Wisconsin's rule on evidence law turns on a feature the national template does not capture: Wisconsin evidence practice is organized under the Wisconsin Statutes chs. 904–909 (Evidence Code). Relevance starts at Wis. Stat. §§ 904.01, 904.03; hearsay starts at Wis. Stat. §§ 908.01, 908.02. The controlling authority is Wisconsin Statutes chs. 904–909 (Evidence Code). Authenticity is a separate fight under Wis. Stat. §§ 909.01, 909.02. Depositions at trial: Wis. Stat. § 804.07 and Wis. Stat. § 908.04(2)(a) govern civil deposition use at trial when witnesses are unavailable. Criminal discovery follows Wis. Stat. § 971.23; deposition testimony at trial requires Wis. Stat. ch. 908 hearsay exceptions.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Worked example under Wisconsin law
The illustration below uses only rules already stated for Wisconsin. It is a research hypothetical, not a prediction of what a court will do.
A lawyer in Wisconsin wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under Wis. Stat. §§ 904.01, 904.03.
- If the email is the opposing party's, test Wis. Stat. § 908.01(4)(b) before the hearsay definition in Wis. Stat. §§ 908.01, 908.02.
- For the medical record, lay the business-records foundation in Wis. Stat. § 908.03(6) and the treatment purpose in Wis. Stat. § 908.03(4).
- For the deathbed statement, meet Wis. Stat. § 908.04(2)(b), then authenticate every exhibit under Wis. Stat. §§ 909.01, 909.02.
Wisconsin keeps hearsay, character, and authenticity on different rules inside the Wisconsin Statutes chs. 904–909 (Evidence Code). Winning one does not win the others.
General standards of admissibility
Wisconsin starts every evidence dispute with relevance and unfair prejudice. Under Wis. Stat. §§ 904.01, 904.03, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Wisconsin splits relevancy (ch. 904), hearsay (ch. 908), and authentication (ch. 909) across chapters rather than using FRE rule numbers in section titles.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in Wisconsin is governed by Wis. Stat. §§ 904.04, 904.05. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Wisconsin character-evidence opinions
STATE of Wisconsin, Plaintiff-Respondent, v. Larry W. FRIEDRICH, Defendant-Appellant-Petitioner
…s case. Section 904.04(1), *12 states the general rule that character evidence is not admissible for the purpose of proving that the person acted in conformity therewith. Subsection (1)(a) outlines an exception to that rule, providing, in part, that an accused may introduce evidence of a pertinent character trait. The parties debate whether the proffered opinion testimony comes…
STATE of Wisconsin, Plaintiff-Respondent, v. Larry W. FRIEDRICH, Defendant-Appellant-Petitioner is worth reading on Wisconsin character evidence because the court put the point in its own words: "Section 904.04(1), *12 states the general rule that character evidence is not admissible for the purpose of proving that the person acted in conformity therewith." Use that passage as the starting point, then read the facts that precede it.
State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Dale H. Davidson, Defendant-Appellant — Bradley, J., dissenting
…elements of a crime, subject to the general rule excluding character evidence." Fishnick, 127 Wis. 2d at 250; Friedrich, 135 Wis. 2d at 22. However, the words of caution have a *584toothless effect here because the majority's analysis is tantamount to a blanket rule permitting character evidence in child sexual assault cases. This approach amounts to an unwarranted relaxation…
On character evidence, State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Dale H. Davidson, Defendant-Appellant — Bradley, J., dissenting speaks to the Wisconsin dispute in this passage: "Fishnick, 127 Wis. 2d at 250; Friedrich, 135 Wis. 2d at 22. However, the words of caution have a *584toothless effect here because the majority's analysis is tantamount to a blanket rule permitting character evidence in child sexual assault cases." The surrounding opinion shows how the court applied that language to the record.
State of Wisconsin, Plaintiff-Respondent-Petitioner v. Miguel E. Marinez, Jr. — Abrahamson, J., dissenting
…on likely to do such acts."4 ¶ 64. The burning evidence was character evidence, inadmissible for the purpose of proving Marinez acted in conformity with his character or propensities. The aim of Wis. Stat. § 904.04(2) is to keep evidence from the jury that the defendant is a bad person and so is prone to commit the crime alleged.5 The purpose of § 904.04(2) is to prevent the St…
Practitioners open State of Wisconsin, Plaintiff-Respondent-Petitioner v. Miguel E. Marinez, Jr. — Abrahamson, J., dissenting when Wisconsin character evidence turns on the distinction in this sentence: "The burning evidence was character evidence, inadmissible for the purpose of proving Marinez acted in conformity with his character or propensities. The aim of Wis. Stat. § 904." Do not lift it out of the facts the court was deciding.
State, Respondent, v. Tarrell, Appellant — Abrahamson, J., dissenting
State, Respondent, v. Tarrell, Appellant — Abrahamson, J., dissenting, 74 Wis. 2d 647 (1976)
…a time and then may never do them again. The prohibition on character evidence is based on the danger of prejudice outweighing probative value. Wigmore states that character evidence is “objectionable, not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the tribunal— whether judge or jury — is to give excessive…
State, Respondent, v. Tarrell, Appellant — Abrahamson, J., dissenting is worth reading on Wisconsin character evidence because the court put the point in its own words: "The prohibition on character evidence is based on the danger of prejudice outweighing probative value. Wigmore states that character evidence is “objectionable, not because it has no appreciable probative value, but because it has too much." Use that passage as the starting point, then read the facts that precede it.
State of Wisconsin, Plaintiff-Respondent, v. Curtis L. Jackson, Defendant-Appellant-Petitioner
…lf-defense theory, Jackson moved the circuit court to admit character evidence. While the motion cited to several statutory provisions, it focused on the admission of three specific acts to prove the victim's character for violence. The motion did not set forth a foundational basis for the admission of reputation testimony. The circuit court denied the motion. Following his jur…
State of Wisconsin, Plaintiff-Respondent, v. Curtis L. Jackson, Defendant-Appellant-Petitioner is worth reading on Wisconsin character evidence because the court put the point in its own words: "Jackson moved the circuit court to admit character evidence. While the motion cited to several statutory provisions, it focused on the admission of three specific acts to prove the victim's character for violence." Use that passage as the starting point, then read the facts that precede it.
