Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Factors for a court to consider in evaluating whether to admit evidence of prior convictions for the purpose of attacking a witness's truthful character include:
The rehabilitation or pardon of the person convicted.
The involvement of dishonesty or false statement in the crime.
Admissibility of conviction or adjudication.
No question inquiring with respect to a conviction of a crime or an adjudication of delinquency, nor introduction of evidence with respect thereto, shall be permitted until the court determines pursuant to s. 901.04
whether the evidence should be excluded.
Pendency of appeal.
The pendency of an appeal therefrom does not render evidence of a conviction or a delinquency adjudication inadmissible. Evidence of the pendency of an appeal is admissible.
Sup. Ct. Order, 59 Wis. 2d R1, R176 (1973); 1991 a. 32
; 1995 a. 77
; Sup. Ct. Order No. 16-02A
, 2017 WI 92, 378 Wis. 2d xiii.
Sup. Ct. Order No. 16-02A
states that: “The Judicial Council Notes to Wis. Stats. §§ 901.07, 906.08, 906.09, and 906.16 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”
Judicial Council Note, 2017:
The amendment to sub. (1) is intended to conform the rule more closely to current practice. It is consistent with
Nicholas v. State
, 49 Wis. 2d 683
, 183 N.W.2d 11
(1971) and State v. Bailey
, 54 Wis. 2d 679
, 690, 196 N.W.2d 664
, 670 (1972).
The following federal Advisory Committee Note regarding the 2006 amendment to federal Rule 609 is instructive.
The amendment also substitutes the term “character for truthfulness" for the term “credibility" in the first sentence of the Rule. The limitations of Rule 609 are not applicable if a conviction is admitted for a purpose other than to prove the witness's character for untruthfulness. See, e.g., United States v. Lopez
, 979 F.2d 1024
(5th Cir. 1992) (Rule 609 was not applicable where the conviction was offered for purposes of contradiction).
The amendment to sub. (2) continues to recognize the long-standing principle that this statutory exclusion is a “particularized application" of s. 904.03, State v. Gary M.B.
, 2004 WI 33
, ¶21, 270 Wis. 2d 62
, 81, 676 N.W.2d 475
, 485, and codifies the holding in Gary M.B.
that circuit courts are required, in determining whether to admit or exclude prior convictions, to examine a number of factors. Majority op., ¶21; Chief Justice Abrahamson's dissent, ¶56; Justice Sykes' dissent, ¶85, State v. Kuntz
, 160 Wis. 2d 722
, 752, 467 N.W.2d 531
(1991); State v. Kruzycki
, 192 Wis. 2d 509
, 525, 531 N.W.2d 429
(Ct. App. 1995); State v. Smith
, 203 Wis. 2d 288
, 295-96, 553 N.W.2d 824
(Ct. App. 1996). However, the committee recognizes that in conducting the balancing test, the circuit court need only consider those factors applicable to the case. Kuntz
, 160 Wis. 2d at 753, 467 N.W.2d 531
. Subsection (2) does not include expungement because evidence of a conviction expunged under Wis. Stat. § 973.015(1) is not admissible under this rule. State v. Anderson
, 160 Wis. 2d 435
, 437 (Ct. App. 1991).
In State v. Gary M.B.
, the majority observed that “in the future, it would be prudent for circuit courts to explicitly set forth their reasoning in ruling on § 906.09(2) matters in order to demonstrate that they considered the relevant balancing factors applicable in the case before them." 2004 WI 33
, ¶35, 270 Wis. 2d 62
, 87-88, 676 N.W.2d 475
, 488. Chief Justice Abrahamson noted, “[t]he purposes of requiring a circuit court to perform this process on the record are many. The process increases the probability that a circuit court will reach the correct result, provides appellate courts with a more meaningful record to review, provides the parties with a decision that is comprehensible, and increases the transparency and accountability of the judicial system." Chief Justice Abrahamson's dissent, ¶48.
