Text
of Rule 904.12
Postaccident Statements by Injured Parties
By Daniel J. La Fave
Self-incriminating statements made by an injured party shortly after
an accident can be powerful medicine in the hands of opposing counsel in
a subsequent lawsuit.1 However, to properly
administer such potent evidence in personal injury actions arising under
Wisconsin law, trial lawyers first must address the potentially
antidotal provisions of Rule 904.12 - whether the case ends up in state
or in federal court.2 (See
Rule 904.12 in the accompanying sidebar.)
Failure to master
exclusionary rule 904.12 regarding statements by an injured party can
produce harmful side effects to your personal injury practice, such as
surprise motions in limine on the eve of trial. |
On its face, the rule appears to bar all postaccident
"statements" made by an injured party to anyone other than a police
officer within 72 hours of the accident - unless the statement is the
kind that otherwise would qualify as a present sense impression, an
excited utterance, or one evidencing a then existing state of mind (that
is, if not made by a party). However, the Wisconsin Supreme Court has
concluded that the statute only bars: 1) statements an adverse party
procures from an injured person for potential use in
defending a future claim brought by the injured person;3 or 2) statements made under circumstances where
the injured party's physical or mental condition was such that he or she
could not intelligently answer questions and protect his or her rights,
no matter who elicited the statements.4 The
rule does not, however, provide a safe harbor for statements made by
injured defendants. 5
Rule 904.12 statements are hearsay statements
As a threshold matter, one must identify any statements made by an
injured party within the protected time frame. Rule 904.12 does not
detail what constitutes a "statement" and the courts have yet to provide
any guidance. However, that term is defined for hearsay purposes as "an
oral or written assertion or ... nonverbal conduct of a person, if it is
intended by the person as an assertion."6
This definition appears to be what the drafters had in mind for Rule
904.12 as evidenced by their comment that, "This rule recognizes that
admissions are not hearsay but draws on the enumerated hearsay
exceptions to describe the kinds of admissions that are not subject to
the 72-hour rule."7
Accordingly, if an injured party makes an intentional assertion,
either verbal or nonverbal, within 72 hours after an accident, that
assertion is likely to qualify as a Rule 904.12 "statement." The next
step is to determine whether the postaccident statement violates either
the procurement or incapacitation safeguards of Rule 904.12.
An antiprocurement remedy
Kirsch v. Pomisal effectively illuminates what will or will
not qualify as an improperly "procured" postaccident statement. In
Kirsch the Wisconsin Supreme Court upheld the admissibility of
statements the plaintiff had made to a traffic officer (before there was
a statutory exception) and an acquaintance within 72 hours of the
plaintiff's alleged traffic accident. The court found that both the
officer and the acquaintance were disinterested persons, pointing out
that the officer was simply doing his job in taking the plaintiff's
statement and that the plaintiff had volunteered the statements to his
acquaintance. The court concluded that there was no reason to consider
whether the statements fell within the rule's res gestae exception
(essentially the same as the current hearsay-derived exceptions),8 holding that the rule "has no application to the
facts as disclosed by the evidence."9
Thus, if the person eliciting a postaccident statement is simply
doing his or her duty without an eye towards future litigation, then the
statement likely will not be found to be improperly procured. An example
of this would be a medical professional questioning an injured party for
the purpose of medical treatment or diagnosis. And, if the injur
Protecting the incapacitated
When an injured party asserts some sort of physical or mental
impediment as a basis for excluding a postaccident statement, the party
must show by "conclusive" evidence that at the relevant time, he or she
lacked the capacity to make an intelligent statement.
In Musha v. U.S. Fidelity & Guaranty Co. the
plaintiffs, a father and his minor son, invoked a predecessor to Rule
904.12 to exclude a statement the son made to a police officer shortly
after the son arrived at the hospital to be treated for injuries he
suffered when an automobile struck him while he was riding his bicycle.
The plaintiffs argued that the police officer exception employed in
Kirsch should not apply because of the son's age (13), the extent of his
injuries and pecause he was under "heavy sedation" when he made the
statement.
The court rejected the plaintiffs' argument in light of the officer's
testimony that the boy had appeared lucid and gave competent answers
during questioning. However, the court pointed out that, "If it had been
shown conclusively that the injuries received by the minor plaintiff or
the drug that was administered to him prior to the giving of the
statement had such an effect on the minor that he could not
intelligently answer the questions and protect his rights, then such
statement would not be admissible no matter to whom it was made."10 By making this qualifying statement, the court
seemingly recognized that an injured person's physical or mental state
could be such that it renders his or her statement inadmissible - even
though not procured by an adverse party.
If in Musha the court intended to recognize a truly
independent incapacity remedy for postaccident statements, then limiting
it to the 72-hour postaccident period Rule 904.12 presently covers makes
little sense. For instance, a person severely burned in an automobile
accident is likely to be heavily sedated or otherwise incapacitated well
beyond the 72-hour period covered by Rule 904.12. Instead, it seems more
defensible to treat incapacity as affecting the weight to be afforded a
nonprocured statement, not its admissibility. Of course, in a
particularly egregious case the trial court could exclude statements
made while a person is incapacitated as unfairly prejudicial under Rule
904.03,11 without having to resort to a
creative interpretation of Rule 904.12.
