904.03 Annotation
The right of confrontation is limited by s. 904.03 if the probative value of the desired cross-examination is outweighed by the possibility of unfair or undue prejudice. Chapin v. State,
78 Wis. 2d 346,
254 N.W.2d 286 (1977).
904.03 Annotation
The trial court abused its discretion by excluding an official blood alcohol chart offered in evidence by an accused driver. State v. Hinz,
121 Wis. 2d 282,
360 N.W.2d 56 (Ct. App. 1984).
904.03 Annotation
When evidence of a sexual assault was the only evidence of an element of a charged kidnapping offense, withholding the evidence on the basis of unfair prejudice unfairly precluded the state from obtaining a conviction. State v. Grande,
169 Wis. 2d 422,
485 N.W.2d 282 (Ct. App. 1992).
904.03 Annotation
A defendant's intoxication, for purposes of motor vehicle statutes, did not per se demonstrate that the defendant's statements were untrustworthy. State v. Beaver,
181 Wis. 2d 959,
512 N.W.2d 254 (Ct. App. 1994).
904.03 Annotation
The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall,
202 Wis. 2d 29,
549 N.W.2d 418 (1996),
94-1213.
904.03 Annotation
While prior convictions are an element of drunk driving, s. 346.63 (1) (b), admitting evidence of that element may not be proper. Admitting any evidence of prior convictions and submitting the element of the defendant's status as a prior offender to the jury when the defendant admitted to the element was an erroneous exercise of discretion. State v. Alexander, 214 Wis.2d 628,
571 N.W.2d 662 (1997),
96-1973.
904.03 Annotation
The state, like the court, operates with the priority of searching for truth and justice. Our system depends upon all witnesses being forthright and truthful and taking seriously the oath to tell the truth when testifying in a legal proceeding. Evidence that challenges the credibility of a state's witness promotes that goal and cannot be summarily dismissed as overly prejudicial. When the jury hears all of the witnesses who can provide relevant information on the issues, it can make a fair assessment as to who is being truthful. This is of particular importance in a case that relies primarily on whether an officer or the defendant is telling the truth. It is not appropriate for the trial court to assume that the defendant was lying and the officer was telling the truth. Resolution of credibility issues and questions of fact must be determined by the factfinder. State v. Missouri, 2006 WI App 74,
291 Wis. 2d 466,
714 N.W.2d 595,
05-1486.
904.03 Annotation
While surprise is not included in this section as a basis on which to exclude otherwise relevant evidence, testimony that results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues. Roy v. St. Lukes Medical Center, 2007 WI App 218,
305 Wis. 2d 658,
741 N.W.2d 256,
06-0480.
904.03 Annotation
Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. Absent evidence that the defendant was himself a gang member, a gang expert's testimony should not have been allowed when the expert's testimony insinuated, without any basis, that the defendant was a part of the gang culture, if not actually a member of a gang. State v. Burton, 2007 WI App 237,
306 Wis. 2d 403,
743 N.W.2d 152,
06-2436.
904.03 Annotation
Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. State v. Warbelton, 2009 WI 6,
315 Wis. 2d 253,
759 N.W.2d 557,
07-0105.
904.03 Annotation
It is well established that evidence of flight has probative value as to guilt. Flight evidence is not inadmissible other acts evidence and is not inadmissible anytime a defendant points to an unrelated crime in rebuttal. Rather, when a defendant points to an unrelated crime to explain flight, the trial court must determine whether to admit the evidence by weighing the risk of unfair prejudice with its probative value. State v. Quiroz, 2009 WI App 120,
320 Wis. 2d 706,
772 N.W.2d 710,
08-1473.
904.03 Annotation
The general rule is that the prosecution is entitled to prove its case by evidence of its own choice and that a criminal defendant may not stipulate or admit his or her way out of the full evidentiary force of the case as the government chooses to present it. State v. Conner, 2009 WI App 143,
321 Wis. 2d 449,
775 N.W.2d 105,
08-1296.
904.04
904.04
Character evidence not admissible to prove conduct; exceptions; other crimes. 904.04(1)
(1)
Character evidence generally. Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
904.04(1)(a)
(a)
Character of accused. Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same;
904.04(1)(b)
(b)
Character of victim. Except as provided in
s. 972.11 (2), evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
904.04(2)(a)(a) Except as provided in
par. (b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
904.04(2)(b)
(b) In a criminal proceeding alleging a violation of
s. 940.225 (1) or
948.02 (1),
sub. (1) and
par. (a) do not prohibit admitting evidence that a person was convicted of a violation of
s. 940.225 (1) or
948.02 (1) or a comparable offense in another jurisdiction, that is similar to the alleged violation, as evidence of the person's character in order to show that the person acted in conformity therewith.
