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CHAPTER 904
EVIDENCE — RELEVANCY AND ITS LIMITS
904.01 Definition of "relevant evidence".
904.02 Relevant evidence generally admissible; irrelevant evidence inadmissible.
904.03 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
904.04 Character evidence not admissible to prove conduct; exceptions; other crimes.
904.05 Methods of proving character.
904.06 Habit; routine practice.
904.07 Subsequent remedial measures.
904.08 Compromise and offers to compromise.
904.085 Communications in mediation.
904.09 Payment of medical and similar expenses.
904.10 Offer to plead guilty; no contest; withdrawn plea of guilty.
904.11 Liability insurance.
904.12 Statement of injured; admissibility; copies.
904.13 Information concerning crime victims.
Ch. 904 Note NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 W (2d). The court did not adopt the comments but ordered them printed with the rules for information purposes.
904.01 904.01 Definition of "relevant evidence". "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
904.01 History History: Sup. Ct. Order, 59 W (2d) R1, R66 (1973).
904.01 Annotation Introduction of a portion of a bloodstained mattress was both relevant and material by tending to make more probable the prosecution's claim that the victim had been with the defendant and had been molested by him. Bailey v. State, 65 W (2d) 331, 222 NW (2d) 871.
904.01 Annotation Most important factor in determining admissibility of conduct evidence prior to the accident is degree of probability that the conduct continued until the accident occurred; evidence of defendant's reckless driving 12 1/2 miles from accident scene was properly excluded as irrelevant. Hart v. State, 75 W (2d) 371, 249 NW (2d) 810.
904.01 Annotation Evidence of crop production in other years held admissible to prove damages for injury to crop. Cutler Cranberry Co. v. Oakdale Elec. Coop. 78 W (2d) 222, 254 NW (2d) 234.
904.01 Annotation Complaining witness's failure to appear to testify on 2 prior trial dates was not relevant to credibility of witness. Rogers v. State, 93 W (2d) 682, 287 NW (2d) 774 (1980).
904.01 Annotation Evidence of post-manufacture industry custom was admissible under facts of products liability case. Evidence of good safety record of product was not relevant. D.L. v. Huebner, 110 W (2d) 581, 329 NW (2d) 890 (1983).
904.01 Annotation Probability of exclusion and paternity are generally admissible in criminal sexual assault action in which assault allegedly results in birth of child, but probability of paternity is not generally admissible. State v. Hartman, 145 W (2d) 1, 426 NW (2d) 320 (1988).
904.01 Annotation In sexual assault action where assault allegedly resulted in childbirth, HLA and red blood cell test results showing paternity index and probability of exclusion were admissible statistics. Statistic indicating defendant's probability of paternity was inadmissible. State v. Hartman, 145 W (2d) 1, 426 NW (2d) 320 (1988).
904.01 Annotation Evidence of noncriminal conduct to negate the inference of criminal conduct is generally irrelevant. State v. Tabor, 191 W (2d) 483, 529 NW (2d) 915 (Ct. App. 1995).
904.02 904.02 Relevant evidence generally admissible; irrelevant evidence inadmissible. All relevant evidence is admissible, except as otherwise provided by the constitutions of the United States and the state of Wisconsin, by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.
904.02 History History: Sup. Ct. Order, 59 W (2d) R1, R70 (1973).
904.02 Annotation Testimony that weapons were found at accused's home was admissible as part of chain of facts relevant to accused's intent to deliver heroin. State v. Wedgeworth, 100 W (2d) 514, 302 NW (2d) 810 (1981).
904.02 Annotation Evidence of defendant's prior sexual misconduct was irrelevant where only issue in rape case was whether victim consented. State v. Alsteen, 108 W (2d) 723, 324 NW (2d) 426 (1982).
904.02 Annotation Defendant does not have constitutional right to present irrelevant evidence. State v. Robinson, 146 W (2d) 315, 431 NW (2d) 165 (1988).
904.02 Annotation Third-party testimony corroborating victim's testimony against one defendant was relevant as to a second defendant charged with different acts where the testimony tended to lend credibility to the victim's testimony against the second defendant. State v. Patricia A.M. 176 W (2d) 542, 500 NW (2d) 289 (1993).
