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972.10(6) (6) In closing argument, the state on the issue of guilt and the defendant on the issue of mental responsibility shall commence and may conclude the argument.
972.10(7) (7) If additional jurors have been impaneled under s. 972.04 (1) and the number remains more than required at final submission of the cause, the court shall determine by lot which jurors shall not participate in deliberations and discharge them.
972.10 History History: 1979 c. 128; 1981 c. 358; 1983 a. 226; Sup. Ct. Order, 130 W (2d) xi (1986); 1993 a. 486; 1995 a. 387.
972.10 Note Judicial Council Note, 1983: Sub. (7) requires the court to reduce the size of the jury panel to the proper number immediately prior to final submission of the cause. Unneeded jurors must be determined by lot and these may not participate in deliberations. State v. Lehman, 108 Wis. 2d 291 (1982). [Bill 320-S]
972.10 Note Judicial Council Note, 1986: Sub. (1) (b) is amended to provide that preliminary instructions may include the elements of any offense charged, what constitutes evidence and what does not, guidance regarding the burden of proof and the credibility of witnesses, and directions not to discuss the case until deliberations begin.
972.10 Annotation Sub. (5) is amended to require that the court provide the jury one written copy of its instructions regarding the burden of proof. [Re Order eff. 7-1-86]
972.10 Annotation No potential coercion was exerted by the trial court in its further supplemental statement made to the jury requesting it to continue its deliberations for the next half hour or hour, and if not then agreed, overnight hotel arrangements would be made. Ziegler v. State, 65 W (2d) 703, 223 NW (2d) 442.
972.10 Annotation Objection to jury instructions will not be waived when instruction misstates law. Randolph v. State, 83 W (2d) 630, 266 NW (2d) 334 (1978).
972.10 Annotation If defendant moves for dismissal at close of state's case and then presents evidence, appellate court will consider all evidence of guilt in ruling on motion. State v. Gebarski, 90 W (2d) 754, 280 NW (2d) 672 (1979).
972.10 Annotation Refusal to give jury special instructions on identification was not abuse of discretion. Hampton v. State, 92 W (2d) 450, 285 NW (2d) 868 (1979).
972.10 Annotation Control of content and duration of closing argument is within discretion of trial court. State v. Stawicki, 93 W (2d) 63, 286 NW (2d) 612 (Ct. App. 1979).
972.10 Annotation Special instruction need not be given because witness has been granted immunity. Linse v. State, 93 W (2d) 163, 286 NW (2d) 554 (1980).
972.10 Annotation See note to 939.23, citing State v. Bougneit, 97 W (2d) 687, 294 NW (2d) 675 (Ct. App. 1980).
972.10 Annotation Defendant who chose to be represented by counsel had no right to address jury personally in closing argument. Robinson v. State, 100 W (2d) 152, 301 NW (2d) 429 (1981).
972.10 Annotation Court refuses to extend "theory of defense instruction" to include legal basis for motivation of witness who is not a defendant. State v. Dean, 105 W (2d) 390, 314 NW (2d) 151 (Ct. App. 1981).
972.10 Annotation Unless defendant consents, it is reversible error for court to substitute alternate juror for regular juror after jury deliberations have begun. State v. Lehman, 108 W (2d) 291, 321 NW (2d) 212 (1982).
972.10 Annotation See note to 805.13, citing In Matter of E. B. 111 W (2d) 175, 330 NW (2d) 584 (1983).
972.10 Annotation Entrapment instructions upheld. State v. Saternus, 127 W (2d) 460, 381 NW (2d) 290 (1986).
972.10 Annotation Court must inform counsel of changes it makes to jury instructions following instructions conference. State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
972.10 Annotation See note to Art. I, sec. 7, citing State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
972.10 Annotation Instructional rulings are to be made at the close of the evidence. A party is not entitled to a mid-trial advisory ruling on whether an instruction will be given. Such a ruling, if given, is nonbinding and not subject to appeal. State v. Sohn, 193 W (2d) 346, 535 NW (2d) 1 (Ct. App. 1995).
972.10 Annotation See note to Art. I, sec. 7, citing Herring v. New York, 422 US 853.
972.10 Annotation See note to Art. I, sec. 3, citing Richmond Newspapers, Inc. v. Virginia, 448 US 555 (1980).
972.11 972.11 Evidence and practice; civil rules applicable.