State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Steven G. Walters, Defendant-Appellant
…defendant accused of molesting a child sought to introduce character evidence through the testimony of a psychologist. State v. Richard A.P., 223 Wis. 2d 777, 795, 589 N.W.2d 674 (Ct. App. 1998). The testimony was intended to demonstrate that the defendant did not exhibit character traits consistent with a sexual disorder such as pedophilia. Id. The defendant's expert planned…
Practitioners open State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Steven G. Walters, Defendant-Appellant when Wisconsin character evidence turns on the distinction in this sentence: "State v. Richard A.P., 223 Wis. 2d 777, 795, 589 N.W.2d 674 (Ct. App. 1998). The testimony was intended to demonstrate that the defendant did not exhibit character traits consistent with a sexual disorder such as pedophilia. Id." Do not lift it out of the facts the court was deciding.
Hearsay: start with the definition
Most hearsay objections in Wisconsin are won or lost on the definition, not on an exception. Under Wis. Stat. §§ 908.01, 908.02, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Wisconsin hearsay opinions
State of Wisconsin, Plaintiff-Respondent, v. Emilio Padilla, Defendant-Appellant
…with a ten year old contrary to sec. 940.225(1) (d), Stats. Hearsay testimony was admitted both at the preliminary examination and at trial regarding the young victim’s statements to others about the assault. We hold there was no error in doing so. Also, Padilla wanted to cross-examine the ten year old about a possible previous sexual experience. With limited exceptions, such i…
Practitioners open State of Wisconsin, Plaintiff-Respondent, v. Emilio Padilla, Defendant-Appellant when Wisconsin hearsay turns on the distinction in this sentence: "Stats. Hearsay testimony was admitted both at the preliminary examination and at trial regarding the young victim’s statements to others about the assault. We hold there was no error in doing so." Do not lift it out of the facts the court was deciding.
State of Wisconsin, Plaintiff-Respondent, v. Patricia A. Weed, Defendant-Appellant-Petitioner — Bradley, J., concurring
…t is not harmless, however, is that the majority broadens a hearsay exception to such an extent that its foundational requirements are rendered meaningless. ¶ 50. Wisconsin is one of only a few states that has adopted the exception for statements of recent perception. Of those few that have adopted it, Wyoming's exception applies only in civil cases and New Mexico's exception h…
Wisconsin opinions such as State of Wisconsin, Plaintiff-Respondent, v. Patricia A. Weed, Defendant-Appellant-Petitioner — Bradley, J., concurring are cited where hearsay is disputed. The court stated: "Wisconsin is one of only a few states that has adopted the exception for statements of recent perception." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of Wisconsin, Plaintiff-Respondent, v. David J. PETERS, Defendant-Appellant
…, Peters contends that the trial court erroneously admitted hearsay testimony consisting of prior consistent statements made by the victim to three separate people, and that the erroneous admission of this testimony was prejudicial. Second, Peters argues that his trial counsel was ineffective. Third, Peters argues that the trial court abused its discretion by sentencing him to…
On hearsay, STATE of Wisconsin, Plaintiff-Respondent, v. David J. PETERS, Defendant-Appellant speaks to the Wisconsin dispute in this passage: "Peters contends that the trial court erroneously admitted hearsay testimony consisting of prior consistent statements made by the victim to three separate people, and that the erroneous admission of this testimony was prejudicial." The surrounding opinion shows how the court applied that language to the record.
State of Wisconsin, Plaintiff-Respondent, v. Norman Paul Pepin, Defendant-Appellant
…judge erred in excluding Pepin’s out-of-court statement on hearsay grounds. We agree with the trial court that the statement was properly excluded, and accordingly affirm. Pepin was found guilty of three counts of armed robbery, two counts of first-degree murder, and one count of attempted murder, 1 arising out of an incident in which Pepin and another robbed three men whom th…
Practitioners open State of Wisconsin, Plaintiff-Respondent, v. Norman Paul Pepin, Defendant-Appellant when Wisconsin hearsay turns on the distinction in this sentence: "Pepin’s out-of-court statement on hearsay grounds. We agree with the trial court that the statement was properly excluded, and accordingly affirm." Do not lift it out of the facts the court was deciding.
Bergeron, Plaintiff in Error, v. State, Defendant in Error
Bergeron, Plaintiff in Error, v. State, Defendant in Error, 85 Wis. 2d 595 (1978)
…? 2. Did the trial court err in permitting the admission of hearsay statements of co-conspirators which were allegedly not made during the course of and in furtherance of the conspiracy pursuant to sec. 908.01(4) (b)5? 3. Did the trial court err in requiring the state to elect between the aider and abettor section and the conspiracy subsection of sec. 939.05, Stats.? The defend…
Wisconsin opinions such as Bergeron, Plaintiff in Error, v. State, Defendant in Error are cited where hearsay is disputed. The court stated: "Did the trial court err in permitting the admission of hearsay statements of co-conspirators which were allegedly not made during the course of and in furtherance of the conspiracy pursuant to sec. 908.01(4) (b)5?" That is the language to brief; the rest of the decision supplies the procedural posture.
Wilder, Appellant, v. Classified Risk Insurance Company and Another, Respondents
…to those factual matters therein stated which are based on hearsay. Likewise, a conclusion in the report of the traffic officer is inadmissible. A police traffic report, even as to conclusions and hearsay statements, would be admitted in evidence as an official record un *289 der sec. 889.18, Stats., 1 formerly sec. 327.18 (1), if this statute were literally construed because…
On hearsay, Wilder, Appellant, v. Classified Risk Insurance Company and Another, Respondents speaks to the Wisconsin dispute in this passage: "Likewise, a conclusion in the report of the traffic officer is inadmissible. A police traffic report, even as to conclusions and hearsay statements, would be admitted in evidence as an official record un *289 der sec. 889.18, Stats., 1 formerly sec. 327." The surrounding opinion shows how the court applied that language to the record.
State of Wisconsin, Plaintiff-Respondent, v. Raymond W. Weber, Defendant-Appellant
…rial court erred in allowing a state's psychiatrist to give hearsay testimony; (2) he was denied the effective assistance of trial counsel; and (3) alternatively to the ineffective assistance of counsel claim, he should be granted a new trial in the interests of justice. 1 Though we agree that the trial court's evidentiary ruling was error, we conclude that the error was harmle…
Practitioners open State of Wisconsin, Plaintiff-Respondent, v. Raymond W. Weber, Defendant-Appellant when Wisconsin hearsay turns on the distinction in this sentence: "rial court erred in allowing a state's psychiatrist to give hearsay testimony; (2) he was denied the effective assistance of trial counsel; and (3) alternatively to the ineffective assistance of counsel claim, he should be granted a new trial in the interests of justice. 1 Though" Do not lift it out of the facts the court was deciding.
