Another Wisconsin judge misunderstands hearsay

In State v. Yost (decision here, On Point summary here), the defendant allegedly committed disorderly conduct, inside a jail, by his manner of speech, i.e., a speech crime.  One jailhouse inmate testified the defendant said X.  The defendant called his own eyewitness to the crime, another jailhouse inmate, who was prepared to testify that he was there at the time and didn’t hear the defendant say X.

Surely a defendant is allowed to call an eyewitness—or, in this case, an ear witness—to the allege crime, right?  “Not so fast,” the prosecutor interjected.  That’s hearsay!  “No it isn’t,” the judge rightly said.  But the prosecutor pressed, and there were offers of proof and more debate, and the judge ultimately changed his mind and shut down the defense.  Why?  Because, the judge said, the witness’s testimony that the defendant never said X would be hearsay!

I’ve written about judges botching hearsay rulings before—always to the defendant’s detriment, of course.  (Some of those trial court debacles, and a really cool video with a dog, are aggregated in this post.)  But this new hatchet job is unique.  It’s unique because, of course, hearsay is an out-of-court statement offered for the truth of the matter asserted therein.  And in this case, the defense was not offering an out-of-court statement.  In fact, the defense was not offering any statement at all!  The whole defense was that the defendant did not say X!  The appellate court explains:

[The defense witness’s] testimony was that he never heard a certain “statement”/“matter asserted” . . . The absence of a statement/assertion is not a statement/assertion made to prove the “truth of the matter asserted,” and thus, [the witness’s] testimony that he did not hear Yost make a statement . . . would not meet the statutory definition of hearsay. (Emphasis added.)

Unfortunately, while the appellate court schooled the trial judge in the concept of hearsay, it committed its own egregious error.  It held the trial judge’s error was harmless, and upheld the conviction.  So much for a defendant’s right to present a full and complete defense, and his right to have his guilt or innocence decided by a jury instead of by the whims of a single appellate judge after reading a cold record.