Chapter 904

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).

904.04 Annotation When a defendant claims accident in shooting the deceased, the prosecution may present evidence of prior violent acts to prove intent and absence of accident. King v. State, 75 Wis. 2d 26, 248 N.W.2d 458 (1977).

904.04 Annotation The trial court did not err in refusing to grant a mistrial when police reports concerning an unrelated pending charge against the defendant and the defendant’s mental history were accidentally sent to the jury room. Johnson v. State, 75 Wis. 2d 344, 249 N.W.2d 593 (1977).

904.04 Annotation Evidence of the defendant’s prior sales of other drugs was admitted under sub. (2) as probative of the intent to deliver cocaine. Peasley v. State, 83 Wis. 2d 224, 265 N.W.2d 506 (1978).

904.04 Annotation Evidence of the defendant’s prior fighting was admissible to refute the defendant’s claim of misidentification and to impeach a defense witness. State v. Stawicki, 93 Wis. 2d 63, 286 N.W.2d 612 (Ct. App. 1979).

904.04 Annotation The defendant’s two prior convictions for burglary were admissible to prove intent to use gloves, a long pocket knife, a crowbar, and a pillowcase as burglarious tools. Vanlue v. State, 96 Wis. 2d 81, 291 N.W.2d 467 (1980).

904.04 Annotation Criminal acts of the defendant’s co-conspirators were admissible to prove plan and motive. Haskins v. State, 97 Wis. 2d 408, 294 N.W.2d 25 (1980).

904.04 Annotation Evidence of other crimes was admissible to show plan and identity. State v. Thomas, 98 Wis. 2d 166, 295 N.W.2d 784 (Ct. App. 1980).

904.04 Annotation Evidence of a similar killing committed 12 hours after the shooting in issue was relevant to show that both slayings sprang from like mental conditions and to show plan or scheme. Barrera v. State, 99 Wis. 2d 269, 298 N.W.2d 820 (1980).

904.04 Annotation Evidence of the 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).

904.04 Annotation Other crimes evidence was admissible to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Pharr, 115 Wis. 2d 334, 340 N.W.2d 498 (1983).

904.04 Annotation Other crimes evidence was admissible to rebut the defendant’s claim that the defendant’s presence in the backyard of a burglarized home was coincidental and innocent. State v. Rutchik, 116 Wis. 2d 61, 341 N.W.2d 639 (1984).

904.04 Annotation When the accused claimed that a shooting was in self-defense, the court abused its discretion by excluding opinion evidence as to the victim’s reputation for violence. State v. Boykins, 119 Wis. 2d 272, 350 N.W.2d 710 (Ct. App. 1984).

904.04 Annotation Under the “greater latitude of proof” principle applicable to other-acts evidence in sex crimes, particularly those with children, sex acts committed against the complainant and another young girl four and six years prior to the charged assault were admissible under sub. (2) to show plan or motive. State v. Friedrich, 135 Wis. 2d 1, 398 N.W.2d 763 (1987).

904.04 Annotation The admission under sub. (2) of a prowling ordinance violation by the defendant accused of second-degree sexual assault and robbery was harmless error. State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987).

904.04 Annotation Evidence of the defendant’s use of an alias was relevant to show the defendant’s intent to cover up participation in a sexual assault. State v. Bergeron, 162 Wis. 2d 521, 470 N.W.2d 322 (Ct. App. 1991).

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

904.04 Annotation In addition to the sub. (2) exceptions, a valid basis for the admission of other crimes evidence is to furnish the context of the crime if necessary to the full presentation of the case. State v. Chambers, 173 Wis. 2d 237, 496 N.W.2d 191 (Ct. App. 1992).

904.04 Annotation There is no presumption of admissibility or exclusion for other crimes evidence. State v. Speer, 176 Wis. 2d 1101, 501 N.W.2d 429 (1993).

904.04 Annotation Evidence of other crimes may be offered in regard to the question of intent despite a defendant’s assertion that the charged act never occurred. State v. Clark, 179 Wis. 2d 484, 507 N.W.2d 172 (Ct. App. 1993).

