904.04 Annotation
The exception to the general rule barring other-acts evidence is expanded in sexual assault cases, particularly those involving children. However the evidence must still meet the requirements of the 3-step analytical framework articulated in Sullivan. State v. Davidson, 2000 WI 91,
236 Wis. 2d 537,
613 N.W.2d 606,
98-0130.
904.04 Annotation
A "plan" in sub. (2) means a design or scheme to accomplish some particular purpose. Evidence showing a plan establishes a definite prior design that includes the doing of the acts charged. Similarity of facts is not enough to admit other-acts evidence. State v. Cofield, 2000 WI App 196,
238 Wis. 2d 467,
618 N.W.2d 214,
99-1387.
904.04 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,
99-2589.
904.04 Annotation
For other-acts evidence to be admissible it must be relev relate to a fact or proposition that is of consequence and have probative value. The measure of probative value in assessing relevance is the similarity between the charged offense and the other act. In a sexual assault case, the age of the victim is an important condition in determining similarity. State v. Meehan, 2001 WI App 119,
244 Wis. 2d 121,
630 N.W.2d 722,
97-3807.
904.04 Annotation
When other-acts evidence was erroneously allowed, additional testimony about that act was not harmless error. State v. Meehan, 2001 WI App 119,
244 Wis. 2d 121,
630 N.W.2d 722,
97-3807.
904.04 Annotation
A trial court ruling that other-acts evidence is admissible does not force a defendant to enter into a Wallerman stipulation. By entering into a Wallerman stipulation to prevent the admission of the other-acts evidence a defendant waives the right to appeal the other acts ruling. Generally there can be no prejudicial error from a ruling that evidence is admissible if the evidence is not actually admitted. State v. Frank, 2002 WI App 31,
250 Wis. 2d 95,
640 N.W.2d 198,
01-1252.
904.04 Annotation
A defendant may, subject to the court's discretion, introduce expert testimony to show that he or she lacks the character traits of a sexual offender and is unlikely to have committed the assault in question. If the expert will testify, either explicitly or implicitly, on facts surrounding the crime charged, the court may compel the defendant to undergo a compulsory examination conducted by an expert selected by the state. State v. Davis, 2002 WI 75,
254 Wis. 2d 1,
645 N.W.2d 913,
00-2916.
904.04 Annotation
The state and the court are not required to agree to Wallerman stipulations. A Wallerman stipulation in a child sexual assault case is directly contrary to the greater latitude rule for the admission of other-acts evidence in child sexual assault cases. The state must prove all elements of a crime, even elements the defendant does not dispute. Accordingly, evidence relevant to undisputed elements is admissible. State v. Veach, 2002 WI 110,
255 Wis. 2d 390,
645 N.W.2d 913,
98-2387.
904.04 Annotation
Sub. (2) will not be interpreted to admit all past conduct involving an element of the present crime. State v. Barreau, 2002 WI App 198, 257 Wis. 2d. 203,
651 N.W.2d 12,
01-1828.
904.04 Annotation
A circuit court does not commit reversible error if it fails to provide a detailed Sullivan analysis for admitting other-acts evidence. An appellate court is required to perform an independent review of the record for permissible bases for admitting other-acts evidence if the circuit court fails to adequately provide the Sullivan analysis, or alternatively states an impermissible basis for the admission of such evidence. State v. Hunt, 2003 WI 81,
263 Wis. 2d 1,
666 N.W.2d 771,
01-0272.
904.04 Annotation
Inability of a victim to identify the defendant as the perpetrator of a similar uncharged crime takes the jury into the realm of conjecture or speculation and is not admissible as other-acts evidence of a crime committed by an unknown 3rd-person under Scheidell. When there is a series of similar crimes, the fact that the state is unable to prove that the defendant committed all of the crimes does not tend to establish that the defendant did not commit any of the crimes. State v. Wright, 2003 WI App 252,
268 Wis. 2d 694,
673 N.W.2d 386,
03-0238.
