905.04 Annotation
There is no general exception to privileged status for communications gathered from incarcerated persons. State v. Joseph P. 200 W (2d) 227, 546 NW (2d) 494 (Ct. App. 1996).
905.04 Annotation
A court's failure to inform a juvenile of the right to judicial substitution does not affect its competence and warrants reversal only if the juvenile suffers actual prejudice. State v. Kywanda F. 200 W (2d) 26, 546 NW (2d) 440 (1996).
905.04 Annotation
Both initial sex offender commitment and discharge hearings under ch. 980 are "proceedings for hospitalization" within the exception to the privilege under sub. (4) (a). State v. Zanelli, 212 W (2d) 358, 569 NW (2d) 301 (Ct. App. 1997).
905.04 Annotation
A party may not challenge on appeal an in camera review of records conducted at his own request. State v. Darcy N. K. 218 W (d) 640, 581 NW (2d) 567 (Ct. App. 1998).
905.04 Annotation
A person claiming privilege in a communication with a person who was not a medical provider under sub. (1) (d)-(g) has the burden of establishing that he or she reasonably believed the person to be a medical provider. U.S. v. Schwenson, 942 F Supp. 902 (1996).
905.04 Annotation
Privilege under this section is not a principle of substantive law, but merely an evidentiary rule applicable at all stages of civil and criminal proceedings, except actual trial on the merits in homicide cases. 64 Atty. Gen. 82.
905.05
905.05
Husband-wife privilege. 905.05(1)
(1)
General rule of privilege. A person has a privilege to prevent the person's spouse or former spouse from testifying against the person as to any private communication by one to the other made during their marriage.
905.05(2)
(2) Who may claim the privilege. The privilege may be claimed by the person or by the spouse on the person's behalf. The authority of the spouse to do so is presumed in the absence of evidence to the contrary.
905.05(3)
(3) Exceptions. There is no privilege under this rule:
905.05(3)(a)
(a) If both spouses or former spouses are parties to the action.
905.05(3)(b)
(b) In proceedings in which one spouse or former spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other.
905.05(3)(c)
(c) In proceedings in which a spouse or former spouse is charged with a crime of pandering or prostitution.
905.05(3)(d)
(d) If one spouse or former spouse has acted as the agent of the other and the private communication relates to matters within the scope of the agency.
905.05 History
History: Sup. Ct. Order, 59 W (2d) R1, R130 (1973);
1991 a. 32.
905.05 Cross-reference
Cross-reference: As to testimony of husband and wife in paternity action regarding child born in wedlock, see s.
891.39.
905.05 Annotation
A wife's testimony as to statements made by her husband was admissible where the statements were made in the presence of 2 witnesses. Abraham v. State, 47 W (2d) 44, 176 NW (2d) 349.
905.05 Annotation
A wife can be compelled to testify as to whether or not he was working or collecting unemployment insurance, since such facts are known to 3rd persons. Kain v. State, 48 W (2d) 212, 179 NW (2d) 777.
905.05 Annotation
Wife's observation, without husband's knowledge, of husband's criminal act committed on public street was neither a "communication" nor "private" within meaning of (1). State v. Sabin, 79 W (2d) 302, 255 NW (2d) 320.
905.05 Annotation
"Child" under (3) (b) includes foster child. State v. Michels, 141 W (2d) 81, 414 NW (2d) 311 (Ct. App. 1987).
905.06
905.06
Communications to members of the clergy. 905.06(1)(1)
Definitions. As used in this section:
905.06(1)(a)
(a) A "member of the clergy" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting the individual.
905.06(1)(b)
(b) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
905.06(2)
(2) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as a spiritual adviser.
905.06(3)
(3) Who may claim the privilege. The privilege may be claimed by the person, by the person's guardian or conservator, or by the person's personal representative if the person is deceased. The member of the clergy may claim the privilege on behalf of the person. The member of the clergy's authority so to do is presumed in the absence of evidence to the contrary.
905.06 History
History: Sup. Ct. Order, 59 W (2d) R1, R135 (1973);
1991 a. 32.
905.06 Annotation
Out-of-court disclosure by priest that defendant would lead police to victim's grave was not privileged under this section. State v. Kunkel, 137 W (2d) 172, 404 NW (2d) 69 (Ct. App. 1987).
905.06 Annotation
Should Clergy Hold the Priest-Penitent Privilege? Mazza. 82 MLR 171 (1998).
905.065
905.065
Honesty testing devices. 905.065(1)
(1)
Definition. In this section, "honesty testing device" means a polygraph, voice stress analysis, psychological stress evaluator or any other similar test purporting to test honesty.
905.065(2)
(2) General rule of the privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing any oral or written communications during or any results of an examination using an honesty testing device in which the person was the test subject.
905.065(3)
(3) Who may claim privilege. The privilege may be claimed by the person, by the person's guardian or conservator or by the person's personal representative, if the person is deceased.
905.065(4)
(4) Exception. There is no privilege under this section if there is a valid and voluntary written agreement between the test subject and the person administering the test.
905.065 History
History: 1979 c. 319.
905.065 Annotation
A distinction exists between an inquiry into the taking of a polygraph and an inquiry into its results. An offer to take a polygraph is relevant to an assessment of an offeror's credibility. State v. Wofford, 202 W (2d) 524, 551 NW (2d) 46 (Ct. App. 1996).
905.07
905.07
Political vote. Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.
905.07 History
History: Sup. Ct. Order, 59 W (2d) R1, R139 (1973);
1991 a. 32.