This section applies to both civil and criminal actions. When a plaintiff was asked by his own attorney whether he had ever been convicted of a crime, he could be asked on cross-examination as to the number of times. Underwood v. Strasser, 48 Wis. 2d 568
, 180 N.W.2d 631
It was not error to give an instruction as to prior convictions effect on credibility when the prior case was a misdemeanor. McKissick v. State, 49 Wis. 2d 537
, 182 N.W.2d 282
When a defendant's answers on direct examination with respect to the number of his prior convictions were inaccurate or incomplete, the correct and complete facts could be brought out on cross-examination, during which it was permissible to mention the crime by name in order to insure that the witness understood the particular conviction being referred to. Nicholas v. State, 49 Wis. 2d 683
, 183 N.W.2d 11
Proffered evidence that a witness had been convicted of drinking offenses 18 times in the last 19 years could be rejected as immaterial if the evidence did not affect his credibility. Barren v. State, 55 Wis. 2d 460
, 198 N.W.2d 345
When a witness truthfully acknowledges a prior conviction, inquiry into the nature of the conviction may not be made. Voith v. Buser, 83 Wis. 2d 540
, 266 N.W.2d 304
A defendant's two prior convictions for burglary were admissible to prove intent to use gloves, a long pocket knife, a crowbar, and a pillow case as burglarious tools. Vanlue v. State, 96 Wis. 2d 81
, 291 N.W.2d 467
Cross-examination on prior convictions without the trial court's threshold determination under sub. (3) was prejudicial. Gyrion v. Bauer, 132 Wis. 2d 434
, 393 N.W.2d 107
(Ct. App. 1986).
An accepted guilty plea constitutes a “conviction" for purposes of impeachment under sub. (1). State v. Trudeau, 157 Wis. 2d 51
, 458 N.W.2d 383
(Ct. App. 1990).
An expunged conviction is not admissible to attack witness credibility. State v. Anderson, 160 Wis. 2d 435
, 466 N.W.2d 681
(Ct. App. 1991).
Whether to admit evidence of prior convictions for impeachment purposes requires consideration of: 1) the lapse of time since the conviction; 2) the rehabilitation of the person convicted; 3) the gravity of the crime; and 4) the involvement of dishonesty in the crime. If allowed, the existence and number of convictions may be admitted, but the nature of the convictions may not be discussed. State v. Smith, 203 Wis. 2d 288
, 553 N.W.2d 824
(Ct. App. 1996), 94-3350
Evidence that exposed a witness's prior life sentences and that he could suffer no penal consequences from confessing to the crime in question was properly admitted. State v. Scott, 2000 WI App 51
, 234 Wis. 2d 129
, 608 N.W.2d 753
Even if the circuit court did not expressly state on the record that it considered the possible danger of unfair prejudice, the fact that the court gave a limiting instruction can reveal that the trial court considered the possibly prejudicial nature of evidence and was seeking to ensure that it was properly utilized by the jury in reaching its verdict. State v. Gary M.B., 2004 WI 33
, 270 Wis. 2d 62
, 676 N.W.2d 475
Neither Seen nor Heard: Impeachment by Prior Conviction and the Continued Failure of the Wisconsin Rule to Protect the Criminal Defendant-Witness. Straka. 2018 WLR 1193.
Religious beliefs or opinions.
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced.
Sup. Ct. Order, 59 Wis. 2d R1, R184 (1973); 1991 a. 32
Mode and order of interrogation and presentation. 906.11(1)(1)
Control by judge.
The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following:
Make the interrogation and presentation effective for the ascertainment of the truth.
Protect witnesses from harassment or undue embarrassment.
Scope of cross-examination.
A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily leading questions should be permitted on cross-examination. In civil cases, a party is entitled to call an adverse party or witness identified with the adverse party and interrogate by leading questions.
