904.04(2)(b)1.1. In a criminal proceeding alleging a violation of s.
940.302 (2) or of ch.
948, alleging the commission of a serious sex offense, as defined in s.
939.615 (1) (b), or of domestic abuse, as defined in s.
968.075 (1) (a), or alleging an offense that, following a conviction, is subject to the surcharge in s.
973.055, evidence of any similar acts by the accused is admissible, and is admissible without regard to whether the victim of the crime that is the subject of the proceeding is the same as the victim of the similar act.
904.04(2)(b)2.
2. 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;
2013 a. 362 ss.
20 to
22,
38.
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 three 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 fourth 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 sub. (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 two 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 the defendant's 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 four and six 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 a 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 482,
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
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 is 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 three-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 three-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 is admissible: 1) if it is offered for a permissible purpose pursuant to sub. (2) (a); 2) if it is relevant under the two relevancy requirements of s. 904.01; and 3) if its probative value is not substantially outweighed by the risk or danger of unfair prejudice under s. 904.03. 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. 1999),
97-3404.
904.04 Annotation
When a defendant seeks to introduce other-acts evidence of a crime committed by an unknown third person, a court should engage in the
Sullivan,
216 Wis. 2d 768 (1998), three-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 three-step analytical framework articulated in
Sullivan,
216 Wis. 2d 768 (1998). State v. Davidson,
2000 WI 91,
236 Wis. 2d 537,
613 N.W.2d 606,
98-0130. See also State v. Marinez,
2011 WI 12,
331 Wis. 2d 568,
797 N.W.2d 399,
09-0567.
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
A trial court ruling that other-acts evidence is admissible does not force a defendant to enter into a
Wallerman,
203 Wis. 2d 158 (1996), 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 the defendant 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,
203 Wis. 2d 158 (1996), 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,
648 N.W.2d 447,
98-2387.
904.04 Annotation
A circuit court does not commit reversible error if it fails to provide a detailed
Sullivan,
216 Wis. 2d 768 (1998), 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 third person under
Scheidell,
227 Wis. 2d 285 (1999). 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,
108 Wis. 2d 723 (1982), 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,
2004 WI 38, 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 U.S. and Wisconsin Constitutions. State v. Kaminski,
2009 WI App 175,
322 Wis. 2d 653,
777 N.W.2d 654,
08-2439.
904.04 Annotation
When determining relevance of other acts evidence the trial court is to consider: 1) whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action; and 2) whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence. This is a common sense determination based less on legal precedent than life experiences. Dalka v. Wisconsin Central, Ltd.,
2012 WI App 22,
339 Wis. 2d 361,
811 N.W.2d 834,
11-0398.
904.04 Annotation
Proffered evidence of other acts of a third party must do more than simply afford a possible ground of suspicion against another person; it must connect that person to the crime—either directly or inferentially. The identity exception to other-acts evidence under sub. (2) requires that similarities exist between the other act and the offense for which the defendant is being tried. The threshold measure for similarity in the admission of other-acts evidence with regard to identity is nearness of time, place, and circumstance of the other act to the crime alleged. State v. Vollbrecht,
2012 WI App 90,
344 Wis. 2d 69,
820 N.W.2d 443,
11-0425.
904.04 Annotation
While the defendant put the defendant's character and credibility at issue by testifying and thus invited rebuttal testimony from the state, testimony that the defendant always stuttered when he lied went too far. The witness presented herself as a human lie detector. The jury is the lie detector in the courtroom. No witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth. State v. Echols,
2013 WI App 58,
348 Wis. 2d 81,
831 N.W.2d 768,
12-0422.
904.04 Annotation
The measure of probative value in assessing relevance is the similarity between the charged offense and the other act. Similarity is demonstrated by showing the nearness of time, place, and circumstance between the other act and the charged crime. It is within a circuit court's discretion to determine whether other-acts evidence is too remote. However, events that are dissimilar or that do not occur near in time may still be relevant to one another. There is no precise point at which a prior act is considered too remote, and remoteness must be considered on a case-by-case basis. State v. Hurley,
2015 WI 35,
361 Wis. 2d 529,
861 N.W.2d 174,
13-0558.
904.04 Annotation
For the types of cases enumerated under sub. (2) (b) 1., circuit courts should admit evidence of other acts with greater latitude under a
Sullivan,
216 Wis. 2d 768 (1998), analysis to facilitate its use for a permissible purpose. State v. Dorsey,
2018 WI 10,
379 Wis. 2d 386,
906 N.W.2d 158,
15-0648.
904.04 Annotation
Sub. (2) (b) 2. is constitutional. The test for whether admitting other acts evidence to prove conduct violates due process is whether the introduction of the evidence is so extremely unfair that its admission violates fundamental concepts of justice. Given Wisconsin's history of greater latitude in admitting other acts evidence in sexual assault cases, and the restrictions imposed by sub. (2) (b) 2., admitting other acts evidence under this section does not violate fundamental concepts of justice. State v. Gee,
2019 WI App 31,
388 Wis. 2d 68,
931 N.W.2d 287,
18-1069.
