Aug. 15, 2011 – A report generated by an electronic monitoring device (EMD) isn’t hearsay and expert testimony isn’t required to establish its reliability, the Wisconsin Supreme Court recently concluded in a drunk driving case against Gregg Kandutsch.

The Wisconsin Department of Corrections was supervising Kandutsch with an electronic monitoring system in 2006 when his estranged wife called police to report an intruder in her home. When they arrived, they found Kandutsch drunk. His car was parked down the street.

Police arrested Kandutsch for operating a vehicle while intoxicated, his fifth offense. At trial, the state relied on a computerized report generated by the EMD system to show Kandutsch was “out-of-range” starting at 10:03 p.m. His estranged wife called police at 10:23 p.m.

Based on this circumstantial evidence, the state argued successfully that Kandutsch must have been intoxicated when he embarked on the 15-minute drive from his mother’s house to the home of his estranged wife.

Kandutsch, however, said he left the house around 9 p.m., parked the car down the street from his wife’s house, and swigged Southern Comfort and a pitcher of beer at a nearby tavern before breaking into his estranged wife’s home. The EMD report was inaccurate, he argued.

After his conviction, Kandutsch argued that the circuit court erroneously admitted the EMD report without requiring expert testimony and, in any event, the EMD report was hearsay and not admissible under any hearsay exception.

Expert testimony not required

A Wisconsin court of appeals held that an expert was not required to explain the EMD system, and the report was not hearsay because it was not made by a human declarant. In State v. Kandutsch, 2011 WI 78 (July 19, 2011), a Wisconsin Supreme Court majority (5-2) agreed.

“The interesting feature of this case is that the defendant’s conviction rests entirely on circumstantial evidence because no witness saw him operating a motor vehicle or even sitting in a motor vehicle,” noted Justice David Prosser for the majority.

First, the majority concluded the EMD report was properly introduced into evidence without expert testimony to lay a foundation of accuracy and reliability.

Like State v. Doerr, 229 Wis. 2d 616, 599 N.W.2d 897 (Ct. App. 1999) – where the appeals concluded expert testimony was required to explain the accuracy and reliability of a preliminary breath test – the state was required to do the same here, Kandutsch argued.

But the majority concluded that EMD technology is well within the comprehension of the average juror. “The intersection of radio signals and telephone connections does not convert the EMD into an issue ‘so unusually complex or esoteric’ that the jury required the aid of expert testimony to introduce evidence of the EMD at issue here,” Justice Prosser wrote.

In a dissenting opinion, Chief Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley) argued that expert testimony was required because the scientific principles underlying the EMD “have not been presumed reliable based upon a statute, in a prior determination in our case law, or by resort to sources whose accuracy cannot be reasonably questioned.…”

Second, the majority rejected Kandutsch’s argument that the report generated by the EMD was inadmissible hearsay, and no exception applied to allow it. The majority ruled that “computer-generated” records, as opposed to “computer-stored” records, are not hearsay.

“A record created as a result of a computerized or mechanical process cannot lie,” Justice Prosser wrote. “It cannot forget or misunderstand. Although data may be lost or garbled as a result of some malfunction, such a malfunction would go to the weight of the evidence, not its admissibility.”

The majority concluded that testimony from two department of corrections agents was sufficient to provide a foundation for the EMD report’s accuracy and liability.

The dissent did not dispute the majority’s conclusion that computer-generated EMD reports are not hearsay, but argued “the State failed to prove that the electronic monitoring device was working properly in the present case.”

Attorneys

Assistant Attorney General Steven Means represented the state. Assistant Public Defender Eileen Hirsch represented Gregg Kandutsch.

By Joe Forward, Legal Writer, State Bar of Wisconsin