Sup. Ct. Order, 59 Wis. 2d R1, R185 (1973); 1991 a. 32
; 1999 a. 85
A question is not leading if it merely suggests a subject rather than a specific answer that may not be true. Hicks v. State, 47 Wis. 2d 38
, 176 N.W.2d 386
It is error for a trial court to restrict cross-examination of an accomplice who was granted immunity, but the conviction will not be reversed if the error was harmless. State v. Schenk, 53 Wis. 2d 327
, 193 N.W.2d 26
A defendant who testifies in his own behalf may be recalled for further cross-examination to lay a foundation for impeachment. Evidence that on a prior occasion the defendant did not wear glasses and that he had a gun similar to that described by the complainant was admissible when it contradicted the defendant's earlier testimony. Parham v. State, 53 Wis. 2d 458
, 192 N.W.2d 838
A trial judge should not have stricken the entire testimony of a defense witness for refusal to answer questions bearing on his credibility that had little to do with the guilt or innocence of the defendant. State v. Monsoor, 56 Wis. 2d 689
, 203 N.W.2d 20
A trial judge's admonitions to an expert witness did not give the appearance of judicial partisanship requiring a new trial. Peeples v. Sargent, 77 Wis. 2d 612
, 253 N.W.2d 459
The extent of, manner, and right of multiple cross-examinations by different counsel representing the same party can be controlled by the trial court. Hochgurtel v. San Felippo, 78 Wis. 2d 70
, 253 N.W.2d 526
A defendant has no right to be actively represented in court both personally and by counsel. Moore v. State, 83 Wis. 2d 285
, 265 N.W.2d 540
Leading questions were properly used to refresh a witness's memory. Jordan v. State, 93 Wis. 2d 449
, 287 N.W.2d 509
By testifying to his actions on the day a murder was committed, the defendant waived the self-incrimination privilege on cross-examination as to previous actions reasonably related to the direct examination. Neely v. State, 97 Wis. 2d 38
, 292 N.W.2d 859
Under the facts of the case, the trial judge's last minute determination to a witness to testify by telephone was an abuse of discretion, which deprived the defendant of the opportunity to have a meaningful cross-examination of the witness. Town of Geneva v. Tills, 129 Wis. 2d 167
, 384 N.W.2d 701
A chart prepared by the prosecutor during a trial, in the jury's presence, to categorize testimony was not a summary under s. 910.06 but was a “pedagogical device" admissible within the court's discretion under this section. State v. Olson, 217 Wis. 2d 730
, 579 N.W.2d 802
(Ct. App. 1998), 96-2142
The rule of completeness for oral statements is encompassed within this section. A party's use of an out-of-court statement to show an inconsistency does not automatically give the opposing party the right to introduce the whole statement. Under the rule of completeness, the court has discretion to admit only those statements necessary to provide context and prevent distortion. State v. Eugenio, 219 Wis. 2d 391
, 579 N.W.2d 642
There was no misuse of discretion in allowing a three-year-old child witness to sit on her grandmother's lap while testifying regarding an alleged sexual assault. The trial court has the power to alter courtroom procedures in order to protect the emotional well-being of a child witness and is not required to determine that a child is unable to testify unless accommodations are provided. State v. Shanks, 2002 WI App 93
, 253 Wis. 2d 600
, 644 N.W.2d 275
While sub. (1) provides the circuit court with broad discretion to control the presentation of evidence at trial, that discretion is not unfettered and must give way when the exercise of discretion runs afoul of other statutory provisions that are not discretionary. State v. Smith, 2002 WI App 118
, 254 Wis. 2d 654
, 648 N.W.2d 15
Whether the trial court erroneously exercised its discretion under sub. (1) (a) to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth must be determined based upon the particular facts and circumstances of each individual case. The discovery provisions of s. 971.23 do not trump the trial court's ability to exercise its discretion to grant a continuance order. State v. Wright, 2003 WI App 252
, 268 Wis. 2d 694
, 673 N.W.2d 386
Under the circumstances of the case, when a defendant seeks to introduce evidence of prior specific instances of violence within the defendant's knowledge at the time of the incident in support of a self-defense claim, the circuit court has the authority under this section, in conjunction with s. 901.04 (3) (d), to order the defendant to disclose prior to trial any specific acts that the defendant knew about at the time of the incident and that the defendant intends to offer as evidence so that admissibility determinations can be made prior to trial. State v. McClaren, 2009 WI 69
, 318 Wis. 2d 261
, 767 N.W.2d 550
There is 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 s. 904.03 and this section, and to cross-examination by adversary counsel. State v. Jones, 2010 WI App 133
, 329 Wis. 2d 498
, 791 N.W.2d 390
Writing used to refresh memory.