904.04 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R75 (1973);
1975 c. 184;
1991 a. 32;
2005 a. 310.
904.04 Annotation
A defendant claiming self-defense can testify as to specific past instances of violence by the victim to show a reasonable apprehension of danger. McMorris v. State,
58 Wis. 2d 144,
205 N.W.2d 559 (1973).
904.04 Annotation
Evidence of delinquency in making withholding tax payments by 3 other corporations of which the accused had been president was admissible to show willfulness of the accused in failing to make such payments as president of a 4th corporation. State v. Johnson,
74 Wis. 2d 26,
245 N.W.2d 687 (1976).
904.04 Annotation
If a prosecution witness is charged with crimes, the defendant can offer evidence of those crimes and otherwise explore on cross-examination the subjective motives for the witness's testimony. State v. Lenarchick,
74 Wis. 2d 425,
247 N.W.2d 80 (1976).
904.04 Annotation
When a defendant claims accident in shooting the deceased, the prosecution may present evidence of prior violent acts to prove intent and absence of accident. King v. State,
75 Wis. 2d 26,
248 N.W.2d 458 (1977).
904.04 Annotation
The trial court did not err in refusing to grant a mistrial when police reports concerning an unrelated pending charge against the defendant and the defendant's mental history were accidentally sent to the jury room. Johnson v. State,
75 Wis. 2d 344,
249 N.W.2d 593 (1977).
904.04 Annotation
Evidence of the defendant's prior sales of other drugs was admitted under s. 904.04 (2) as probative of the intent to deliver cocaine. Peasley v. State,
83 Wis. 2d 224,
265 N.W.2d 506 (1978).
904.04 Annotation
Evidence of the defendant's prior fighting was admissible to refute the defendant's claim of misidentification and to impeach a defense witness. State v. Stawicki,
93 Wis. 2d 63,
286 N.W.2d 612 (Ct. App. 1979).
904.04 Annotation
The defendant's 2 prior convictions for burglary were admissible to prove intent to use gloves, a long pocket knife, a crowbar, and a pillowcase as burglarious tools. Vanlue v. State,
96 Wis. 2d 81,
291 N.W.2d 467 (1980).
904.04 Annotation
Criminal acts of the defendant's co-conspirators were admissible to prove plan and motive. Haskins v. State,
97 Wis. 2d 408,
294 N.W.2d 25 (1980).
904.04 Annotation
Evidence of other crimes was admissible to show plan and identity. State v. Thomas,
98 Wis. 2d 166,
295 N.W.2d 784 (Ct. App. 1980).
904.04 Annotation
Evidence of a similar killing committed 12 hours after the 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 Wis. 2d 269,
298 N.W.2d 820 (1980).
904.04 Annotation
Evidence of the defendant's prior sexual misconduct was irrelevant when the only issue in a rape case was whether the victim consented. State v. Alsteen,
108 Wis. 2d 723,
324 N.W.2d 426 (1982).
904.04 Annotation
Other crimes evidence was admissible to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Pharr,
115 Wis. 2d 334,
340 N.W.2d 498 (1983).
904.04 Annotation
Other crimes evidence was admissible to rebut the defendant's claim that his presence in the backyard of a burglarized home was coincidental and innocent. State v. Rutchik,
116 Wis. 2d 61,
341 N.W.2d 639 (1984).
904.04 Annotation
When the accused claimed that a shooting was in self-defense, the court abused its discretion by excluding opinion evidence as to the victim's reputation for violence. State v. Boykins,
119 Wis. 2d 272,
350 N.W.2d 710 (Ct. App. 1984).
904.04 Annotation
Under the "greater latitude of proof" principle applicable to other-acts evidence in sex crimes, particularly those with children, sex acts committed against the complainant and another young girl 4 and 6 years prior to the charged assault were admissible under sub. (2) to show plan or motive. State v. Friedrich,
