State v. Angel Mercado, 953 N.W.2d 337

Background

Angel Mercado was charged with sexually assaulting three young children (ages 4–7) who lived with him; disclosures led to hospital exams and video-recorded forensic interviews.
The State sought to admit the three videotaped forensic interviews at trial; Mercado objected to N.G. and L.G.’s tapes on truthfulness grounds but did not object to O.G.’s tape at trial.
At a pretrial hearing the circuit court watched portions (not entireties) of the tapes, found sufficient indicia of truth-telling for L.G. and some for N.G., and admitted all three recordings; transcripts were provided to the jury.
At trial the court called N.G. to testify before her video was shown; defense cross-examination produced mixed answers and defense did not request additional questioning after the tape was played.
The jury convicted on all counts. The court of appeals reversed, holding the court erred by not viewing videos in full, by admitting recordings that failed §908.08(3)(c) truthfulness criteria, and by allowing N.G. to testify before her tape. The Wisconsin Supreme Court granted review and reversed the court of appeals.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mercado forfeited objections to O.G. and L.G. recordings and to the order of N.G.’s testimony	State: Mercado failed to timely object at trial or on appeal, so objections are forfeited under Wis. Stat. §901.03(1)	Mercado: Preserved some objections at pretrial; appellate review warranted	Held: Mercado forfeited several objections (no timely trial objection to O.G.; did not pursue L.G. objection on appeal; did not timely object to N.G. testifying first)
Whether the circuit court must view an entire §908.08 videotape before ruling on admissibility	State: Court must view sufficient portions to make §908.08(3) findings; full viewing not required	Mercado/court of appeals: Entire recording must be viewed under §908.08(2)(b)	Held: No bright-line requirement to view entire recording; court must review the portions necessary to make §908.08(3) findings; scope is discretionary
Whether §908.08(5)(a) prohibits calling a child to testify before the videotape is shown	State: §908.08(5)(a) governs post-showing procedure and does not bar pre-showing testimony	Mercado/court of appeals: Statute requires the child be shown first and then be available; pre-showing testimony impermissible	Held: §908.08(5)(a) applies to what happens immediately after the recording is shown; it does not preclude a child from testifying beforehand; trial court had authority under Wis. Stat. §906.11 to control order of evidence
Whether N.G.’s videotaped statement was admissible under the residual hearsay exception via §908.08(7) and §908.03(24)	State: Even if §§908.08(2)-(3) not strictly satisfied, tape is admissible under residual exception (Sorenson factors)	Mercado: N.G. lacked demonstrable understanding of truthfulness and court’s limited video review undercuts reliability	Held: Applying Sorenson factors, sufficient circumstantial guarantees of trustworthiness existed; N.G.’s tape admissible under residual hearsay via §908.08(7)

Key Cases Cited

State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988) (establishes five-factor test for residual hearsay trustworthiness)
State v. Snider, 266 Wis. 2d 830, 668 N.W.2d 784 (Ct. App. 2003) (explains §908.08(7) permits admission under other hearsay exceptions without meeting subsections (2)–(3))
State v. James, 285 Wis. 2d 783, 703 N.W.2d 727 (Ct. App. 2005) (addresses statutory procedure under §908.08(5)(a) and confrontation concerns)
State v. Huntington, 216 Wis. 2d 671, 575 N.W.2d 268 (1998) (discusses context-sensitive hearsay/admission analyses)
State ex rel. Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633, 681 N.W.2d 110 (2004) (statutory interpretation principles)
State v. Ndina, 315 Wis. 2d 653, 761 N.W.2d 612 (2009) (forfeiture preservation rules)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause framework)