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).
904.01 Annotation
Evidence of why a defendant did not testify has no bearing on guilt or innocence, is not relevant, and is inadmissible. State v. Heuer, 212 W (2d) 58, 567 NW (2d) 638 (Ct. App. 1997).
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(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.
904.04 Annotation
Where prosecution witness is charged with crimes, defendant can offer evidence of such crimes and otherwise explore on cross-examination the subjective motives for the witness' testimony. State v. Lenarchick, 74 W (2d) 425, 247 NW (2d) 80.
904.04 Annotation
When defendant claims accident in shooting deceased, prosecution may present evidence of prior violent acts to prove intent and absence of accident. King v. State, 75 W (2d) 26, 248 NW (2d) 458.
904.04 Annotation
See note to Art. I, sec. 8, citing Johnson v. State, 75 W (2d) 344, 249 NW (2d) 593.
904.04 Annotation
See note to 161.41, citing Peasley v. State, 83 W (2d) 224, 265 NW (2d) 506 (1978).
904.04 Annotation
Evidence of prior conduct, i.e. defendant's threat to shoot his companion, was admissible to show that defendant's later acts evinced a depraved mind under 940.23. Hammen v. State, 87 W (2d) 791, 275 NW (2d) 709 (1979).
904.04 Annotation
Evidence of defendant's prior fighting was admissible to refute defendant's claim of misidentification and to impeach defense witness. State v. Stawicki, 93 W (2d) 63, 286 NW (2d) 612 (Ct. App. 1979).
904.04 Annotation
Defendant's 2 prior convictions for burglary were admissible to prove intent to use gloves, long pocket knife, crowbar, and pillow case as burglarious tools. Vanlue v. State, 96 W (2d) 81, 291 NW (2d) 467 (1980).
904.04 Annotation
Criminal acts of defendant's co-conspirators were admissible to prove plan and motive. Haskins v. State, 97 W (2d) 408, 294 NW (2d) 25 (1980).
904.04 Annotation
Evidence of other crimes was admissible to show plan and identity. State v. Thomas, 98 W (2d) 166, 295 NW (2d) 784 (Ct. App. 1980).
904.04 Annotation
Evidence of similar killing, committed 12 hours after 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 W (2d) 269, 298 NW (2d) 820 (1980).
904.04 Annotation
See note to 971.12, citing State v. Bettinger, 100 W (2d) 691, 303 NW (2d) 585 (1981).
904.04 Annotation
See note to 971.12, citing State v. Hall, 103 W (2d) 125, 307 NW (2d) 289 (1981).
904.04 Annotation
See note to 904.02, citing State v. Alsteen, 108 W (2d) 723, 324 NW (2d) 426 (1982).
904.04 Annotation
"Other crimes" evidence was admissible to complete story of crime on trial by proving its immediate context of happenings near in time and place. State v. Pharr, 115 W (2d) 334, 340 NW (2d) 498 (1983).
904.04 Annotation
"Other crimes" evidence was admissible to rebut defendant's claim that his presence in backyard of burglarized home was coincidental and innocent. State v. Rutchik, 116 W (2d) 61, 341 NW (2d) 639 (1984).
904.04 Annotation
Where accused claimed shooting was in self-defense, court abused discretion by excluding opinion evidence as to victim's reputation for violence. State v. Boykins, 119 W (2d) 272, 350 NW (2d) 710 (Ct. App. 1984).
904.04 Annotation
Under "greater latitude of proof" principle applicable to other-acts evidence in sex crimes, particularly incest or indecent liberties with children, sex acts committed against complainant and another young girl 4 and 6 years prior to charged assault were admissible under (2) to show "plan" or "motive". State v. Friedrich, 135 W (2d) 1, 398 NW (2d) 763 (1987).
904.04 Annotation
Admission under (2) of prowling ordinance violation by defendant accused of second-degree sexual assault and robbery was harmless error. State v. Grant, 139 W (2d) 45, 406 NW (2d) 744 (1987).
904.04 Annotation
Admission of prior crimes evidence discussed. State v. Evers, 139 W (2d) 424, 407 NW (2d) 256 (1987).
904.04 Annotation
Evidence of defendant's use of alias was relevant to show defendant's intent to cover up participation in sexual assault. State v. Bergeron, 162 W (2d) 521, 470 NW (2d) 322 (Ct. App. 1991).
904.04 Annotation
Where evidence of a sexual assault was the only evidence of an element of the kidnapping offense charged, withholding the evidence on the basis of unfair prejudice unfairly precluded the state from obtaining a conviction for the offense charged. State v. Grande, 169 W (2d) 422, 485 NW (2d) 282 (Ct. App. 1992).
