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State v. Gregg B. Kandutsch, No. 2009AP1351-CR, review granted 1/11/11

decision below: unpublished; for Kandutsch: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Issues (formulated by On Point):

Whether admission into evidence of electronic monitoring daily summary reports requires expert testimony to lay a foundation as to accuracy and reliability.

Whether the daily summary reports fall outside the definition of hearsay because they don’t represent assertions made by a person.

Kandutsch, while under electronic monitoring, picked up an OWI charge. At trial, the State obtained admission of the monitoring daily summary reports to prove that he was “out of range” and therefore driving at the critical time. Was an expert necessary to establish a reliability foundation for admissibility? Kandutsch posited a close analogy to State v. Doerr, 229 Wis. 2d 616, 599 N.W.2d 897 (Ct. App. 1999) (PBT results inadmissible without foundation for device’s accuracy and reliability, and testing compliance with accepted methodology). The court of appeals held, in so many words, that this result was a function of statutory and administrative provisions inapplicable to electronic monitoring. More generally, electronic monitoring is based on radio signals and telelphone technology well-known to a lay juror, and therefore not so “unusually complex or esoteric” as to require assistance of expert testimony. The fact that a monitoring system involves connection of these old technologies to a new one–computers–didn’t impress the court of appeals. Instead, it was enough that probation officers testified to the systems function and workability, to establish § 909.01 authentication.

As to the hearsay quality of these summaries: the court of appeals held that readings generated by machines don’t fall within the definition of “hearsay,” which requires a human declarant. The reports resulted from “an automated process free of human intervention.” Instead, “the system producing the reports does not rely on the assistance or observations of a human declarant.”

More: The court posts this description of the case:

In this drunken driving case, the Supreme Court is asked to review if a report from an electronic monitoring device may be admitted into evidence without expert testimony as to the scientific validity, accuracy, and reliability of the device, and if a report generated by an electronic monitoring device is inadmissible hearsay.


At the time of the incident, the defendant was being supervised under an electronic monitoring program that noted if Kandutsch moved out of range – about 150 feet away from the radio-frequency receiving device. The state introduced daily summary reports showing Kandutsch’s transmitter went out of range approximately 20 minutes before police received a call that the defendant was trying to break into his estranged wife’s house. The state argued that, based on the timing of events, the defendant must have been intoxicated by the time he started driving.

The Court of Appeals concluded that the electronic monitoring system’s operation is not so unusually complex or esoteric as to demand the assistance of expert testimony.  It also concluded that readings generated by a machine are generally excluded from the realm of hearsay because they are the result of a process, not a statement by a declarant.  From Marathon County.

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