904.04 Annotation
Alsteen does not stand for the proposition that other-acts evidence can never be probative of the issue of consent or that the other-acts evidence is not probative of the issue of the victim's credibility. When other-acts evidence of non-consent relates not only to sexual contact but also to a defendant's modus operandi encompassing conduct inextricably connected to strikingly similar alleged criminal conduct, the evidence of non-consent may be admissible to establish motive, intent, preparation, plan, and absence of mistake or accident. State v. Ziebart, 2003 WI App 258,
268 Wis. 2d 468,
673 N.W.2d 369,
03-0795.
904.04 Annotation
During a commitment proceeding under ch. 980, sub. (2) does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future. State v. Franklin, 2004 WI 38,
270 Wis. 2d 271,
677 N.W.2d 276,
00-2426.
904.04 Annotation
Pictures depicting violence were offered to prove the defendant's fascination with death and mutilation, and that trait is undeniably probative of motive, intent, or plan to commit a vicious murder. Dressler v. McCaughtery,
238 F.3d 908 (2001).
904.04 Annotation
Help Me Doc! Theories of Admissibility of Other Acts Evidence in Medical Malpractice Cases. Gardner. 87 MLR 981 (2004)
904.05
904.05
Methods of proving character. 904.05(1)
(1)
Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
904.05(2)
(2) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct.
904.05 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R80 (1973);
1991 a. 32.
904.05 Annotation
A detective's opinion of a drug addict's reputation for truth and veracity did not qualify to prove 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 Wis. 2d 105,
181 N.W.2d 383 (1970).
904.05 Annotation
When a defendant's character evidence is by expert opinion and the prosecution's attack on the basis of the opinion is answered evasively or equivocally, then the trial court may allow the prosecution to present evidence of specific incidents of conduct. King v. State,
75 Wis. 2d 26,
248 N.W.2d 458 (1977).
904.05 Annotation
Self-defense—prior acts of the victim. 1974 WLR 266.
904.06
904.06
Habit; routine practice. 904.06(1)
(1)
Admissibility. Except as provided in
s. 972.11 (2), evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
904.06(2)
(2) Method of proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
904.06 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R83 (1973);
1975 c. 184.
904.06 Annotation
Although a specific instance of conduct occurs only once, the evidence may be admissible under sub. (2). French v. Sorano,
74 Wis. 2d 460,
247 N.W.2d 182 (1976).
904.06 Annotation
Habit evidence must be distinguished from character evidence. Character is a generalized description of a person's disposition or of the disposition in respect to a general trait. Habit is more specific denoting one's regular response to a repeated situation. However, habit need not be "semi-automatic" or "virtually unconscious." Steinberg v. Arcilla,
194 Wis. 2d 759,
535 N.W.2d 444 (Ct. App. 1995).
904.07
904.07
Subsequent remedial measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment or proving a violation of
s. 101.11.
904.07 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R87 (1973).
904.07 Annotation
Evidence of subsequent remedial measures by the mass producer of a defective product is admissible in a products liability case if the underlying policy of this section not to discourage corrective steps is not applicable. Chart v. General Motors Corp.
80 Wis. 2d 91,
258 N.W.2d 681 (1977).
904.07 Annotation
Evidence of a remedial change was inadmissible when the defendant did not challenge the feasibility of the change. Krueger v. Tappan Co.
104 Wis. 2d 199,
311 N.W.2d 219 (Ct. App. 1981).
904.07 Annotation
Evidence of post-event remedial measures may be introduced under both negligence and strict liability theories. D. L. v. Huebner,
110 Wis. 2d 581,
329 N.W.2d 890 (1983).
904.08
904.08
Compromise and offers to compromise. Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This section does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, proving accord and satisfaction, novation or release, or proving an effort to compromise or obstruct a criminal investigation or prosecution.
904.08 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R90 (1973);
1987 a. 355; Sup. Ct. Order No.
93-03, 179 Wis. 2d xv (1993);
1993 a. 490.