972.11(1)(1) Except as provided in subs. (2) to (5), the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction. No guardian ad litem need be appointed for a defendant in a criminal action. Chapters 885 to 895, except ss. 804.02 to 804.07 and 887.23 to 887.26, shall apply in all criminal proceedings.
972.11(2) (2)
972.11(2)(a)(a) In this subsection, "sexual conduct" means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.
972.11(2)(b) (b) If the defendant is accused of a crime under s. 940.225, 948.02, 948.025, 948.05, 948.06 or 948.095, any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31 (11):
972.11(2)(b)1. 1. Evidence of the complaining witness's past conduct with the defendant.
972.11(2)(b)2. 2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.
972.11(2)(b)3. 3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness.
972.11(2)(c) (c) Notwithstanding s. 901.06, the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in par. (b) applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under par. (b) 1., 2. or 3.
972.11(2)(d)1.1. If the defendant is accused of a crime under s. 940.225, 948.02, 948.025, 948.05, 948.06 or 948.095, evidence of the manner of dress of the complaining witness at the time when the crime occurred is admissible only if it is relevant to a contested issue at trial and its probative value substantially outweighs all of the following:
972.11(2)(d)1.a. a. The danger of unfair prejudice, confusion of the issues or misleading the jury.
972.11(2)(d)1.b. b. The considerations of undue delay, waste of time or needless presentation of cumulative evidence.
972.11(2)(d)2. 2. The court shall determine the admissibility of evidence under subd. 1. upon pretrial motion before it may be introduced at trial.
972.11(3) (3)
972.11(3)(a)(a) In a prosecution under s. 940.22 involving a therapist and a patient or client, evidence of the patient's or client's personal or medical history is not admissible except if:
972.11(3)(a)1. 1. The defendant requests a hearing prior to trial and makes an offer of proof of the relevancy of the evidence; and
972.11(3)(a)2. 2. The court finds that the evidence is relevant and that its probative value outweighs its prejudicial nature.
972.11(3)(b) (b) The court shall limit the evidence admitted under par. (a) to relevant evidence which pertains to specific information or examples of conduct. The court's order shall specify the information or conduct that is admissible and no other evidence of the patient's or client's personal or medical history may be introduced.
972.11(3)(c) (c) Violation of the terms of the order is grounds for a mistrial but does not prevent the retrial of the defendant.
972.11(3m) (3m) A court may not exclude evidence in any criminal action or traffic forfeiture action for violation of s. 346.63 (1) or (5), or a local ordinance in conformity with s. 346.63 (1) or (5), on the ground that the evidence existed or was obtained outside of this state.
972.11(4) (4) Upon the motion of any party or its own motion, a court may order that any exhibit or evidence be delivered to the party or the owner prior to the final determination of the action or proceeding if all of the following requirements are met:
972.11(4)(a) (a) There is a written stipulation by all the parties agreeing to the order.
972.11(4)(b) (b) No party will be prejudiced by the order.
972.11(4)(c) (c) A complete photographic or other record is made of any exhibits or evidence so released.
972.11(5) (5)
972.11(5)(a)(a) In this subsection, "deoxyribonucleic acid profile" means an analysis that uses the restriction fragment length polymorphism analysis of deoxyribonucleic acid resulting in the identification of an individual's patterned chemical structure of genetic information.
972.11(5)(b) (b) In any criminal action or proceeding, the evidence of a deoxyribonucleic acid profile is admissible to prove or disprove the identity of any person if the party seeking to introduce evidence of the profile complies with all of the following:
972.11(5)(b)1. 1. Notifies the other party in writing by mail at least 45 days before the date set for trial, or at any time if a date has not been set for trial, of the intent to introduce the evidence.
972.11(5)(b)2. 2. If the other party so requests at least 30 days before the date set for trial, or at any time if a date has not been set for trial, provides the other party within 15 days after receiving the request with all of the following:
972.11(5)(b)2.a. a. Duplicates of actual autoradiographs generated.
972.11(5)(b)2.b. b. The laboratory protocols and procedures followed.
972.11(5)(b)2.c. c. The identification of each probe used.
972.11(5)(b)2.d. d. A statement describing the methodology of measuring fragment size and match criteria.
972.11(5)(b)2.e. e. A statement setting forth the allele frequency and genotype data for the appropriate data base used.