904.04 Annotation
In addition to the sub. (2) exceptions, another 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 W (2d) 237, 496 NW (2d) 191 (Ct. App. 1992).
904.04 Annotation
There is no presumption of admissibility or exclusion for other crimes evidence. State v. Speer, 176 W (2d) 1101, 501 NW (2d) 429 (1993).
904.04 Annotation
Evidence of other crimes may be offered in regard to the question of intent despite defendant's assertion that the charged act never occurred. State v. Clark, 179 W (2d) 484, 507 NW (2d) 172 (Ct. App. 1993).
904.04 Annotation
Other acts evidence is subject to a 3-step inquiry to determine admissibility. It must 1.) fit one of the exceptions in sub. (2), 2.) be probative of a proposition other than disposition and character to commit the present alleged act and 3.) relevant to an issue in the case. The probative value of other acts evidence is partially dependent on its nearness in time, place and circumstance to the alleged act sought to be proved. State v. Johnson, 184 W (2d) 324, 516NW (2d) 463 (Ct. App. 1994).
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 W (2d) 107, 528 NW (2d) 36 (Ct. App. 1995).
904.04 Annotation
Other acts evidence in a child sexual assault case was admissible where 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 W (2d) 483, 529 NW (2d) 915 (Ct. App. 1995).
904.04 Annotation
To be admissible "other-acts evidence" for purposes of identity, it must be said that the acts constitute the imprint of the defendant. State v. Rushing, 197 W (2d) 631, 541 NW (2d) 155 (Ct. App. 1995).
904.04 Annotation
Verbal statements may be admissible as "other-acts evidence" even when not acted upon. State v. Jeske, 197 W (2d) 906, 541 NW (2d) 225 (Ct. App. 1995).
904.04 Annotation
There is not a per se rule which enables the state to always submit "other acts" evidence on motive and intent. This evidence is subject to general strictures against use when the defendant's concession on the element for which offered provides a more direct source of proof. State v. Wallerman, 203 W (2d) 158, 552 NW (2d) 128 (Ct. App. 1996).
904.04 Annotation
Evidence of a defendant's probation or parole status and the conditions thereof are 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 W (2d) 573, 557 NW (2d) 858 (Ct. App. 1996).
904.04 Annotation
The proponent of other acts evidence bears the burden of meeting the burden that the 3-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 W (2d) 768, 576 NW (2d) 30 (1998).
904.04 Annotation
When a defendant seeks to introduce other acts evidence to refute his or her identification as the perpetrator of a crime, prejudice is not a factor and the standard for admissibility is relevancy to guilt to or innocence, which must be balanced against s. 904.03 concerns including confusion of the issues, misleading the jury and delay. State v. Scheidell, 220 W (2d) 753, 584 NW (2d) 897 (Ct. App. 1998).
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 W (2d) R1, R80 (1973);
1991 a. 32.
904.05 Annotation
When defendant's character evidence is by expert opinion and prosecution's attack on basis of opinion is answered evasively or equivocally, then trial court may allow prosecution to present evidence of specific incidents of conduct. King v. State, 75 W (2d) 26, 248 NW (2d) 458.
904.05 Annotation
Self-defense—prior acts of the victim. 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 W (2d) R1, R83 (1973);
1975 c. 184.
904.06 Annotation
Although specific instance of conduct occurs only once, evidence may be admissible under (2). French v. Sorano, 74 W (2d) 460, 247 NW (2d) 182.
904.06 Annotation
Use of specific instances evidence discussed. State v. Evans, 187 W (2d) 66, 522 NW (2d) 554 (Ct. App. 1994).
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 W (2d) 759, 535 NW (2d) 444 (Ct. App. 1995).
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 W (2d) R1, R87 (1973).
904.07 Annotation
Subsequent remedial measures by mass producer of defective product was admitted into evidence under this section even though feasibility of precautionary measures was not controverted. Chart v. Gen. Motors Corp. 80 W (2d) 91, 258 NW (2d) 681.
904.07 Annotation
Evidence of remedial change was inadmissible where defendant did not challenge feasibility of change. Krueger v. Tappan Co. 104 W (2d) 199, 311 NW (2d) 219 (Ct. App. 1981).
904.07 Annotation
Evidence of post-event remedial measures may be introduced under both negligence and strict liability theories. See note to 904.01, citing D. L. v. Huebner, 110 W (2d) 581, 329 NW (2d) 890 (1983).
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.
