Chapter 904

904.05 Annotation Evidence—Self-Defense—Prior Acts of the Victim. Paulson. 1974 WLR 266.

904.06 904.06 Habit; routine practice.

904.06(1) (1) Admissibility. 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.

904.06(2) (2) 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.

904.06 History History: Sup. Ct. Order, 59 Wis. 2d R1, R83 (1973); 1975 c. 184.

904.06 Annotation 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 (1976).

904.06 Annotation Discussing use of specific instances evidence. State v. Evans, 187 Wis. 2d 66, 522 N.W.2d 554 (Ct. App. 1994).

904.06 Annotation 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).

904.06 Annotation The greater latitude given under Davidson, 2000 WI 91, 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, 07-0382.

904.07 904.07 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.

904.07 History History: Sup. Ct. Order, 59 Wis. 2d R1, R87 (1973).

904.07 Annotation 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 680 (1977).

904.07 Annotation 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).

904.07 Annotation Although this section precludes admission of evidence of measures taken after an event if the evidence is used to prove negligence or culpable conduct, evidence of post-event remedial measures may be introduced in a case in which there are allegations of both negligence and strict liability. When a plaintiff asserts both strict liability and negligence and the evidence is not admissible under this section on the negligence theory but is admissible to prove strict liability, the defendant can request that the circuit court give an instruction limiting the evidence to the allegations of strict liability. D.L. v. Huebner, 110 Wis. 2d 581, 329 N.W.2d 890 (1983).

904.07 Annotation Evidence of subsequent remedial measures can be admitted under the impeachment exception when the evidence is presented to impeach specific witness testimony. Vanderventer v. Hyundai Motor America, 2022 WI App 56, 405 Wis. 2d 481, 983 N.W.2d 1, 20-1052.

904.08 904.08 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.

904.08 History History: 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.

904.08 Annotation 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 (1976).

904.08 Annotation The plaintiff’s letter suggesting a compromise between codefendants was not admissible to prove the liability of a defendant. Production Credit Ass’n of Green Bay v. Rosner, 78 Wis. 2d 543, 255 N.W.2d 79 (1977).

904.08 Annotation 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 of Milwaukee v. Packerland Packing Co., 82 Wis. 2d 225, 262 N.W.2d 109 (1978).

904.08 Annotation Bias or prejudice of a witness can be a permissible basis to admit settlement-related evidence. This can be satisfied by showing that a witness changed the witness’s testimony or that the posture of a settling party is significantly different as a result of the settlement. In this case, the circuit court did not erroneously exercise its discretion when it determined that witness bias was a significant risk in light of the dramatically altered posture of the case following settlement with two central tortfeasors, and the court admitted the fact of settlement into evidence and supported that limited admission with a cautionary and clarifying instruction to the jury. Allsop Venture Partners III v. Murphy Desmond SC, 2023 WI 43, 407 Wis. 2d 387, 991 N.W.2d 320, 20-0806.

904.085 904.085 Communications in mediation.

904.085(1) (1) Purpose. 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.

904.085(2) (2) Definitions. In this section:

904.085(2)(a) (a) “Mediation” means mediation under s. 93.50 (3), conciliation under s. 111.54, mediation under s. 111.11, 111.70 (4) (cg) or (cm) 3. or 111.87, mediation under s. 115.797, negotiation under s. 289.33 (9), mediation under ch. 655 or s. 767.405, or any similar statutory, contractual or court-referred process facilitating the voluntary resolution of disputes. “Mediation” does not include binding arbitration or appraisal.

904.085(2)(b) (b) “Mediator” means the neutral facilitator in mediation, its agents and employees.

904.085(2)(c) (c) “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.

904.085(3) (3) Inadmissibility.

904.085(3)(a) (a) 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.

904.085(3)(b) (b) 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.

904.085(4) (4) Exceptions.

904.085(4)(a) (a) Subsection (3) does not apply to any written agreement, stipulation or settlement made between 2 or more parties during or pursuant to mediation.

904.085(4)(b) (b) Subsection (3) does not apply if the parties stipulate that the mediator may investigate the parties under s. 767.405 (14) (c).

904.085(4)(c) (c) Subsection (3) (a) does not prohibit the admission of evidence otherwise discovered, although the evidence was presented in the course of mediation.

904.085(4)(d) (d) 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.

904.085(4)(e) (e) 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.

904.085 History History: Sup. Ct. Order No. 93-03, 179 Wis. 2d xv (1993); 1995 a. 227; 1997 a. 59, 164, 292; 2005 a. 443 s. 265; Sup. Ct. Order No. 09-12, 2010 WI 31, 323 Wis. 2d xvii; 2011 a. 32; 2017 a. 143.

904.085 Note 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.

904.085 Annotation 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. Blackhawk Leather LLC, 2008 WI App 128, 313 Wis. 2d 803, 758 N.W.2d 167, 07-1400.

904.085 Annotation “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. Blackhawk Leather LLC, 2008 WI App 128, 313 Wis. 2d 803, 758 N.W.2d 167, 07-1400.

904.085 Annotation Sounding the Depths of Wisconsin’s Mediation Privilege. La Fave. Wis. Law. July/Aug. 2016.

904.09 904.09 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.

904.09 History History: Sup. Ct. Order, 59 Wis. 2d R1, R93 (1973).

904.10 904.10 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.