State of Wisconsin, Plaintiff-Respondent, v. Robert Bintz, Defendant-Appellant
…ing the statements of his brother David in violation of the hearsay rule and the Confrontation Clause and seeks a new trial. We determine the court properly admitted ■David's statements and affirm the judgment and order. BACKGROUND ¶ 2. Sandra Lison, a bartender at the Good Times Bar in Green Bay, disappeared in August 1987. Several days after her disappearance, Lison's body wa…
Practitioners open State of Wisconsin, Plaintiff-Respondent, v. Robert Bintz, Defendant-Appellant when Wisconsin hearsay turns on the distinction in this sentence: "David in violation of the hearsay rule and the Confrontation Clause and seeks a new trial. We determine the court properly admitted ■David's statements and affirm the judgment and order. BACKGROUND ¶ 2." Do not lift it out of the facts the court was deciding.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Wisconsin treats them under Wis. Stat. § 908.01(4)(b). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Wisconsin party-admission opinions
State of Wisconsin, Plaintiff-Respondent, v. Eugene Huntington, Defendant-Appellant-Petitioner
…le. I. Application of Exceptions to Hearsay Rule. ¶ 11. The admission of out-of-court statements pursuant to an exception to the hearsay rule is a determination left to the discretion of the circuit court. See State v. Moats, 156 Wis. 2d 74, 96, 457 N.W.2d 299 (1990). Because the circuit court is better able to weigh the reliability of circumstances surrounding out-of-court sta…
State of Wisconsin, Plaintiff-Respondent, v. Eugene Huntington, Defendant-Appellant-Petitioner is worth reading on Wisconsin party admissions because the court put the point in its own words: "I. Application of Exceptions to Hearsay Rule. ¶ 11. The admission of out-of-court statements pursuant to an exception to the hearsay rule is a determination left to the discretion of the circuit court. See State v. Moats, 156 Wis. 2d 74, 96, 457 N.W.2d 299 (1990)." Use that passage as the starting point, then read the facts that precede it.
Palisades Collection LLC, Plaintiff-Respondent, v. Jackie C. Kalal and Ralph A. Kalal, Defendants-Appellants
…is. 2d 181, 655 N.W.2d 718. If they do, then we examine the opposing party's submissions to determine whether there are material facts in dispute that entitle the opposing party to a trial. Id. ¶ 10. Affidavits in support of and in opposition to a motion for summary judgment "shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible i…
On party admissions, Palisades Collection LLC, Plaintiff-Respondent, v. Jackie C. Kalal and Ralph A. Kalal, Defendants-Appellants speaks to the Wisconsin dispute in this passage: "N.W.2d 718. If they do, then we examine the opposing party's submissions to determine whether there are material facts in dispute that entitle the opposing party to a trial. Id. ¶ 10." The surrounding opinion shows how the court applied that language to the record.
State of Wisconsin, Plaintiff-Respondent, v. Gerardo S. Patino, Defendant-Appellant
…completeness. We conclude that the evidence qualifies as an admission by a party opponent under sec. 908.01(4)(b)l, Stats. 2 Under the statute, a party's own statement in either an individual or representative capacity is not hearsay when it is offered against the party at trial. Id. Here, the matter Patino asserted — that he was "going to kill" Tamayo — was offered by the stat…
Wisconsin opinions such as State of Wisconsin, Plaintiff-Respondent, v. Gerardo S. Patino, Defendant-Appellant are cited where party admissions is disputed. The court stated: "We conclude that the evidence qualifies as an admission by a party opponent under sec. 908.01(4)(b)l, Stats. 2 Under the statute, a party's own statement in either an individual or representative capacity is not hearsay when it is offered against the party at trial. Id." That is the language to brief; the rest of the decision supplies the procedural posture.
Journal/Sentinel, Inc., Bruce Gill, Michael Bayer and Lawrence Sussman, Plaintiffs-Respondents, v. School Board of
…ned or superseded pleading may be introduced as the party's admission); United States v. McKeon, 738 F.2d 26, 30-34 (2d Cir. 1984) (attorney's opening statement in first trial admissible against client in second trial). There is no doubt but that the "Memorandum of Understanding" would be a "record" under the public-records law if it were either "created" or "kept" by the schoo…
Journal/Sentinel, Inc., Bruce Gill, Michael Bayer and Lawrence Sussman, Plaintiffs-Respondents, v. School Board of is worth reading on Wisconsin party admissions because the court put the point in its own words: "United States v. McKeon, 738 F.2d 26, 30-34 (2d Cir. 1984) (attorney's opening statement in first trial admissible against client in second trial)." Use that passage as the starting point, then read the facts that precede it.
Mack v. State
Mack v. State, 48 Wis. 271 (1880)
…ction of the state, a liberal rule should be adopted in the admission of evidence, and no evidence offered by the accused should be rejected when its immateriality is not clearly apparent. The evil of admitting evidence in a criminal action which may, upon a more mature examination than it is possible to give to it upon the trial before the jury, b'e held irrelevant and immater…
Practitioners open Mack v. State when Wisconsin party admissions turns on the distinction in this sentence: "ction of the state, a liberal rule should be adopted in the admission of evidence, and no evidence offered by the accused should be rejected when its immateriality is not clearly apparent. The evil of admitting evidence in a criminal action which may, upon a more mature examinati" Do not lift it out of the facts the court was deciding.
State of Wisconsin, Plaintiff-Respondent, v. Todd Michael Johnson, Defendant-Appellant
…ior burglary was received at trial. Johnson argues that the admission of this evidence was contrary to secs. 904.04 (2) and 904.03, Stats. Section 904.04(2), Stats., provides as follows: OTHER CRIMES, WRONGS, OR ACTS. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsec…
On party admissions, State of Wisconsin, Plaintiff-Respondent, v. Todd Michael Johnson, Defendant-Appellant speaks to the Wisconsin dispute in this passage: "Johnson argues that the admission of this evidence was contrary to secs. 904.04 (2) and 904.03, Stats. Section 904.04(2), Stats., provides as follows: OTHER CRIMES, WRONGS, OR ACTS." The surrounding opinion shows how the court applied that language to the record.
