Chapter 904

CHAPTER 904

EVIDENCE — RELEVANCY AND ITS LIMITS

904.01   Definition of “relevant evidence”.

904.02   Relevant evidence generally admissible; irrelevant evidence inadmissible.

904.03   Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.

904.04   Character evidence not admissible to prove conduct; exceptions; other crimes.

904.05   Methods of proving character.

904.06   Habit; routine practice.

904.07   Subsequent remedial measures.

904.08   Compromise and offers to compromise.

904.085   Communications in mediation.

904.09   Payment of medical and similar expenses.

904.10   Offer to plead guilty; no contest; withdrawn plea of guilty.

904.11   Liability insurance.

904.12   Statement of injured; admissibility; copies.

904.13   Information concerning crime victims.

904.14   Inadmissibility of statement by health care provider of apology or condolence.

904.15   Communication in farmer assistance programs.

904.16   Health care reports.

Ch. 904 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.

904.01 904.01 Definition of “relevant evidence”. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

904.01 History History: Sup. Ct. Order, 59 Wis. 2d R1, R66 (1973).

904.01 Annotation Evidence of a defendant’s expenditure of money shortly after a burglary was properly admitted. State v. Heidelbach, 49 Wis. 2d 350, 182 N.W.2d 497 (1971).

904.01 Annotation Discussing the difference between relevancy and materiality. If counsel fails to state the purpose of a question objected to on grounds of immateriality, the court may exclude the evidence. State v. Becker, 51 Wis. 2d 659, 188 N.W.2d 449 (1971).

904.01 Annotation The introduction of a portion of a bloodstained mattress was both relevant and material by tending to make more probable the prosecution’s claim that the victim had been with the defendant and had been molested by the defendant. Bailey v. State, 65 Wis. 2d 331, 222 N.W.2d 871 (1974).

904.01 Annotation The most important factor in determining the admissibility of evidence of conduct prior to an accident is the degree of probability that the conduct continued until the accident occurred. Evidence of the defendant’s reckless driving 12 miles from the accident scene was irrelevant. Hart v. State, 75 Wis. 2d 371, 249 N.W.2d 810 (1977).

904.01 Annotation Evidence of crop production in other years was admissible to prove damages for injury to a crop. Cutler Cranberry Co. v. Oakdale Electric Cooperative, 78 Wis. 2d 222, 254 N.W.2d 234 (1977).

904.01 Annotation A complaining witness’s failure to appear to testify on two prior trial dates was not relevant to the credibility of the witness. Rogers v. State, 93 Wis. 2d 682, 287 N.W.2d 774 (1980).

904.01 Annotation Testimony that weapons were found at the accused’s home was admissible as part of a chain of facts relevant to the accused’s intent to deliver heroin. State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810 (1981).

904.01 Annotation Evidence of a defendant’s prior sexual misconduct was irrelevant when the only issue in a rape case was whether the victim consented. State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982).

904.01 Annotation Evidence of post-manufacture industry custom was admissible under the facts of a products liability case. Evidence of a good safety record of the product was not relevant. D.L. v. Huebner, 110 Wis. 2d 581, 329 N.W.2d 890 (1983).

904.01 Annotation Human leukocyte antigen and red blood cell test results showing the probability of exclusion and the paternity index are generally admissible in a criminal sexual assault action in which the assault allegedly resulted in the birth of a child, but the probability of paternity is not generally admissible. State v. Hartman, 145 Wis. 2d 1, 426 N.W.2d 320 (1988).

904.01 Annotation Third-party testimony corroborating the victim’s testimony against one defendant was relevant as to a second defendant charged with different acts when the testimony tended to lend credibility to the victim’s testimony against the second defendant. State v. Patricia A.M., 176 Wis. 2d 542, 500 N.W.2d 289 (1993).

904.01 Annotation Evidence of noncriminal conduct to negate the inference of criminal conduct is generally irrelevant. State v. Tabor, 191 Wis. 2d 482, 529 N.W.2d 915 (Ct. App. 1995).

