906.06 Annotation
Generally, the sole area jurors are competent to testify to is whether extraneous information was considered. Except when juror bias goes to a fundamental issue such as religion, evidence of juror perceptions is not competent, no matter how mistaken, and cannot form the basis for granting a new trial. Anderson v. Burnett County,
207 Wis. 2d 587,
558 N.W.2d 636 (Ct. App. 1996),
96-0954.
906.06 Annotation
The trial court, and not the defendant or the defendant's attorney, is permitted to question a juror directly at a hearing regarding juror bias. The trial court's discretion in submitting questions suggested by the defendant is limited, but the failure to submit questions is subject to harmless error evaluation. State v. Delgado,
215 Wis. 2d 16,
572 N.W.2d 479 (Ct. App. 1997),
96-2194.
906.06 Annotation
It was reasonable to refuse to allow a former member of the jury from testifying as a witness in the same case. Broadhead v. State Farm Mutual Insurance Co.
217 Wis. 2d 231,
579 N.W.2d 761 (Ct. App. 1998),
97-0904.
906.06 Annotation
For a juror to be competent to testify regarding extraneous information brought to the jury within the sub. (2) exception, the information must be potentially prejudicial, which it may be if it conceivably relates to a central issue of the trial. After determining whether testimony is competent under sub. (2), the court must find clear, satisfactory, and convincing evidence that the juror heard or made the comments alleged, and if it does, must then decide whether prejudicial error requiring reversal exists. State v. Broomfield,
223 Wis. 2d 465,
589 N.W.2d 225 (1999),
97-0520.
906.06 Annotation
There is no bright line rule regarding the time lag between the return of a verdict and when evidence of a clerical error in a verdict must be obtained or be rendered insufficiently trustworthy. Grice Engineering, Inc. v. Szyjewski, 2002 WI App 104,
254 Wis. 2d 743,
648 N.W.2d 487,
01-0073.
906.06 Annotation
Proof beyond a reasonable doubt to impeach a civil jury trial may be supplied by showing that five-sixths of the jurors agree that the reported verdict is in error and agree on the corrected verdict, provided each of these jurors was a part of the original group in favor of the verdict. This approach meets the "all of the jurors" requirement in Williquette. Grice Engineering, Inc. v. Szyjewski, 2002 WI App 104,
254 Wis. 2d 743,
648 N.W.2d 487,
01-0073.
906.06 Annotation
When a motion for a new trial is based on prejudicial extraneous information, the circuit court may grant an evidentiary hearing upon an affidavit that shows juror statements that are competent testimony and, if believed, are clear and convincing evidence of extraneous information that is potentially prejudicial. The hearing may be used to evaluate the credibility of the initial statements and to obtain additional competent testimony bearing on prejudice, such as the specific nature of the extraneous evidence and the circumstances under which it came to the jury's attention. Juror testimony on the effect of extraneous information is not competent. Manke v. Physicians Insurance Company, 2006 WI App 50,
289 Wis. 2d 750,
712 N.W.2d 40,
05-1103.
906.06 Annotation
A specific dictionary definition of a word, even a common word, is not the type of general knowledge or accumulated life experiences that jurors are expected to possess. The dictionary definition of a word brought to the jury room and read aloud by a juror, was extraneous information. There is no presumption that a hypothetical average juror would follow a jury instruction rather than a dictionary definition brought in by a juror. Instead, a court should base its prejudice analysis on a comparison of the jury instruction with the dictionary definition and on other relevant circumstances. Manke v. Physicians Insurance Company, 2006 WI App 50,
289 Wis. 2d 750,
712 N.W.2d 40,
05-1103.
906.07
906.07
Who may impeach. The credibility of a witness may be attacked by any party, including the party calling the witness.
906.07 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R169 (1973);
1991 a. 32.
906.08
906.08
Evidence of character and conduct of witness. 906.08(1)(1)
Opinion and reputation evidence of character. Except as provided in
s. 972.11 (2), the credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to the following limitations:
906.08(1)(a)
(a) The evidence may refer only to character for truthfulness or untruthfulness.
906.08(1)(b)
(b) Except with respect to an accused who testifies in his or her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
906.08(2)
(2) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than a conviction of a crime or an adjudication of delinquency as provided in
s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to
s. 972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.
