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Hearsay – Prior Consistent Statement, § 908.01(4)(a)2

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether the alleged victim’s entire testimony at prior proceedings was properly admitted into evidence, under prior consistent statement or rule of completeness rationales.


¶25. The trial court admitted the entire prior testimony under two theories: (1) the testimony constituted prior consistent statements under Wis. Stat. § 908.01(4)(a)2; and (2) the testimony could be admitted for the sake of completeness. We agree with Meehan that the trial court’s decision was erroneous under either theory. The general rule is that prior consistent statements are not admissible because they are hearsay. Section 908.01(4)(a)2 provides an exception to the general rule under certain circumstances. Here, the State failed to demonstrate that Nickolas’s entire testimony was an admissible prior consistent statement under § 908.01(4)(a)2. Some of Nickolas’s prior testimony was consistent with his trial testimony, some of it was inconsistent, and some of it covered material that Nickolas did not address during the trial. Moreover, prior consistent statements are admissible only when offered to rebut an express or implied claim of recent fabrication or improper influence or motive. See State v. Peters, 166 Wis. 2d 168, 176, 479 N.W.2d 198 (Ct. App. 1991). There was no such claim in this case.¶26. Similarly, the entire prior testimony cannot be admitted under the rule of completeness. The rule of completeness requires that a statement be admitted in its entirety “‘when this is necessary to explain the admitted portion, to place it in context, or to avoid misleading the trier of fact, or to ensure a fair and impartial understanding of the admitted portion.'” State v. Sharp, 180 Wis. 2d 640, 653-54, 511 N.W.2d 316 (Ct. App. 1993) (citation omitted). There is no indication that admitting Nickolas’s entire prior testimony somehow satisfies this standard. See United States v. Wright, 826 F.2d 938, 946 (10th Cir. 1987) (‘It would be puerile to suggest that if any part of a statement is [to] be admitted the entire statement must be admitted.’). The State needed to show how portions of the statement that have been admitted would tend to mislead the jury if additional portions of the statement were not admitted. Sharp, 180 Wis. 2d at 653. The State failed to do so.


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