901.04
901.04
Preliminary questions. 901.04(1)
(1)
Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to
sub. (2) and
ss. 971.31 (11) and
972.11 (2). In making the determination the judge is bound by the rules of evidence only with respect to privileges and as provided in
s. 901.05.
901.04(2)
(2) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
901.04(3)
(3) Hearing out of the presence of a jury. Hearings on any of the following shall be conducted out of the presence of the jury:
901.04(3)(b)
(b) In actions under
s. 940.22, admissibility of evidence of the patient's or client's personal or medical history.
901.04(3)(d)
(d) Any preliminary matter if the interests of justice so requires.
901.04(4)
(4) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself or herself to cross-examination as to other issues in the case.
901.04(5)
(5) Weight and credibility. This section does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
901.04 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R14 (1975);
1975 c. 184,
421;
1985 a. 275;
1987 a. 332 s.
64;
1991 a. 32,
269;
1993 a. 97,
227;
1995 a. 456.
901.04 Annotation
While witnesses may be questioned regarding their mental or physical condition when such matters have bearing on their credibility, evidence that a witness was subject to epilepsy did not warrant disregarding his testimony in the absence of showing what effect the epilepsy had on his memory. Sturdevant v. State,
49 Wis. 2d 142,
181 N.W.2d 523 (1970).
901.04 Annotation
A voluntary confession is not rendered inadmissible although the arrest was made outside the statutory jurisdictional limits of the arresting officer. State v. Ewald,
63 Wis. 2d 165,
216 N.W.2d 213 (1974).
901.04 Annotation
A psychiatric witness whose qualifications as an expert were conceded had no scientific knowledge on which to base an opinion as to the accused's lack of specific intent to kill. There was no basis for a finding under subs. (1) or (2) to admit the testimony. State v. Dalton,
98 Wis. 2d 725,
298 N.W.2d 398 (Ct. App. 1980).
901.04 Annotation
A defendant has no confrontation clause rights as to hearsay at a pretrial motion hearing. The trial court could rely on hearsay in making its decision. State v. Frambs,
157 Wis. 2d 700,
460 N.W.2d 811 (Ct. App. 1990).
901.04 Annotation
Sub. (1) permits an out-of-court declaration by a party's alleged co-conspirator to be considered by the trial court in determining whether there was a conspiracy. State v. Whitaker,
167 Wis. 2d 247,
481 N.W.2d 649 (Ct. App. 1992).
901.04 Annotation
Before a demonstrative videotape may be admitted there must be a foundation that it is a fair and accurate reproduction of what was seen and was produced under conditions reasonably similar to conditions of the actual event. Even with the foundation established, the evidence may be excluded on a finding that its probative value is outweighed by its prejudicial effect. State v. Peterson,
222 Wis. 2d 449,
588 N.W.2d 84 (Ct. App. 1998).
901.04 Annotation
As with evidence bearing directly on consciousness of guilt, evidence of consciousness of innocence is also relevant. An offer to take a polygraph test or a DNA test is relevant as long as the person offering to take the test believes the test to be possible, accurate, and admissible. However an offer to take a DNA test would be a mere hollow gesture if the offeror knew that a test would reveal nothing. State v. Santana-Lopez, 2000 WI App 122,
237 Wis. 2d 332,
613 N.W.2d 918.
901.04 Annotation
Evidence of criminal acts by an accused that were intended to obstruct or avoid punishment was not evidence of "other acts" admissible under sub. (2), but was admissible to prove consciousness of guilt of the principal criminal charge. State v. Bauer, 2000 WI App 206,
238 Wis. 2d 687,
617 N.W.2d 902.
901.04 Annotation
In making preliminary factual determinations, courts may examine the very evidence, including hearsay statements, sought to be admitted. Bourjaily v. United States,
483 U.S. 171 (1987).
901.04 Annotation
The results of polygraph examinations are inadmissible in civil cases. While an offer to to take a polygraph examination may be relevant to the offeror's credibility, that a person agreed to a polygraph at the request of law enforcement has not been found admissible and could not be without proof that the person believed the results would accurately indicate whether he or she was lying. Estate of Neumann v. Neumann, 2000 WI App 61,
242 Wis. 2d 205,
626 N.W.2d 821.
901.05
901.05
Admissibility of certain test results. 901.05(1)
(1) In this section, "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
901.05(2)
(2) Except as provided in
sub. (3), the results of a test or tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding, as evidence of a person's character or a trait of his or her character for the purpose of proving that he or she acted in conformity with that character on a particular occasion unless the evidence is admissible under
s. 904.04 (1) or
904.05 (2) and unless the following procedures are used:
901.05(2)(a)
(a) The court may determine the admissibility of evidence under this section only upon a pretrial motion.
901.05(2)(b)
(b) Evidence which is admissible under this section must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial.
901.05(3)
(3) The results of a test or tests under
s. 938.296 (4) or
(5) or
968.38 (4) or
(5) and the fact that a person has been ordered to submit to such a test or tests under
s. 938.296 (4) or
(5) or
968.38 (4) or
(5) are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding.
901.055
901.055
Admissibility of results of dust testing for the presence of lead. The results of a test for the presence of lead in dust are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding unless the test was conducted by a person certified for this purpose by the department of health and family services.
901.055 History
History: 1999 a. 113.
901.06
901.06
Limited admissibility. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
901.06 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R21 (1973).
901.06 Annotation
Admissibility for the purpose of establishing identity prevails over inadmissibility for another purpose. State v. Stawicki,
93 Wis. 2d 63,
286 N.W.2d 612 (Ct. App. 1979).
901.07
901.07
Remainder of or related writings or recorded statements. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
901.07 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R22 (1973);
1991 a. 32.
901.07 Annotation
The rule of completeness requires a statement, including otherwise inadmissible evidence, be admitted in its entirety when necessary to explain an admissible portion of a statement. The rule is not restricted to writings or recorded statements. State v. Sharp,
180 Wis. 2d 640,
511 N.W.2d 316 (Ct. App. 1993).
901.07 Annotation
A party's use of an out-of-court statement to show an inconsistency does not automatically give the opposing party the right to introduce the whole statement. Under the rule of completeness, the court has discretion to admit only those statements necessary to provide context and prevent distortion. State v. Eugenio,
219 Wis. 2d 391,
579 N.W.2d 642 (1998).
901.07 Annotation
This section apples to written and recorded statements. The rule of completeness for oral statements is encompassed within s. 906.11 State v. Eugenio,
219 Wis. 2d 391,
579 N.W.2d 642 (1998).