904.04 Annotation
In this case, the other acts evidence of sexual assault was offered for the admissible purpose of proving that the defendant's motive was to intentionally touch the victim for the purpose of sexual arousal or gratification. Context and background, while not expressly listed in sub. (2) (a), can also be acceptable purposes. State v. Gutierrez,
2020 WI 52,
391 Wis. 2d 799,
943 N.W.2d 870,
17-2364.
904.04 Annotation
Outside of certain constitutional commands, a circuit court's day-to-day decisions applying the rules of evidence will only rarely contain a constitutional dimension. Evidentiary questions of the type raised in this case—whether evidence is relevant or prejudicial under an other-acts inquiry—are therefore almost always properly reviewed for an erroneous exercise of discretion. State v. Johnson,
2021 WI 61,
397 Wis. 2d 633,
961 N.W.2d 18,
18-2318.
904.04 Annotation
Whether evidence about the defendant's “sex drive" was considered to be character evidence generally or evidence of other crimes, wrongs, or acts, the prosecutor should not have been allowed to present evidence that the defendant was a sexual person. The “sex drive" evidence was not relevant for any permissible purpose. The only conceivable purpose of introducing it was to ask the jury to make a strained inference that, because the defendant was allegedly a very sexual person who sought sex from his girlfriend on a daily basis, the defendant was the type of person who would sexually assault a child. This is the propensity inference that is forbidden by subs. (1) and (2) alike. State v. Stroik,
2022 WI App 11,
401 Wis. 2d 150,
972 N.W.2d 640,
21-0447.
904.04 Annotation
It is proper to exclude evidence offered under
McMorris,
58 Wis. 2d 144 (1973), when it is too remote, or if the application of the s. 904.03 balancing test shows the evidence should be excluded. Excluding
McMorris evidence that is irrelevant does not violate a defendant's right to present a defense. State v. Ochoa,
2022 WI App 35,
404 Wis. 2d 261,
978 N.W.2d 501,
20-1981.
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. McCaughtry,
238 F.3d 908 (2001).
904.04 Annotation
Help Me Doc! Theories of Admissibility of Other Act 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
In order for specific acts of violence to be admissible, character or a trait of character of a person must be an essential element of a charge, claim, or defense. In a homicide case in which a claim of self-defense is raised, character evidence may be admissible as evidence of a defendant's state of mind so long as the defendant had knowledge of the prior acts at the time of the offense. State v. Jackson,
2014 WI 4,
352 Wis. 2d 249,
841 N.W.2d 791,
11-2698.
904.05 Annotation
Evidence—Self-Defense—Prior Acts of the Victim. Paulson. 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,
2000 WI 91, 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 680 (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
Although this section precludes admission of evidence of measures taken after an event if the evidence is used to prove negligence or culpable conduct, evidence of post-event remedial measures may be introduced in a case in which there are allegations of both negligence and strict liability. When a plaintiff asserts both strict liability and negligence and the evidence is not admissible under this section on the negligence theory but is admissible to prove strict liability, the defendant can request that the circuit court give an instruction limiting the evidence to the allegations of strict liability. D.L. v. Huebner,
110 Wis. 2d 581,
329 N.W.2d 890 (1983).
904.07 Annotation
Evidence of subsequent remedial measures can be admitted under the impeachment exception when the evidence is presented to impeach specific witness testimony. Vanderventer v. Hyundai Motor America,
2022 WI App 56,
405 Wis. 2d 481,
983 N.W.2d 1,
20-1052.
904.08
904.08
Compromise and offers to compromise. Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This section does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, proving accord and satisfaction, novation or release, or proving an effort to compromise or obstruct a criminal investigation or prosecution.
904.08 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R90 (1973);
1987 a. 355; Sup. Ct. Order No.
93-03, 179 Wis. 2d xv (1993);
1993 a. 490.
904.08 Annotation
While this section does not exclude evidence of compromise settlements to prove bias or prejudice of witnesses, it does exclude evidence of details such as the amount of the settlement. Johnson v. Heintz,
73 Wis. 2d 286,
243 N.W.2d 815 (1976).
904.08 Annotation
The plaintiff's letter suggesting a compromise between codefendants was not admissible to prove the liability of a defendant. Production Credit Ass'n of Green Bay v. Rosner,
78 Wis. 2d 543,
255 N.W.2d 79 (1977).
904.08 Annotation
When a letter from a bank to the defendant was an unconditional demand for possession of collateral and payment under a lease and was prepared without prior negotiations, compromise, or agreement, the letter was not barred by this section. Heritage Bank of Milwaukee v. Packerland Packing Co.,
82 Wis. 2d 225,
262 N.W.2d 109 (1978).
