See note to Art. I, sec. 8, citing Johnson v. State, 75 W (2d) 344, 249 NW (2d) 593.
See note to 161.41, citing Peasley v. State, 83 W (2d) 224, 265 NW (2d) 506 (1978).
Evidence of prior conduct, i.e. defendant's threat to shoot his companion, was admissible to show that defendant's later acts evinced a depraved mind under 940.23. Hammen v. State, 87 W (2d) 791, 275 NW (2d) 709 (1979).
Evidence of defendant's prior fighting was admissible to refute defendant's claim of misidentification and to impeach defense witness. State v. Stawicki, 93 W (2d) 63, 286 NW (2d) 612 (Ct. App. 1979).
Defendant's 2 prior convictions for burglary were admissible to prove intent to use gloves, long pocket knife, crowbar, and pillow case as burglarious tools. Vanlue v. State, 96 W (2d) 81, 291 NW (2d) 467 (1980).
Criminal acts of defendant's co-conspirators were admissible to prove plan and motive. Haskins v. State, 97 W (2d) 408, 294 NW (2d) 25 (1980).
Evidence of other crimes was admissible to show plan and identity. State v. Thomas, 98 W (2d) 166, 295 NW (2d) 784 (Ct. App. 1980).
Evidence of similar killing, committed 12 hours after shooting in issue, was relevant to show that both slayings sprang from like mental conditions and to show plan or scheme. Barrera v. State, 99 W (2d) 269, 298 NW (2d) 820 (1980).
See note to 971.12, citing State v. Bettinger, 100 W (2d) 691, 303 NW (2d) 585 (1981).
See note to 971.12, citing State v. Hall, 103 W (2d) 125, 307 NW (2d) 289 (1981).
See note to 904.02, citing State v. Alsteen, 108 W (2d) 723, 324 NW (2d) 426 (1982).
"Other crimes" evidence was admissible to complete story of crime on trial by proving its immediate context of happenings near in time and place. State v. Pharr, 115 W (2d) 334, 340 NW (2d) 498 (1983).
"Other crimes" evidence was admissible to rebut defendant's claim that his presence in backyard of burglarized home was coincidental and innocent. State v. Rutchik, 116 W (2d) 61, 341 NW (2d) 639 (1984).
Where accused claimed shooting was in self-defense, court abused discretion by excluding opinion evidence as to victim's reputation for violence. State v. Boykins, 119 W (2d) 272, 350 NW (2d) 710 (Ct. App. 1984).
Under "greater latitude of proof" principle applicable to other-acts evidence in sex crimes, particularly incest or indecent liberties with children, sex acts committed against complainant and another young girl 4 and 6 years prior to charged assault were admissible under (2) to show "plan" or "motive". State v. Friedrich, 135 W (2d) 1, 398 NW (2d) 763 (1987).
Admission under (2) of prowling ordinance violation by defendant accused of second-degree sexual assault and robbery was harmless error. State v. Grant, 139 W (2d) 45, 406 NW (2d) 744 (1987).
Admission of prior crimes evidence discussed. State v. Evers, 139 W (2d) 424, 407 NW (2d) 256 (1987).
Evidence of defendant's use of alias was relevant to show defendant's intent to cover up participation in sexual assault. State v. Bergeron, 162 W (2d) 521, 470 NW (2d) 322 (Ct. App. 1991).
Where evidence of a sexual assault was the only evidence of an element of the kidnapping offense charged, withholding the evidence on the basis of unfair prejudice unfairly precluded the state from obtaining a conviction for the offense charged. State v. Grande, 169 W (2d) 422, 485 NW (2d) 282 (Ct. App. 1992).
In addition to the sub. (2) exceptions, another valid basis for the admission of other crimes evidence is to furnish the context of the crime if necessary to the full presentation of the case. State v. Chambers, 173 W (2d) 237, 496 NW (2d) 191 (Ct. App. 1992).
There is no presumption of admissibility or exclusion for other crimes evidence. State v. Speer, 176 W (2d) 1101, 501 NW (2d) 429 (1993).
Evidence of other crimes may be offered in regard to the question of intent despite defendant's assertion that the charged act never occurred. State v. Clark, 179 W (2d) 484, 507 NW (2d) 172 (Ct. App. 1993).
In addition to fitting one of the exceptions in sub. (2), other acts evidence must be probative of a proposition other than disposition and character to commit the present alleged act and relevant to an issue in the case. The probative value of other acts evidence is partially dependent on its nearness in time, place and circumstance to the alleged act sought to be proved. State v. Johnson, 184 W (2d) 324, 516NW (2d) 463 (Ct. App. 1994).
Other acts evidence is relevant if a jury could find by a preponderance of the evidence that the defendant committed the other act. An acquittal does not prevent offering evidence of a prior crime for purposes authorized under this section. State v. Landrum, 191 W (2d) 107, 528 NW (2d) 36 (Ct. App. 1995).