905.08
905.08
Trade secrets. A person has a privilege, which may be claimed by the person or the person's agent or employe, to refuse to disclose and to prevent other persons from disclosing a trade secret as defined in
s. 134.90 (1) (c), owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.
905.08 History
History: Sup. Ct. Order, 59 W (2d) R1, R140 (1973);
1985 a. 236.
905.09
905.09
Law enforcement records. The federal government or a state or a subdivision thereof has a privilege to refuse to disclose investigatory files, reports and returns for law enforcement purposes except to the extent available by law to a person other than the federal government, a state or subdivision thereof. The privilege may be claimed by an appropriate representative of the federal government, a state or a subdivision thereof.
905.09 History
History: Sup. Ct. Order, 59 W (2d) R1, R142 (1973).
905.10
905.10
Identity of informer. 905.10(1)
(1)
Rule of privilege. The federal government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
905.10(2)
(2) Who may claim. The privilege may be claimed by an appropriate representative of the federal government, regardless of whether the information was furnished to an officer of the government or of a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof.
905.10(3)(a)(a)
Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the informer's communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the federal government or a state or subdivision thereof.
905.10(3)(b)
(b)
Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the federal government or a state or subdivision thereof is a party, and the federal government or a state or subdivision thereof invokes the privilege, the judge shall give the federal government or a state or subdivision thereof an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits but the judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the federal government or a state or subdivision thereof elects not to disclose the informer's identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge's own motion. In civil cases, the judge may make an order that justice requires. Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the federal government, state or subdivision thereof. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera at which no counsel or party shall be permitted to be present.
905.10(3)(c)
(c)
Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, the judge may require the identity of the informer to be disclosed. The judge shall on request of the federal government, state or subdivision thereof, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the appropriate federal government, state or subdivision thereof.
905.10 History
History: Sup. Ct. Order, 59 W (2d) R1, R143 (1973);
1991 a. 32.
905.10 Annotation
Trial judge incorrectly applied test of whether informer's testimony was necessary to a fair trial. State v. Outlaw, 108 W (2d) 112, 321 NW (2d) 145 (1982).
905.10 Annotation
Discussion of application of informer privilege to communications tending to identify informer and consideration by trial court under sub. (3) (c) of such privileged information in determining reasonable suspicion for investigative seizure. State v. Gordon, 159 W (2d) 335, 464 NW 91 (Ct. App. 1990).
905.10 Annotation
Where the defendant knew an informant's identity but sought to put the informant's role as informant before the jury to support his defense that the informant actually committed the crime, the judge erred in not permitting the jury to hear the evidence. State v. Gerard, 180 W (2d) 327, 509 NW (2d) 112 (Ct. App. 1993).
905.10 Annotation
The state is the holder of the privilege; disclosure by an informer's attorney is not "by the informer's own action"; the privilege does not die with the informer. State v. Lass, 194 W (2d) 592, 535 NW (2d) 904 (Ct. App. 1995).
905.11
905.11
Waiver of privilege by voluntary disclosure. A person upon whom this chapter confers a privilege against disclosure of the confidential matter or communication waives the privilege if the person or his or her predecessor, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This section does not apply if the disclosure is itself a privileged communication.
905.11 History
History: Sup. Ct. Order, 59 W (2d) R1, R150 (1973);
1987 a. 355; Sup. Ct. Order No.
93-03,179 W (2d) xv (1993).
905.11 Annotation
A litigant's request to see his or her file that is in the possession of current or former counsel does not waive the attorney-client and work product privileges and allow other parties to the litigation discovery of those files. Borgwardt v. Redlin, 196 W (2d) 342, 538 NW (2d) 581 (Ct. App. 1995).
905.12
905.12
Privileged matter disclosed under compulsion or without opportunity to claim privilege. Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (a) compelled erroneously or (b) made without opportunity to claim the privilege.
905.12 History
History: Sup. Ct. Order, 59 W (2d) R1, R151 (1973).
905.13
905.13
Comment upon or inference from claim of privilege; instruction. 905.13(1)(1)
Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
905.13(2)
(2) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
905.13(3)
(3) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
905.13(4)
(4) Application; self-incrimination. Subsections (1) to
(3) do not apply in a civil case with respect to the privilege against self-incrimination.
905.13 History
History: Sup. Ct. Order, 59 W (2d) R1, R153 (1973);
1981 c. 390.
905.13 Annotation
The prohibition against allowing comment on or drawing an inference from a third-party witness's refusal to testify on 5th amendment grounds does not deny a criminal defendant's constitutional right to equal protection. State v. Heft, 185 W (2d) 289, 517 NW (2d) 494 (1994).
905.14
905.14
Privilege in crime victim compensation proceedings. 905.14(1)(1) Except as provided in
sub. (2), no privilege under this chapter exists regarding communications or records relevant to an issue of the physical, mental or emotional condition of the claimant or victim in a proceeding under
ch. 949 in which that condition is an element.
905.14(2)
(2) The lawyer-client privilege applies in a proceeding under
ch. 949.
905.14 History
History: 1979 c. 189.
905.15
905.15
Privilege in use of federal tax return information. 905.15(1)(1) An employe of the department of health and family services, the department of workforce development or a county department under
s. 46.215,
46.22 or
46.23 or a member of a governing body of a federally recognized American Indian tribe who is authorized by federal law to have access to or awareness of the federal tax return information of another in the performance of duties under
s. 49.19 or
49.45 or
7 USC 2011 to
2049 may claim privilege to refuse to disclose the information and the source or method by which he or she received or otherwise became aware of the information.
905.15(2)
(2) An employe or member specified in
sub. (1) may not waive the right to privilege under
sub. (1) or disclose federal tax return information or the source of that information except as provided by federal law.
