CHAPTER 906
EVIDENCE — WITNESSES
906.01 General rule of competency.
906.02 Lack of personal knowledge.
906.03 Oath or affirmation.
906.05 Competency of judge as witness.
906.06 Competency of juror as witness.
906.08 Evidence of character and conduct of witness.
906.09 Impeachment by evidence of conviction of crime or adjudication of delinquency.
906.10 Religious beliefs or opinions.
906.11 Mode and order of interrogation and presentation.
906.12 Writing used to refresh memory.
906.13 Prior statements of witnesses.
906.14 Calling and interrogation of witnesses by judge.
906.15 Exclusion of witnesses.
Ch. 906 Note
NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 Wis. 2d. The court did not adopt the comments but ordered them printed with the rules for information purposes.
906.01
906.01
General rule of competency. Every person is competent to be a witness except as provided by
ss. 885.16 and
885.17 or as otherwise provided in these rules.
906.01 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R157 (1973).
906.01 Annotation
The "best evidence rule" requires production of a writing to prove its contents. There is no comparable "better evidence rule" that requires the production of an item rather than testimony about the item. York v. State,
45 Wis. 2d 550,
173 N.W.2d 693 (1970).
906.01 Annotation
The trial court may not declare a witness incompetent to testify, except as provided in this section. A witness's credibility is determined by the fact finder. State v. Hanson,
149 Wis. 2d 474,
439 N.W.2d 133 (Ct. App. 1989).
906.02
906.02
Lack of personal knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of
s. 907.03 relating to opinion testimony by expert witnesses.
906.02 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R160 (1973);
1991 a. 32.
906.02 Annotation
The chain of custody to items taken from the defendant's motel room was properly established although a police department laboratory chemist who examined the same was not present to testify when uncontroverted proof showed 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 the items 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 Wis. 2d 781,
177 N.W.2d 819 (1970).
906.02 Annotation
A challenge to the admissibility of boots on the ground that the victim did not properly identify them was devoid of merit, as it was stipulated that the child said they "could be" the ones she saw. Her lack of certitude did not preclude admissibility, but went to the weight the jury should give to her testimony. Howland v. State,
51 Wis. 2d 162,
186 N.W.2d 319 (1971).
906.03
906.03
Oath or affirmation. 906.03(1)(1) Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the witness's duty to do so.
906.03(2)
(2) The oath may be administered substantially in the following form: Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth, so help you God.
906.03(3)
(3) Every person who shall declare that the person has conscientious scruples against taking the oath, or swearing in the usual form, shall make a solemn declaration or affirmation, which may be in the following form: Do you solemnly, sincerely and truly declare and affirm that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth; and this you do under the pains and penalties of perjury.
906.03(4)
(4) The assent to the oath or affirmation by the person making it may be manifested by the uplifted hand.
906.03 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R161 (1973);
1991 a. 32.
906.03 Annotation
A witness who is a young child need not be formally sworn to meet the oath or affirmation requirement. State v. Hanson,
149 Wis. 2d 474,
439 N.W.2d 133 (1989).
906.04
906.04
Interpreters. An interpreter is subject to the provisions of
chs. 901 to
911 relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation.
906.04 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R162 (1973);
1981 c. 390;
1991 a. 32.
906.05
906.05
Competency of judge as witness. The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
906.05 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R163 (1973).
906.06
906.06
Competency of juror as witness. 906.06(1)
(1)
At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the member is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
906.06(2)
(2) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.
906.06 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R165 (1973);
1991 a. 32.
906.06 Annotation
Verdict impeachment requires evidence that is: 1) competent; 2) shows substantive grounds sufficient to overturn the verdict; and 3) shows resulting prejudice. Impeachment of a verdict through juror affidavits or testimony is discussed. After Hour Welding v. Lanceil Management Co.
108 Wis. 2d 734,
324 N.W.2d 686 (1982).
906.06 Annotation
There was probable prejudice when the question of a depraved mind was central and a juror went to the jury room with a dictionary definition of "depraved" written on a card. State v. Ott,
111 Wis. 2d 691,
331 N.W.2d 629 (Ct. App. 1983).
906.06 Annotation
A conviction was reversed when extraneous information improperly brought to the jury's attention raised a reasonable possibility that the information had a prejudicial effect on the hypothetical average jury. State v. Poh,
116 Wis. 2d 510,
343 N.W.2d 108 (1984).
906.06 Annotation
Evidence of a juror's racially-prejudiced remark during jury deliberations was not competent under sub. (2). State v. Shillcutt,
119 Wis. 2d 788,
350 N.W.2d 686 (1984).
906.06 Annotation
In any jury trial, material prejudice on the part of any juror impairs the right to a jury trial. That prejudicial material was brought to only one juror's attention and was not communicated to any other jurors is irrelevant to determining whether that information was "improperly brought to the jury's attention" under sub. (2). Castenada v. Pederson,