972.11(5)(c) (c) Notwithstanding par. (b), the court may grant a continuance regarding the time limit under par. (b) 2. to allow a party to provide the required information.
972.11 History History: Sup. Ct. Order, 59 W (2d) R1, R7 (1973); Sup. Ct. Order, 67 W (2d) 585, 784 (1975); 1975 c. 184, 422; 1979 c. 89; 1981 c. 147 ss. 1, 2; 1983 a. 165, 449; 1985 a. 275; 1987 a. 332 s. 64; 1993 a. 16, 97, 227, 359; 1995 a. 456.
972.11 Annotation Testimony of an officer that a piece of cloth found at the burglary scene where forcible entry was effected was similar to a coat worn by one of the defendants at the time of his apprehension was admissible and not objectionable because the coat and piece of material were not produced. York v. State, 45 W (2d) 550, 173 NW (2d) 693.
972.11 Annotation Contradictory testimony of different witnesses for the state does not necessarily cancel the testimony and render it unfit as a basis for conviction, for determination of credibility and the weight to be accorded conflicting testimony is properly a function of the jury in the exercise of which the jury may accept or reject the inconsistent testimony even under the beyond-a-reasonable-doubt burden of proof. Embry v. State, 46 W (2d) 151, 174 NW (2d) 521.
972.11 Annotation An offer of proof must be made as a necessary condition precedent to review by the supreme court of any alleged error in the exclusion of evidence (because without such an offer there is no way to determine whether the exclusion was prejudicial). State v. Moffett, 46 W (2d) 164, 174 NW (2d) 263.
972.11 Annotation Defendant's conviction could not be impugned because the trial court permitted the state in rebuttal to adduce testimony of witnesses as to prior threats of the defendant to shoot the victims, injuries inflicted upon the daughter as disclosed in medical records, and the number of shots fired; such testimony clearly rebutting defendant's disclaimer of intent and version of the incident, i.e., the accidental discharge of the weapon. State v. Watson, 46 W (2d) 492, 175 NW (2d) 244.
972.11 Annotation A question is not leading if it merely suggests a subject rather than a specific answer which may not be a true one. Evidence is relevant if it tends to prove a material fact by connection with other facts. Hicks v. State, 47 W (2d) 38, 176 NW (2d) 386.
972.11 Annotation Challenge to the admissibility of items taken from defendant's motel room, on the ground that the chain of custody was not properly established because a police department laboratory chemist who examined the same was not present to testify, could not be sustained under uncontroverted proof that the condition of the exhibits had not been altered by the chemist's examination, there was no unexplained or missing link as to who had had custody, and they were in substantially the same condition at the time of the chemist's examination as when taken from defendant's room. State v. McCarty, 47 W (2d) 781, 177 NW (2d) 819.
972.11 Annotation In a criminal trial it is not error to admit into evidence 2 guns carried by one coconspirator even though that man was convicted of an offense not involving the guns and defendant was not connected with the guns. State v. Hancock, 48 W (2d) 687, 180 NW (2d) 517.
972.11 Annotation In a prosecution of codefendants for armed robbery of a narcotic addict, where the victim admitted injecting heroin into his arm about 72 hours before he testified, the trial court properly denied defendants' request that the witness display his arm in the presence of the jury in an attempt to prove that the injection was more recent, and correctly ruled that the jury was unqualified to so determine but that the discovery sought might be required outside the presence of the jury before an expert competent to pass judgment upon the freshness of the needle marks made by the injection. Edwards v. State, 49 W (2d) 105, 181 NW (2d) 383.
972.11 Annotation A detective's opinion of a drug addict's reputation for truth and veracity did not qualify to prove such reputation in the community because it was based on 12 varying opinions of persons who knew the addict, from which a community reputation could not be ascertained. Edwards v. State, 49 W (2d) 105, 181 NW (2d) 383.
972.11 Annotation While witnesses may be questioned regarding their mental or physical condition where such matters have bearing on their credibility, evidence that a witness was subject to epilepsy does not warrant disregarding his testimony in the absence of showing what effect the epilepsy had on his memory. Sturdevant v. State, 49 W (2d) 142, 181 NW (2d) 523.
972.11 Annotation Evidence of defendant's expenditure of money shortly after a burglary is properly admitted. State v. Heidelbach, 49 W (2d) 350, 182 NW (2d) 497.