135 Wis. 2d 1,
398 N.W.2d 763 (1987).
904.04 Annotation
The admission under sub. (2) of a prowling ordinance violation by the defendant accused of second-degree sexual assault and robbery was harmless error. State v. Grant,
139 Wis. 2d 45,
406 N.W.2d 744 (1987).
904.04 Annotation
Evidence of the defendant's use of an alias was relevant to show the defendant's intent to cover up participation in a sexual assault. State v. Bergeron,
162 Wis. 2d 521,
470 N.W.2d 322 (Ct. App. 1991).
904.04 Annotation
When evidence of a sexual assault was the only evidence of an element of the charged kidnapping offense, withholding the evidence on the basis of unfair prejudice unfairly precluded the state from obtaining a conviction for the charged offense. State v. Grande,
169 Wis. 2d 422,
485 N.W.2d 282 (Ct. App. 1992).
904.04 Annotation
In addition to the sub. (2) exceptions, a 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 Wis. 2d 237,
496 N.W.2d 191 (Ct. App. 1992).
904.04 Annotation
There is no presumption of admissibility or exclusion for other crimes evidence. State v. Speer,
176 Wis. 2d 1101,
501 N.W.2d 429 (1993).
904.04 Annotation
Evidence of other crimes may be offered in regard to the question of intent despite the defendant's assertion that the charged act never occurred. State v. Clark,
179 Wis. 2d 484,
507 N.W.2d 172 (Ct. App. 1993).
904.04 Annotation
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 Wis. 2d 107,
528 N.W.2d 36 (Ct. App. 1995).
904.04 Annotation
Other-acts evidence in a child sexual assault case was admissible when 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 Wis. 2d 483,
529 N.W.2d 915 (Ct. App. 1995).
904.04 Annotation
To be admissible for purposes of identity, "other-acts evidence" must have a similarity to the present offense so that it can be said that the acts constitute the imprint of the defendant. State v. Rushing,
197 Wis. 2d 631,
541 N.W.2d 155 (Ct. App. 1995),
95-0663.
904.04 Annotation
Verbal statements may be admissible as other-acts evidence even when not acted upon. State v. Jeske,
197 Wis. 2d 906,
541 N.W.2d 225 (Ct. App. 1995).
904.04 Annotation
There is not a per se rule that enables the state to always submit other-acts evidence on motive and intent. The evidence is subject to general strictures against use when the defendant's concession on the element for which it is offered provides a more direct source of proof. State v. Wallerman,
203 Wis. 2d 158,
552 N.W.2d 128 (Ct. App. 1996),
95-1950.
904.04 Annotation
Evidence of a defendant's probation or parole status and conditions are admissible if the evidence demonstrates motive for or otherwise explains the defendant's criminal conduct. The status itself must provide the motive for the action. An action in direct violation of a condition may not be admitted to demonstrate an irresistible impulse to commit the particular crime. State v. Kourtidias,
206 Wis. 2d 574,
557 N.W.2d 858 (Ct. App. 1996),
95-1073.
904.04 Annotation
A 3-step analysis is applied to determine the admissibility of other-acts evidence. The proponent of the evidence bears the burden of persuading the court that the 3-step inquiry is satisfied. The proponent and opponent of the evidence must clearly articulate their reasons for seeking admission or exclusion and apply the facts to the analytical framework. State v. Sullivan,
216 Wis. 2d 768,
576 N.W.2d 30 (1998),
96-2244.
904.04 Annotation
Other-acts evidence may be admitted for purposes other than those enumerated in sub. (2). Evidence of a history of assaultive behavior was properly admitted in relation to entitlement to punitive damages that rested on proof of either the defendant's intentional disregard of the plaintiff's rights or maliciousness. Smith v. Golde,
224 Wis. 2d 518,
592 N.W.2d 287 (Ct. App. 1998),
97-3404.
904.04 Annotation
When a defendant seeks to introduce other-acts evidence of a crime committed by an unknown 3rd person, courts should engage in the Sullivan 3-step analysis. State v. Scheidell,
227 Wis. 2d 285,
595 N.W.2d 661 (1999),
97-1426.
904.04 Annotation
The exception to the general rule barring other-acts evidence is expanded in sexual assault cases, particularly those involving children. However the evidence must still meet the requirements of the 3-step analytical framework articulated in Sullivan. State v. Davidson, 2000 WI 91,
236 Wis. 2d 537,
613 N.W.2d 606,
98-0130.
