941 N.W.2d 835
Wis. Ct. App.2020Background
- Angel Mercado was convicted of three counts of first-degree sexual assault of a child based primarily on videotaped forensic interviews of three daughters (born 2009, 2011, 2012) and sentenced to lengthy confinement; convictions followed a retrial after an earlier mistrial.
- The three children each gave videotaped forensic interviews that were played to the jury; transcripts prepared by the district attorney’s office were provided to the jury.
- Concerns were raised about whether the trial court complied with Wisconsin Stat. § 908.08 procedures for admitting child videorecordings (including whether the court viewed the statements before ruling and made required findings about the child’s understanding of truth and consequences).
- The youngest child (N.L.G., about 4 at interview) displayed limited comprehension of truth/lie in her interview; the trial court nonetheless admitted her video and allowed her to testify before the video was played (defense declined further cross after the tape).
- Mercado moved postconviction to vacate based on erroneous admission of the videos (procedural noncompliance with § 908.08, uncertified transcripts, and improper alternate bases for admission).
- The Court of Appeals majority reversed all convictions and remanded for a new trial, concluding the court failed to satisfy § 908.08(2)–(3) and the videos were not admissible under the residual hearsay exception or as a prior inconsistent statement; a dissent argued forfeiture and that N.L.G.’s video was admissible as a prior inconsistent statement.
Issues
| Issue | State's Argument | Mercado's Argument | Held |
|---|---|---|---|
| Whether the trial court complied with § 908.08(2)(b) (must "view the statement" before admissibility hearing) | Viewing relevant portions was sufficient; statute need not require viewing seconds of non-statement footage | Court must view the entire videotaped statement before ruling | Court held the trial court did not comply with § 908.08(2)(b); its prior-viewing statements were inadequate and admission was erroneous |
| Whether the trial court made required § 908.08(3) findings (accuracy, no alteration, child understood truth/lie or consequences) | The court’s in-court colloquies established understanding; findings were satisfied or credibility questions for jury | Findings must be made based on the recorded statements before admitting them; youngest child did not demonstrate necessary understanding in video | Court held requisite findings were not made (particularly § 908.08(3)(c) re: truth/lie for L.A.G. and N.L.G.), so admission under § 908.08 was erroneous |
| Whether the videos were admissible under the residual hearsay exception (Wis. Stat. § 908.03(24); Huntington factors) | Even if § 908.08 procedural requirements failed, residual exception provides independent admissibility | Residual exception requirements not satisfied given lack of indicia of reliability (child attributes, content, corroboration) | Court held residual hearsay exception did not apply: videos lacked required indicia of trustworthiness, so not admissible under that exception |
| Whether N.L.G.’s video was admissible as a prior inconsistent statement or despite order of testimony (§ 906.13, § 908.08(5)(a)) | N.L.G.’s in-court testimony that she didn’t remember the interview made the tape a prior inconsistent statement and admissible; § 908.08(7) or § 906.13 frameworks apply | Admission as prior inconsistent statement is improper because § 908.08 requirements were not met and the court erred in allowing N.L.G. to testify before the tape (violating § 908.08(5)(a)) | Court held N.L.G.’s video was not admissible as a prior inconsistent statement here and that allowing her to testify before the tape violated § 908.08(5)(a); prior-inconsistent basis would improperly nullify § 908.08 requirements |
Key Cases Cited
- State v. James, 285 Wis. 2d 783 (Ct. App. 2005) (interpreting § 908.08(5)(a) to require videotape precede live testimony)
- State v. Snider, 266 Wis. 2d 830 (Ct. App. 2003) (discussing § 908.08 and availability of subsection (7) admission)
- State v. Huntington, 216 Wis. 2d 671 (1998) (establishing five-factor test for residual hearsay exception reliability for child statements)
- State v. Sorenson, 143 Wis. 2d 226 (1988) (recognizing residual hearsay exception may admit young victims’ out-of-court statements when trustworthy)
- State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (2004) (rules of statutory construction)
- State v. Huebner, 235 Wis. 2d 486 (2000) (forfeiture rule/need to preserve objections at trial)