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Reference to contents of DOC records at ch. 980 trial wasn’t improper

State v. Jon F. Winant, 2014AP1944, District 1, 7/21/16 (not recommended for publication); case activity (including briefs)

Paperwork created by DOC during the revocation of Winant’s parole and probation for having unsupervised contact with A.G., a minor, was properly admitted at Winant’s ch. 980 trial under § 908.03(8), the public records and reports exception to the hearsay rule.

The public record and reports exception to the hearsay rule allows the admission of “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law, or (c) in civil cases and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” A ch. 980 petition trial is a civil proceeding and therefore DOC records may be used to establish factual findings made during investigations as well as activities or observations made by DOC personnel as long as a competent witness identifies the record. State v. Keith, 216 Wis. 2d 61, 77, 573 N.W.2d 888 (Ct. App. 1997). Winant’s parole agent testified about the records and was certainly competent to identify Winant’s DOC records. (¶18).

Further, the specific records admitted are covered by the rule:

¶20     …. Each document resulted from Winant’s parole agent investigating Konz’s report that Winant’s conduct violated his parole. [Konz was a social worker providing sex offender treatment.] The parole agent was obligated by law to investigate the alleged violations. See Wis. Stat. §§ 304.06(3) & 973.10 (1999-2000); Wis. Admin. Code § DOC 331.03(1) (parole agents are required to investigate the facts of alleged violation and meet with the client to discuss). Winant’s agent conducted an investigation, spoke with Winant, spoke with A.G. and A.G.’s mother, and concluded the conduct warranted revocation. As a result, the agent was required to prepare a report documenting the facts underlying the violation, describing the agent’s investigation and conclusions, and reporting the client’s statement and any recommendations. See Wis. Admin. Code § DOC 331.04. The investigation resulted in the documents Winant challenges: the Violation Investigation Report, Revocation Summary, and Notice of Violation and Receipt. The hearsay within these reports contains the factual findings the agent substantiated during the investigation, including what happened, how it happened, why it happened, and who caused it to happen. See Bridgeway Corp. [v. Citibank], 201 F.3d [134,] 143 [(2d Cir. 2000)]. The hearsay to which Winant objects falls within the factual findings of what happened, and therefore was admissible under this hearsay exception, unless Winant, as the opponent of the information, demonstrates that the sources upon which the report is based were untrustworthy. See id.

¶21     We see nothing suggesting the hearsay within these documents was untrustworthy. Konz, as a social worker for the Veterans Administration, is certainly trustworthy as he has a duty to keep accurate records of treatment sessions. The statements Winant made to Konz were against his own interest and therefore carry circumstantial guarantees of trustworthiness. See State v. Buelow, 122 Wis. 2d 465, 476-77, 363 N.W.2d 255 (Ct. App. 1984) (The rationale for admission of statements against interest is that they possess circumstantial guarantees of trustworthiness based on the assumption that people do not falsely make damaging statements about themselves unless true.). In addition, the statements were Winant’s own admissions, and technically not hearsay at all. See Wis. Stat. § 908.01(4)(b)1. (“A statement is not hearsay if … [t]he statement is offered against a party and is … The party’s own statement.”). Winant does not deny making the statement to Konz or claim Konz’s note about his account was inaccurate. Rather, Winant acknowledged the statement by refusing to put it in writing because, as he told the investigating agent, he was “looking out for his best welfare” and “doesn’t care who he has to drag through the mud to protect himself from going to prison.”

Though Winant doesn’t prevail, his case serves as a salutary reminder of the limits of § 908.03(8): If the statements in the revocation summary or other public record are from someone less trustworthy—a compatriot in crime, say, or an estranged or disgruntled spouse or partner or family member—there will be a strong basis for objecting and arguing the record can’t be admitted under § 908.03(8).

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