EVIDENCE — WITNESSES
General rule of competency.
Lack of personal knowledge.
Oath or affirmation.
Competency of judge as witness.
Competency of juror as witness.
Evidence of character and conduct of witness.
Impeachment by evidence of conviction of crime or adjudication of delinquency.
Religious beliefs or opinions.
Mode and order of interrogation and presentation.
Writing used to refresh memory.
Prior statements of witnesses.
Calling and interrogation of witnesses by judge.
Exclusion of witnesses.
Ch. 906 Note
NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 Wis. 2d. The court did not adopt the comments but ordered them printed with the rules for information purposes.
General rule of competency.
Every person is competent to be a witness except as otherwise provided in these rules.
Sup. Ct. Order, 59 Wis. 2d R1, R157 (1973); Sup. Ct. Order No. 16-01
, 2017 WI 13, filed 2-21-17, eff. 7-1-17.
The “best evidence rule" requires production of a writing to prove its contents. There is no comparable “better evidence rule" that requires the production of an item rather than testimony about the item. York v. State, 45 Wis. 2d 550
, 173 N.W.2d 693
The trial court may not declare a witness incompetent to testify, except as provided in this section. A witness's credibility is determined by the fact finder. State v. Hanson, 149 Wis. 2d 474
, 439 N.W.2d 133
(Ct. App. 1989).
Lack of personal knowledge.
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of s. 907.03
relating to opinion testimony by expert witnesses.
Sup. Ct. Order, 59 Wis. 2d R1, R160 (1973); 1991 a. 32
The chain of custody to items taken from the defendant's motel room was properly established although a police department laboratory chemist who examined the same was not present to testify when uncontroverted proof showed that the condition of the exhibits had not been altered by the chemist's examination, there was no unexplained or missing link as to who had had custody, and the items were in substantially the same condition at the time of the chemist's examination as when taken from defendant's room. State v. McCarty, 47 Wis. 2d 781
, 177 N.W.2d 819
A challenge to the admissibility of boots on the ground that the victim did not properly identify them was devoid of merit, as it was stipulated that the child said they “could be" the ones she saw. Her lack of certitude did not preclude admissibility, but went to the weight the jury should give to her testimony. Howland v. State, 51 Wis. 2d 162
, 186 N.W.2d 319
Oath or affirmation. 906.03(1)
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the witness's duty to do so.
The oath may be administered substantially in the following form: Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth, so help you God.
Every person who shall declare that the person has conscientious scruples against taking the oath, or swearing in the usual form, shall make a solemn declaration or affirmation, which may be in the following form: Do you solemnly, sincerely and truly declare and affirm that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth; and this you do under the pains and penalties of perjury.
The assent to the oath or affirmation by the person making it may be manifested by the uplifted hand.
Sup. Ct. Order, 59 Wis. 2d R1, R161 (1973); 1991 a. 32
A witness who is a young child need not be formally sworn to meet the oath or affirmation requirement. State v. Hanson, 149 Wis. 2d 474
, 439 N.W.2d 133
An interpreter is subject to the provisions of chs. 901
relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation.
Sup. Ct. Order, 59 Wis. 2d R1, R162 (1973); 1981 c. 390
; 1991 a. 32
Competency of judge as witness.
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
History: Sup. Ct. Order, 59 Wis. 2d R1, R163 (1973).
Competency of juror as witness. 906.06(1)
At the trial.
A member of the jury may not testify as a witness before that jury in the trial of the case in which the member is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(2) Inquiry into validity of verdict or indictment.
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.
Sup. Ct. Order, 59 Wis. 2d R1, R165 (1973); 1991 a. 32
Verdict impeachment requires evidence that is: 1) competent; 2) shows substantive grounds sufficient to overturn the verdict; and 3) shows resulting prejudice. Impeachment of a verdict through juror affidavits or testimony is discussed. After Hour Welding v. Lanceil Management Co. 108 Wis. 2d 734
, 324 N.W.2d 686
There was probable prejudice when the question of a depraved mind was central and a juror went to the jury room with a dictionary definition of “depraved" written on a card. State v. Ott, 111 Wis. 2d 691
, 331 N.W.2d 629
(Ct. App. 1983).
A conviction was reversed when extraneous information improperly brought to the jury's attention raised a reasonable possibility that the information had a prejudicial effect on the hypothetical average jury. State v. Poh, 116 Wis. 2d 510
, 343 N.W.2d 108
Evidence of a juror's racially-prejudiced remark during jury deliberations was not competent under sub. (2). State v. Shillcutt, 119 Wis. 2d 788
, 350 N.W.2d 686
In any jury trial, material prejudice on the part of any juror impairs the right to a jury trial. That prejudicial material was brought to only one juror's attention and was not communicated to any other jurors is irrelevant to determining whether that information was “improperly brought to the jury's attention" under sub. (2). Castenada v. Pederson, 185 Wis. 2d 200
, 518 N.W.2d 246
(1994), State v. Messelt, 185 Wis. 2d 255
, 518 N.W.2d 232
Extraneous information is information, other than the general wisdom that a juror is expected to possess, that a juror obtains from a non-evidentiary source. A juror who consciously brings non-evidentiary objects to show the other jurors improperly brings extraneous information before the jury. State v. Eison, 188 Wis. 2d 298
, 525 N.W.2d 91
(Ct. App. 1994).
