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.)

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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