972.10 Annotation
Court refuses to extend "theory of defense instruction" to include legal basis for motivation of witness who is not a defendant. State v. Dean, 105 W (2d) 390, 314 NW (2d) 151 (Ct. App. 1981).
972.10 Annotation
Unless defendant consents, it is reversible error for court to substitute alternate juror for regular juror after jury deliberations have begun. State v. Lehman, 108 W (2d) 291, 321 NW (2d) 212 (1982).
972.10 Annotation
See note to 805.13, citing In Matter of E. B. 111 W (2d) 175, 330 NW (2d) 584 (1983).
972.10 Annotation
Entrapment instructions upheld. State v. Saternus, 127 W (2d) 460, 381 NW (2d) 290 (1986).
972.10 Annotation
Court must inform counsel of changes it makes to jury instructions following instructions conference. State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
972.10 Annotation
See note to Art. I, sec. 7, citing State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
972.10 Annotation
Instructional rulings are to be made at the close of the evidence. A party is not entitled to a mid-trial advisory ruling on whether an instruction will be given. Such a ruling, if given, is nonbinding and not subject to appeal. State v. Sohn, 193 W (2d) 346, 535 NW (2d) 1 (Ct. App. 1995).
972.10 Annotation
See note to Art. I, sec. 7, citing Herring v. New York, 422 US 853.
972.10 Annotation
See note to Art. I, sec. 3, citing Richmond Newspapers, Inc. v. Virginia, 448 US 555 (1980).
972.11
972.11
Evidence and practice; civil rules applicable. 972.11(1)(1) Except as provided in
subs. (2) to
(5), the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction. No guardian ad litem need be appointed for a defendant in a criminal action.
Chapters 885 to
895, except
ss. 804.02 to
804.07 and
887.23 to
887.26, shall apply in all criminal proceedings.
972.11(2)(a)(a) In this subsection, "sexual conduct" means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.
972.11(2)(b)
(b) If the defendant is accused of a crime under
s. 940.225,
948.02,
948.025,
948.05,
948.06 or
948.095, any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to
s. 971.31 (11):
972.11(2)(b)1.
1. Evidence of the complaining witness's past conduct with the defendant.
972.11(2)(b)2.
2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.
972.11(2)(b)3.
3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness.
972.11(2)(c)
(c) Notwithstanding
s. 901.06, the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in
par. (b) applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under
par. (b) 1.,
2. or
3.
972.11(2)(d)1.1. If the defendant is accused of a crime under
s. 940.225,
948.02,
948.025,
948.05,
948.06 or
948.095, evidence of the manner of dress of the complaining witness at the time when the crime occurred is admissible only if it is relevant to a contested issue at trial and its probative value substantially outweighs all of the following:
972.11(2)(d)1.a.
a. The danger of unfair prejudice, confusion of the issues or misleading the jury.
972.11(2)(d)1.b.
b. The considerations of undue delay, waste of time or needless presentation of cumulative evidence.
972.11(2)(d)2.
2. The court shall determine the admissibility of evidence under
subd. 1. upon pretrial motion before it may be introduced at trial.
972.11(2m)(a)(a) At a trial in any criminal prosecution, the court may, on its own motion or on the motion of any party, order that the testimony of any child witness be taken in a room other than the courtroom and simultaneously televised in the courtroom by means of closed-circuit audiovisual equipment if all of the following apply:
972.11(2m)(a)1.a.
a. That the presence of the defendant during the taking of the child's testimony will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.
972.11(2m)(a)1.b.
b. That taking the testimony of the child in a room other than the courtroom and simultaneously televising the testimony in the courtroom by means of closed-circuit audiovisual equipment is necessary to minimize the trauma to the child of testifying in the courtroom setting and to provide a setting more amenable to securing the child witness's uninhibited, truthful testimony.
972.11(2m)(a)2.
2. The trial in which the child may be called as a witness will commence:
972.11(2m)(a)2.b.
b. Prior to the child's 16th birthday and, in addition to its finding under
subd. 1., the court finds that the interests of justice warrant that the child's testimony be taken in a room other than the courtroom and simultaneously televised in the courtroom by means of closed-circuit audiovisual equipment.
972.11(2m)(b)
(b) Among the factors which the court may consider in determining the interests of justice under
par. (a) 2. b. are any of the following:
972.11(2m)(b)1.
1. The child's chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.
972.11(2m)(b)3.
3. Whether the events about which the child will testify constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.
972.11(2m)(b)4.
4. The child's custodial situation and the attitude of other household members to the events about which the child will testify and to the underlying proceeding.
972.11(2m)(b)5.
5. The child's familial or emotional relationship to those involved in the underlying proceeding.
972.11(2m)(b)6.
6. The child's behavior at or reaction to previous interviews concerning the events involved.
972.11(2m)(b)7.
7. Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the child's prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child's subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.
972.11(2m)(b)8.
8. Whether the child manifests or has manifested symptoms associated with posttraumatic stress disorder or other mental disorders, including, without limitation, reexperiencing the events, fear of their repetition, withdrawal, regression, guilt, anxiety, stress, nightmares, enuresis, lack of self-esteem, mood changes, compulsive behaviors, school problems, delinquent or antisocial behavior, phobias or changes in interpersonal relationships.
972.11(2m)(b)9.
9. The number of separate investigative, administrative and judicial proceedings at which the child's testimony may be required.
972.11(2m)(bm)
(bm) If a court orders the testimony of a child to be taken under
par. (a), the court shall do all of the following:
972.11(2m)(bm)1.
1. To the extent it is practical and subject to
s. 972.10 (3), schedule the testimony on a date when the child's recollection is likely to be fresh and at a time of day when the child's energy and attention span are likely to be greatest.
972.11(2m)(bm)2.
2. Provide a room for the child to testify from that provides adequate privacy, freedom from distractions, informality and comfort appropriate to the child's developmental level.
972.11(2m)(bm)3.
3. Order a recess whenever the energy, comfort or attention span of the child or other circumstances so warrant.
972.11(2m)(bm)4.
4. Determine that the child understands that it is wrong to tell a lie and will testify truthfully if the child's developmental level or verbal skills are such that administration of an oath or affirmation in the usual form would be inappropriate.
972.11(2m)(bm)5.
5. Before questioning by the parties begins, attempt to place the child at ease, explain to the child the purpose of the testimony and identify all persons attending.
972.11(2m)(bm)6.
6. Supervise the spatial arrangements of the room and the location, movement and deportment of all persons in attendance.
972.11(2m)(bm)7.
7. Allow the child to testify while sitting on the floor, on a platform or on an appropriately sized chair, or while moving about the room within range of the visual and audio recording equipment.
972.11(2m)(bm)8.
8. Bar or terminate the attendance of any person whose behavior is disruptive or unduly stressful to the child.
972.11(2m)(c)
(c) Only the following persons may be present in the room in which the child is giving testimony under
par. (a):
972.11(2m)(c)1m.
1m. Any person necessary to operate the closed-circuit audiovisual equipment.
972.11(2m)(c)2m.
2m. The parents of the child, the guardian or legal custodian of the child or, if no parent, guardian or legal custodian is available or the legal custodian is an agency, one individual whose presence would contribute to the welfare and well-being of the child.
972.11(2m)(c)3m.
3m. One person designated by the attorney for the state and approved by the court and one person designated by either the defendant or the attorney for the defendant and approved by the court.
972.11(3)(a)(a) In a prosecution under
s. 940.22 involving a therapist and a patient or client, evidence of the patient's or client's personal or medical history is not admissible except if:
972.11(3)(a)1.
1. The defendant requests a hearing prior to trial and makes an offer of proof of the relevancy of the evidence; and
972.11(3)(a)2.
2. The court finds that the evidence is relevant and that its probative value outweighs its prejudicial nature.
972.11(3)(b)
(b) The court shall limit the evidence admitted under
par. (a) to relevant evidence which pertains to specific information or examples of conduct. The court's order shall specify the information or conduct that is admissible and no other evidence of the patient's or client's personal or medical history may be introduced.
972.11(3)(c)
(c) Violation of the terms of the order is grounds for a mistrial but does not prevent the retrial of the defendant.
972.11(3m)
(3m) A court may not exclude evidence in any criminal action or traffic forfeiture action for violation of
s. 346.63 (1) or
(5), or a local ordinance in conformity with
s. 346.63 (1) or
(5), on the ground that the evidence existed or was obtained outside of this state.
972.11(4)
(4) Upon the motion of any party or its own motion, a court may order that any exhibit or evidence be delivered to the party or the owner prior to the final determination of the action or proceeding if all of the following requirements are met:
972.11(4)(a)
(a) There is a written stipulation by all the parties agreeing to the order.
972.11(4)(c)
(c) A complete photographic or other record is made of any exhibits or evidence so released.
972.11(5)(a)(a) In this subsection, "deoxyribonucleic acid profile" means an analysis that uses the restriction fragment length polymorphism analysis of deoxyribonucleic acid resulting in the identification of an individual's patterned chemical structure of genetic information.
972.11(5)(b)
(b) In any criminal action or proceeding, the evidence of a deoxyribonucleic acid profile is admissible to prove or disprove the identity of any person if the party seeking to introduce evidence of the profile complies with all of the following:
972.11(5)(b)1.
1. Notifies the other party in writing by mail at least 45 days before the date set for trial, or at any time if a date has not been set for trial, of the intent to introduce the evidence.
972.11(5)(b)2.
2. If the other party so requests at least 30 days before the date set for trial, or at any time if a date has not been set for trial, provides the other party within 15 days after receiving the request with all of the following:
972.11(5)(b)2.d.
d. A statement describing the methodology of measuring fragment size and match criteria.
972.11(5)(b)2.e.
e. A statement setting forth the allele frequency and genotype data for the appropriate data base used.
972.11(5)(c)
(c) Notwithstanding
par. (b), the court may grant a continuance regarding the time limit under
par. (b) 2. to allow a party to provide the required information.
972.11 History
History: Sup. Ct. Order, 59 W (2d) R1, R7 (1973); Sup. Ct. Order, 67 W (2d) 585, 784 (1975);
1975 c. 184,
422;
1979 c. 89;
1981 c. 147 ss.
1,
2;
1983 a. 165,
449;
1985 a. 275;
1987 a. 332 s.
64;
1993 a. 16,
97,
227,
359;
1995 a. 456;
1997 a. 319.
972.11 Annotation
Testimony of an officer that a piece of cloth found at the burglary scene where forcible entry was effected was similar to a coat worn by one of the defendants at the time of his apprehension was admissible and not objectionable because the coat and piece of material were not produced. York v. State, 45 W (2d) 550, 173 NW (2d) 693.
972.11 Annotation
Contradictory testimony of different witnesses for the state does not necessarily cancel the testimony and render it unfit as a basis for conviction, for determination of credibility and the weight to be accorded conflicting testimony is properly a function of the jury in the exercise of which the jury may accept or reject the inconsistent testimony even under the beyond-a-reasonable-doubt burden of proof. Embry v. State, 46 W (2d) 151, 174 NW (2d) 521.
972.11 Annotation
An offer of proof must be made as a necessary condition precedent to review by the supreme court of any alleged error in the exclusion of evidence (because without such an offer there is no way to determine whether the exclusion was prejudicial). State v. Moffett, 46 W (2d) 164, 174 NW (2d) 263.
972.11 Annotation
Defendant's conviction could not be impugned because the trial court permitted the state in rebuttal to adduce testimony of witnesses as to prior threats of the defendant to shoot the victims, injuries inflicted upon the daughter as disclosed in medical records, and the number of shots fired; such testimony clearly rebutting defendant's disclaimer of intent and version of the incident, i.e., the accidental discharge of the weapon. State v. Watson, 46 W (2d) 492, 175 NW (2d) 244.
972.11 Annotation
A question is not leading if it merely suggests a subject rather than a specific answer which may not be a true one. Evidence is relevant if it tends to prove a material fact by connection with other facts. Hicks v. State, 47 W (2d) 38, 176 NW (2d) 386.
972.11 Annotation
Challenge to the admissibility of items taken from defendant's motel room, on the ground that the chain of custody was not properly established because a police department laboratory chemist who examined the same was not present to testify, could not be sustained under uncontroverted proof that the condition of the exhibits had not been altered by the chemist's examination, there was no unexplained or missing link as to who had had custody, and they were in substantially the same condition at the time of the chemist's examination as when taken from defendant's room. State v. McCarty, 47 W (2d) 781, 177 NW (2d) 819.
972.11 Annotation
In a criminal trial it is not error to admit into evidence 2 guns carried by one coconspirator even though that man was convicted of an offense not involving the guns and defendant was not connected with the guns. State v. Hancock, 48 W (2d) 687, 180 NW (2d) 517.
972.11 Annotation
In a prosecution of codefendants for armed robbery of a narcotic addict, where the victim admitted injecting heroin into his arm about 72 hours before he testified, the trial court properly denied defendants' request that the witness display his arm in the presence of the jury in an attempt to prove that the injection was more recent, and correctly ruled that the jury was unqualified to so determine but that the discovery sought might be required outside the presence of the jury before an expert competent to pass judgment upon the freshness of the needle marks made by the injection. Edwards v. State, 49 W (2d) 105, 181 NW (2d) 383.
972.11 Annotation
A detective's opinion of a drug addict's reputation for truth and veracity did not qualify to prove such reputation in the community because it was based on 12 varying opinions of persons who knew the addict, from which a community reputation could not be ascertained. Edwards v. State, 49 W (2d) 105, 181 NW (2d) 383.
972.11 Annotation
While witnesses may be questioned regarding their mental or physical condition where such matters have bearing on their credibility, evidence that a witness was subject to epilepsy does not warrant disregarding his testimony in the absence of showing what effect the epilepsy had on his memory. Sturdevant v. State, 49 W (2d) 142, 181 NW (2d) 523.
972.11 Annotation
Evidence of defendant's expenditure of money shortly after a burglary is properly admitted. State v. Heidelbach, 49 W (2d) 350, 182 NW (2d) 497.
972.11 Annotation
It is not error to give an instruction as to prior convictions as affecting credibility where the prior case was a misdemeanor. McKissick v. State, 49 W (2d) 537, 182 NW (2d) 282.
