EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, March 8, 2008

It's Fun To Stay At The YMCA: Wisconsin Judge Allows "Hearsay Within Hearsay" Testimony

A Wisconsin judge has made a seemingly confusing hearsay ruling in a preliminary hearing in a gang shooting case.  Eighteen year-old Darrell Jackson was shot twice outside a Janesville, Wisconsin YMCA on January 19th.  Prosecutors claim that those gunshots were fired by sixteen year-old gang members Anthony Moronez (who apparently is known by the nickname "Trouble") and Gregory Krukar.  Both young men have been charged with three counts of first degree reckless endangerment involving a weapon and one count of endangering safety by reckless use of a firearm and possession of a dangerous weapon by a person younger than 18.  While the facts of the case are unclear at this point, prosecutors have set forth their general theory of the case, which is that the shooting was the result of a dispute over the girl.

At the preliminary hearing in Moronez's case, Police detective Dennis LeCaptain testified that he talked to a witness who said that he was not sure who fired the shots but who indicated that he heard others talking later who said that the shooters were Krukar and "Trouble."  Defense counsel objected to this testimony on the ground that it was hearsay, but the judge overruled the objection.  Unless there are facts missing from the story reporting the article, this ruling makes no sense because the testimony contained not merely hearsay, but hearsay within hearsay.

Under Wisconsin Stat. Section 908.01(3), hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  Under Wisconsin Stat. Section 908.02, hearsay is inadmissible, unless there is some applicable exception.  Thus, the "witness" could not testify that he heard others saying that the shooters were Krukar and "Trouble" because it would be a statement other than his testimony at trial which would be admitted to prove the truth of the matter asserted -- that Krukar and "Trouble" were the shooters.

Here, however, it wasn't even the "witness" testifying about this statement; it was a police detective testifying that the "witness" told him that others said that the shooters were Krukar and "Trouble."  This means that there was "hearsay within hearsay" as defined in Wisconsin Stat. Section 908.05, meaning that the testimony was inadmissible unless each layer of hearsay met some applicable exception.  From what I read about the case, however, there didn't appear to be an applicable exception to either layer, making the judge's ruling erroneous.



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The rules of evidence don't apply to preliminary hearings, so the state doesn't have to call all of its witnesses. If the judge accepts the police officer's story, she can set the case for trial. At trial, the hearsay rules will apply so the state will have to call witnesses with firsthand knowledge or present other evidence.

Posted by: Deborah Merritt | Oct 19, 2008 5:44:46 PM

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