904.01 Annotation Evidence of why a defendant did not testify has no bearing on guilt or innocence, is not relevant, and is inadmissible. State v. Heuer, 212 Wis. 2d 58, 567 N.W.2d 638 (Ct. App. 1997), 96-3594.

904.01 Annotation A psychologist’s testimony that the defendant did not show any evidence of having a sexual disorder and that absent a sexual disorder a person is unlikely to molest a child was relevant. State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), 97-2737. See also State v. Davis, 2002 WI 75, 254 Wis. 2d 1, 645 N.W.2d 913, 00-2916.

904.01 Annotation A negative gunshot residue test cannot conclusively prove that a person was not the shooter of a gun, but it is relevant as it has a tendency to make it less probable. State v. DelReal, 225 Wis. 2d 565, 593 N.W.2d 461 (Ct. App. 1999), 97-1480.

904.01 Annotation There is neither a blanket restriction of Richard A.P., 223 Wis. 2d 777 (1998), evidence nor is it compelled. Courts must scrutinize the evidence on a case-by-case basis to assess admissibility. State v. Walters, 2004 WI 18, 269 Wis. 2d 142, 675 N.W.2d 778, 01-1916.

904.02 904.02 Relevant evidence generally admissible; irrelevant evidence inadmissible. All relevant evidence is admissible, except as otherwise provided by the constitutions of the United States and the state of Wisconsin, by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.

904.02 History History: Sup. Ct. Order, 59 Wis. 2d R1, R70 (1973).

904.02 Annotation A defendant does not have a constitutional right to present irrelevant evidence. State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (1988).

904.03 904.03 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

904.03 History History: Sup. Ct. Order, 59 Wis. 2d R1, R73 (1973).

904.03 Annotation It was within the discretion of the trial court under this section to admit the victim’s bloodstained nightgown and to allow it to be sent to the jury room when: 1) the nightgown clearly was of probative value, since available photographs failed to show the underside of the garment; 2) the article was not of a nature that would shock the sensibilities of the jury and inflame it to the prejudice of defendant; and 3) no objection was made to sending the item to the jury room. Jones v. State, 70 Wis. 2d 41, 233 N.W.2d 430 (1975).

904.03 Annotation Evidence of alcoholic degenerative impairment of the plaintiff’s judgment had limited probative value, far outweighed by possible prejudice. Walsh v. Wild Masonry Co., 72 Wis. 2d 447, 241 N.W.2d 416 (1976).

904.03 Annotation The trial court did not abuse its discretion in refusing to admit exhibits offered at the 11th hour to establish a defense by proof of facts not previously referred to. Roeske v. Diefenbach, 75 Wis. 2d 253, 249 N.W.2d 555 (1977).

904.03 Annotation When evidence was introduced for the purpose of identification, the probative value of conduct during a prior rape case exceeded the prejudicial effect. Sanford v. State, 76 Wis. 2d 72, 250 N.W.2d 348 (1977).

904.03 Annotation When the defendant was charged with attempted murder of police officers in pursuit of the defendant following an armed robbery, the probative value of evidence concerning the armed robbery and showing motive for the murder attempt was not substantially outweighed by the danger of unfair prejudice. Holmes v. State, 76 Wis. 2d 259, 251 N.W.2d 56 (1977).

904.03 Annotation If evidence of other conduct is not offered for a valid purpose under sub. (2), the balancing test under this section is inapplicable. State v. Spraggin, 77 Wis. 2d 89, 252 N.W.2d 94 (1977).

904.03 Annotation In a prosecution for possession of amphetamines, it was an abuse of discretion to admit and send to the jury room a syringe and hypodermic needles that had only slight relevance to the charge. Schmidt v. State, 77 Wis. 2d 370, 253 N.W.2d 204 (1977).

904.03 Annotation The right of confrontation is limited by this section if the probative value of the desired cross-examination is outweighed by the possibility of unfair or undue prejudice. Chapin v. State, 78 Wis. 2d 346, 254 N.W.2d 286 (1977).