Probing for an exception
If a postaccident statement potentially violates either the
procurement or incapacitation safeguards of Rule 904.12, one must probe
further to determine whether any of the enumerated exceptions to the
rule apply. Present sense impressions, excited utterances or statements
of the declarant's then existing mental state must occur either
contemporaneously with the accident or while the declarant is under the
stress of the exciting event. 12
Realistically then, an exception to Rule 904.12 most likely will be
found to apply to statements made immediately after an accident. One
such example is Dixon v. Russell, where the Wisconsin Supreme
Court held that statements made by an injured operator of a concrete
mixer to the defendant's foreman and another person immediately after an
accident involving the mixer, that the accident was the operator's own
fault, fell within the prior res gestae exception. 13
As Dixon demonstrates, the way in which Rule 904.12's
hearsay-derived exceptions have traditionally operated underscores the
difficulties an injured party will face in attempting to apply the
incapacity remedy. Absent proof that the injured party was deranged or
severely traumatized by the accident, damaging, spontaneous statements
he or she makes shortly thereafter are likely to come into evidence.
|
Daniel J. La Fave, Northwestern 1992, is a trial lawyer with the
Milwaukee office of Quarles & Brady. He concentrates his practice in
products liability and personal injury defense.
|
Another exception to Rule 904.12 is for statements made to officers
having the power to make arrests. The Legislature first codified this
judicially recognized exception in 1959. However, this exception has its
own exception. Injured parties who bring personal injury claims against
the governmental entity that employs the officer who heard the
postaccident statement may be able to excise such statements from
evidence at trial. Such was the case in Schueler v. Madison
14 where the court held that a police
officer could not testify as to statements made to him by the injured
plaintiff in a hospital emergency room because the City of Madison, his
employer, was a named defendant.15
This exception to the exception of Rule 904.12(3) seems unlikely to
occur often, but in the right situation may be a factor in deciding
whether to bring a claim against a governmental entity in an accident
that also involves private parties. By doing so, the injured party may
be able to inoculate himself or herself from what otherwise would be an
admissible postaccident statement to a police officer investigating the
accident.
Producing copies of "written" statements
Assuming a written postaccident statement by an injured
person otherwise would be admissible, Rule 904.12 further requires that
the person taking or having possession of a copy of the statement
provide one within 20 days of an injured party's written
request.16 To best assess a personal injury
case, a plaintiff's lawyer is well-advised to request any such
statements against likely sources before commencing a
lawsuit.
In turn, prospective defendants need to be alert to such requests,
which may appear in unexpected places, such as in a complaint, and
provide a timely response. Otherwise, a potentially helpful written
statement will be excluded.
Conclusion
Postaccident admissions can be truly powerful medicine for defense
counsel trying personal injury cases. However, Wisconsin's unique
exclusionary rule places limitations on administering such potent
evidence, affording a potential antidote for plaintiffs. If lawyers keep
the foregoing principles in mind, they should be able to avoid
unpleasant evidentiary complications in handling a personal injury
case.
Endnotes
1 See, e.g., Onujiogu v. United
States, 817 F.2d 3, 6 (1st Cir. 1987).
2 See Larson v. DeVilbiss
Co., 454 F.2d 461, 464 (7th Cir. 1971). While the Larson court did
not explain its reasoning, an apparent basis for applying Rule 904.12 in
a federal diversity action would be Federal Rule of Evidence 601, which
is the general rule for competency of witnesses.
3 Kirsch v. Pomisal, 236
Wis. 264, 267, 294 N.W. 865 (1940).
4 Musha v. U.S. Fidelity &
Guaranty Co., 10 Wis. 2d 176, 180, 102 N.W.2d 243 (1960).
5 See Zastrow v.
Schaumburger, 210 Wis. 116, 124-25, 245 N.W. 202 (1932).
6 Wis. Stat. 908.01(1).
7 Judicial Council Committee's
Note, 59 Wis. 2d at R100 (1974).
8 See Judicial Council
Committee's Note, 59 Wis. 2d at R257 ("[t]he term res gestae
... embraces circumstantial proof that is not hearsay at all, as
well as hearsay that is admissible [as present sense impressions or then
existing statements of mind]"); Scrafield v. Rudy, 266 Wis.
530, 532, 64 N.W.2d 189 (1954) ("To be admissible as part of the res
gestae the statement must be deemed the spontaneous utterance of
the speaker, springing out of the transaction itself, and hence the
product of the speaker's mind, prompted by the event and not the result
of deliberation after the event.")
9 Kirsch, 236 Wis. at
268.
10 Musha, 10 Wis. 2d at
180.
11Wis. Stat. 904.03.
12 See, e.g., Zastrow,
210 Wis. at 124-25; State v. Jenkins, 168 Wis. 2d 175, 189, 483
N.W.2d 262 (Ct. App. 1992); Judicial Council Committee's Note, 59 Wis.
2d at R256 ("the time element is more narrowly measured under sub. (1)
[(i.e., present sense impressions)] than sub. (2)
[(i.e., excited utterances)]"), R260 ("Sub. (3) [i.e.,
then existing mental, emotional or physical condition] . is a
specialized version of the present sense impression").
13 Dixon, 156 Wis. 161,
165-66, 145 N.W. 761 (1914).
14 Schueler, 49 Wis. 2d
695, 183 N.W.2d 116 (1971).
15 Id. at 708.
16 Wis. Stat. 904.12(2).
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