904.04 Annotation Other-acts evidence is relevant if a jury could find by a preponderance of the evidence that the defendant committed the other act. An acquittal does not prevent offering evidence of a prior crime for purposes authorized under this section. State v. Landrum, 191 Wis. 2d 107, 528 N.W.2d 36 (Ct. App. 1995).

904.04 Annotation Other-acts evidence in a child sexual assault case was admissible when the type of contact was different and the victims were of a different gender, because the prior act was probative of the defendant’s desire for sexual gratification from children. State v. Tabor, 191 Wis. 2d 482, 529 N.W.2d 915 (Ct. App. 1995).

904.04 Annotation To be admissible for purposes of identity, “other-acts evidence” must have a similarity to the present offense so that it can be said that the acts constitute the imprint of the defendant. State v. Rushing, 197 Wis. 2d 631, 541 N.W.2d 155 (Ct. App. 1995), 95-0663.

904.04 Annotation Verbal statements may be admissible as other-acts evidence even when not acted upon. State v. Jeske, 197 Wis. 2d 905, 541 N.W.2d 225 (Ct. App. 1995), 95-0388.

904.04 Annotation There is not a per se rule that enables the state to always submit other-acts evidence on motive and intent. The evidence is subject to general strictures against use when the defendant’s concession on the element for which it is offered provides a more direct source of proof. State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996), 95-1950.

904.04 Annotation Evidence of a defendant’s probation or parole status and conditions is admissible if the evidence demonstrates motive for or otherwise explains the defendant’s criminal conduct. The status itself must provide the motive for the action. An action in direct violation of a condition may not be admitted to demonstrate an irresistible impulse to commit the particular crime. State v. Kourtidias, 206 Wis. 2d 574, 557 N.W.2d 858 (Ct. App. 1996), 95-1073.

904.04 Annotation A three-step analysis is applied to determine the admissibility of other-acts evidence. The proponent of the evidence bears the burden of persuading the court that the three-step inquiry is satisfied. The proponent and opponent of the evidence must clearly articulate their reasons for seeking admission or exclusion and apply the facts to the analytical framework. State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), 96-2244.

904.04 Annotation Other-acts evidence is admissible: 1) if it is offered for a permissible purpose pursuant to sub. (2) (a); 2) if it is relevant under the two relevancy requirements of s. 904.01; and 3) if its probative value is not substantially outweighed by the risk or danger of unfair prejudice under s. 904.03. State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), 96-2244.

904.04 Annotation Other-acts evidence may be admitted for purposes other than those enumerated in sub. (2). Evidence of a history of assaultive behavior was properly admitted in relation to entitlement to punitive damages that rested on proof of either the defendant’s intentional disregard of the plaintiff’s rights or maliciousness. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1999), 97-3404.

904.04 Annotation When a defendant seeks to introduce other-acts evidence of a crime committed by an unknown third person, a court should engage in the Sullivan, 216 Wis. 2d 768 (1998), three-step analysis. State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999), 97-1426.

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 three-step analytical framework articulated in Sullivan, 216 Wis. 2d 768 (1998). State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, 98-0130. See also State v. Marinez, 2011 WI 12, 331 Wis. 2d 568, 797 N.W.2d 399, 09-0567.

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 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, 203 Wis. 2d 158 (1996), 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 the defendant 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, 203 Wis. 2d 158 (1996), 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, 648 N.W.2d 447, 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, 216 Wis. 2d 768 (1998), 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 third person under Scheidell, 227 Wis. 2d 285 (1999). 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, 108 Wis. 2d 723 (1982), 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 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.

904.04 Annotation Sub. (2) does not apply in ch. 980 commitment proceedings. The Franklin, 2004 WI 38, court discerned an unambiguous legislative intent to restrict the application of sub. (2) to analyzing evidence used to prove past acts. The substantial probability of future conduct is the relevant question in ch. 980 proceedings. The nature of ch. 980 hearings demands the jury consider evidence that would normally be barred in a traditional criminal trial. Although Franklin did not discuss the due process implications of its decision, the inapplicability of sub. (2) is consistent with the demands of due process under both the U.S. and Wisconsin Constitutions. State v. Kaminski, 2009 WI App 175, 322 Wis. 2d 653, 777 N.W.2d 654, 08-2439.