904.03 Annotation The trial court abused its discretion by excluding an official blood alcohol chart offered in evidence by an accused driver. State v. Hinz, 121 Wis. 2d 282, 360 N.W.2d 56 (Ct. App. 1984).

904.03 Annotation When evidence of a sexual assault was the only evidence of an element of a charged kidnapping offense, withholding the evidence on the basis of unfair prejudice unfairly precluded the state from obtaining a conviction. State v. Grande, 169 Wis. 2d 422, 485 N.W.2d 282 (Ct. App. 1992).

904.03 Annotation A defendant’s intoxication, for purposes of motor vehicle statutes, did not per se demonstrate that the defendant’s statements were untrustworthy. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994).

904.03 Annotation The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall, 202 Wis. 2d 29, 549 N.W.2d 418 (1996), 94-1213.

904.03 Annotation While prior convictions are an element of drunk driving, s. 346.63 (1) (b), admitting evidence of that element may not be proper. Admitting any evidence of prior convictions and submitting the element of the defendant’s status as a prior offender to the jury when the defendant admitted to the element was an erroneous exercise of discretion. State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), 96-1973.

904.03 Annotation The state, like the court, operates with the priority of searching for truth and justice. Our system depends upon all witnesses being forthright and truthful and taking seriously the oath to tell the truth when testifying in a legal proceeding. Evidence that challenges the credibility of a state’s witness promotes that goal and cannot be summarily dismissed as overly prejudicial. When the jury hears all of the witnesses who can provide relevant information on the issues, it can make a fair assessment as to who is being truthful. This is of particular importance in a case that relies primarily on whether an officer or the defendant is telling the truth. It is not appropriate for the trial court to assume that the defendant was lying and the officer was telling the truth. Resolution of credibility issues and questions of fact must be determined by the factfinder. State v. Missouri, 2006 WI App 74, 291 Wis. 2d 466, 714 N.W.2d 595, 05-1486.

904.03 Annotation While surprise is not included in this section as a basis on which to exclude otherwise relevant evidence, testimony that results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues. Roy v. St. Lukes Medical Center, 2007 WI App 218, 305 Wis. 2d 658, 741 N.W.2d 256, 06-0480.

904.03 Annotation Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. Absent evidence that the defendant was himself a gang member, a gang expert’s testimony should not have been allowed when the expert’s testimony insinuated, without any basis, that the defendant was a part of the gang culture, if not actually a member of a gang. State v. Burton, 2007 WI App 237, 306 Wis. 2d 403, 743 N.W.2d 152, 06-2436.

904.03 Annotation Alexander, 214 Wis. 2d 628 (1997), is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. State v. Warbelton, 2009 WI 6, 315 Wis. 2d 253, 759 N.W.2d 557, 07-0105.

904.03 Annotation It is well established that evidence of flight has probative value as to guilt. Flight evidence is not inadmissible other acts evidence and is not inadmissible anytime a defendant points to an unrelated crime in rebuttal. Rather, when a defendant points to an unrelated crime to explain flight, the trial court must determine whether to admit the evidence by weighing the risk of unfair prejudice with its probative value. State v. Quiroz, 2009 WI App 120, 320 Wis. 2d 706, 772 N.W.2d 710, 08-1473.

904.03 Annotation The general rule is that the prosecution is entitled to prove its case by evidence of its own choice and that a criminal defendant may not stipulate or admit the defendant’s way out of the full evidentiary force of the case as the government chooses to present it. State v. Conner, 2009 WI App 143, 321 Wis. 2d 449, 775 N.W.2d 105, 08-1296.

904.03 Annotation There was no blanket rule barring or limiting the admission of the type of evidence that linked the cartridge case and bullet to the gun in this case. The admission and scope of such evidence is left to the reasonable discretion of the trial courts to exercise under this section and s. 906.11 and to cross-examination by adversary counsel. State v. Jones, 2010 WI App 133, 329 Wis. 2d 498, 791 N.W.2d 390, 09-2835.