185 Wis. 2d 200,
518 N.W.2d 246 (1994), State v. Messelt,
185 Wis. 2d 255,
518 N.W.2d 232 (1994).
906.06 Annotation
Extraneous information is information, other than the general wisdom that a juror is expected to possess, that a juror obtains from a non-evidentiary source. A juror who consciously brings non-evidentiary objects to show the other jurors improperly brings extraneous information before the jury. State v. Eison,
188 Wis. 2d 298,
525 N.W.2d 91 (Ct. App. 1994).
906.06 Annotation
Sub. (2) does not limit the testimony of a juror regarding clerical errors in a verdict. A written verdict not reflecting the jury's oral decision may be impeached by showing in a timely manner and beyond a reasonable doubt that all jurors are in agreement that an error was made. State v. Williquette,
190 Wis. 2d 678,
526 N.W.2d 144 (Ct. App. 1995).
906.06 Annotation
An analytical framework to be used to determine whether a new trial on the grounds of prejudice due to extraneous juror information is outlined. State v. Eison,
194 Wis. 2d 160,
533 N.W.2d 738 (1995).
906.06 Annotation
Jurors may rely on their common sense and life experience during deliberations, including expertise that a juror may have on a particular subject. That a juror was a pharmacist did not make his knowledge about the particular effect of a drug extraneous information subject to inquiry under sub. (2). State v. Heitkemper,
196 Wis. 2d 218,
538 N.W.2d 561 (Ct. App. 1995),
94-2659.
906.06 Annotation
The extraneous information exception under sub. (2) is not limited to factual information but also includes legal information obtained outside the proceeding. State v. Wulff,
200 Wis. 2d 318,
546 N.W.2d 522 (Ct. App. 1996),
95-1732.
906.06 Annotation
Generally, the sole area jurors are competent to testify to is whether extraneous information was considered. Except when juror bias goes to a fundamental issue such as religion, evidence of juror perceptions is not competent, no matter how mistaken, and cannot form the basis for granting a new trial. Anderson v. Burnett County,
207 Wis. 2d 585,
558 N.W.2d 636 (Ct. App. 1996).
906.06 Annotation
The trial court, and not the defendant or the defendant's attorney, is permitted to question a juror directly at a hearing regarding juror bias. The trial court's discretion in submitting questions suggested by the defendant is limited, but the failure to submit questions is subject to harmless error evaluation. State v. Delgado,
215 Wis. 2d 16,
572 N.W.2d 479 (Ct. App. 1997).
906.06 Annotation
It was reasonable to refuse to allow a former member of the jury from testifying as a witness in the same case. Broadhead v. State Farm Mutual Insurance Co.
217 Wis. 2d 231,
579 N.W.2d 761 (Ct. App. 1998).
906.06 Annotation
For a juror to be competent to testify regarding extraneous information brought to the jury within the sub. (2) exception, the information must be potentially prejudicial, which it may be if it conceivably relates to a central issue of the trial. After determining whether testimony is competent under sub. (2), the court must find clear, satisfactory, and convincing evidence that the juror heard or made the comments alleged, and if it does, must then decide whether prejudicial error requiring reversal exists. State v. Broomfield,
223 Wis. 2d 465,
589 N.W.2d 225 (1999).
906.06 Annotation
There is no bright line rule regarding the time lag between the return of a verdict and when evidence of a clerical error in a verdict must be obtained or be rendered insufficiently trustworthy. Grice Engineering, Inc. v. Szyjewski, 2002 WI App 104,
254 Wis. 2d 743,
648 N.W.2d 487.
906.06 Annotation
Proof beyond a reasonable doubt to impeach a civil jury trial may be supplied by showing that five-sixths of the jurors agree that the reported verdict is in error and agree on the corrected verdict, provided each of these jurors was a part of the original group in favor of the verdict. This approach meets the "all of the jurors" requirement in Williquette. Grice Engineering, Inc. v. Szyjewski, 2002 WI App 104,
254 Wis. 2d 743,
648 N.W.2d 487.
906.07
906.07
Who may impeach. The credibility of a witness may be attacked by any party, including the party calling the witness.
906.07 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R169 (1973);
1991 a. 32.
906.08
906.08
Evidence of character and conduct of witness. 906.08(1)(1)
Opinion and reputation evidence of character. Except as provided in
s. 972.11 (2), the credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to the following limitations:
906.08(1)(a)
(a) The evidence may refer only to character for truthfulness or untruthfulness.
906.08(1)(b)
(b) Except with respect to an accused who testifies in his or her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
906.08(2)
(2) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than a conviction of a crime or an adjudication of delinquency as provided in
s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to
s. 972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.
906.08(3)
(3) Testimony by accused or other witnesses. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the privilege against self-incrimination when examined with respect to matters which relate only to credibility.
906.08 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R171 (1973);
1975 c. 184,
421;
1991 a. 32;
1995 a. 77,
225.
