be evident from the utterance itself that the speaker necessarily intended an implicit assertion. However, when evidence of surrounding circumstances is needed to resolve the issue, the party claiming an implicit assertion must present that evidence to the trial court. Id.¶47. In this case, when the prosecutor stated at the motion hearing that Elizabeth’s instruction to her mother contained a highly relevant inference and defense counsel objected that use of the instruction for that purpose was hearsay, the trial court should have taken up the issue of whether the instruction contained an implicit assertion, and, if so, what. Although the trial court did not do so, our independent review of the record persuades us that a reasonable trial court could have concluded that the instruction did not contain an implicit assertion by Elizabeth that Daniel was dangerous. The instruction itself does not necessarily imply the assertion Daniel propounds. That is, the instruction itself necessarily implies that Elizabeth intended to assert to her mother that she wanted her mother to come looking for her if she was not home by 3:45 p.m., but the instruction, in itself, does not necessarily imply any assertion about the reason for her request. It was therefore incumbent upon Daniel to present evidence of the surrounding circumstances to support his position that Elizabeth intended to express to her mother that Daniel was dangerous. It is by no means clear from the submissions that she intended to express that fact. The submissions would support a determination that she intended to express to her mother her fear about what Daniel might do, which is not the same thing as expressing the fact of his dangerousness. The submissions are also consistent with her fearing that he would bother her by insisting on talking her into coming back to him or by following her to prevent her from meeting Stahl-not that Daniel would harm her. Accordingly, we conclude there was a proper basis in the record for deciding that the instruction was not an assertion within the meaning of Wis. Stat. § 908.01(1), and thus was not hearsay.

¶48. The State, therefore, was not prohibited by the rule against hearsay from asking the jury to draw from it the inference that Elizabeth feared Daniel would harm her and that he did….

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