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Hearsay – Residual Exception, § 908.045(6)

State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate


¶59 We agree with the State that while Krnak’s statement to Ellifson does not technically qualify as an excited utterance, or statement of recent perception due to timing problems, it does qualify under the residual hearsay exception because it contains several guarantees of trustworthiness similar to those found in statements admitted under the excited utterance exception….

¶60 We conclude that Ellifson’s testimony bears sufficient indicia of trustworthiness because “the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed.” Id. (quoting 5 Wigmore, Evidence § 1423, at 254 (Chadbourn rev. 1974)). The testimony at issue here arises from two coworkers who were engaged in an intimate conversation about problems they were experiencing with their adult sons….

¶61 Moreover, Krnak became visibly upset when relating this story, so much so that his face was red and he began shaking. Krnak appeared so distressed that Ellifson herself became upset upon hearing the story. Thus, Krnak was clearly under a great deal of stress when recounting his son’s attempt to do away with him. Also of significance is the fact that the conversation between Krnak and Ellifson appears to have been spontaneous….

¶62 … While Krnak’s statement does not technically qualify as an excited utterance because of the lack of evidence regarding when the attack occurred, the statement does demonstrate that it was made spontaneously under a great deal of stress caused by a startling event. The fact that the statement was made under circumstances similar to those forming the basis for the excited utterance exception weighs heavily in favor of its admissibility.


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