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).
906.09 Annotation
Expunged conviction is not admissible to attack witness credibility. State v. Anderson, 160 W (2d) 435, 466 NW (2d) 681 (Ct. App. 1991).
906.09 Annotation
Under new evidence rule defendant may not be cross-examined about prior convictions until the court has ruled in proceedings under 901.04 that such convictions are admissible. Nature of former convictions may now be proved under the new rule. Defendant has burden of proof to establish that a former conviction is inadmissible to impeach him because obtained in violation of his right to counsel, under Loper v. Beto, 405 US 473. Loper does not apply to claimed denial of constitutional rights other than the right to counsel, although the conviction would be inadmissible for impeachment if it had been reversed on appeal, whether on constitutional or other grounds, or vacated on collateral attack. 63 Atty. Gen. 424.
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 W (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 (a) make the interrogation and presentation effective for the ascertainment of the truth, (b) avoid needless consumption of time, and (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 W (2d) R1, R185 (1973);
1991 a. 32.
906.11 Annotation
Since 885.14, Stats. 1967, is applicable to civil and not to criminal proceedings, the trial court did not err when it refused to permit defendant to call a court-appointed expert as an adverse witness, nor to permit the recall of the witness under the guise of rebuttal solely for the purpose of establishing that he had been hired by the state and to ask how this fee was fixed. State v. Bergenthal, 47 W (2d) 668, 178 NW (2d) 16.
906.11 Annotation
A trial judge should not strike the entire testimony of a defense witness for refusal to answer questions bearing on his credibility which had little to do with guilt or innocence of defendant. State v. Monsoor, 56 W (2d) 689, 203 NW (2d) 20.
906.11 Annotation
Trial judge's admonitions to expert witness did not give appearance of judicial partisanship and thus require new trial. Peeples v. Sargent, 77 W (2d) 612, 253 NW (2d) 459.
906.11 Annotation
Extent of, manner, and even right of multiple cross-examination by different counsel representing same party can be controlled by trial court. Hochgurtel v. San Felippo, 78 W (2d) 70, 253 NW (2d) 526.
906.11 Annotation
See note to art. I, sec. 7, citing Moore v. State, 83 W (2d) 285, 265 NW (2d) 540 (1978).
906.11 Annotation
See note to 904.04, citing State v. Stawicki, 93 W (2d) 63, 286 NW (2d) 612 (Ct. App. 1979).
906.11 Annotation
Leading questions were properly used to refresh witness' memory. Jordan v. State, 93 W (2d) 449, 287 NW (2d) 509 (1980).
906.11 Annotation
See note to art. I, sec. 8, citing Neely v. State, 97 W (2d) 38, 292 NW (2d) 859 (1980).
906.11 Annotation
Trial court's bifurcation of issues for trial was authorized under sub. (1). Zawistowski v. Kissinger, 160 W (2d) 292, 466 NW (2d) 664 (Ct. App. 1991).
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 W (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. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless:
906.13(2)(a)(a) the witness was so examined while testifying as to give the witness an opportunity to explain or to deny the statement; or (b) the witness has not been excused from giving further testimony in the action; or (c) the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in
s. 908.01 (4) (b).
906.13 History
History: Sup. Ct. Order, 59 W (2d) R1, R197 (1973);
1991 a. 32.
906.13 Annotation
A statement by a defendant, not admissible as part of the prosecution's case because taken without the presence of his counsel, may be used on cross examination for impeachment if the statement is trustworthy. Wold v. State, 57 W (2d) 344, 204 NW (2d) 482.
906.13 Annotation
Bright line test for determining whether defendant's prior inconsistent statement is admissible for impeachment is whether it was compelled. State v. Pickett, 150 W (2d) 720, 442 NW (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 W (2d) 1054, 537 NW (2d) 62 (Ct. App. 1995).
906.14
906.14
Calling and interrogation of witnesses by judge. 906.14(1)(1)
Calling by judge. The judge may, on the judge's own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
906.14(2)
(2) Interrogation by judge. The judge may interrogate witnesses, whether called by the judge or by a party.
906.14(3)
(3) Objections. Objections to the calling of witnesses by the judge or to interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.
906.14 History
History: Sup. Ct. Order, 59 W (2d) R1, R200 (1973);
1991 a. 32.
906.14 Annotation
Trial judge's elicitation of trial testimony discussed. Schultz v. State, 82 W (2d) 737, 264 NW (2d) 245.
906.15
906.15
Exclusion of witnesses. At the request of a party the judge or court commissioner shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and the judge or court commissioner may make the order of his or her own motion. This section does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employe of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. The judge or court commissioner may direct that all such excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended.
906.15 History
History: Sup. Ct. Order, 59 W (2d) R1, R202 (1973);
1991 a. 32.