906.08 Annotation
The trial court committed plain error by admitting extrinsic impeaching testimony on a collateral issue. McClelland v. State,
84 Wis. 2d 145,
267 N.W.2d 843 (1978).
906.08 Annotation
When credibility of a witness was a critical issue, exclusion of evidence offered under sub. (1) was grounds for discretionary reversal. State v. Cuyler,
110 Wis. 2d 133,
327 N.W.2d 662 (1983).
906.08 Annotation
Impeachment of an accused by extrinsic evidence on a collateral matter was harmless error. State v. Sonnenberg,
117 Wis. 2d 159,
344 N.W.2d 95 (1984).
906.08 Annotation
Absent an attack on credibility, a complainant's testimony that she had not initiated a civil action for damages was inadmissible when used to bolster credibility. State v. Johnson,
149 Wis. 2d 418,
439 N.W.2d 122 (1989), confirmed,
153 Wis. 2d 121,
449 N.W.2d 845 (1990).
906.08 Annotation
Allegations of professional misconduct against the prosecution's psychiatric expert initially referred to the prosecutor's office but immediately transferred to a special prosecutor for investigation and possible criminal proceedings were properly excluded as a subject of cross-examination of the expert due to a lack of logical connection between the expert and the prosecutor necessary to suggest bias. State v. Lindh,
161 Wis. 2d 324,
468 N.W.2d 168 (1991).
906.08 Annotation
Whether a witness's credibility has been sufficiently attacked to constitute an attack on the witness's character for truthfulness permitting rehabilitating character testimony is a discretionary decision. State v. Anderson,
163 Wis. 2d 342,
471 N.W.2d 279 (Ct. App. 1991).
906.08 Annotation
Evidence that an expert in a medical malpractice action was named as a defendant in a separate malpractice action was inadmissible for impeachment purposes under this section because it did not cast light on the expert's character for truthfulness. Nowatske v. Osterloh,
201 Wis. 2d 497,
549 N.W.2d 256 (Ct. App. 1996),
93-1555.
906.08 Annotation
Character evidence may be allowed under sub. (1) (b) based on attacks on the witness's character made in opening statements. Allegations of a single instance of falsehood cannot imply a character for untruthfulness. The attack on the witness must be an assertion that the witness is a liar generally. State v. Eugenio,
219 Wis. 2d 391,
579 N.W.2d 642 (1998).
906.08 Annotation
It was appropriate for an expert to testify to the nature of witnesses' cognitive disabilities and how those mental impairments affected the witnesses' ability to testify or recall particular facts, but the expert's testimony that the witnesses were incapable of lying violated the rule that a witness is not permitted to express an opinion on whether another physically and mentally competent witness is telling the truth. State v. Tutlewski,
231 Wis. 2d 379,
605 N.W.2d 561 (1999).
906.08 Annotation
Evidence that a witness belongs to an organization, such as a street gang, is admissible to impeach the witness's testimony by showing bias. State v. Long, 2002 WI App 114,
255 Wis. 2d 729,
647 N.W.2d 884.
906.08 Annotation
Asking a defendant whether his or her accusers, a citizen witness, or an investigating police officer are telling the truth has no tendency to usurp the jury's function in assessing credibility; indeed, if anything, it would help the jury evaluate each witness's demeanor. State v. Bolden, 2003 WI App 155,
265 Wis. 2d 853,
667 N.W.2d 364.
906.08 Annotation
The opinion of an expert witness about whether another competent witness is telling the truth serves no useful purpose, and may be detrimental to the process because the jury does not need any expert assistance in assessing credibility. When a prosecutor's cross-examination of a defendant's eyewitness account was to impeach the defendant's credibility by asking whether another eyewitness account was untruthful and not to bolster the credibility of the other witness, because both and the other witness were testifying to their personal observations about the same events, the cross-examination of the defendant was permissible. Thorson v. Schwarz, 2004 WI 96, ___ Wis. 2d ___,
681 N.W.2d 914,
02-3380.
906.09
906.09
Impeachment by evidence of conviction of crime or adjudication of delinquency. 906.09(1)
(1)
General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. The party cross-examining the witness is not concluded by the witness's answer.
906.09(2)
(2) Exclusion. Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
906.09(3)
(3) Admissibility of conviction or adjudication. No question inquiring with respect to a conviction of a crime or an adjudication of delinquency, nor introduction of evidence with respect thereto, shall be permitted until the judge determines pursuant to
s. 901.04 whether the evidence should be excluded.
906.09(5)
(5) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction or a delinquency adjudication inadmissible. Evidence of the pendency of an appeal is admissible.
906.09 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R176 (1973);
1991 a. 32;
1995 a. 77.
906.09 Annotation
This section applies to both civil and criminal actions. When a plaintiff was asked by his own attorney whether he had ever been convicted of a crime, he could be asked on cross-examination as to the number of times. Underwood v. Strasser,
48 Wis. 2d 568,
180 N.W.2d 631 (1970).