Sub. (2) does not limit the testimony of a juror regarding clerical errors in a verdict. A written verdict not reflecting the jury's oral decision may be impeached by showing in a timely manner and beyond a reasonable doubt that all jurors are in agreement that an error was made. State v. Williquette, 190 Wis. 2d 678
, 526 N.W.2d 144
(Ct. App. 1995).
An analytical framework to be used to determine whether a new trial on the grounds of prejudice due to extraneous juror information is outlined. State v. Eison, 194 Wis. 2d 160
, 533 N.W.2d 738
Jurors may rely on their common sense and life experience during deliberations, including expertise that a juror may have on a particular subject. That a juror was a pharmacist did not make his knowledge about the particular effect of a drug extraneous information subject to inquiry under sub. (2). State v. Heitkemper, 196 Wis. 2d 218
, 538 N.W.2d 561
(Ct. App. 1995), 94-2659
The extraneous information exception under sub. (2) is not limited to factual information but also includes legal information obtained outside the proceeding. State v. Wulff, 200 Wis. 2d 318
, 546 N.W.2d 522
(Ct. App. 1996), 95-1732
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
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
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
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
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
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
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
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
When a juror makes a clear statement that indicates that he or she relied on racial stereotypes or animus to convict a criminal defendant, the 6th Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict. Pena-Rodriguez v. Colorado, 580 U. S. ___, 137 S. Ct. 855
, 197 L. Ed. 2d 107
Who may impeach.
The credibility of a witness may be attacked by any party, including the party calling the witness.
Sup. Ct. Order, 59 Wis. 2d R1, R169 (1973); 1991 a. 32
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:
The evidence may refer only to character for truthfulness or untruthfulness.
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.
(2) Specific instances of conduct.
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, 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.
(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 character for truthfulness.
Sup. Ct. Order, 59 Wis. 2d R1, R171 (1973); 1975 c. 184
; 1991 a. 32
; 1995 a. 77
; Sup. Ct. Order No. 16-02A
, 2017 WI 92, filed 10-11-17, eff. 1-1-18.
Sup. Ct. Order No. 16-02A
states that: “The Judicial Council Notes to Wis. Stats. §§ 901.07, 906.08, 906.09, and 906.16 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”
Judicial Council Note, 2017: The following federal Advisory Committee Note regarding the 2003 amendment to Fed. R. Evid. 608 is instructive, though not binding, in understanding the scope and purpose of the amendments to s. 906.08 (2) and (3).
The Rule has been amended to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness' character for truthfulness.
See United States v. Abel
, 469 U.S. 45
(1984); United States v. Fusco
, 748 F.2d 996
(5th Cir. 1984) (Rule 608(b) limits the use of evidence "designed to show that the witness has done things, unrelated to the suit being tried, that make him more or less believable per se"); Ohio R.Evid. 608(b). On occasion the Rule's use of the overbroad term "credibility" has been read "to bar extrinsic evidence for bias, competency and contradiction impeachment since they too deal with credibility." American Bar Association Section of Litigation, Emerging Problems Under the Federal Rules of Evidence
at 161 (3d ed. 1998). The amendment conforms the language of the Rule to its original intent, which was to impose an absolute bar on extrinsic evidence only if the sole purpose for offering the evidence was to prove the witness' character for veracity. See
Advisory Committee Note to Rule 608(b) (stating that the Rule is "[i]n conformity with Rule 405, which forecloses use of evidence of specific incidents as proof in chief of character unless character is in issue in the case ... ").
By limiting the application of the Rule to proof of a witness' character for truthfulness, the amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity) to Rules 402 and 403.
See, e.g., United States v. Winchenbach
, 197 F.3d 548
(1st Cir. 1999) (admissibility of a prior inconsistent statement offered for impeachment is governed by Rules 402 and 403, not Rule 608(b)); United States v. Tarantino
, 846 F.2d 1384
(D.C. Cir. 1988) (admissibility of extrinsic evidence offered to contradict a witness is governed by Rules 402 and 403); United States v. Lindemann
, 85 F.3d 1232
(7th Cir. 1996) (admissibility of extrinsic evidence of bias is governed by Rules 402 and 403).
It should be noted that the extrinsic evidence prohibition of Rule 608(b) bars any reference to the consequences that a witness might have suffered as a result of an alleged bad act. For example, Rule 608(b) prohibits counsel from mentioning that a witness was suspended or disciplined for the conduct that is the subject of impeachment, when that conduct is offered only to prove the character of the witness. See United States v. Davis
, 183 F.3d 231
, 257 n.12 (3d Cir. 1999) (emphasizing that in attacking the defendant's character for truthfulness “the government cannot make reference to Davis's forty-four day suspension or that Internal Affairs found that he lied about" an incident because “[s]uch evidence would not only be hearsay to the extent it contains assertion of fact, it would be inadmissible extrinsic evidence under Rule 608(b)"). See
also Stephen A. Saltzburg, Impeaching the Witness: Prior Bad Acts and Extrinsic Evidence
, 7 Crim. Just. 28, 31 (Winter 1993) (“counsel should not be permitted to circumvent the no-extrinsic-evidence provision by tucking a third person's opinion about prior acts into a question asked of the witness who has denied the act").
For purposes of consistency the term “credibility" has been replaced by the term “character for truthfulness" in the last sentence of subdivision (b). The term “credibility" is also used in subdivision (a). But the Committee found it unnecessary to substitute “character for truthfulness" for “credibility" in Rule 608(a), because subdivision (a)(1) already serves to limit impeachment to proof of such character.
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
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
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
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
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
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).