972.11 Annotation When the state questioned an alleged rapist about the victim’s motive to lie, it did not open the door for admission of evidence of prior acts of consensual sex. State v. Jackson, 216 Wis. 2d 646, 575 N.W.2d 475 (1998), 96-1618.

972.11 Annotation Evidence regarding prior sexual assault by a third party does not fall within one of the statutory exceptions. Applying the Pulizzano, 155 Wis. 2d 633 (1990), test. State v. Dodson, 219 Wis. 2d 65, 580 N.W.2d 181 (1998), 96-1306.

972.11 Annotation Not all comparison testimony that an alleged sexual assault victim’s behavior was consistent with that of child sexual assault victims opens the door to cross-examination about the alleged victim’s sexual behavior prior to the alleged assault. State v. Dunlap, 2002 WI 19, 250 Wis. 2d 466, 640 N.W.2d 112, 99-2189.

972.11 Annotation This section does not allow a criminal defendant access to the civil subpoena duces tecum power embodied in s. 805.07 (2). State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826.

972.11 Annotation In order to admit evidence of alleged prior untruthful allegations of sexual assault under sub. (2) (b) 3., the circuit court must first conclude from the proffered evidence that a jury could reasonably find that the complainant made prior untruthful allegations of sexual assault. The judge must determine whether a jury, acting reasonably, could find that it is more likely than not that the complainant made prior untruthful allegations of sexual assault. State v. Ringer, 2010 WI 69, 326 Wis. 2d 351, 785 N.W.2d 448, 08-0652.

972.11 Annotation Under sub. (2) (b) 1. and s. 971.31 (11), evidence of the complainant’s alleged past sexual conduct with the defendant is admissible only if the defendant makes a three-part showing that: 1) the proffered evidence relates to sexual activities between the complainant and the defendant; 2) the evidence is material to a fact at issue; and 3) the evidence of sexual contact with the complainant is of sufficient probative value to outweigh its inflammatory and prejudicial nature. In determining that evidence of prior sexual conduct has a highly prejudicial effect, the legislature crafted into the rape shield law a balancing test that assumes, absent an evidentiary showing to the contrary, that the proffered evidence is more prejudicial than probative. State v. Sarfraz, 2014 WI 78, 356 Wis. 2d 460, 851 N.W.2d 235, 12-0337.

972.11 Annotation The exceptions to this section do not require proffered evidence of past sexual conduct between the accuser and the defendant to be the same as the criminal conduct alleged against the defendant. State v. Sarfraz, 2014 WI 78, 356 Wis. 2d 460, 851 N.W.2d 235, 12-0337.

972.11 Annotation Sub. (1) points in two different directions. The rules of civil procedure are applicable generally to criminal proceedings, and the application of the rules of civil procedure mandates reasonable diligence for substituted service of a subpoena. On the other hand, ch. 885 is to apply in all criminal proceedings and s. 885.03 sets forth three manners for service of a subpoena that do not include the reasonable diligence mandate. Because sub. (1) explicitly references it, ch. 885 is the more specific textual provision. Thus, service of a witness subpoena in a criminal proceeding is controlled by s. 885.03, which provides only that “any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness’s abode.” State v. Wilson, 2017 WI 63, 376 Wis. 2d 92, 896 N.W.2d 682, 15-0671.

972.11 Annotation The broad language used to define “sexual conduct” in the rape shield statute’s prohibition includes evidence concerning a victim’s lack of sexual intercourse. Therefore, the victim’s testimony in this case regarding the victim’s lack of sexual intercourse in the week prior to the sexual assault was improperly admitted. State v. Mulhern, 2022 WI 42, 402 Wis. 2d 64, 975 N.W.2d 209, 19-1565.

972.11 Annotation In this case, testimony regarding the victim’s use of birth control was not barred by sub. (2) (b) because it was connected to the course of conduct of the defendant’s sexual assaults. The evidence of the defendant’s apparent preoccupation with the victim’s continued use of birth control during the time period the defendant was sexually assaulting the victim connects the victim’s use of birth control to the course of the assaultive conduct. State v. Mader, 2023 WI App 35, 408 Wis. 2d 632, 993 N.W.2d 761, 22-0382.

972.11 Annotation This section protects complaining witnesses in sexual assault cases from being questioned about sexual conduct, but a false charge of sexual assault is not sexual conduct. Redmond v. Kingston, 240 F.3d 590 (2001).

972.11 Annotation Prior Untruthful Allegations Under Wisconsin’s Rape Shield Law: Will Those Words Come Back to Haunt You? Berry. 2002 WLR 1237.

972.115 972.115 Admissibility of defendant’s statement.

972.115(1) (1) In this section:

972.115(1)(a) (a) “Custodial interrogation” has the meaning given in s. 968.073 (1) (a).

972.115(1)(b) (b) “Law enforcement agency” has the meaning given in s. 165.83 (1) (b).

972.115(1)(c) (c) “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).

972.115(1)(d) (d) “Statement” means an oral, written, sign language, or nonverbal communication.

972.115(2) (2) 

972.115(2)(a) (a) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is not available, upon a request made by the defendant as provided in s. 972.10 (5) and unless the state asserts and the court finds that one of the following conditions applies or that good cause exists for not providing an instruction, the court shall instruct the jury that it is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony and that the jury may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case:

972.115(2)(a)1. 1. The person refused to respond or cooperate in the interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the subject’s refusal.

972.115(2)(a)2. 2. The statement was made in response to a question asked as part of the routine processing of the person.

972.115(2)(a)3. 3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer’s or agent’s knowledge, the equipment malfunctioned or stopped operating.

972.115(2)(a)4. 4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.

972.115(2)(a)5. 5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.

972.115(2)(a)6. 6. The law enforcement officer conducting the interrogation or the law enforcement officer responsible for observing an interrogation conducted by an agent of a law enforcement agency reasonably believed at the commencement of the interrogation that the offense for which the person was taken into custody or for which the person was being investigated, was not a felony.

972.115(2)(b) (b) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a proceeding heard by the court without a jury in a felony case and if an audio or audio and visual recording of the interrogation is not available, the court may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement unless the court determines that one of the conditions under par. (a) 1. to 6. applies.

972.115(4) (4) Notwithstanding ss. 968.28 to 968.37, a defendant’s lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the defendant during the interrogation.

972.115(5) (5) An audio or audio and visual recording of a custodial interrogation shall not be open to public inspection under ss. 19.31 to 19.39 before one of the following occurs: