CHAPTER 906
EVIDENCE — WITNESSES
906.01 General rule of competency.
906.02 Lack of personal knowledge.
906.03 Oath or affirmation.
906.05 Competency of judge as witness.
906.06 Competency of juror as witness.
906.08 Evidence of character and conduct of witness.
906.09 Impeachment by evidence of conviction of crime or adjudication of delinquency.
906.10 Religious beliefs or opinions.
906.11 Mode and order of interrogation and presentation.
906.12 Writing used to refresh memory.
906.13 Prior statements of witnesses.
906.14 Calling and interrogation of witnesses by judge.
906.15 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 W (2d). The court did not adopt the comments but ordered them printed with the rules for information purposes.
906.01
906.01
General rule of competency. Every person is competent to be a witness except as provided by
ss. 885.16 and
885.17 or as otherwise provided in these rules.
906.01 History
History: Sup. Ct. Order, 59 W (2d) R1, R157 (1973).
906.01 Annotation
Trial court may not declare witness incompetent to testify, except as provided in this section; witness's credibility is determined by fact-finder. State v. Hanson, 149 W (2d) 474, 439 NW (2d) 133 (Ct. App. 1989).
906.02
906.02
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.
906.02 History
History: Sup. Ct. Order, 59 W (2d) R1, R160 (1973);
1991 a. 32.
906.03
906.03
Oath or affirmation. 906.03(1)(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.
906.03(2)
(2) 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.
906.03(3)
(3) 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.
906.03(4)
(4) The assent to the oath or affirmation by the person making it may be manifested by the uplifted hand.
906.03 History
History: Sup. Ct. Order, 59 W (2d) R1, R161 (1973);
1991 a. 32.
906.03 Annotation
Witness who is young child need not be formally sworn to meet oath or affirmation requirement. State v. Hanson, 149 W (2d) 474, 439 NW (2d) 133 (1989).
906.04
906.04
Interpreters. An interpreter is subject to the provisions of
chs. 901 to
911 relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation.
906.04 History
History: Sup. Ct. Order, 59 W (2d) R1, R162 (1973);
1981 c. 390;
1991 a. 32.
906.05
906.05
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.
906.05 History
History: Sup. Ct. Order, 59 W (2d) R1, R163 (1973).
906.06
906.06
Competency of juror as witness. 906.06(1)
(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.
906.06(2)
(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.
906.06 History
History: Sup. Ct. Order, 59 W (2d) R1, R165 (1973);
1991 a. 32.
906.06 Annotation
Defendant's failure to have evidence excluded under rulings of court, operates as a waiver. Sub. (2) cited. State v. Frizzell, 64 W (2d) 480, 219 NW (2d) 390.
906.06 Annotation
Impeachment of verdict through juror affidavits or testimony discussed. After Hour Welding v. Lanceil Management Co. 108 W (2d) 734, 324 NW (2d) 686 (1982).
906.06 Annotation
There was probable prejudice where question of depraved mind was central and juror went to jury room with dictionary definition of "depraved" written on card. State v. Ott, 111 W (2d) 691, 331 NW (2d) 629 (Ct. App. 1983).
906.06 Annotation
Conviction was reversed where extraneous information improperly brought to jury's attention raised reasonable possibility that error had prejudicial effect on hypothetical average jury. State v. Poh, 116 W (2d) 510, 343 NW (2d) 108 (1984).
906.06 Annotation
Evidence of juror's racially-prejudiced remark during jury deliberations was not competent under (2). Three-step procedure for impeachment of jury verdict discussed. State v. Shillcutt, 119 W (2d) 788, 350 NW (2d) 686 (1984).
906.06 Annotation
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 W (2d) 200, 518 NW (2d) 246 (1994), State v. Messelt, 185 W (2d) 255, 518 NW (2d) 232 (1994).
906.06 Annotation
Extraneous information is information, other than the general wisdom a juror is expected to possess, which 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 W (2d) 298, 525 NW (2d) 91 (Ct. App. 1994).
906.06 Annotation
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 W (2d) 678, 526 NW (2d) 144 (Ct. App. 1995).
906.06 Annotation
Analytical framework to be used to determine whether a new trial on the grounds of prejudice due to extraneous juror information outlined. State v. Eison, 194 W (2d) 160, 533 NW (2d) 738 (1995).
906.06 Annotation
Jurors may rely on their common sense and life experience during deliberations, including expertise 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 W (2d) 218, 538 NW (2d) 561 (Ct. App. 1995).
906.06 Annotation
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 W (2d) 318, 546 NW (2d) 522 (Ct. App. 1996).
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 W (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 W (2d) R1, R171 (1973);
1975 c. 184,
421;
1991 a. 32;
1995 a. 77,
225.
906.08 Annotation
Trial court committed plain error by admitting extrinsic impeaching testimony on collateral issue. McClelland v. State, 84 W (2d) 145, 267 NW (2d) 843 (1978).
906.08 Annotation
See note to 751.06, citing State v. Cuyler, 110 W (2d) 133, 327 NW (2d) 662 (1983).
906.08 Annotation
Impeachment of accused by extrinsic evidence on collateral matter was harmless error. State v. Sonnenberg, 117 W (2d) 159, 344 NW (2d) 95 (1984).
906.08 Annotation
Absent attack on credibility, complainant's testimony that she has not initiated civil action for damages is inadmissible when used to bolster credibility. State v. Johnson, 149 W (2d) 418, 439 NW (2d) 122 (1989), confirmed, 153 W (2d) 121, 449 NW (2d) 845 (1990).
906.08 Annotation
See note to Art. I, sec. 7 citing State v. Lindh, 161 W (2d) 324, 468 NW (2d) 168 (1991).
906.08 Annotation
Whether witness's credibility has been sufficiently attacked to constitute an attack on the witness's character for truthfulness permitting rehabilitating character testimony is discretionary decision. State v. Anderson, 163 W (2d) 342, 471 NW (2d) 279 (Ct. App. 1991).
906.08 Annotation
No witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth. It was improper for a prosecutor to repeatedly inquire of a defendant whether other witnesses were mistaken in their testimony. State v. Kuehl, 199 W (2d) 143, 545 NW (2d) 840 (Ct. App. 1995).
906.08 Annotation
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 W (2d) 318, 546 NW (2d) 522 (Ct. App. 1996).
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 W (2d) 497, 549 NW (2d) 256 (Ct. App. 1996).
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 W (2d) R1, R176 (1973);
1991 a. 32;
1995 a. 77.
906.09 Annotation
This section applies to both civil and criminal cases. Where plaintiff is asked by his own attorney whether he has ever been convicted of crime, he can be asked on cross examination as to the number of times. Underwood v. Strasser, 48 W (2d) 568, 180 NW (2d) 631.
906.09 Annotation
Where a defendant's answers on direct examination with respect to the number of his prior convictions are inaccurate or incomplete, then the correct and complete facts may be brought out on cross-examination, during which it is permissible to mention the crime by name in order to insure that the witness understands which particular conviction is being referred to. Nicholas v. State, 49 W (2d) 683, 183 NW (2d) 11.
906.09 Annotation
Proffered evidence that a witness had been convicted of drinking offenses 18 times in last 19 years could be rejected as immaterial where the evidence did not affect his credibility. Barren v. State, 55 W (2d) 460, 198 NW (2d) 345.
906.09 Annotation
Where defendant in rape case denies incident in earlier rape case tried in juvenile court, impeachment evidence of police officer, that defendant had admitted incident at the time, is not barred by (4). See note to 48.38, citing Sanford v. State, 76 W (2d) 72, 250 NW (2d) 348.
906.09 Annotation
Where a witness truthfully acknowledges a prior conviction, inquiry into the nature of the conviction may not be made. Contrary position in 63 Atty. Gen. 424 is incorrect. Voith v. Buser, 83 W (2d) 540, 266 NW (2d) 304 (1978).
906.09 Annotation
See note to 904.04, citing Vanlue v. State, 96 W (2d) 81, 291 NW (2d) 467 (1980).
906.09 Annotation
Cross-examination on prior convictions without trial court's threshold determination under (3) was prejudicial. Gyrion v. Bauer, 132 W (2d) 434, 393 NW (2d) 107 (Ct. App. 1986).
906.09 Annotation
Accepted guilty plea constitutes "conviction" for purposes of impeachment under (1). State v. Trudeau, 157 W (2d) 51, 458 NW (2d) 383 (Ct. App. 1990).