Other acts evidence in a child sexual assault case was admissible where the type of contact was different and the victims were of a different gender, because the prior act was probative of the defendant's desire for sexual gratification from children. State v. Tabor, 191 W (2d) 483, 529 NW (2d) 915 (Ct. App. 1995).
To be admissible "other-acts evidence" for purposes of identity, it must be said that the acts constitute the imprint of the defendant. State v. Rushing, 197 W (2d) 631, 541 NW (2d) 155 (Ct. App. 1995).
Verbal statements may be admissible as "other-acts evidence" even when not acted upon. State v. Jeske, 197 W (2d) 906, 541 NW (2d) 225 (Ct. App. 1995).
Methods of proving character. 904.05(1)
Reputation or opinion.
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(2) Specific instances of conduct.
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct.
Sup. Ct. Order, 59 W (2d) R1, R80 (1973); 1991 a. 32
When defendant's character evidence is by expert opinion and prosecution's attack on basis of opinion is answered evasively or equivocally, then trial court may allow prosecution to present evidence of specific incidents of conduct. King v. State, 75 W (2d) 26, 248 NW (2d) 458.
Self-defense—prior acts of the victim. 1974 WLR 266.
Habit; routine practice. 904.06(1)
Except as provided in s. 972.11 (2)
, evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
(2) Method of proof.
Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
Sup. Ct. Order, 59 W (2d) R1, R83 (1973); 1975 c. 184
Although specific instance of conduct occurs only once, evidence may be admissible under (2). French v. Sorano, 74 W (2d) 460, 247 NW (2d) 182.
Use of specific instances evidence discussed. State v. Evans, 187 W (2d) 66, 522 NW (2d) 554 (Ct. App. 1994).
Habit evidence must be distinguished from character evidence. Character is a generalized description of a person's disposition, or of the disposition in respect to a general trait. Habit is more specific denoting one's regular response to a repeated situation. However, habit need not be "semi-automatic" or "virtually unconscious". Steinberg v. Arcilla, 194 W (2d) 759, 535 NW (2d) 444 (Ct. App. 1995).
Subsequent remedial measures.
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment or proving a violation of s. 101.11
History: Sup. Ct. Order, 59 W (2d) R1, R87 (1973).
Subsequent remedial measures by mass producer of defective product was admitted into evidence under this section even though feasibility of precautionary measures was not controverted. Chart v. Gen. Motors Corp. 80 W (2d) 91, 258 NW (2d) 681.
Evidence of remedial change was inadmissible where defendant did not challenge feasibility of change. Krueger v. Tappan Co. 104 W (2d) 199, 311 NW (2d) 219 (Ct. App. 1981).
Evidence of post-event remedial measures may be introduced under both negligence and strict liability theories. See note to 904.01, citing D. L. v. Huebner, 110 W (2d) 581, 329 NW (2d) 890 (1983).
Compromise and offers to compromise.
Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This section does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, proving accord and satisfaction, novation or release, or proving an effort to compromise or obstruct a criminal investigation or prosecution.
Sup. Ct. Order, 59 W (2d) R1, R90 (1973); 1987 a. 355
; Sup. Ct. Order No. 93-03
, 179 W (2d) xv (1993); 1993 a. 490
While this section does not exclude evidence of compromise settlements to prove bias or prejudice of witnesses, it does exclude evidence of details such as the amount of settlement. Johnson v. Heintz, 73 W (2d) 286, 243 NW (2d) 815.
Plaintiff's letter suggesting compromise between codefendants was not admissible to prove liability of defendant. Production Credit Asso. v. Rosner, 78 W (2d) 543, 255 NW (2d) 79.
Where letter from bank to defendant was unconditional demand for possession of collateral and payment under lease and was prepared without prior negotiations, compromise or agreement, letter was not barred by this section. Heritage Bank v. Packerland Packing Co. 82 W (2d) 225, 262 NW (2d) 109.
Communications in mediation. 904.085(1)
The purpose of this section is to encourage the candor and cooperation of disputing parties, to the end that disputes may be quickly, fairly and voluntarily settled.
"Mediation" means mediation under s. 93.50 (3)
, conciliation under s. 111.54
, mediation under s. 111.11
, 111.70 (4) (cm) 3.
, negotiation under s. 289.33 (9)
, mediation under ch. 655
or s. 767.11
, or any similar statutory, contractual or court-referred process facilitating the voluntary resolution of disputes. "Mediation" does not include binding arbitration or appraisal.
"Mediator" means the neutral facilitator in mediation, its agents and employes.
"Party" means a participant in mediation, personally or by an attorney, guardian, guardian ad litem or other representative, regardless of whether such person is a party to an action or proceeding whose resolution is attempted through mediation.