906.08(3)
(3) Testimony by accused or other witnesses. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the privilege against self-incrimination when examined with respect to matters which relate only to credibility.
906.08 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R171 (1973);
1975 c. 184,
421;
1991 a. 32;
1995 a. 77,
225.
906.08 Annotation
The trial court committed plain error by admitting extrinsic impeaching testimony on a collateral issue. McClelland v. State,
84 Wis. 2d 145,
267 N.W.2d 843 (1978).
906.08 Annotation
When credibility of a witness was a critical issue, exclusion of evidence offered under sub. (1) was grounds for discretionary reversal. State v. Cuyler,
110 Wis. 2d 133,
327 N.W.2d 662 (1983).
906.08 Annotation
Impeachment of an accused by extrinsic evidence on a collateral matter was harmless error. State v. Sonnenberg,
117 Wis. 2d 159,
344 N.W.2d 95 (1984).
906.08 Annotation
Absent an attack on credibility, a complainant's testimony that she had not initiated a civil action for damages was inadmissible when used to bolster credibility. State v. Johnson,
149 Wis. 2d 418,
439 N.W.2d 122 (1989), confirmed,
153 Wis. 2d 121,
449 N.W.2d 845 (1990).
906.08 Annotation
Allegations of professional misconduct against the prosecution's psychiatric expert initially referred to the prosecutor's office but immediately transferred to a special prosecutor for investigation and possible criminal proceedings were properly excluded as a subject of cross-examination of the expert due to a lack of logical connection between the expert and the prosecutor necessary to suggest bias. State v. Lindh,
161 Wis. 2d 324,
468 N.W.2d 168 (1991).
906.08 Annotation
Whether a witness's credibility has been sufficiently attacked to constitute an attack on the witness's character for truthfulness permitting rehabilitating character testimony is a discretionary decision. State v. Anderson,
163 Wis. 2d 342,
471 N.W.2d 279 (Ct. App. 1991).
906.08 Annotation
Evidence that an expert in a medical malpractice action was named as a defendant in a separate malpractice action was inadmissible for impeachment purposes under this section because it did not cast light on the expert's character for truthfulness. Nowatske v. Osterloh,
201 Wis. 2d 497,
549 N.W.2d 256 (Ct. App. 1996),
93-1555.
906.08 Annotation
Character evidence may be allowed under sub. (1) (b) based on attacks on the witness's character made in opening statements. Allegations of a single instance of falsehood cannot imply a character for untruthfulness. The attack on the witness must be an assertion that the witness is a liar generally. State v. Eugenio,
219 Wis. 2d 391,
579 N.W.2d 642 (1998),
96-1394.
906.08 Annotation
It was appropriate for an expert to testify to the nature of witnesses' cognitive disabilities and how those mental impairments affected the witnesses' ability to testify or recall particular facts, but the expert's testimony that the witnesses were incapable of lying violated the rule that a witness is not permitted to express an opinion on whether another physically and mentally competent witness is telling the truth. State v. Tutlewski,
231 Wis. 2d 379,
605 N.W.2d 561 (1999),
98-2551.
906.08 Annotation
Evidence that a witness belongs to an organization, such as a street gang, is admissible to impeach the witness's testimony by showing bias. State v. Long, 2002 WI App 114,
255 Wis. 2d 729,
647 N.W.2d 884,
01-1147.
906.08 Annotation
Asking a defendant whether his or her accusers, a citizen witness, or an investigating police officer are telling the truth has no tendency to usurp the jury's function in assessing credibility; indeed, if anything, it would help the jury evaluate each witness's demeanor. State v. Bolden, 2003 WI App 155,
265 Wis. 2d 853,
667 N.W.2d 364,
02-2974.
906.08 Annotation
The opinion of an expert witness about whether another competent witness is telling the truth serves no useful purpose, and may be detrimental to the process because the jury does not need any expert assistance in assessing credibility. When a prosecutor's cross-examination of a defendant's eyewitness account was to impeach the defendant's credibility by asking whether another eyewitness account was untruthful and not to bolster the credibility of the other witness, because both and the other witness were testifying to their personal observations about the same events, the cross-examination of the defendant was permissible. State v. Johnson, 2004 WI 94,
273 Wis. 2d 626;
681 N.W.2d 901,
02-2793.
