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Condon v. Heritage Mutual Insurance Company11/5/2002
atisfied both §§ 804.07(1)(a) and 906.13(2)(a)2, we conclude that the trial court properly admitted the deposition testimony.
. Wisconsin Stat. § 804.07 provides a limited hearsay exception for deposition testimony, which obviates the need to also qualify the statements under the enumerated exceptions in ch. 908. See 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 802.4, at 583 (2d ed. 2001). However, where the deposition of a witness other than a medical expert is offered in an action as substantive testimony pursuant to Wis. Stat. § 804.07(1)(c)1, the unavailability of the witness must be established as a condition to admitting the deposition as testimony. See Wis. Stat. § 804.07(1)(c)1.a-e; see also Feldstein v. Harrington, 4 Wis. 2d 380, 388, 90 N.W.2d 566 (1958). Alternatively, where a deposition is offered in an action for impeachment purposes pursuant to Wis. Stat. § 804.07(1)(a), the party offering the testimony must not only comply with the requirements of that section but also with Wis. Stat. § 906.13, which governs the admission of prior statements of witnesses. See Feldstein, 4 Wis. 2d at 385 ("[Because] the power to take depositions rests entirely upon statute[,] such power did not exist at common law the conditions under which they may be used depend upon the general rules of evidence. Even when there are statutes which enumerate the conditions under which depositions may be used ... these should not be deemed to be exclusive.").
. Thus, to use Krenz's deposition for impeachment purposes, the Condons were required to comply with Wis. Stat. §§ 804.07 and 906.13. First, the deposition testimony was admissible under Wis. Stat. § 804.07(1)(a), because a party may use any part of a deposition at trial "for the purpose of contradicting or impeaching the testimony of deponent as a witness." Second, the testimony was also admissible under § 906.13(2). Section 906.13(2) states, in relevant part:
906.13 Prior statements of witnesses.
(2) Extrinsic evidence of prior inconsistent statement of a witness. (a) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless any of the following is applicable:
1. The witness was so examined while testifying as to give the witness an opportunity to explain or to deny the statement.
2. The witness has not been excused from giving further testimony in the action.
3. The interests of justice otherwise require.
Therefore, the deposition testimony of Krenz was admissible under § 906.13(2)(a)2, because he was subject to recall. See 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 613.3, at 583 (2d ed. 2001) (" xtrinsic evidence may be offered where the witness is still under subpoena or subject to recall."); cf. State v. Smith, 2002 WI App 118, , 254 Wis.2d 654, 48 N.W.2d 15 (" ecause Smith intended to introduce extrinsic evidence of alleged prior inconsistent statements of the victim - inconsistent with testimony that the victim had previously given - who was under subpoena, and, therefore, not excused from giving further testimony in the action, we conclude that such evidence is admissible pursuant to § 906.13(2)(a)2."). Because the Condons satisfied both §§ 804.07 and 906.13, we conclude that the trial court properly admitted the deposition testimony.
. Based on the foregoing, the trial court is affirmed.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
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