If a witness uses a writing to refresh the witness's memory for the purpose of testifying, either before or while testifying, an adverse party is entitled to have it produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the judge shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the judge in the judge's discretion determines that the interests of justice so require, declaring a mistrial.
Sup. Ct. Order, 59 Wis. 2d R1, R193 (1973); 1991 a. 32
Prior statements of witnesses. 906.13(1)(1)
Examining witness concerning prior statement.
In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown or its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel upon the completion of that part of the examination.
Extrinsic evidence of prior inconsistent statement of a witness. 906.13(2)(a)(a)
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless any of the following is applicable:
The witness was so examined while testifying as to give the witness an opportunity to explain or to deny the statement.
The witness has not been excused from giving further testimony in the action.
Sup. Ct. Order, 59 Wis. 2d R1, R197 (1973); 1991 a. 32
; 1999 a. 85
A witness for the defense could be impeached by prior inconsistent statements to the district attorney even though made in the course of plea bargaining as to a related offense. Taylor v. State, 52 Wis. 2d 453
, 190 N.W.2d 208
A statement by a defendant, not admissible as part of the prosecution's case because it was taken without the presence of the defendant's counsel, may be used on cross-examination for impeachment if the statement is trustworthy. Wold v. State, 57 Wis. 2d 344
, 204 N.W.2d 482
A bright line test for determining whether a defendant's prior inconsistent statement is admissible for impeachment is whether it was compelled. State v. Pickett, 150 Wis. 2d 720
, 442 N.W.2d 509
(Ct. App. 1989).
This section is applicable in criminal cases. A defense investigator's reports of witness interviews are statements under sub. (1) but only must be disclosed if defense counsel has examined the witness concerning the statements made to the investigator. State v. Hereford, 195 Wis. 2d 1054
, 537 N.W.2d 62
(Ct. App. 1995), 94-1596
A prior inconsistent statement is admissible under sub. (2) without first confronting the witness with that statement. Under sub. (2) (a) 2. and 3. extrinsic evidence of prior inconsistent statements is admissible if the witness has not been excused from giving further testimony in the case or if the interest of justice otherwise requires its admission. State v. Smith, 2002 WI App 118
, 254 Wis. 2d 654
, 648 N.W.2d 15
A video recording of a child's statement was inadmissible as a prior inconsistent statement under sub. (2) (a) when the requirements of s. 908.08 were not met. State v. Mercado, 2020 WI App 14
, 391 Wis. 2d 304
, 941 N.W.2d 835
Calling and interrogation of witnesses by judge. 906.14(1)(1)
Calling by judge.
The judge may, on the judge's own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
Interrogation by judge.
The judge may interrogate witnesses, whether called by the judge or by a party.
Objections to the calling of witnesses by the judge or to interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.
Sup. Ct. Order, 59 Wis. 2d R1, R200 (1973); 1991 a. 32
A trial judge's elicitation of trial testimony is improper if the cumulative effect of the judge's questioning and direction of the course of the trial has a substantial prejudicial effect on the jury. Schultz v. State, 82 Wis. 2d 737
, 264 N.W.2d 245
The practice of judicial interrogation is a dangerous one, but does not require that no court should be allowed to call and question a witness prior to completion of the presentation of evidence. State v. Carprue, 2004 WI 111
, 274 Wis. 2d 656
, 683 N.W.2d 31
Exclusion of witnesses. 906.15(1)(1)
At the request of a party, the judge or a circuit court commissioner shall order witnesses excluded so that they cannot hear the testimony of other witnesses. The judge or circuit court commissioner may also make the order of his or her own motion.
does not authorize exclusion of any of the following:
An officer or employee of a party which is not a natural person designated as its representative by its attorney.
A person whose presence is shown by a party to be essential to the presentation of the party's cause.
A victim, as defined in s. 950.02 (4)
, in a criminal case or a victim, as defined in s. 938.02 (20m)
, in a delinquency proceeding under ch. 938
, unless the judge or circuit court commissioner finds that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. The presence of a victim during the testimony of other witnesses may not by itself be a basis for a finding that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile.
The judge or circuit court commissioner may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended.