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.
972.11 Annotation
An exception to the res gestae rule will admit statements by a child victim of a sexual assault to a parent 2 days later. Bertrang v. State, 50 W (2d) 702, 184 NW (2d) 867.
972.11 Annotation
Challenge to the admissibility of boots on the ground that the victim did not properly identify the same was devoid of merit, where it was stipulated that the child said they "could be" the ones she saw, for her lack of certitude did not preclude admissibility, but went to the weight the jury should give to her testimony. Howland v. State, 51 W (2d) 162, 186 NW (2d) 319.
972.11 Annotation
The state need not introduce evidence of a confession until after defendant testifies and gives contradictory testimony. Ameen v. State, 51 W (2d) 175, 186 NW (2d) 206.
972.11 Annotation
Testimony of an accomplice who waived her privilege is admissible even though she had not been tried or granted immunity. State v. Wells, 51 W (2d) 477, 187 NW (2d) 328.
972.11 Annotation
Where counsel fails to state the purpose of a question to which objection is sustained on grounds of immateriality, the court may exclude the evidence. State v. Becker, 51 W (2d) 659, 188 NW (2d) 449.
972.11 Annotation
Where the evidence was in conflict as to whether a substance found in defendant's possession was heroin, the judge cannot take judicial notice of other sources without proper notice to the parties. State v. Barnes, 52 W (2d) 82, 187 NW (2d) 845.
972.11 Annotation
The rule that the asking of an improper question which is not answered is not ground for reversal is especially true when the trial court instructs the jury to disregard such questions and to draw no inferences from them, for an instruction is presumed to efface any possible prejudice which may have resulted from the asking of the question. Taylor v. State, 52 W (2d) 453, 190 NW (2d) 208.
972.11 Annotation
A witness for the defense could be impeached by prior inconsistent statements to the district attorney even though made in the course of plea bargaining as to a related offense. Taylor v. State, 52 W (2d) 453, 190 NW (2d) 208.
972.11 Annotation
The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper allegedly because he expressed his opinion as to defendant's guilt, where it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee, 52 W (2d) 736, 190 NW (2d) 893.
972.11 Annotation
It is error for a trial court to restrict cross-examination of an accomplice who was granted immunity, but the conviction will not be reversed if the error was harmless. State v. Schenk, 53 W (2d) 327, 193 NW (2d) 26.
972.11 Annotation
Generally, a witness may not be impeached on collateral matters, and what constitutes a collateral matter depends on the issues of the particular case and the substance, rather than the form, of the questions asked on direct examination. Miller v. State, 53 W (2d) 358, 192 NW (2d) 921.
972.11 Annotation
A defendant who testifies in his own behalf may be recalled for the purpose of laying a foundation for impeachment. Evidence that on a prior occasion defendant did not wear glasses and that he had a gun similar to that described by the complainant was admissible where it contradicted testimony of the defendant. Parham v. State, 53 W (2d) 458, 192 NW (2d) 838.
972.11 Annotation
Where the prosecutor stated in his opening remarks that defendant refused to be fingerprinted but forgot to introduce testimony to this effect, the error is cured by proper instructions. State v. Tew, 54 W (2d) 361, 195 NW (2d) 615.
972.11 Annotation
A deliberate failure to object to prejudicial evidence at trial constitutes a binding waiver. Murray v. State, 83 W (2d) 621, 266 NW (2d) 288 (1978).
972.11 Annotation
Guidelines set for admission of testimony of hypnotized witness. State v. Armstrong, 110 W (2d) 555, 329 NW (2d) 386 (1983).
972.11 Annotation
Act of writing about sexual desires or activities was not itself prior "sexual conduct". Victim's notes expressing sexual desires and fantasies were, therefore, admissible. State v. Vonesh, 135 W (2d) 477, 401 NW (2d) 170 (Ct. App. 1986).
972.11 Annotation
Erroneously admitted and false testimony of victim that she was virgin at time of disputed assault so pervasively affected trial that issue of consent wasn't fully tried. State v. Penigar, 139 W (2d) 569, 408 NW (2d) 28 (1987).
972.11 Annotation
Sub. (2) (b) (rape shield law) bars, with 2 narrow exceptions, evidence of all sexual activity by complainant not incident to alleged rape. State v. Gulrud, 140 W (2d) 721, 412 NW (2d) 139 (Ct. App. 1987).
972.11 Annotation
This section doesn't violate separation of powers doctrine. State v. Mitchell, 144 W (2d) 596, 424 NW (2d) 698 (1988).
972.11 Annotation
This section does not on its face violate constitutional right to present evidence, but may, in particular circumstances violate right; to establish constitutional right to present otherwise excluded evidence, defendant must make offer of proof establishing 5 factors and court must perform balancing test. State v. Pulizzano, 155 W (2d) 633, 456 NW (2d) 325 (1990).
972.11 Annotation
To admit evidence of prior untruthful allegations of sexual assault under (2) (b) 3. court must be able to conclude from offer of proof that reasonable person could infer that complainant made prior untruthful allegation; "allegation" is not restricted to allegations reported to police. State v. DeSantis, 155 W (2d) 774, 456 NW (2d) 600 (1990).
972.11 Annotation
Summary judgment does not apply to cases brought under the criminal code. State v. Hyndman, 170 W (2d) 198, 488 NW (2d) 111 (Ct. App. 1992).
972.11 Annotation
Section 805.03 authorizing sanctions for failure to comply with court orders is applicable to criminal actions. State v. Heyer, 174 W (2d) 164, 496 NW (2d) 779 (Ct. App. 1993).
972.11 Annotation
Sub. (2) requires exclusion of testimony of a victim's possible prior sexual conduct although where the alleged victim is an eight year old child physical evidence of sexual contact may create an unjust inference that the sexual contact was by sexual assault. In Interest of Michael R.B. 175 W (2d) 713, 499 NW (2d) 641 (1993).
972.11 Annotation
That the complaining witness in a sexual assault case had previously consented to sexual intercourse has virtually no probative value regarding whether she consented to sexual intercourse under use or threat of violence. State v. Neumann, 179 W (2d) 687, 508 NW (2d) 54 (Ct. App. 1993).
972.11 Annotation
When the state questioned an alleged rapist about the victim's motive to lie it did not open the door for admission of evidence of prior acts of consensual sex. State v. Jackson, 216 W (2d) 646, 575 NW (2d) 475 (1998).
972.11 Annotation
Evidence regarding prior sexual assault by a 3rd party does not fall within one of the statutory exceptions. Pulizzano test applied. State v. Dodson, 219 W (2d) 65, 580 NW (2d) 181 (1998).
972.12
972.12
Sequestration of jurors. The court may direct that the jurors sworn be kept together or be permitted to separate. The court may appoint an officer of the court to keep the jurors together and to prevent communication between the jurors and others.
972.12 History
History: 1987 a. 73;
1991 a. 39.
