906.13(1)
(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.
906.13(2)
(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:
906.13(2)(a)1.
1. The witness was so examined while testifying as to give the witness an opportunity to explain or to deny the statement.
906.13(2)(a)2.
2. The witness has not been excused from giving further testimony in the action.
906.13 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R197 (1973);
1991 a. 32;
1999 a. 85.
906.13 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 Wis. 2d 453,
190 N.W.2d 208 (1971).
906.13 Annotation
A statement by a defendant, not admissible as part of the prosecution's case because it was taken without the presence of the defendant's 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 (1973).
906.13 Annotation
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).
906.13 Annotation
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),
94-1596.
906.13 Annotation
A prior inconsistent statement is admissible under sub. (2) without first confronting the witness with that statement. Under sub. (2) (a) 2. and 3. extrinsic evidence of prior inconsistent statements is admissible if the witness has not been excused from giving further testimony in the case or if the interest of justice otherwise requires its admission. State v. Smith,
2002 WI App 118,
254 Wis. 2d 654,
648 N.W.2d 15,
01-1662.
906.14
906.14
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.
906.14(2)
(2) Interrogation by judge. The judge may interrogate witnesses, whether called by the judge or by a party.
906.14(3)
(3) Objections. 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.
906.14 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R200 (1973);
1991 a. 32.
906.14 Annotation
A trial judge's elicitation of trial testimony is improper if the cumulative effect of the judge's questioning and direction of the course of the trial has a substantial prejudicial effect on the jury. Schultz v. State,
82 Wis. 2d 737,
264 N.W.2d 245 (1978).
906.14 Annotation
The practice of judicial interrogation is a dangerous one, but does not require that no court should be allowed to call and question a witness prior to completion of the presentation of evidence. State v. Carprue,
2004 WI 111,
274 Wis. 2d 656,
683 N.W.2d 31,
02-2781.
906.15
906.15
Exclusion of witnesses. 906.15(1)
(1) At the request of a party, the judge or a circuit court commissioner shall order witnesses excluded so that they cannot hear the testimony of other witnesses. The judge or circuit court commissioner may also make the order of his or her own motion.
906.15(2)
(2) Subsection (1) does not authorize exclusion of any of the following:
906.15(2)(b)
(b) An officer or employee of a party which is not a natural person designated as its representative by its attorney.
906.15(2)(c)
(c) A person whose presence is shown by a party to be essential to the presentation of the party's cause.
906.15(2)(d)
(d) 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 circuit 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.
906.15(3)
(3) The judge or circuit 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.
906.15 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R202 (1973);
1991 a. 32;
1997 a. 181;
2001 a. 61.
906.15 Annotation
Under sub. (3) a circuit court has the authority to prevent an attorney from sharing with a nonparty witness who has yet to testify the testimony of prior witnesses during a recess, including barring a witness from reading a transcript of that testimony. State v. Copeland,
2011 WI App 28,
332 Wis. 2d 283,
798 N.W.2d 250,
08-2713.