State, Plaintiff-Appellant, v. Benoit, Defendant-Respondent
State, Plaintiff-Appellant, v. Benoit, Defendant-Respondent, 83 Wis. 2d 389 (1978)
…is brother’s confession of the crime will be evidence of an admission by a party *399 opponent and will not be hearsay. Sec. 908.01 (4) (b) 1, Stats. Although Charles Benoit was not shown to have previously given the police reliable information or to be a reliable person, he was identified as the suspect’s brother. His testimony described in detail how his brother told him that…
Practitioners open State, Plaintiff-Appellant, v. Benoit, Defendant-Respondent when Wisconsin party admissions turns on the distinction in this sentence: "Sec. 908.01 (4) (b) 1, Stats. Although Charles Benoit was not shown to have previously given the police reliable information or to be a reliable person, he was identified as the suspect’s brother." Do not lift it out of the facts the court was deciding.
Business records
The business-records exception under Wis. Stat. § 908.03(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Wisconsin business-records opinions
State of Wisconsin, Plaintiff-Respondent, v. Luther Williams, III, Defendant-Appellant
…say exception for a record of regularly conducted activity (business record). However, the admission of the report was harmless error in light of the unit leader's testimony and other circumstances. We also reject other arguments Williams makes regarding an evidentiary ruling, the right to present a defense, and sufficiency of the evidence. Accordingly, we affirm the circuit co…
Practitioners open State of Wisconsin, Plaintiff-Respondent, v. Luther Williams, III, Defendant-Appellant when Wisconsin business records turns on the distinction in this sentence: "However, the admission of the report was harmless error in light of the unit leader's testimony and other circumstances. We also reject other arguments Williams makes regarding an evidentiary ruling, the right to present a defense, and sufficiency of the evidence." Do not lift it out of the facts the court was deciding.
State, Respondent, v. Olson, Appellant
State, Respondent, v. Olson, Appellant, 75 Wis. 2d 575 (1977)
…defense stipulated to the records’ admissibility under the business records exception to the hearsay rule, and the records themselves appear to be worthy of credibility on their face. There were approximately 60 pages of hospital records. They include statements from the victim as to the nature of the blows and his evaluation of the injuries as well as the doctors’ evaluation…
Wisconsin opinions such as State, Respondent, v. Olson, Appellant are cited where business records is disputed. The court stated: "There were approximately 60 pages of hospital records." That is the language to brief; the rest of the decision supplies the procedural posture.
Palisades Collection LLC, Plaintiff-Respondent, v. Jackie C. Kalal and Ralph A. Kalal, Defendants-Appellants
…that of the Plaintiff; and that based upon my review of the business records of the original creditor, I have personally inspected said account and statements regarding the balance due on said account. ¶ 6. The Kalals opposed the motion, although they did not submit any affidavits or other factual materials. They contended that, with respect to the amount owed, the affidavit di…
Practitioners open Palisades Collection LLC, Plaintiff-Respondent, v. Jackie C. Kalal and Ralph A. Kalal, Defendants-Appellants when Wisconsin business records turns on the distinction in this sentence: "Plaintiff; and that based upon my review of the business records of the original creditor, I have personally inspected said account and statements regarding the balance due on said account. ¶ 6." Do not lift it out of the facts the court was deciding.
State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Carmen L. Doss, Defendant-Appellant-Cross Petitioner
…5-06). Section 909.02(12) requires that self-authenticating business records be accompanied by a written certification of the offering party that provides "written notice of that intention to all adverse parties and... make[s] the record and certification available for inspection sufficiently in advance of the offer of the record and certification into evidence to *591 provide…
Wisconsin opinions such as State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Carmen L. Doss, Defendant-Appellant-Cross Petitioner are cited where business records is disputed. The court stated: "Section 909.02(12) requires that self-authenticating business records be accompanied by a written certification of the offering party that provides 'written notice of that intention to all adverse parties and..." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Wisconsin, Plaintiff-Respondent, v. David C. Gilles, Defendant-Appellant
…rgument that the testimony was admissible under either the "business records" or "public records" hearsay exceptions. The court also refused to allow Gilíes to question the detective about a letter drafted by the state during plea negotiations which misspelled Kamphuis' name. The letter, which documented an offer by Gilíes to take a polygraph examination, was offered by Gilíes…
Practitioners open State of Wisconsin, Plaintiff-Respondent, v. David C. Gilles, Defendant-Appellant when Wisconsin business records turns on the distinction in this sentence: "The court also refused to allow Gilíes to question the detective about a letter drafted by the state during plea negotiations which misspelled Kamphuis' name." Do not lift it out of the facts the court was deciding.
Wilder, Appellant, v. Classified Risk Insurance Company and Another, Respondents
…upp. 2d 538. Admissibility of Investigational Reports Under Business Records Statutes, 33 Albany Law Rev. (1969), 251. Any implication in Voigt v. Voigt, supra, that a police accident report might be considered a business entry under sec. 889.25 is rejected. However, police records of arrests stand on a different footing and may be admissible as a business record. It has also b…
Practitioners open Wilder, Appellant, v. Classified Risk Insurance Company and Another, Respondents when Wisconsin business records turns on the distinction in this sentence: "Admissibility of Investigational Reports Under Business Records Statutes, 33 Albany Law Rev. (1969), 251. Any implication in Voigt v. Voigt, supra, that a police accident report might be considered a business entry under sec. 889.25 is rejected." Do not lift it out of the facts the court was deciding.
Noland, Respondent, v. Mutual of Omaha Insurance Company, Appellants
Noland, Respondent, v. Mutual of Omaha Insurance Company, Appellants, 57 Wis. 2d 633 (1973)
…n accordance with the general rule, it seems clear that the business record exception cannot support use of the history because the declarant’s [patient’s] action in relating the history was not part of a business routine of which he was a regular participant. Here as elsewhere, however, if the history comes within one of the other exceptions to the hearsay rule it is admissibl…
On business records, Noland, Respondent, v. Mutual of Omaha Insurance Company, Appellants speaks to the Wisconsin dispute in this passage: "n accordance with the general rule, it seems clear that the business record exception cannot support use of the history because the declarant’s [patient’s] action in relating the history was not part of a business routine of which he was a regular participant. Here as elsewhere," The surrounding opinion shows how the court applied that language to the record.
Rusecki, Plaintiff in Error, v. State, Defendant in Error
Rusecki, Plaintiff in Error, v. State, Defendant in Error, 56 Wis. 2d 299 (1972)
…g the runaways falls within both the official records 3 and business records 4 exceptions to the hearsay rule. Alternatively, the state argues that defendant has waived his right to assert this allegation of error for the lack of timely objection at trial. The objectionable testimony, according to defendant, is as follows: “Q. Could you tell us when he broke any of these rules…
On business records, Rusecki, Plaintiff in Error, v. State, Defendant in Error speaks to the Wisconsin dispute in this passage: "Alternatively, the state argues that defendant has waived his right to assert this allegation of error for the lack of timely objection at trial. The objectionable testimony, according to defendant, is as follows: “Q." The surrounding opinion shows how the court applied that language to the record.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Wisconsin trial practice.
