Gelhaar v. State

• Decision Date: 09 January 1969
• Citation: 41 Wis.2d 230,163 N.W.2d 609
• Parties: Lillian M. GELHAAR, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 609

163 N.W.2d 609

41 Wis.2d 230

Lillian M. GELHAAR, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Jan. 9, 1969.

Rehearing Denied March 4, 1969.

Allen L. Samson, Milwaukee, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, David J. Cannon, Dist. Atty., Milwaukee County, Terence T. Evans, Asst. Dist. Atty., Milwaukee, for defendant in error.

HANLEY, Justice.

Defendant attacks the order denying a new trial on these two grounds:

1. Prior inconsistent statements of witnesses are not competent evidence; and

2. There is insufficient credible evidence to sustain her conviction.

Defendant's basic objection on this review is that the evidence was insufficient to support the verdict because there was no competent evidence on the issue of defendant's intent to commit murder. Defendant concedes that the statements of Mark and Christine Gelhaar would have established the necessary intent, but these statements were only admissible as prior inconsistent statements.

'This court has long adhered to the majority rule that previous inconsistent statements of a witness cannot be accorded any value as substantive evidence. * * *' State v. Major (1956), 274 Wis. 110, 112, 79 N.W.2d 75, 76.

The statements of the Gelhaar children were allowed into evidence without any objection by defendant's trial counsel. The trial court did not sue sponte instruct the jury that the statements were admissible for purposes of impeachment only, either at the time the statements were given or at the close of the case.

Admissibility of Statements.

'The general rule is almost universally recognized that evidence of extrajudicial statements made by a witness who is not a party and whose declarations are not binding as admissions is admissible only to impeach or discredit the witness, and is not competent as substantive evidence of the facts to which such statements relate.' Annot. (1941), 133 A.L.R. 1454, 1455.

The reasoning behind the rule is set out in 58 Am.Jur., Witnesses, p. 421, sec. 770:

'* * * The reason assigned, where any is given, is that if such statements were taken as proof of the facts stated, the testimony would be hearsay. * * *'

Professor John Wigmore takes exception to this reasoning in 3 Wigmore, Evidence (3d ed. 1940), pp. 687, 688, sec. 1018:

'It does not follow, however, that Prior Self-Contradictions, when admitted, are to be treated as having no affirmative testimonial value, and that any such credit is to be strictly denied them in the mind of the tribunal. The only ground for doing so would be the Hearsay rule. But the theory of the Hearsay rule is that an extrajudicial statement is rejected because it was made out of Court by an absent person not subject to cross-examination * * * Here, however, by hypothesis the witness is present and subject to cross-examination. There is ample opportunity to test him as to the basis for his former statement. The whole purpose of the Hearsay rule has been already satisfied. Hence there is nothing to prevent the tribunal from giving such testimonial credit to the extrajudicial statement as it may seem to deserve. Psychologically of course, the one statement is as useful to consider as the other; and everyday experience outside of court-rooms is in accord.'

McCormick on Evidence (Hornbook Series) (1954), pp. 73--82, sec. 39, presents an even more compelling argument which we will attempt to summarize.

Professor McCormick first sets forth the majority rule and the reasoning behind it. But he goes on to state:

'Nevertheless, there are reasons for a contrary view, that the statements should be received as 'substantive' evidence of their truth. These reasons are not so obvious. They depend upon judgments as to the balancing of values, but the more maturely they are considered, the more impressive they seem.' McCormick, supra, at page 74.

Professor McCormick contends that the two safeguards of the truth of testimony are the oath (with its penalty for perjury) and cross-examination. Of these, the most important is cross-examination. But, for all practical purposes, this safeguard is available when extrajudicial statements are used to impeach a witness.

'* * * It is hard to escape the view that evidence of a previous inconsistent statement, when the declarant is on the stand to explain it if he can, has in a high degree the safeguards of examined testimony.

'Accordingly, if we look to the procedural guaranties of truth of the prior statement and of the present testimony of the same witness, we can only conclude that they stand approximately equal, * * *' McCormick, supra at page 75.

But another factor makes the prior inconsistent statement even more trustworthy than testimony.

'* * * The prior statement is always nearer and usually very much nearer to the event than is the testimony. * * *

'* * *

'Manifestly, this is not to say that when a witness changes his story, the first version is invariably true and the later is the product of distorted memory, corruption, false suggestion, intimidation, or appeal to sympathy. No, but the time-element plays an important part, always favoring the earlier statement, in respect to all of these hazards. * * *' McCormick, supra, at pages 75 and 76.

There is a further reason favoring the use of prior statements substantively. The attempt to deny the full probative effect to such statements is, even charitably considered, usually ineffectual. The evidence of prior statements goes to the jury anyway as impeaching evidence, but the jury is ordinarily instructed that it can consider the evidence solely as bearing on the credibility of the witness.

'* * * Such an instruction, as seems to be generally agreed is a mere verbal ritual. The distinction is not one that most jurors would understand. If they could understand it, it seems doubtful that they would attempt to follow it. Trial judges seem to consider the instruction a futile gesture. If the prior statement and the present testimony are to be considered and compared, what is the purpose? The intuitive good sense of laymen and of lawyers seems to agree that the only rational purpose is not merely to weigh the credibility of the testimony, but to decide which of the two stories is true. To do this is ordinarily to decide the substantive issue.' McCormick, supra, at page 77.

Then McCormick discusses a subject which is particularly pertinent to this appeal. When the state's only witness to a material fact in a criminal case is cross-examined by a prior inconsistent statement, the jury can use the inconsistent statement to cancel the witness' testimony. Thus it makes no difference whether the statement is considered as 'substantive' or 'impeaching' evidence. The result is the same, i.e a verdict for the defendant. But when the state has only an inconsistent statement from the defendant's witness, it cannot even get to the jury. Basically that is what defendant is contending here. The only evidence of intent could come from the children. Even if their testimony at the trial is disbelieved by the jury, there is no 'substantive' evidence of intent in the case.

'* * * The argument seems persuasive that if the previous statement and the circumstances surrounding its making are sufficiently probative to empower the jury to disbelieve the story of the witness on the stand, they should be sufficient to warrant the jury in believing the statement itself.' McCormick, supra, at page 78.

Thus we are now convinced that a jury should be able to consider the prior inconsistent statements of the witnesses as substantive evidence. Previous Wisconsin cases which have held to the contrary ¹ are therefore expressly overruled.

We are not convinced, however, that this rule should be adopted without limitation. Accordingly, we now adopt a modified form of the rule proposed by professor McCormick:

"A statement made on a former occasion by a declarant having an opportunity to observe the facts stated, will be received as evidence of such facts, notwithstanding the rule against hearsay if

"(1) the statement is proved to have been written or signed by the declarant, or to have been given by him as testimony in a judicial or official hearing, or the making of the statement is acknowledged by the declarant in his testimony in the present proceeding, and

"(2) ...