904.04 Annotation
A "plan" in sub. (2) means a design or scheme to accomplish some particular purpose. Evidence showing a plan establishes a definite prior design that includes the doing of the acts charged. Similarity of facts is not enough to admit other-acts evidence. State v. Cofield, 2000 WI App 196,
238 Wis. 2d 467,
618 N.W.2d 214,
99-1387.
904.04 Annotation
Evidence of criminal acts by an accused that were intended to obstruct or avoid punishment was not evidence of "other acts" admissible under sub. (2), but was admissible to prove consciousness of guilt of the principal criminal charge. State v. Bauer, 2000 WI App 206,
238 Wis. 2d 687,
617 N.W.2d 902,
99-2589.
904.04 Annotation
For other-acts evidence to be admissible it must relate to a fact or proposition that is of consequence and have probative value. The measure of probative value in assessing relevance is the similarity between the charged offense and the other act. In a sexual assault case, the age of the victim is an important condition in determining similarity. State v. Meehan, 2001 WI App 119,
244 Wis. 2d 121,
630 N.W.2d 722,
97-3807.
904.04 Annotation
When other-acts evidence was erroneously allowed, additional testimony about that act was not harmless error. State v. Meehan, 2001 WI App 119,
244 Wis. 2d 121,
630 N.W.2d 722,
97-3807.
904.04 Annotation
A trial court ruling that other-acts evidence is admissible does not force a defendant to enter into a Wallerman stipulation. By entering into a Wallerman stipulation to prevent the admission of the other-acts evidence a defendant waives the right to appeal the other acts ruling. Generally there can be no prejudicial error from a ruling that evidence is admissible if the evidence is not actually admitted. State v. Frank, 2002 WI App 31,
250 Wis. 2d 95,
640 N.W.2d 198,
01-1252.
904.04 Annotation
A defendant may, subject to the court's discretion, introduce expert testimony to show that he or she lacks the character traits of a sexual offender and is unlikely to have committed the assault in question. If the expert will testify, either explicitly or implicitly, on facts surrounding the crime charged, the court may compel the defendant to undergo a compulsory examination conducted by an expert selected by the state. State v. Davis, 2002 WI 75,
254 Wis. 2d 1,
645 N.W.2d 913,
00-2916.
904.04 Annotation
The state and the court are not required to agree to Wallerman stipulations. A Wallerman stipulation in a child sexual assault case is directly contrary to the greater latitude rule for the admission of other-acts evidence in child sexual assault cases. The state must prove all elements of a crime, even elements the defendant does not dispute. Accordingly, evidence relevant to undisputed elements is admissible. State v. Veach, 2002 WI 110,
255 Wis. 2d 390,
645 N.W.2d 913,
98-2387.
904.04 Annotation
Sub. (2) will not be interpreted to admit all past conduct involving an element of the present crime. State v. Barreau, 2002 WI App 198, 257 Wis. 2d. 203,
651 N.W.2d 12,
01-1828.
904.04 Annotation
A circuit court does not commit reversible error if it fails to provide a detailed Sullivan analysis for admitting other-acts evidence. An appellate court is required to perform an independent review of the record for permissible bases for admitting other-acts evidence if the circuit court fails to adequately provide the Sullivan analysis, or alternatively states an impermissible basis for the admission of such evidence. State v. Hunt, 2003 WI 81,
263 Wis. 2d 1,
666 N.W.2d 771,
01-0272.
904.04 Annotation
Inability of a victim to identify the defendant as the perpetrator of a similar uncharged crime takes the jury into the realm of conjecture or speculation and is not admissible as other-acts evidence of a crime committed by an unknown 3rd-person under Scheidell. When there is a series of similar crimes, the fact that the state is unable to prove that the defendant committed all of the crimes does not tend to establish that the defendant did not commit any of the crimes. State v. Wright, 2003 WI App 252,
268 Wis. 2d 694,
673 N.W.2d 386,
03-0238.
904.04 Annotation
Alsteen does not stand for the proposition that other-acts evidence can never be probative of the issue of consent or that the other-acts evidence is not probative of the issue of the victim's credibility. When other-acts evidence of non-consent relates not only to sexual contact but also to a defendant's modus operandi encompassing conduct inextricably connected to strikingly similar alleged criminal conduct, the evidence of non-consent may be admissible to establish motive, intent, preparation, plan, and absence of mistake or accident. State v. Ziebart, 2003 WI App 258,
268 Wis. 2d 468,
673 N.W.2d 369,
03-0795.
