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
Evidence of a defendant's probation or parole status and conditions are 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
A 3-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 3-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
Other-acts evidence is admissible: 1) if it is offered for a permissible purpose pursuant 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
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. 1998), 97-3404
When a defendant seeks to introduce other-acts evidence of a crime committed by an unknown 3rd person, courts should engage in the Sullivan
3-step analysis. State v. Scheidell, 227 Wis. 2d 285
, 595 N.W.2d 661
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
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
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
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
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
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
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
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
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
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
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
Sub. (2) does not apply in ch. 980 commitment proceedings. The
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 United States and Wisconsin constitutions. State v. Kaminski, 2009 WI App 175
, 322 Wis. 2d 653
, 777 N.W.2d 654
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
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
While the defendant put his 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
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
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
analysis to facilitate its use for a permissible purpose. State v. Dorsey, 2018 WI 10
, 379 Wis. 2d 386
, 906 N.W.2d 158
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
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
Help Me Doc! Theories of Admissibility of Other Acts Evidence in Medical Malpractice Cases. Gardner. 87 MLR 981 (2004).
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.
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.
Sup. Ct. Order, 59 Wis. 2d R1, R80 (1973); 1991 a. 32
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
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
In order for specific acts of violence to be admissible, “character or a trait of character of a person" must be “an essential element of a charge, claim, or defense." In a homicide case in which a claim of self-defense is raised, character evidence may be admissible as evidence of the defendant's state of mind so long as the defendant had knowledge of the prior acts at the time of the offense. State v. Jackson, 2014 WI 4
, 352 Wis. 2d 249
, 841 N.W.2d 791
Self-defense — prior acts of the victim. 1974 WLR 266.
Habit; routine practice. 904.06(1)(1)
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.
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.
Sup. Ct. Order, 59 Wis. 2d R1, R83 (1973); 1975 c. 184
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
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).
The greater latitude given under Davidson
for allowing other acts evidence in child sexual assault cases because of the difficulty sexually abused children experience in testifying, and the difficulty prosecutors have in obtaining admissible evidence in such cases was properly applied when the victim, although an adult, functioned at the level of an 18-month-old, having an inability to recount what happened. This greater latitude is not restricted to allowing evidence of prior sexual assaults and was properly applied to allow evidence of pornography viewed by the defendant that helped to demonstrate motive. State v. Normington, 2008 WI App 8
, 306 Wis. 2d 727
, 744 N.W.2d 867
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
History: Sup. Ct. Order, 59 Wis. 2d R1, R87 (1973).
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
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).
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
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.
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
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
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
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
Communications in mediation. 904.085(1)(1)
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.
“Mediator" means the neutral facilitator in mediation, its agents and employees.
“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.
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
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.
does not apply to any written agreement, stipulation or settlement made between 2 or more parties during or pursuant to mediation.
Subsection (3) (a)
does not prohibit the admission of evidence otherwise discovered, although the evidence was presented in the course of mediation.
A mediator reporting child or unborn child abuse under s. 48.981
, reporting a threat of violence in or targeted at a school under s. 175.32
, or reporting nonidentifying information for statistical, research, or educational purposes does not violate this section.
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, after an in camera
hearing, it determines that admission is necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally.
Sup. Ct. Order No. 93-03
, 179 Wis. 2d xv (1993); 1995 a. 227
; 1997 a. 59
; 2005 a. 443
; Sup. Ct. Order No. 09-12
, 2010 WI 31, 323 Wis. 2d xvii; 2011 a. 32
; 2017 a. 143
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.
The focus of sub. (3) (a) is on the courts and on judicial proceedings. It directs the courts not to admit certain communications into evidence and excludes those same communications from discovery. The statute is applied when the communications are sought to be introduced or discovered in court, not when they are originally made during mediation. Dyer v. Waste Management of Wisconsin, Inc., 2008 WI App 128
, 313 Wis. 2d 803
, 758 N.W.2d 167
“Otherwise discovered" in sub. (4) (c) means discovered outside of mediation, not discovered outside the bounds of formal civil discovery. By its terms, sub. (4) (c) is intended to prevent a party from making pre-existing, unprivileged information privileged, simply by communicating in the course of a mediation. Dyer v. Waste Management of Wisconsin, Inc., 2008 WI App 128
, 313 Wis. 2d 803
, 758 N.W.2d 167
Sounding the Depths of Wisconsin's Mediation Privilege. La Fave. Wis. Law. July/Aug. 2016.
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.
History: Sup. Ct. Order, 59 Wis. 2d R1, R93 (1973).
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.
Sup. Ct. Order, 59 Wis. 2d R1, R94 (1973); 1991 a. 32
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).
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).
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).
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. This section 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
This section prohibits the use of incriminating testimony a defendant gave in order to keep the possibility of a plea bargain open. The state's assertion that this section does not apply when, as here, a prosecutor offers to allow the defendant to plead guilty, failed. Not only does this ignore the basic principle that a defendant can plead guilty with or without the prosecutor's consent, but it would require adding the words “to allow" to the statute. State v. Myrick, 2014 WI 55
, 354 Wis. 2d 828
, 848 N.W.2d 743
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.
Sup. Ct. Order, 59 Wis. 2d R1, R97 (1973); 1991 a. 32