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Univ. of South Carolina School of Law

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Saturday, October 18, 2008

The Flaming Meaux: Wiconsin Court To Determine Admissibility Of Fire Officials' Testimony In Bar Burning

Adam Ward, the former owner of the Firehouse bar in Green Bay, is about to stand trial to face charges of felony injury by negligent handling of fire in connection with burning a woman at his bar on October 4, 2007.  And based upon a story on the article, it seems clear to me that two Green Bay Fire Department officials will be able to testify at that trial that they warned staff at the Firehouse bar about setting fire to alcohol poured on the bar several months before the incident at issue.

In an apparent attempt to become a poor man's Coyote Ugly, employees of the Firehouse bar would douse the bar with alcohol and set it ablaze.  In a pre-trial hearing held yesterday to determine the admissibility of certain evidence, Green Bay Fire Captain Gregg Fredrickson testified that he was at the bar in December 2006 and witnessed a member of the bar staff douse the bar with alcohol and set it ablaze. He then claimed that he later went to the bar to talk to the staff and made contact with a woman who said she would take care of the matter.

Green Bay Fire Captain Chris Heil also testified yesterday that he learned of the stunt and tracked down Ward in the spring of 2007 and told him the practice was dangerous and illegal.  "I told him it can't be done…someone could get injured, someone could get killed or he could burn the bar down," Heil said.

Both of these statements would have preceded the incident at issue, in which a woman was sitting near the bar when an alcohol bottle Ward was pouring on the bar exploded, burning the woman on her face, neck, and chest.  And indeed, the prosecution's case against Ward hinges on the fire officials' testimony because, in order to prove their case of criminal negligence, prosecutors must show that the Ward should have realized that his actions created a substantial and unreasonable risk of death or great bodily harm to another.

So, will the fire officials' testimony be ruled admissible?  The answer to me would seem to be a clear, "Yes."  According to Wis. Stat. Section 908.01(3), "'[h]earsay' 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."  And according to Wis. Stat. Section 908.02, "[h]earsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute."

Thus, if the fire officials' statements were being offered to prove the truth of the matter asserted -- that his bar's fire stunt could get someone injured or killed -- they would be hearsay and presumptively inadmissible.  However, the prosecution does not need to offer these statements to prove their substance.  Instead, the prosecutor can introduce those statements merely to prove that they put Ward on notice, such that he had a duty to investigate and potentially end his bar's dangerous practice. See, e.g., Sadowsky v. Anchor Packing Co., 1996 WL 191634 at *3 (Wis.App. 1996) ("Because the exhibit was offered to show notice to Garlock, it was not shown for the truth of the matter stated within, but rather for the effect of the information on Garlock. Offered for that purpose, the exhibit would not have been hearsay.").

What this means is that defense counsel will be able to ask for a limiting instruction with regard to the fire officials' statements under Wis. Stat. Section 901(06), but Ward almost certainly will not be able to preclude the fire officials' from testifying about their warnings.

-CM

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