904.08 Annotation
While this section does not exclude evidence of compromise settlements to prove bias or prejudice of witnesses, it does exclude evidence of details such as the amount of the settlement. Johnson v. Heintz,
73 Wis. 2d 286,
243 N.W.2d 815 (1976).
904.08 Annotation
The plaintiff's letter suggesting a compromise between codefendants was not admissible to prove the liability of a defendant. Production Credit Association v. Rosner,
78 Wis. 2d 543,
255 N.W.2d 79 (1977).
904.08 Annotation
When a letter from a bank to the defendant was an unconditional demand for possession of collateral and payment under a lease and was prepared without prior negotiations, compromise, or agreement, the letter was not barred by this section. Heritage Bank v. Packerland Packing Co.
82 Wis. 2d 225,
262 N.W.2d 109 (1978).
904.085
904.085
Communications in mediation. 904.085(1)
(1)
Purpose. The purpose of this section is to encourage the candor and cooperation of disputing parties, to the end that disputes may be quickly, fairly and voluntarily settled.
904.085(2)(a)
(a) "Mediation" means mediation under
s. 93.50 (3), conciliation under
s. 111.54, mediation under
s. 111.11,
111.70 (4) (cm) 3. or
111.87, mediation under
s. 115.797, negotiation under
s. 289.33 (9), mediation under
ch. 655 or
s. 767.405, or any similar statutory, contractual or court-referred process facilitating the voluntary resolution of disputes. "Mediation" does not include binding arbitration or appraisal.
904.085(2)(b)
(b) "Mediator" means the neutral facilitator in mediation, its agents and employees.
904.085(2)(c)
(c) "Party" means a participant in mediation, personally or by an attorney, guardian, guardian ad litem or other representative, regardless of whether such person is a party to an action or proceeding whose resolution is attempted through mediation.
904.085(3)(a)(a) Except as provided under
sub. (4), no oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding. Any communication that is not admissible in evidence or not subject to discovery or compulsory process under this paragraph is not a public record under
subch. II of ch. 19.
904.085(3)(b)
(b) Except as provided under
sub. (4), no mediator may be subpoenaed or otherwise compelled to disclose any oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party or to render an opinion about the parties, the dispute whose resolution is attempted by mediation or any other aspect of the mediation.
904.085(4)(a)(a) Subsection (3) does not apply to any written agreement, stipulation or settlement made between 2 or more parties during or pursuant to mediation.
904.085(4)(c)
(c) Subsection (3) (a) does not prohibit the admission of evidence otherwise discovered, although the evidence was presented in the course of mediation.
904.085(4)(d)
(d) A mediator reporting child or unborn child abuse under
s. 48.981 or reporting nonidentifying information for statistical, research or educational purposes does not violate this section.
904.085(4)(e)
(e) In an action or proceeding distinct from the dispute whose settlement is attempted through mediation, the court may admit evidence otherwise barred by this section if necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally.
904.085 History
History: Sup. Ct. Order No.
93-03, 179 Wis. 2d xv (1993);
1995 a. 227;
1997 a. 59,
164,
292;
2005 a. 443 s.
265.
904.085 Note
Judicial Council Note, 1993: This section creates a rule of inadmissibility for communications presented in mediation. This rule can be waived by stipulation of the parties only in narrow circumstances [see sub. (4) (b)] because the possibility of being called as a witness impairs the mediator in the performance of the neutral facilitation role. The purpose of the rule is to encourage the parties to explore facilitated settlement of disputes without fear that their claims or defenses will be compromised if mediation fails and the dispute is later litigated.
904.09
904.09
Payment of medical and similar expenses. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
904.09 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R93 (1973).
904.10
904.10
Offer to plead guilty; no contest; withdrawn plea of guilty. Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.
904.10 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R94 (1973);
1991 a. 32.