904.04 Annotation When determining relevance of other acts evidence the trial court is to consider: 1) whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action; and 2) whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence. This is a common sense determination based less on legal precedent than life experiences. Dalka v. Wisconsin Central, Ltd., 2012 WI App 22, 339 Wis. 2d 361, 811 N.W.2d 834, 11-0398.

904.04 Annotation Proffered evidence of other acts of a third party must do more than simply afford a possible ground of suspicion against another person; it must connect that person to the crime—either directly or inferentially. The identity exception to other-acts evidence under sub. (2) requires that similarities exist between the other act and the offense for which the defendant is being tried. The threshold measure for similarity in the admission of other-acts evidence with regard to identity is nearness of time, place, and circumstance of the other act to the crime alleged. State v. Vollbrecht, 2012 WI App 90, 344 Wis. 2d 69, 820 N.W.2d 443, 11-0425.

904.04 Annotation While the defendant put the defendant’s character and credibility at issue by testifying and thus invited rebuttal testimony from the state, testimony that the defendant always stuttered when he lied went too far. The witness presented herself as a human lie detector. The jury is the lie detector in the courtroom. No witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth. State v. Echols, 2013 WI App 58, 348 Wis. 2d 81, 831 N.W.2d 768, 12-0422.

904.04 Annotation The measure of probative value in assessing relevance is the similarity between the charged offense and the other act. Similarity is demonstrated by showing the nearness of time, place, and circumstance between the other act and the charged crime. It is within a circuit court’s discretion to determine whether other-acts evidence is too remote. However, events that are dissimilar or that do not occur near in time may still be relevant to one another. There is no precise point at which a prior act is considered too remote, and remoteness must be considered on a case-by-case basis. State v. Hurley, 2015 WI 35, 361 Wis. 2d 529, 861 N.W.2d 174, 13-0558.

904.04 Annotation For the types of cases enumerated under sub. (2) (b) 1., circuit courts should admit evidence of other acts with greater latitude under a Sullivan, 216 Wis. 2d 768 (1998), analysis to facilitate its use for a permissible purpose. State v. Dorsey, 2018 WI 10, 379 Wis. 2d 386, 906 N.W.2d 158, 15-0648.

904.04 Annotation Sub. (2) (b) 2. is constitutional. The test for whether admitting other acts evidence to prove conduct violates due process is whether the introduction of the evidence is so extremely unfair that its admission violates fundamental concepts of justice. Given Wisconsin’s history of greater latitude in admitting other acts evidence in sexual assault cases, and the restrictions imposed by sub. (2) (b) 2., admitting other acts evidence under this section does not violate fundamental concepts of justice. State v. Gee, 2019 WI App 31, 388 Wis. 2d 68, 931 N.W.2d 287, 18-1069.

904.04 Annotation In this case, the other acts evidence of sexual assault was offered for the admissible purpose of proving that the defendant’s motive was to intentionally touch the victim for the purpose of sexual arousal or gratification. Context and background, while not expressly listed in sub. (2) (a), can also be acceptable purposes. State v. Gutierrez, 2020 WI 52, 391 Wis. 2d 799, 943 N.W.2d 870, 17-2364.

904.04 Annotation Outside of certain constitutional commands, a circuit court’s day-to-day decisions applying the rules of evidence will only rarely contain a constitutional dimension. Evidentiary questions of the type raised in this case—whether evidence is relevant or prejudicial under an other-acts inquiry—are therefore almost always properly reviewed for an erroneous exercise of discretion. State v. Johnson, 2021 WI 61, 397 Wis. 2d 633, 961 N.W.2d 18, 18-2318.

904.04 Annotation Whether evidence about the defendant’s “sex drive” was considered to be character evidence generally or evidence of other crimes, wrongs, or acts, the prosecutor should not have been allowed to present evidence that the defendant was a sexual person. The “sex drive” evidence was not relevant for any permissible purpose. The only conceivable purpose of introducing it was to ask the jury to make a strained inference that, because the defendant was allegedly a very sexual person who sought sex from his girlfriend on a daily basis, the defendant was the type of person who would sexually assault a child. This is the propensity inference that is forbidden by subs. (1) and (2) alike. State v. Stroik, 2022 WI App 11, 401 Wis. 2d 150, 972 N.W.2d 640, 21-0447.