The extent of, manner, and right of multiple cross-examination by different counsel representing the same party can be controlled by the trial court. Hochgurtel v. San Felippo, 78 Wis. 2d 70
, 253 N.W.2d 526
A defendant has no right to be actively represented in court both by himself or herself and by counsel. Moore v. State, 83 Wis. 2d 285
, 265 N.W.2d 540
Leading questions were properly used to refresh a witness's memory. Jordan v. State, 93 Wis. 2d 449
, 287 N.W.2d 509
By testifying to his actions on the day a murder was committed, the defendant waived the self-incrimination privilege on cross-examination as to previous actions reasonably related to the direct examination. Neely v. State, 97 Wis. 2d 38
, 292 N.W.2d 859
The trial court's bifurcation of issues for trial was authorized under sub. (1). Zawistowski v. Kissinger, 160 Wis. 2d 292
, 466 N.W.2d 664
(Ct. App. 1991).
The use of leading questions in direct examination of a child is discussed. State v. Barnes, 203 Wis. 2d 132
, 552 N.W.2d 857
(Ct. App. 1996).
A chart prepared by the prosecutor during a trial, in the jury's presence, to categorize testimony was not a summary under s. 910.06 but was a "pedagogical device" admissible within the court's discretion under this section. State v. Olson, 217 Wis. 2d 730
, 579 N.W.2d 802
(Ct. App. 1998).
The rule of completeness for oral statements is encompassed within this section. A party's use of an out-of-court statement to show an inconsistency does not automatically give the opposing party the right to introduce the whole statement. Under the rule of completeness, the court has discretion to admit only those statements necessary to provide context and prevent distortion. State v. Eugenio, 219 Wis. 2d 391
, 579 N.W.2d 642
Writing used to refresh memory.
If a witness uses a writing to refresh the witness's memory for the purpose of testifying, either before or while testifying, an adverse party is entitled to have it produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the judge shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the judge in the judge's discretion determines that the interests of justice so require, declaring a mistrial.
Sup. Ct. Order, 59 Wis. 2d R1, R193 (1973); 1991 a. 32
Prior statements of witnesses. 906.13(1)
Examining witness concerning prior statement.
In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown or its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel upon the completion of that part of the examination.
(2) Extrinsic evidence of prior inconsistent statement of a witness. 906.13(2)(a)(a)
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless any of the following is applicable:
The witness was so examined while testifying as to give the witness an opportunity to explain or to deny the statement.
The witness has not been excused from giving further testimony in the action.
Sup. Ct. Order, 59 Wis. 2d R1, R197 (1973); 1991 a. 32
; 1999 a. 85
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 Wis. 2d 453
, 190 N.W.2d 208
A statement by a defendant, not admissible as part of the prosecution's case because taken without the presence of his counsel, may be used on cross-examination for impeachment if the statement is trustworthy. Wold v. State, 57 Wis. 2d 344
, 204 N.W.2d 482
A bright line test for determining whether a defendant's prior inconsistent statement is admissible for impeachment is whether it was compelled. State v. Pickett, 150 Wis. 2d 720
, 442 N.W.2d 509
(Ct. App. 1989).
This section is applicable in criminal cases. A defense investigator's reports of witness interviews are statements under sub. (1), but only must be disclosed if defense counsel has examined the witness concerning the statements made to the investigator. State v. Hereford, 195 Wis. 2d 1054
, 537 N.W.2d 62
(Ct. App. 1995).
Calling and interrogation of witnesses by judge. 906.14(1)(1)
Calling by judge.
The judge may, on the judge's own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(2) Interrogation by judge.
The judge may interrogate witnesses, whether called by the judge or by a party.
Objections to the calling of witnesses by the judge or to interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.
Sup. Ct. Order, 59 Wis. 2d R1, R200 (1973); 1991 a. 32
Exclusion of witnesses. 906.15(1)
At the request of a party, the judge or court commissioner shall order witnesses excluded so that they cannot hear the testimony of other witnesses. The judge or court commissioner may also make the order of his or her own motion.
(2) Subsection (1)
does not authorize exclusion of any of the following:
An officer or employee of a party which is not a natural person designated as its representative by its attorney.
A person whose presence is shown by a party to be essential to the presentation of the party's cause.
A victim, as defined in s. 950.02 (4)
, in a criminal case or a victim, as defined in s. 938.02 (20m)
, in a delinquency proceeding under ch. 938
, unless the judge or court commissioner finds that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. The presence of a victim during the testimony of other witnesses may not by itself be a basis for a finding that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile.
The judge or court commissioner may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended.
Sup. Ct. Order, 59 Wis. 2d R1, R202 (1973); 1991 a. 32
; 1997 a. 181