Excited utterance — Wis. Stat. § 908.03(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Wis. Stat. § 908.03(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Wis. Stat. § 908.03(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under Wis. Stat. § 908.04(1), Wisconsin opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under Wis. Stat. § 908.04(2)(a) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Wis. Stat. § 908.04(2)(b) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Wisconsin dying-declaration opinions
State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Mark D — Butler, J., concurring in part and dissenting
…jority now adopts, would render superfluous the doctrine of dying declarations. See generally Michael J. Polelle, The Death of Dying Declarations in a Post-Crawford World, 2006 Mo. L. Rev. 285. The circuit court discerned that both doctrines coexisted at common law at the time the Constitution was ratified. Thus, the circuit court properly reasoned that a current application of…
State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Mark D — Butler, J., concurring in part and dissenting is worth reading on Wisconsin dying declaration because the court put the point in its own words: "See generally Michael J. Polelle, The Death of Dying Declarations in a Post-Crawford World, 2006 Mo. L. Rev. 285. The circuit court discerned that both doctrines coexisted at common law at the time the Constitution was ratified." Use that passage as the starting point, then read the facts that precede it.
State v. Dickinson
State v. Dickinson, 41 Wis. 299 (1877)
…lates to tbe admissibility of tbe instrument containing tbe dying declarations of tbe deceased. It is insisted on the part of the defendant that these declarations were not competent evidence against the accused. The question has in effect been decided adversely to this view by this coiirt. In Miller v. The State, 25 Wis., 384, and The State v. Martin, 30 id., 216, it was beld…
State v. Dickinson is worth reading on Wisconsin dying declaration because the court put the point in its own words: "It is insisted on the part of the defendant that these declarations were not competent evidence against the accused. The question has in effect been decided adversely to this view by this coiirt. In Miller v. The State, 25 Wis., 384, and The State v. Martin, 30 id." Use that passage as the starting point, then read the facts that precede it.
Miller v. State
Miller v. State, 25 Wis. 384 (1870)
…urther objection is, that the court improperly admitted the dying declarations of Emery Wright. These declarations were made by Mr. Wright soon after he received the fatal injury, while in the possession of his senses; and they were “ declarations made in extremity, when the party was at the point of death, and when every hope of this world was gone.” They related to the time,…
Practitioners open Miller v. State when Wisconsin dying declaration turns on the distinction in this sentence: "Emery Wright. These declarations were made by Mr. Wright soon after he received the fatal injury, while in the possession of his senses; and they were “ declarations made in extremity, when the party was at the point of death, and when every hope of this world was gone." Do not lift it out of the facts the court was deciding.
State v. Cameron
State v. Cameron, 2 Pin. 490 (1850)
…to the correctness of the ruling, in admitting proof of the dying declarations of the deceased. It appears from the report, that a witness was introduced by the prosecution, and interrogated as to these declarations. The questions were objected to by the defendant’s counsel, on the ground that no foundation had been laid for the introduction of the testimony, by showing that th…
On dying declaration, State v. Cameron speaks to the Wisconsin dispute in this passage: "It appears from the report, that a witness was introduced by the prosecution, and interrogated as to these declarations." The surrounding opinion shows how the court applied that language to the record.
State of Wisconsin, Plaintiff-Respondent v. Marvin L. Beauchamp, Defendant-Appellant-Petitioner
…rocess. The circuit court admitted the statements under the dying declaration and prior inconsistent statement hearsay exceptions found in Wis. Stat. §§ 908.045(3) and 908.01(4)(a)l, respectively. The court of appeals affirmed the circuit court's rulings on both issues. *5¶ 2. Beauchamp argues that the circuit court erred in admitting into evidence the statements made by Somerv…
Wisconsin opinions such as State of Wisconsin, Plaintiff-Respondent v. Marvin L. Beauchamp, Defendant-Appellant-Petitioner are cited where dying declaration is disputed. The court stated: "The circuit court admitted the statements under the dying declaration and prior inconsistent statement hearsay exceptions found in Wis. Stat. §§ 908.045(3) and 908.01(4)(a)l, respectively. The court of appeals affirmed the circuit court's rulings on both issues. *5¶ 2." That is the language to brief; the rest of the decision supplies the procedural posture.
Werner, in error v. The State, in error
Werner, in error v. The State, in error, 189 Wis. 26 (1926)
…he young man who was responsible for her condition, and the dying declaration of the deceased received in evidence without objection or limitation. In view of all these facts, the contention that the finding of pregnancy of the deceased is not supported by evidence is quite guileless. The defendant attempted to show by the testimony of Mrs. Lampert and Mrs. Sebora, the two wome…
Werner, in error v. The State, in error is worth reading on Wisconsin dying declaration because the court put the point in its own words: "In view of all these facts, the contention that the finding of pregnancy of the deceased is not supported by evidence is quite guileless. The defendant attempted to show by the testimony of Mrs. Lampert and Mrs." Use that passage as the starting point, then read the facts that precede it.
State v. Law
State v. Law, 150 Wis. 313 (1912)
…aring, present that this court erred (1) in riding that the dying declarations were admissible; (2) in ruling that the jury was properly allowed to pass upon the mental capacity of the de-clarant to make such declaration; (3) in ruling that there was not evidence of any coercion or persuasion sufficient as matter of law to render incompetent the dying declarations ; and (4) in…
Wisconsin opinions such as State v. Law are cited where dying declaration is disputed. The court stated: "aring, present that this court erred (1) in riding that the dying declarations were admissible; (2) in ruling that the jury was properly allowed to pass upon the mental capacity of the de-clarant to make such declaration; (3) in ruling that there was not evidence of any coercion" That is the language to brief; the rest of the decision supplies the procedural posture.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Wis. Stat. § 908.03(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Wisconsin medical-statement opinions
STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ronald D. SORENSON, Defendant-Appellant
…nder sec. 908.03(4), as statements made for the purposes of medical diagnosis or treatment. The third issue raised by the defendant is that the charging documents lacked sufficient specificity as to the date of the offense. In particular, the defendant *253objects because a six week period of time was alleged during which the offense purportedly occurred. The due process clause…
On medical diagnosis hearsay, STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ronald D. SORENSON, Defendant-Appellant speaks to the Wisconsin dispute in this passage: "The third issue raised by the defendant is that the charging documents lacked sufficient specificity as to the date of the offense. In particular, the defendant *253objects because a six week period of time was alleged during which the offense purportedly occurred." The surrounding opinion shows how the court applied that language to the record.