Except as provided under sub. (4)
, no oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding. Any communication that is not admissible in evidence or not subject to discovery or compulsory process under this paragraph is not a public record under subch. II of ch. 19
Except as provided under sub. (4)
, no mediator may be subpoenaed or otherwise compelled to disclose any oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party or to render an opinion about the parties, the dispute whose resolution is attempted by mediation or any other aspect of the mediation.
904.085(4)(a)(a) Subsection (3)
does not apply to any written agreement, stipulation or settlement made between 2 or more parties during or pursuant to mediation.
(c) Subsection (3) (a)
does not prohibit the admission of evidence otherwise discovered, although the evidence was presented in the course of mediation.
A mediator reporting child abuse under s. 48.981
or reporting nonidentifying information for statistical, research or educational purposes does not violate this section.
In an action or proceeding distinct from the dispute whose settlement is attempted through mediation, the court may admit evidence otherwise barred by this section if necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally.
Sup. Ct. Order No. 93-03
, 179 W (2d) xv (1993); 1995 a. 227
Judicial Council Note, 1993: This section creates a rule of inadmissibility for communications presented in mediation. This rule can be waived by stipulation of the parties only in narrow circumstances [see sub. (4) (b)] because the possibility of being called as a witness impairs the mediator in the performance of the neutral facilitation role. The purpose of the rule is to encourage the parties to explore facilitated settlement of disputes without fear that their claims or defenses will be compromised if mediation fails and the dispute is later litigated.
Payment of medical and similar expenses.
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
History: Sup. Ct. Order, 59 W (2d) R1, R93 (1973).
Offer to plead guilty; no contest; withdrawn plea of guilty.
Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.
Sup. Ct. Order, 59 W (2d) R1, R94 (1973); 1991 a. 32
Where accused entered plea agreement and subsequently testified at trials of other defendants, and where accused later withdrew guilty plea and was tried, prior trial testimony was properly admitted for impeachment purposes. State v. Nash, 123 W (2d) 154, 366 NW (2d) 146 (Ct. App. 1985).
Statements made during guilty plea hearing are inadmissible for any purpose, including impeachment, at subsequent trial. State v. Mason, 132 W (2d) 427, 393 NW (2d) 102 (Ct. App. 1986).
Defendant's agreement to sign a written confession, after being told by the district attorney that the state would stand silent regarding sentencing if the defendant gave a truthful statement, was not the result of plea negotiations but negotiations for a confession and therefore not inadmissible under this section. State v. Nicholson, 187 W (2d) 687, 523 NW (2d) 573 (Ct. App. 1994).
This section does not apply to offers of compromise made to the police. State v. Pischke, 198 W (2d) 257, 542 NW (2d) 202 (Ct. App. 1995).
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Sup. Ct. Order, 59 W (2d) R1, R97 (1973); 1991 a. 32
Statement of injured; admissibility; copies. 904.12(1)(1)
In actions for damages caused by personal injury, no statement made or writing signed by the injured person within 72 hours of the time the injury happened or accident occurred, shall be received in evidence unless such evidence would be admissible as a present sense impression, excited utterance or a statement of then existing mental, emotional or physical condition as described in s. 908.03 (1)
Every person who takes a written statement from any injured person or person sustaining damage with respect to any accident or with respect to any injury to person or property, shall, at the time of taking such statement, furnish to the person making such statement, a true, correct and complete copy thereof. Any person taking or having possession of any written statement or a copy of said statement, by any injured person, or by any person claiming damage to property with respect to any accident or with respect to any injury to person or property, shall, at the request of the person who made such statement or the person's personal representative, furnish the person who made such statement or the person's personal representative, a true, honest and complete copy thereof within 20 days after written demand. No written statement by any injured person or any person sustaining damage to property shall be admissible in evidence or otherwise used or referred to in any way or manner whatsoever in any civil action relating to the subject matter thereof, if it is made to appear that a person having possession of such statement refused, upon the request of the person who made the statement or the person's personal representatives, to furnish such true, correct and complete copy thereof as herein required.
This section does not apply to any statement taken by any officer having the power to make arrests.
Sup. Ct. Order, 59 W (2d) R1, R99 (1973); 1991 a. 32
Information concerning crime victims. 904.13(2)
In any action or proceeding under ch. 938
or chs. 967
, evidence of the address of an alleged crime victim or any family member of an alleged crime victim or evidence of the name and address of any place of employment of an alleged crime victim or any family member of an alleged crime victim is relevant only if it meets the criteria under s. 904.01
. District attorneys shall make appropriate objections if they believe that evidence of this information, which is being elicited by any party, is not relevant in the action or proceeding.
History: 1985 a. 132
; 1995 a. 77