904.04 Annotation
During a commitment proceeding under ch. 980, sub. (2) does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future. State v. Franklin, 2004 WI 38,
270 Wis. 2d 271,
677 N.W.2d 276,
00-2426.
904.04 Annotation
It is well established that evidence of flight has probative value as to guilt. Flight evidence is not inadmissible other acts evidence and is not inadmissible anytime a defendant points to an unrelated crime in rebuttal. Rather, when a defendant points to an unrelated crime to explain flight, the trial court must determine whether to admit the evidence by weighing the risk of unfair prejudice with its probative value. State v. Quiroz, 2009 WI App 120,
320 Wis. 2d 706,
772 N.W.2d 710,
08-1473.
904.04 Annotation
Sub. (2) does not apply in ch. 980 commitment proceedings. The Franklin court discerned an unambiguous legislative intent to restrict the application of sub. (2) to analyzing evidence used to prove past acts. The substantial probability of future conduct is the relevant question in ch. 980 proceedings. The nature of ch. 980 hearings demands the jury consider evidence that would normally be barred in a traditional criminal trial. Although Franklin did not discuss the due process implications of its decision, the inapplicability of sub. (2) is consistent with the demands of due process under both the United States and Wisconsin constitutions. State v. Kaminski, 2009 WI App 175,
322 Wis. 2d 653,
777 N.W.2d 654,
08-2439.
904.04 Annotation
Pictures depicting violence were offered to prove the defendant's fascination with death and mutilation, and that trait is undeniably probative of motive, intent, or plan to commit a vicious murder. Dressler v. McCaughtery,
238 F.3d 908 (2001).
904.04 Annotation
Help Me Doc! Theories of Admissibility of Other Acts Evidence in Medical Malpractice Cases. Gardner. 87 MLR 981 (2004)
904.05
904.05
Methods of proving character. 904.05(1)
(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.
904.05(2)
(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.
904.05 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R80 (1973);
1991 a. 32.
904.05 Annotation
A detective's opinion of a drug addict's reputation for truth and veracity did not qualify to prove 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 Wis. 2d 105,
181 N.W.2d 383 (1970).
904.05 Annotation
When a defendant's character evidence is by expert opinion and the prosecution's attack on the basis of the opinion is answered evasively or equivocally, then the trial court may allow the prosecution to present evidence of specific incidents of conduct. King v. State,
75 Wis. 2d 26,
248 N.W.2d 458 (1977).
904.05 Annotation
Self-defense—prior acts of the victim. 1974 WLR 266.
904.06
904.06
Habit; routine practice. 904.06(1)
(1)
Admissibility. 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.
904.06(2)
(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.
904.06 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R83 (1973);
1975 c. 184.
904.06 Annotation
Although a specific instance of conduct occurs only once, the evidence may be admissible under sub. (2). French v. Sorano,
74 Wis. 2d 460,
247 N.W.2d 182 (1976).
904.06 Annotation
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 Wis. 2d 759,
535 N.W.2d 444 (Ct. App. 1995).
904.06 Annotation
The greater latitude given under Davidson for allowing other acts evidence in child sexual assault cases because of the difficulty sexually abused children experience in testifying, and the difficulty prosecutors have in obtaining admissible evidence in such cases was properly applied when the victim, although an adult, functioned at the level of an 18-month old, having an inability to recount what happened. This greater latitude is not restricted to allowing evidence of prior sexual assaults and was properly applied to allow evidence of pornography viewed by the defendant that helped to demonstrate motive. State v. Normington, 2008 WI App 8,
306 Wis. 2d 727,
744 N.W.2d 867,
07-0382.
904.07
904.07
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.
904.07 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R87 (1973).
904.07 Annotation
Evidence of subsequent remedial measures by the mass producer of a defective product is admissible in a products liability case if the underlying policy of this section not to discourage corrective steps is not applicable. Chart v. General Motors Corp.
80 Wis. 2d 91,
258 N.W.2d 681 (1977).
904.07 Annotation
Evidence of a remedial change was inadmissible when the defendant did not challenge the feasibility of the change. Krueger v. Tappan Co.
104 Wis. 2d 199,
311 N.W.2d 219 (Ct. App. 1981).
904.07 Annotation
Evidence of post-event remedial measures may be introduced under both negligence and strict liability theories. D. L. v. Huebner,
110 Wis. 2d 581,
329 N.W.2d 890 (1983).