STATE of Wisconsin, Plaintiff-Respondent, v. Brian NELSON, Defendant-Appellant-Petitioner
…ec. 908.03(4), Stats. — statements made for the purposes of medical diagnosis or treatment. Furthermore, we agree with the court of appeals that there was no violation of the confrontation clause of the State or Federal Constitution. Finally, we find that the admittance into evidence of the drawings constituted harmless error. In April of 1984 the defendant, Brian Nelson, was c…
Practitioners open STATE of Wisconsin, Plaintiff-Respondent, v. Brian NELSON, Defendant-Appellant-Petitioner when Wisconsin medical diagnosis hearsay turns on the distinction in this sentence: "Stats. — statements made for the purposes of medical diagnosis or treatment. Furthermore, we agree with the court of appeals that there was no violation of the confrontation clause of the State or Federal Constitution." Do not lift it out of the facts the court was deciding.
State of Wisconsin, Plaintiff-Respondent, v. Eugene Huntington, Defendant-Appellant-Petitioner
…objection on the grounds that the testimony fell within the medical diagnosis or treatment exception to the hearsay rule. ¶ 8. Finally, the jury also heard testimony from the State's child sexual abuse accommodation expert, Dr. Carolyn Levitt. The State asked Dr. Levitt to comment concerning whether the facts of Jeri's allegations of abuse, such as her delay in reporting the ab…
Wisconsin opinions such as State of Wisconsin, Plaintiff-Respondent, v. Eugene Huntington, Defendant-Appellant-Petitioner are cited where medical diagnosis hearsay is disputed. The court stated: "Finally, the jury also heard testimony from the State's child sexual abuse accommodation expert, Dr. Carolyn Levitt. The State asked Dr." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Wisconsin, Plaintiff-Appellant, v. Corey Kleser, Defendan — Bradley, J., concurring in part and dissenting
…scussing Wis. Stat. § 908.03(4), statements for purposes of medical diagnosis or treatment). "Put differently, the fact that an expert was consulted solely for the purpose of giving testimony affects only the weight to be given the statement, not admissibility." Id. at 756. "The rule expressly permits some latitude regarding statements which relate how the condition occurred, p…
Practitioners open State of Wisconsin, Plaintiff-Appellant, v. Corey Kleser, Defendan — Bradley, J., concurring in part and dissenting when Wisconsin medical diagnosis hearsay turns on the distinction in this sentence: "Wis. Stat. § 908.03(4), statements for purposes of medical diagnosis or treatment). 'Put differently, the fact that an expert was consulted solely for the purpose of giving testimony affects only the weight to be given the statement, not admissibility.' Id. at 756." Do not lift it out of the facts the court was deciding.
STATE of Wisconsin, Plaintiff-Respondent, v. Charles C. COOGAN, Defendant-Appellant
…3(4), Stats., the hearsay exception for statements made for medical diagnosis or treatment. 6 It is not clear what form the proposed testimony may take. It is possi *401 ble that Coogan would testify based on his hypnotically-refreshed memory, that Dr. Arnesen, or another expert, would testify as to Coogan's remarks or behavior under hypnosis, that some form of tape or recordin…
STATE of Wisconsin, Plaintiff-Respondent, v. Charles C. COOGAN, Defendant-Appellant is worth reading on Wisconsin medical diagnosis hearsay because the court put the point in its own words: "Stats., the hearsay exception for statements made for medical diagnosis or treatment. 6 It is not clear what form the proposed testimony may take. It is possi *401 ble that Coogan would testify based on his hypnotically-refreshed memory, that Dr." Use that passage as the starting point, then read the facts that precede it.
Estate of Cheryl Makos, by the Personal Representative, Calvin Makos and Calvin Makos Individual — Bablitch, J
…or diagnostic and therapeutic services for the surgical and medical diagnosis, treatment and care . . .") (emphasis added); § 655.02(l)(i) ("[T]his chapter applies to. . .[a]n entity operated in this state that is an affiliate of a hospital and that provides diagnosis or treatment of, or care for") (emphasis added); § 655.27(3)(b)2 ("With respect to fees paid by physicians, the…
Estate of Cheryl Makos, by the Personal Representative, Calvin Makos and Calvin Makos Individual — Bablitch, J is worth reading on Wisconsin medical diagnosis hearsay because the court put the point in its own words: "T]his chapter applies to. . .[a]n entity operated in this state that is an affiliate of a hospital and that provides diagnosis or treatment of, or care for') (emphasis added); § 655." Use that passage as the starting point, then read the facts that precede it.
Use of depositions at trial
Wis. Stat. § 804.07 and Wis. Stat. § 908.04(2)(a) govern civil deposition use at trial when witnesses are unavailable. Criminal discovery follows Wis. Stat. § 971.23; deposition testimony at trial requires Wis. Stat. ch. 908 hearsay exceptions.
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Wisconsin deposition / former-testimony opinions
Feldstein, Appellant, vs. Harrington and Another, Respondents
Feldstein, Appellant, vs. Harrington and Another, Respondents, 4 Wis. 2d 380 (1958)
…laintiff is that of admitting into evidence portions of the depositions of Doctors Eisenberg and Fox. These depositions were taken at the instance of the plaintiff in another action instituted against different defendants than those in this action, to recover damages for injuries received in another automobile accident which had occurred in 1950. This other action was settled w…
Practitioners open Feldstein, Appellant, vs. Harrington and Another, Respondents when Wisconsin deposition / former testimony turns on the distinction in this sentence: "Doctors Eisenberg and Fox. These depositions were taken at the instance of the plaintiff in another action instituted against different defendants than those in this action, to recover damages for injuries received in another automobile accident which had occurred in 1950." Do not lift it out of the facts the court was deciding.