972.11 Annotation It is not error to give an instruction as to prior convictions as affecting credibility where the prior case was a misdemeanor. McKissick v. State, 49 W (2d) 537, 182 NW (2d) 282.
972.11 Annotation An exception to the res gestae rule will admit statements by a child victim of a sexual assault to a parent 2 days later. Bertrang v. State, 50 W (2d) 702, 184 NW (2d) 867.
972.11 Annotation Challenge to the admissibility of boots on the ground that the victim did not properly identify the same was devoid of merit, where it was stipulated that the child said they "could be" the ones she saw, for her lack of certitude did not preclude admissibility, but went to the weight the jury should give to her testimony. Howland v. State, 51 W (2d) 162, 186 NW (2d) 319.
972.11 Annotation The state need not introduce evidence of a confession until after defendant testifies and gives contradictory testimony. Ameen v. State, 51 W (2d) 175, 186 NW (2d) 206.
972.11 Annotation Testimony of an accomplice who waived her privilege is admissible even though she had not been tried or granted immunity. State v. Wells, 51 W (2d) 477, 187 NW (2d) 328.
972.11 Annotation Where counsel fails to state the purpose of a question to which objection is sustained on grounds of immateriality, the court may exclude the evidence. State v. Becker, 51 W (2d) 659, 188 NW (2d) 449.
972.11 Annotation Where the evidence was in conflict as to whether a substance found in defendant's possession was heroin, the judge cannot take judicial notice of other sources without proper notice to the parties. State v. Barnes, 52 W (2d) 82, 187 NW (2d) 845.
972.11 Annotation The rule that the asking of an improper question which is not answered is not ground for reversal is especially true when the trial court instructs the jury to disregard such questions and to draw no inferences from them, for an instruction is presumed to efface any possible prejudice which may have resulted from the asking of the question. Taylor v. State, 52 W (2d) 453, 190 NW (2d) 208.
972.11 Annotation A witness for the defense could be impeached by prior inconsistent statements to the district attorney even though made in the course of plea bargaining as to a related offense. Taylor v. State, 52 W (2d) 453, 190 NW (2d) 208.
972.11 Annotation The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper allegedly because he expressed his opinion as to defendant's guilt, where it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee, 52 W (2d) 736, 190 NW (2d) 893.
972.11 Annotation It is error for a trial court to restrict cross-examination of an accomplice who was granted immunity, but the conviction will not be reversed if the error was harmless. State v. Schenk, 53 W (2d) 327, 193 NW (2d) 26.
972.11 Annotation Generally, a witness may not be impeached on collateral matters, and what constitutes a collateral matter depends on the issues of the particular case and the substance, rather than the form, of the questions asked on direct examination. Miller v. State, 53 W (2d) 358, 192 NW (2d) 921.
972.11 Annotation A defendant who testifies in his own behalf may be recalled for the purpose of laying a foundation for impeachment. Evidence that on a prior occasion defendant did not wear glasses and that he had a gun similar to that described by the complainant was admissible where it contradicted testimony of the defendant. Parham v. State, 53 W (2d) 458, 192 NW (2d) 838.
972.11 Annotation Where the prosecutor stated in his opening remarks that defendant refused to be fingerprinted but forgot to introduce testimony to this effect, the error is cured by proper instructions. State v. Tew, 54 W (2d) 361, 195 NW (2d) 615.
972.11 Annotation A deliberate failure to object to prejudicial evidence at trial constitutes a binding waiver. Murray v. State, 83 W (2d) 621, 266 NW (2d) 288 (1978).
972.11 Annotation Guidelines set for admission of testimony of hypnotized witness. State v. Armstrong, 110 W (2d) 555, 329 NW (2d) 386 (1983).
972.11 Annotation Act of writing about sexual desires or activities was not itself prior "sexual conduct". Victim's notes expressing sexual desires and fantasies were, therefore, admissible. State v. Vonesh, 135 W (2d) 477, 401 NW (2d) 170 (Ct. App. 1986).
972.11 Annotation Erroneously admitted and false testimony of victim that she was virgin at time of disputed assault so pervasively affected trial that issue of consent wasn't fully tried. State v. Penigar, 139 W (2d) 569, 408 NW (2d) 28 (1987).
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