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Hearsay – “Residual” Exception, § 908.45(6)

State v. Liliana Petrovic, 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999)
For Petrovic: Robert B. Rondini

Holding: While executing a search warrant at Petrovic’s home, a detective talked to her 5-year old daughter, who gave him information about 39 marijuana plants growing outside. She ended up being tried with and convicted of manufacturing THC. Petrovic challenges admissibility of daughter’s hearsay statements to the detective, and to evidence showing her affiliation with the Outlaws motorcycle gang. The daughter didn’t testify due to age and lack of memory; she was therefore “unavailable” as a witness. Admissibility hinges on the “residual hearsay exception,” § 908.45(6) which, as the COA acknowledges, applies only to novel or unanticipated hearsay categories. Two prior cases converge: State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988) (five-factor test for residual-exception hearsay statement of child victim), and State v. Stevens, 171 Wis. 2d 106, 490 N.W.2d 753 (Ct. App. 1992) (residual-exception inapplicable to hearsay statement of nonvictim child witness). This case seems to fall within Stevens, since it involves a nonvictim child witness, but the COA places it within Sorenson: “forcing Tanya to testify against her mother in criminal court is an exigency sufficiently similar to forcing a child sexual assault victim to testify[.]” (“would present an exigency similar to psychological scarring of a child victim”). For fact-specific reasons, the court finds both the Sorenson and confrontation clause reliability factors satisfied.

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