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.
Sup. Ct. Order, 59 Wis. 2d R1, R202 (1973); 1991 a. 32
; 1997 a. 181
; 2001 a. 61
Under sub. (3), a circuit court has the authority to prevent an attorney from sharing with a nonparty witness who has yet to testify the testimony of prior witnesses during a recess, including barring a witness from reading a transcript of that testimony. State v. Copeland, 2011 WI App 28
, 332 Wis. 2d 283
, 798 N.W.2d 250
Bias of witness.
For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.
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:
This rule is adopted from the Uniform Rules of Evidence 616, which codifies United States v. Abel
, 469 U.S. 45
, 105 S. Ct. 465
, 83 L.Ed.2d 450 (1984). The rule codifies the common law in Wisconsin
. See State v. Long
, 2002 WI App 114
, ¶18, 255 Wis. 2d 729
, 647 N.W.2d 884
(“Wisconsin law is in accordance with the principle set forth in Abel
."). The committee viewed codification of the rule as useful, however, to reiterate that bias, prejudice, or interest of a witness is a fact of consequence under Wis. Stat. § 904.01. Further, the rule should make it clear that bias, prejudice, or interest is not a collateral matter, and can be established by extrinsic evidence. State v. Williamson
, 84 Wis. 2d 370
, 383, 267 N.W.2d 337
, 343 (1978) (“The bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely. . . . The extent of the inquiry with respect to bias is a matter within the discretion of the trial court.").