904.10 Annotation
When an accused entered into a plea agreement and subsequently testified at the trials of other defendants, and when the accused later withdrew the guilty plea and was tried, prior trial testimony was properly admitted for impeachment purposes. State v. Nash,
123 Wis. 2d 154,
366 N.W.2d 146 (Ct. App. 1985).
904.10 Annotation
Statements made during a guilty plea hearing are inadmissible for any purpose, including impeachment, at a subsequent trial. State v. Mason,
132 Wis. 2d 427,
393 N.W.2d 102 (Ct. App. 1986).
904.10 Annotation
A defendant's agreement to sign a written confession, after being told by the district attorney that the state would stand silent regarding sentencing if the defendant gave a truthful statement, was not the result of plea negotiations but negotiations for a confession, and therefore was not inadmissible under this section. State v. Nicholson,
187 Wis. 2d 687,
523 N.W.2d 573 (Ct. App. 1994).
904.10 Annotation
A no contest plea in a criminal case cannot be used collaterally as an admission in future civil litigation. Kustelski v. Taylor, 2003 WI App 194,
266 Wis. 2d 940,
669 N.W.2d 780,
02-2786.
904.10 Annotation
Section 908.01 (4) (b) deals with admissions by a party as a general rule, but admissions incidental to an offer to plead are a special kind of party admission: they are impossible to segregate from the offer itself because the offer is implicit in the reasons advanced therefor. Section 904.10 trumps s. 908.01 (4) (b) because it excludes only this particular category of party admissions and therefore is more specialized than the latter statute. State v. Norwood, 2005 WI App 218,
287 Wis. 2d 679,
706 N.W.2d 683,
04-1073.
904.11
904.11
Liability insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
904.11 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R97 (1973);
1991 a. 32.
904.12
904.12
Statement of injured; admissibility; copies. 904.12(1)(1) In actions for damages caused by personal injury, no statement made or writing signed by the injured person within 72 hours of the time the injury happened or accident occurred, shall be received in evidence unless such evidence would be admissible as a present sense impression, excited utterance or a statement of then existing mental, emotional or physical condition as described in
s. 908.03 (1),
(2) or
(3).
904.12(2)
(2) Every person who takes a written statement from any injured person or person sustaining damage with respect to any accident or with respect to any injury to person or property, shall, at the time of taking such statement, furnish to the person making such statement, a true, correct and complete copy thereof. Any person taking or having possession of any written statement or a copy of said statement, by any injured person, or by any person claiming damage to property with respect to any accident or with respect to any injury to person or property, shall, at the request of the person who made such statement or the person's personal representative, furnish the person who made such statement or the person's personal representative, a true, honest and complete copy thereof within 20 days after written demand. No written statement by any injured person or any person sustaining damage to property shall be admissible in evidence or otherwise used or referred to in any way or manner whatsoever in any civil action relating to the subject matter thereof, if it is made to appear that a person having possession of such statement refused, upon the request of the person who made the statement or the person's personal representatives, to furnish such true, correct and complete copy thereof as herein required.
904.12(3)
(3) This section does not apply to any statement taken by any officer having the power to make arrests.
904.12 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R99 (1973);
1991 a. 32.
904.12 Annotation
Postaccident Statements by Injured Parties. LaFave. Wis. Law. Sept. 1997.
904.13
904.13
Information concerning crime victims. 904.13(2)
(2) In any action or proceeding under
ch. 938 or
chs. 967 to
979, evidence of the address of an alleged crime victim or any family member of an alleged crime victim or evidence of the name and address of any place of employment of an alleged crime victim or any family member of an alleged crime victim is relevant only if it meets the criteria under
s. 904.01. District attorneys shall make appropriate objections if they believe that evidence of this information, which is being elicited by any party, is not relevant in the action or proceeding.
904.13 History
History: 1985 a. 132;
1995 a. 77.
904.15
904.15
Communication in farmer assistance programs. 904.15(1)(1) Except as provided under
sub. (2), no oral or written communication made in the course of providing or receiving advice or counseling under
s. 93.51 or in providing or receiving assistance under
s. 93.41 or
93.52 is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding.
904.15(2)(a)(a) Subsection (1) does not apply to information relating to possible criminal conduct.
904.15(2)(b)
(b) Subsection (1) does not apply if the person receiving advice or counseling under
s. 93.51 or assistance under
s. 93.41 or
93.52 consents to admission or discovery of the communication.
904.15(2)(c)
(c) A court may admit evidence otherwise barred by this section if necessary to prevent a manifest injustice.
904.15 History
History: 1997 a. 264.
