Hagenkord v. State

Supreme Court of Wisconsin · 1981 · Evidence

100 Wis.2d 452 (1981)

Updated August 22, 2026

Evidencehospital recordshearsay exceptionconfrontation clausemedical recordsexpert translationsufficiency of evidencelesser-included offense

Facts

The victim gave Hagenkord a ride home after meeting him in a tavern. During the ride, he repeatedly beat her with a tire iron, dragged her into the back seat, choked her until she lost consciousness, and she later awoke nude except for anklets and bleeding heavily. Hospital records admitted at trial stated that a grayish liquid containing spermatozoa was found in the posterior of her vagina and that there were excoriations, abrasions, and contusions in the vaginal and pubic areas. Because the records were lengthy and technical, the state used a senior medical student under oath to explain the medical terminology to the jury.

Issue

Whether hospital records admitted under the hearsay exception, and explained to the jury by a medical student, were sufficient and constitutionally permissible proof of sexual intercourse when the record makers did not testify. Also, whether injury by conduct regardless of life under sec. 940.23 is a lesser-included offense of first-degree sexual assault causing great bodily harm under sec. 940.225(1)(a).

Rule

Hospital records that are properly admitted under the evidentiary rules and that contain clinical, nondiagnostic findings with unusual indicia of reliability and trustworthiness may satisfy the Confrontation Clause without producing the declarant or proving unavailability, absent a specific challenge undermining the records' assumed accuracy or regularity. An offense is lesser-included only if all of its statutory elements can be proved without any additional fact or element beyond those required for the greater offense; if the purported lesser offense contains an additional statutory element, it is not lesser-included.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a rape prosecution in Madison, the state offers certified emergency-room records from Lakeview Medical Center. The records note a swab containing sperm cells and several abrasions at the vaginal opening; the nurse and physician who made the entries do not testify, and the defendant objects on confrontation grounds but identifies no reason to think the entries are inaccurate or irregular.

How should the court most likely rule on the confrontation objection?

Explanation. The majority held that hospital records may satisfy the Confrontation Clause when they are properly admitted under the evidentiary rules, contain clinical and nondiagnostic findings, and bear unusual indicia of reliability and trustworthiness. The court rejected any absolute requirement that the state produce the declarant or prove unavailability in that setting, especially absent an articulated reason to doubt the records’ accuracy or regularity.