906.09
906.09
Impeachment by evidence of conviction of crime or adjudication of delinquency. 906.09(1)
(1)
General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. The party cross-examining the witness is not concluded by the witness's answer.
906.09(2)
(2) Exclusion. Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
906.09(3)
(3) Admissibility of conviction or adjudication. No question inquiring with respect to a conviction of a crime or an adjudication of delinquency, nor introduction of evidence with respect thereto, shall be permitted until the judge determines pursuant to
s. 901.04 whether the evidence should be excluded.
906.09(5)
(5) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction or a delinquency adjudication inadmissible. Evidence of the pendency of an appeal is admissible.
906.09 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R176 (1973);
1991 a. 32;
1995 a. 77.
906.09 Annotation
This section applies to both civil and criminal actions. When a plaintiff was asked by his own attorney whether he had ever been convicted of a crime, he could be asked on cross-examination as to the number of times. Underwood v. Strasser,
48 Wis. 2d 568,
180 N.W.2d 631 (1970).
906.09 Annotation
It was not error to give an instruction as to prior convictions effect on credibility when the prior case was a misdemeanor. McKissick v. State,
49 Wis. 2d 537,
182 N.W.2d 282 (1971).
906.09 Annotation
When a defendant's answers on direct examination with respect to the number of his prior convictions were inaccurate or incomplete, the correct and complete facts could be brought out on cross-examination, during which it was permissible to mention the crime by name in order to insure that the witness understood the particular conviction being referred to. Nicholas v. State,
49 Wis. 2d 683,
183 N.W.2d 11 (1971).
906.09 Annotation
Proffered evidence that a witness had been convicted of drinking offenses 18 times in the last 19 years could be rejected as immaterial if the evidence did not affect his credibility. Barren v. State,
55 Wis. 2d 460,
198 N.W.2d 345 (1972).
906.09 Annotation
When the defendant in a rape case denied the incident in an earlier rape case tried in juvenile court, impeachment evidence of a police officer that the defendant had admitted the incident at the time was not barred by sub. (4). Sanford v. State,
76 Wis. 2d 72,
250 N.W.2d 348 (1977).
906.09 Annotation
When a witness truthfully acknowledges a prior conviction, inquiry into the nature of the conviction may not be made. Voith v. Buser,
83 Wis. 2d 540,
266 N.W.2d 304 (1978).
906.09 Annotation
A defendant's 2 prior convictions for burglary were admissible to prove intent to use gloves, a long pocket knife, a crowbar, and a pillow case as burglarious tools. Vanlue v. State,
96 Wis. 2d 81,
291 N.W.2d 467 (1980).
906.09 Annotation
Cross-examination on prior convictions without the trial court's threshold determination under sub. (3) was prejudicial. Gyrion v. Bauer,
132 Wis. 2d 434,
393 N.W.2d 107 (Ct. App. 1986).
906.09 Annotation
An accepted guilty plea constitutes a "conviction" for purposes of impeachment under sub. (1). State v. Trudeau,
157 Wis. 2d 51,
458 N.W.2d 383 (Ct. App. 1990).
906.09 Annotation
An expunged conviction is not admissible to attack witness credibility. State v. Anderson,
160 Wis. 2d 435,
466 N.W.2d 681 (Ct. App. 1991).
906.09 Annotation
Whether to admit evidence of prior convictions for impeachment purposes requires consideration of: 1) the lapse of time since the conviction; 2) the rehabilitation of the person convicted; 3) the gravity of the crime; and 4) the involvement of dishonesty in the crime. If allowed, the existence and number of convictions may be admitted, but the nature of the convictions may not be discussed. State v. Smith,
203 Wis. 2d 288,
553 N.W.2d 824 (Ct. App. 1996),
94-3350.
906.09 Annotation
Evidence that exposed a witness's prior life sentences and that he could suffer no penal consequences from confessing to the crime in question was properly admitted. State v. Scott, 2000 WI App 51,
234 Wis. 2d 129,
608 N.W.2d 753,
98-3105.