904.03 Annotation The circuit court did not err in excluding DNA evidence when questions regarding the timeframe, source of, and contributors to the DNA and the high potential for contamination of the sample source all gave the circuit court reasonable grounds to conclude that the DNA had low probative value and that the limited probative value of the unidentified DNA evidence was substantially outweighed by the dangers of confusion of the issues, misleading the jury, and waste of time pursuant to this section. State v. Gutierrez, 2020 WI 52, 391 Wis. 2d 799, 943 N.W.2d 870, 17-2364.

904.03 Annotation It is proper to exclude evidence offered under McMorris, 58 Wis. 2d 144 (1973), when it is too remote, or if the application of the balancing test under this section shows the evidence should be excluded. Excluding McMorris evidence that is irrelevant does not violate a defendant’s right to present a defense. State v. Ochoa, 2022 WI App 35, 404 Wis. 2d 261, 978 N.W.2d 501, 20-1981.

904.03 Annotation The 6th amendment confrontation clause is not satisfied merely because the evidence offered by a defendant might be properly excluded under this section. The confrontation clause limits a trial court’s ordinary discretion to limit cross-examination and demands careful scrutiny of the purported reason for limiting cross-examination. A trial court violates the confrontation clause when the court applies ordinary balancing under this section to limit cross-examination by a defendant on issues central to the defense without giving any special consideration to the defendant’s constitutional right to confront witnesses against him. Rhodes v. Dittmann, 903 F.3d 646 (2018).

904.04 904.04 Character evidence not admissible to prove conduct; exceptions; other crimes.

904.04(1) (1) Character evidence generally. Evidence of a person’s character or a trait of the person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

904.04(1)(a) (a) Character of accused. Evidence of a pertinent trait of the accused’s character offered by an accused, or by the prosecution to rebut the same;

904.04(1)(b) (b) Character of victim. Except as provided in s. 972.11 (2), evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

904.04(1)(c) (c) Character of witness. Evidence of the character of a witness, as provided in ss. 906.07, 906.08 and 906.09.

904.04(2) (2) Other crimes, wrongs, or acts.

904.04(2)(a) (a) General admissibility. Except as provided in par. (b) 2., evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

904.04(2)(b) (b) Greater latitude.

904.04(2)(b)1. 1. In a criminal proceeding alleging a violation of s. 940.302 (2) or of ch. 948, alleging the commission of a serious sex offense, as defined in s. 939.615 (1) (b), or of domestic abuse, as defined in s. 968.075 (1) (a), or alleging an offense that, following a conviction, is subject to the surcharge in s. 973.055, evidence of any similar acts by the accused is admissible, and is admissible without regard to whether the victim of the crime that is the subject of the proceeding is the same as the victim of the similar act.

904.04(2)(b)2. 2. In a criminal proceeding alleging a violation of s. 940.225 (1) or 948.02 (1), sub. (1) and par. (a) do not prohibit admitting evidence that a person was convicted of a violation of s. 940.225 (1) or 948.02 (1) or a comparable offense in another jurisdiction, that is similar to the alleged violation, as evidence of the person’s character in order to show that the person acted in conformity therewith.

904.04 History History: Sup. Ct. Order, 59 Wis. 2d R1, R75 (1973); 1975 c. 184; 1991 a. 32; 2005 a. 310; 2013 a. 362 ss. 20 to 22, 38.

904.04 Annotation A defendant claiming self-defense can testify as to specific past instances of violence by the victim to show a reasonable apprehension of danger. McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).

904.04 Annotation Evidence of delinquency in making withholding tax payments by three other corporations of which the accused had been president was admissible to show willfulness of the accused in failing to make such payments as president of a fourth corporation. State v. Johnson, 74 Wis. 2d 26, 245 N.W.2d 687 (1976).

904.04 Annotation If a prosecution witness is charged with crimes, the defendant can offer evidence of those crimes and otherwise explore on cross-examination the subjective motives for the witness’s testimony. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976).