904.03 904.03 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
904.03 History History: Sup. Ct. Order, 59 W (2d) R1, R73 (1973).
904.03 Annotation Under this section it was within the discretion of the trial court to admit the victim's bloodstained nightgown and to allow it to be sent to the jury room where (a) the nightgown clearly was of probative value, since available photographs failed to show the underside of the garment; (b) the article was not of a nature which would shock the sensibilities of the jury and inflame it to the prejudice of defendant, and (c) no objection was made to the sending of the item as an exhibit to the jury room. Jones (George Michael) v. State, 70 W (2d) 41, 233 NW (2d) 430.
904.03 Annotation Evidence of alcoholic degenerative impairment of plaintiff's judgment had limited probative value, far outweighed by possible prejudice. Walsh v. Wild Masonry Co., Inc. 72 W (2d) 447, 241 NW (2d) 416.
904.03 Annotation Trial judge did not abuse discretion in refusing to admit exhibits offered at the 11th hour to establish a defense by proof of facts not previously referred to. Roeske v. Diefenbach, 75 W (2d) 253, 249 NW (2d) 555.
904.03 Annotation Where evidence was introduced for purpose of identification, the probative value of conduct during a prior rape case exceeded the prejudicial effect. Sanford v. State, 76 W (2d) 72, 250 NW (2d) 348.
904.03 Annotation Where defendant was charged with attempted murder of police officers in pursuit of defendant following armed robbery, probative value of evidence concerning armed robbery and showing motive for murder attempt was not substantially outweighed by dangers of unfair prejudice. Holmes v. State, 76 W (2d) 259, 251 NW (2d) 56.
904.03 Annotation Where evidence of other conduct is not offered for valid purpose under 904.04 (2), balancing test under 904.03 is inapplicable. State v. Spraggin, 77 W (2d) 89, 252 NW (2d) 94.
904.03 Annotation Although continuance is more appropriate remedy for surprise, where unduly long continuance would be required, exclusion of surprising evidence may be justified under this section. State v. O'Connor, 77 W (2d) 261, 252 NW (2d) 671.
904.03 Annotation In prosecution for possession of amphetamines, where syringe and hypodermic needles, which had only slight relevance to charge, were admitted into evidence and sent to jury room, case was remanded for new trial because of abuse of discretion. Schmidt v. State, 77 W (2d) 370, 253 NW (2d) 204.
904.03 Annotation See note to Art. I, sec. 7, citing Chapin v. State, 78 W (2d) 346, 254 NW (2d) 286.
904.03 Annotation Evidence which resulted in surprise was properly excluded under this section. Lease America Corp. v. Ins. Co. of N. America, 88 W (2d) 395, 276 NW (2d) 767 (1979).
904.03 Annotation Trial court abused discretion by excluding official blood alcohol chart offered in evidence by accused driver. State v. Hinz, 121 W (2d) 282, 360 NW (2d) 56 (Ct. App. 1984).
904.03 Annotation See note to 904.04 citing State v. Grande, 169 W (2d) 422, 485 NW (2d) 282 (Ct. App. 1992).
904.03 Annotation 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 W (2d) 959, 512 NW (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 W (2d) 29, 549 NW (2d) 418 (1996).
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(1)(c) (c) Character of witness. Evidence of the character of a witness, as provided in ss. 906.07, 906.08 and 906.09.
904.04(2) (2)Other crimes, wrongs, or acts. 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 History History: Sup. Ct. Order, 59 W (2d) R1, R75 (1973); 1975 c. 184; 1991 a. 32.
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 W (2d) 144, 205 NW (2d) 559.
904.04 Annotation Evidence of delinquency in making withholding tax payments by 3 other corporations of which accused had been president was admissible to show wilfulness of accused in failing to make such payments as president of 4th corporation. State v. Johnson, 74 W (2d) 26, 245 NW (2d) 687.
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This is an archival version of the Wis. Stats. database for 1995. See Are the Statutes on this Website Official?