STATE of Wisconsin, Plaintiff-Respondent, v. Thomas v. DRUSCH, Defendant-Appellant
…testify behind a one way mirror and/or using a video taped depositions [sic]." Under the circumstances of this case, however, we are satisfied that the state's efforts to offer S.'s in-person testimony were reasonable. We have discussed at some length the limited options available to the trial court in light of the circumstances surrounding S.'s attempts to testify, the status…
Wisconsin opinions such as STATE of Wisconsin, Plaintiff-Respondent, v. Thomas v. DRUSCH, Defendant-Appellant are cited where deposition / former testimony is disputed. The court stated: "Under the circumstances of this case, however, we are satisfied that the state's efforts to offer S.'s in-person testimony were reasonable. We have discussed at some length the limited options available to the trial court in light of the circumstances surrounding S." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Wisconsin, Plaintiff-Respondent, v. Lance W. Temby, Defendant-Appellant
…that the trial court erred by allowing the state to use the deposition of a principal witness, Leo Bonelli, at trial without a showing that the witness was unavailable for trial and without a showing that an effort had been made to get him to testify at trial. Second, he contends that the trial court improperly instructed the jury by telling them that it was not necessary for t…
State of Wisconsin, Plaintiff-Respondent, v. Lance W. Temby, Defendant-Appellant is worth reading on Wisconsin deposition / former testimony because the court put the point in its own words: "Leo Bonelli, at trial without a showing that the witness was unavailable for trial and without a showing that an effort had been made to get him to testify at trial." Use that passage as the starting point, then read the facts that precede it.
State of Wisconsin, Plaintiff-Respondent, v. Lisa Kirschbaum, Defendant-Appellant
…confrontation was violated by the admission of a videotaped deposition of a child witness taken prior to a previous trial on the same charge. We reject both contentions and affirm. BACKGROUND The relevant facts are undisputed. The criminal complaint alleged that on February 20, 1990, while providing day-care services for Peter Dolan, a fourteen-month-old infant, Kirschbaum tied…
State of Wisconsin, Plaintiff-Respondent, v. Lisa Kirschbaum, Defendant-Appellant is worth reading on Wisconsin deposition / former testimony because the court put the point in its own words: "We reject both contentions and affirm. BACKGROUND The relevant facts are undisputed." Use that passage as the starting point, then read the facts that precede it.
Voith, Plaintiff-Respondent, v. Buser, Defendant-Appellant
Voith, Plaintiff-Respondent, v. Buser, Defendant-Appellant, 83 Wis. 2d 540 (1978)
…after verdict. At trial, the defendant attempted to have a deposition of Kevin Brown admitted into evidence on the ground that it was admissible under sec. 887.12(7) (c) 1, Stats. 1973. 2 The *548 trial judge concluded, however, at trial that the deposition was inadmissible, even under sec. 887.12 (7) (c) 1, because there was no showing that the witness was “unavailable” withi…
Wisconsin opinions such as Voith, Plaintiff-Respondent, v. Buser, Defendant-Appellant are cited where deposition / former testimony is disputed. The court stated: "At trial, the defendant attempted to have a deposition of Kevin Brown admitted into evidence on the ground that it was admissible under sec. 887.12(7) (c) 1, Stats. 1973. 2 The *548 trial judge concluded, however, at trial that the deposition was inadmissible, even under sec. 887." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of Wisconsin, Plaintiff-Respondent, v. Lester B. THOMAS, Defendant-Appellant
…ef. Specifically, Thomas challenges the use of a videotaped deposition of the child’s testimony at trial, pursuant to sec. 967.04(7)-(10), Stats., and the placement of a screen between himself and the child during the deposition, as an unconstitutional denial of his right to confront his accuser. The court of appeals certified this case for our review. We conclude that sec. 967…
On deposition / former testimony, STATE of Wisconsin, Plaintiff-Respondent, v. Lester B. THOMAS, Defendant-Appellant speaks to the Wisconsin dispute in this passage: "Specifically, Thomas challenges the use of a videotaped deposition of the child’s testimony at trial, pursuant to sec. 967.04(7)-(10), Stats." The surrounding opinion shows how the court applied that language to the record.
STATE of Wisconsin, Plaintiff-Respondent, v. Donald R. SORENSON, Defendant-Appellant
…the preliminary hearing (which the state concedes was not a deposition or the equivalent of in-court testimony) as a substitute for her testimony at the trial violated the hearsay rules; (3) using the videotape at the trial violated defendant's federal and state constitutional right of confrontation; (4) using the videotape violated defendant's statutory right to be present at…
STATE of Wisconsin, Plaintiff-Respondent, v. Donald R. SORENSON, Defendant-Appellant is worth reading on Wisconsin deposition / former testimony because the court put the point in its own words: "the preliminary hearing (which the state concedes was not a deposition or the equivalent of in-court testimony) as a substitute for her testimony at the trial violated the hearsay rules; (3) using the videotape at the trial violated defendant's federal and state constitutional ri" Use that passage as the starting point, then read the facts that precede it.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under Wis. Stat. §§ 909.01, 909.02, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Wisconsin manufacturing, OWI, and dairy-industry cases require authenticated maintenance logs, lab certificates, and squad-car video under Wis. Stat. § 909.01 before § 908.03(6) business-record foundations apply.
Why authenticity gets its own section in every Wisconsin trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Wisconsin trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Wisconsin authenticity opinions
Lee Gaethke, Plaintiff-Respondent v. Marco Pozder, Ljubica Pozder d/b/a The Crossroads Motel and Acuity, A Mutual
…Pozders objected — on grounds of hearsay and lack of proper authentication— to the introduction of medical bills and a summary of those bills. The only medical testimony presented to the jury came from the deposition of Dr. William Yoder. During that testimony, Yoder, when shown the summary of the bills (but not the bills themselves), indicated he was not "qualified to give an…
On authentication, Lee Gaethke, Plaintiff-Respondent v. Marco Pozder, Ljubica Pozder d/b/a The Crossroads Motel and Acuity, A Mutual speaks to the Wisconsin dispute in this passage: "Pozders objected — on grounds of hearsay and lack of proper authentication— to the introduction of medical bills and a summary of those bills. The only medical testimony presented to the jury came from the deposition of Dr. William Yoder." The surrounding opinion shows how the court applied that language to the record.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff, v. ROYAL INSURANCE COMPANY OF AMERICA
…ual Insurance Company. The issue is whether service of an unauthenticated photocopy of an authenticated Summons and Complaint is sufficient to meet the requirement of service of an authenticated Summons and Complaint necessary to commence an action under ch. 801, Civil Procedure — Commencement of Action and Venue. We hold such service was fundamentally defective and therefore t…
Wisconsin opinions such as AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff, v. ROYAL INSURANCE COMPANY OF AMERICA are cited where authentication is disputed. The court stated: "Insurance Company. The issue is whether service of an unauthenticated photocopy of an authenticated Summons and Complaint is sufficient to meet the requirement of service of an authenticated Summons and Complaint necessary to commence an action under ch." That is the language to brief; the rest of the decision supplies the procedural posture.