906.09 Annotation
Even if the circuit court did not expressly state on the record that it considered the possible danger of unfair prejudice, the fact that the court gave a limiting instruction can reveal that the trial court considered the possibly prejudicial nature of evidence and was seeking to ensure that it was properly utilized by the jury in reaching its verdict. State v. Gary M. B. 2004 WI 33,
270 Wis. 2d 62,
676 N.W.2d 475,
01-3393.
906.10
906.10
Religious beliefs or opinions. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced.
906.10 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R184 (1973);
1991 a. 32.
906.11
906.11
Mode and order of interrogation and presentation. 906.11(1)(1)
Control by judge. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following:
906.11(1)(a)
(a) Make the interrogation and presentation effective for the ascertainment of the truth.
906.11(1)(c)
(c) Protect witnesses from harassment or undue embarrassment.
906.11(2)
(2) Scope of cross-examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.
906.11(3)
(3) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily leading questions should be permitted on cross-examination. In civil cases, a party is entitled to call an adverse party or witness identified with the adverse party and interrogate by leading questions.
906.11 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R185 (1973);
1991 a. 32;
1999 a. 85.
906.11 Annotation
A question is not leading if it merely suggests a subject rather than a specific answer that may not be true. Hicks v. State,
47 Wis. 2d 38,
176 N.W.2d 386 (1970).
906.11 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 Wis. 2d 327,
193 N.W.2d 26 (1972).
906.11 Annotation
A defendant who testifies in his own behalf may be recalled for further cross-examination to lay a foundation for impeachment. Evidence that on a prior occasion the defendant did not wear glasses and that he had a gun similar to that described by the complainant was admissible when it contradicted the defendant's earlier testimony. Parham v. State,
53 Wis. 2d 458,
192 N.W.2d 838 (1972).
906.11 Annotation
A trial judge should not have stricken the entire testimony of a defense witness for refusal to answer questions bearing on his credibility that had little to do with the guilt or innocence of the defendant. State v. Monsoor,
56 Wis. 2d 689,
203 N.W.2d 20 (1973).
906.11 Annotation
A trial judge's admonitions to an expert witness did not give the appearance of judicial partisanship requiring a new trial. Peeples v. Sargent,
77 Wis. 2d 612,
253 N.W.2d 459 (1977).
906.11 Annotation
The extent of, manner, and right of multiple cross-examinations 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 (1977).
906.11 Annotation
A defendant has no right to be actively represented in court both personally and by counsel. Moore v. State,
83 Wis. 2d 285,
265 N.W.2d 540 (1978).
906.11 Annotation
Leading questions were properly used to refresh a witness's memory. Jordan v. State,
93 Wis. 2d 449,
287 N.W.2d 509 (1980).
906.11 Annotation
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 (1980).
906.11 Annotation
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),
96-2142.
906.11 Annotation
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 (1998),
96-1394.
906.11 Annotation
There was no misuse of discretion in allowing a 3-year old child witness to sit on her grandmother's lap while testifying regarding an alleged sexual assault. The trial court has the power to alter courtroom procedures in order to protect the emotional well-being of a child witness and is not required to determine that a child is unable to testify unless accommodations are provided. State v. Shanks, 2002 WI App 93,
253 Wis. 2d 600,
644 N.W.2d 275,
01-1372.
906.11 Annotation
While sub. (1) provides the circuit court with broad discretion to control the presentation of evidence at trial, that discretion is not unfettered and must give way when the exercise of discretion runs afoul of other statutory provisions that are not discretionary. State v. Smith, 2002 WI App 118,
254 Wis. 2d 654,
648 N.W.2d 15,
01-1662.
906.11 Annotation
Whether the trial court erroneously exercised its discretion under sub. (1) (a) to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth must be determined based upon the particular facts and circumstances of each individual case. The discovery provisions of s. 971.23 do not trump the trial court's ability to exercise its discretion to grant a continuance order. State v. Wright, 2003 WI App 252,
268 Wis. 2d 694,
673 N.W.2d 386,
03-0238.
906.12
906.12
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.
906.12 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R193 (1973);
1991 a. 32.
906.13
906.13
Prior statements of witnesses. 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.