Steven Burnett, Plaintiff-Appellant-Petitioner, v. Claude Hill, D/B/A Sportman's Lounge and ABC Insurance Company, a
…ll"). 1 The court of appeals held that Burnett's failure to authenticate the summons he served by publication was a fundamental error depriving the circuit court of personal jurisdiction over Hill. Although Burnett did not strictly comply with the statutory service requirements of § 801.02(3)(a) (1993-94), 2 we conclude that the defect is not fundamental and did not prejudice H…
Steven Burnett, Plaintiff-Appellant-Petitioner, v. Claude Hill, D/B/A Sportman's Lounge and ABC Insurance Company, a is worth reading on Wisconsin authentication because the court put the point in its own words: "The court of appeals held that Burnett's failure to authenticate the summons he served by publication was a fundamental error depriving the circuit court of personal jurisdiction over Hill. Although Burnett did not strictly comply with the statutory service requirements of § 801." Use that passage as the starting point, then read the facts that precede it.
State of Wisconsin, Plaintiff-Respondent v. Scottie L. Baldwin
State of Wisconsin, Plaintiff-Respondent v. Scottie L. Baldwin, 330 Wis. 2d 500 (2010)
…dmitting tape recordings of telephone conversations without authenticating them as required by Wis. Stat. § 909.015. Finally, he argues that the trial court's imposition of the DNA surcharge offends State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393. ¶ 2. We reject Baldwin's arguments and affirm because the trial court made the requisite findings under Giles v. Ca…
On authentication, State of Wisconsin, Plaintiff-Respondent v. Scottie L. Baldwin speaks to the Wisconsin dispute in this passage: "Wis. Stat. § 909.015. Finally, he argues that the trial court's imposition of the DNA surcharge offends State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393. ¶ 2. We reject Baldwin's arguments and affirm because the trial court made the requisite findings under Giles v." The surrounding opinion shows how the court applied that language to the record.
State of Wisconsin, Plaintiff-Respondent v. Giancarlo Giacomantonio
State of Wisconsin, Plaintiff-Respondent v. Giancarlo Giacomantonio, 371 Wis. 2d 452 (2016)
…ictim's phone should have been excluded because they were unauthenticated, unoriginal, and hearsay; and (2) his right to present a *457defense was infringed upon when the trial court refused to conduct an in camera review of the victim's mental health records.2 ¶ 2. We affirm because we conclude: (1) the proper foundation was laid for authentication of the photographs of text m…
State of Wisconsin, Plaintiff-Respondent v. Giancarlo Giacomantonio is worth reading on Wisconsin authentication because the court put the point in its own words: "ictim's phone should have been excluded because they were unauthenticated, unoriginal, and hearsay; and (2) his right to present a *457defense was infringed upon when the trial court refused to conduct an in camera review of the victim's mental health records.2 ¶ 2. We affirm bec" Use that passage as the starting point, then read the facts that precede it.
In the Matter of the Bar Admission of Wesley Allen Rusch
In the Matter of the Bar Admission of Wesley Allen Rusch, 171 Wis. 2d 523 (1992)
…he record filed by the Board on the grounds that it was not authenticated, not certified, not signed under seal and that the Board did not serve a copy of it on him, a motion requesting that the clerk of this court retain the original of his proposed reply brief, which was rejected as exceeding the page limitation, and a "notice" that matters set forth in requests for admission…
Practitioners open In the Matter of the Bar Admission of Wesley Allen Rusch when Wisconsin authentication turns on the distinction in this sentence: "he record filed by the Board on the grounds that it was not authenticated, not certified, not signed under seal and that the Board did not serve a copy of it on him, a motion requesting that the clerk of this court retain the original of his proposed reply brief, which was reject" Do not lift it out of the facts the court was deciding.
Cindy Horak, Individually and as Special Administrator of the Estate of George Benzinger v. Building Services
…nt to [Wis. Stat. § ] 909.015(8) an ancient document is not authenticated solely by reason of age but requires absence of suspicion and a repository consistent with authenticity." Judicial Council Committee's Note, 1974, § 908.03(16). ¶ 9. The authentication requirement "as a condition precedent to admissibility [is] satisfied by evidence sufficient to support a finding that th…
Cindy Horak, Individually and as Special Administrator of the Estate of George Benzinger v. Building Services is worth reading on Wisconsin authentication because the court put the point in its own words: "Wis. Stat. § ] 909.015(8) an ancient document is not authenticated solely by reason of age but requires absence of suspicion and a repository consistent with authenticity.' Judicial Council Committee's Note, 1974, § 908.03(16). ¶ 9." Use that passage as the starting point, then read the facts that precede it.
ORDWAY and ORDWAY, in Error v. CONROE, in Error
ORDWAY and ORDWAY, in Error v. CONROE, in Error, 4 Wis. 45 (1856)
…ffered in evidence, on the ground that it _was not properly authenticated. The admissibility of the record as evidence depends upon two questions: 1. Is it authenticated according to the act or acts of Congress, passed in conformity, .with section 1 of the fourth article of the constitution of the United States? and 2d. Is it admissible under the provisions of the Eevised Statu…
Wisconsin opinions such as ORDWAY and ORDWAY, in Error v. CONROE, in Error are cited where authentication is disputed. The court stated: "The admissibility of the record as evidence depends upon two questions: 1. Is it authenticated according to the act or acts of Congress, passed in conformity, .with section 1 of the fourth article of the constitution of the United States?" That is the language to brief; the rest of the decision supplies the procedural posture.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under Wis. Stat. §§ 909.01, 909.02 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Wisconsin appellate evidence opinions before mediation or motions in limine.
Frequently asked questions
What is the primary evidence source in Wisconsin?
Wisconsin applies the Wisconsin Statutes chs. 904–909 (Evidence Code). Wisconsin codified FRE-based rules in Wis. Stat. chs. 904–909; chapter numbers differ from FRE labels but track federal concepts.
How do Wisconsin courts decide relevance and unfair prejudice?
Under Wis. Stat. §§ 904.01, 904.03, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Wisconsin?
Party-opponent statements under Wis. Stat. § 908.01(4)(b) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under Wis. Stat. § 908.03(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Wisconsin?
Wis. Stat. § 804.07 and Wis. Stat. § 908.04(2)(a) govern civil deposition use at trial when witnesses are unavailable. Criminal discovery follows Wis. Stat. § 971.23; deposition testimony at trial requires Wis. Stat. ch. 908 hearsay exceptions.
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Wisconsin authenticity practice starts with Wis. Stat. §§ 909.01, 909.02.
Where do dying declarations and medical statements fit?
Dying declarations under Wis. Stat. § 908.04(2)(b) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Wis. Stat. § 908.03(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.