904.10 History History: Sup. Ct. Order, 59 Wis. 2d R1, R94 (1973); 1991 a. 32.

904.10 Annotation 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).

904.10 Annotation 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).

904.10 Annotation 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 688, 523 N.W.2d 573 (Ct. App. 1994).

904.10 Annotation This section does not apply to offers of compromise made to the police. State v. Pischke, 198 Wis. 2d 257, 542 N.W.2d 202 (Ct. App. 1995), 95-0183.

904.10 Annotation A no contest plea in a criminal case cannot be used collaterally as an admission in future civil litigation. Kustelski v. Taylor, 2003 WI App 194, 266 Wis. 2d 940, 669 N.W.2d 780, 02-2786.

904.10 Annotation 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, 04-1073.

904.10 Annotation 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, 12-2513.

904.11 904.11 Liability insurance. 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.

904.11 History History: Sup. Ct. Order, 59 Wis. 2d R1, R97 (1973); 1991 a. 32.

904.11 Annotation This section excludes evidence of insurance to pay punitive damages. City of West Allis v. Wisconsin Electric Power Co., 2001 WI App 226, 248 Wis. 2d 10, 635 N.W.2d 873, 99-2944.

904.12 904.12 Statement of injured; admissibility; copies.

904.12(1) (1) In actions for damages caused by personal injury, no statement made or writing signed by the injured person within 72 hours of the time the injury happened or accident occurred, shall be received in evidence unless such evidence would be admissible as a present sense impression, excited utterance or a statement of then existing mental, emotional or physical condition as described in s. 908.03 (1), (2) or (3).

904.12(2) (2) Every person who takes a written statement from any injured person or person sustaining damage with respect to any accident or with respect to any injury to person or property, shall, at the time of taking such statement, furnish to the person making such statement, a true, correct and complete copy thereof. Any person taking or having possession of any written statement or a copy of said statement, by any injured person, or by any person claiming damage to property with respect to any accident or with respect to any injury to person or property, shall, at the request of the person who made such statement or the person’s personal representative, furnish the person who made such statement or the person’s personal representative, a true, honest and complete copy thereof within 20 days after written demand. No written statement by any injured person or any person sustaining damage to property shall be admissible in evidence or otherwise used or referred to in any way or manner whatsoever in any civil action relating to the subject matter thereof, if it is made to appear that a person having possession of such statement refused, upon the request of the person who made the statement or the person’s personal representatives, to furnish such true, correct and complete copy thereof as herein required.

904.12(3) (3) This section does not apply to any statement taken by any officer having the power to make arrests.

904.12 History History: Sup. Ct. Order, 59 Wis. 2d R1, R99 (1973); 1991 a. 32.

904.12 Annotation The rule on the admissibility of statements made or writings signed by an injured party within 72 hours of an accident under sub. (1) does not to apply to releases. The supreme court’s interpretation of the predecessor statute to sub. (1) in Buckland, 160 Wis. 484 (1915), that the legislature did not intend the prohibition on such writings to apply to a release of claims is controlling. Hart v. Artisan & Truckers Casualty Co., 2017 WI App 45, 377 Wis. 2d 177, 900 N.W.2d 610, 16-1196.

904.12 Annotation Postaccident Statements by Injured Parties. La Fave. Wis. Law. Sept. 1997.

904.13 904.13 Information concerning crime victims.

904.13(1) (1) In this section:

904.13(1)(a) (a) “Crime” has the meaning described in s. 950.02 (1m).

904.13(1)(b) (b) “Family member” has the meaning described in s. 950.02 (3).

904.13(1)(c) (c) “Victim” has the meaning described in s. 950.02 (4).

904.13(2) (2) In any action or proceeding under ch. 938 or chs. 967 to 979, evidence of the address of an alleged crime victim or any family member of an alleged crime victim or evidence of the name and address of any place of employment of an alleged crime victim or any family member of an alleged crime victim is relevant only if it meets the criteria under s. 904.01. District attorneys shall make appropriate objections if they believe that evidence of this information, which is being elicited by any party, is not relevant in the action or proceeding.

904.13 History History: 1985 a. 132; 1995 a. 77.

904.14 904.14 Inadmissibility of statement by health care provider of apology or condolence.

904.14(1) (1) In this section:

904.14(1)(a) (a) “Health care provider” has the meaning given in s. 146.81 (1) and includes an ambulatory surgery center, an adult family home as defined in s. 50.01 (1), and a residential care apartment complex, as defined in s. 50.01 (6d), that is certified or registered by the department of health services.

904.14(1)(b) (b) “Relative” has the meaning given in s. 106.50 (1m) (q).

904.14(2) (2) A statement, a gesture, or the conduct of a health care provider, or a health care provider’s employee or agent, that satisfies all of the following is not admissible into evidence in any civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration regarding the health care provider as evidence of liability or as an admission against interest:

904.14(2)(a) (a) The statement, gesture, or conduct is made or occurs before the commencement of the civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration.

904.14(2)(b) (b) The statement, gesture, or conduct expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or his or her relative or representative.

904.14 History History: 2013 a. 242.

904.15 904.15 Communication in farmer assistance programs.

904.15(1) (1) Except as provided under sub. (2), no oral or written communication made in the course of providing or receiving advice or counseling under s. 93.51 or in providing or receiving assistance under s. 93.41 or 93.52 is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding.

904.15(2) (2) 

904.15(2)(a) (a) Subsection (1) does not apply to information relating to possible criminal conduct.

904.15(2)(b) (b) Subsection (1) does not apply if the person receiving advice or counseling under s. 93.51 or assistance under s. 93.41 or 93.52 consents to admission or discovery of the communication.

904.15(2)(c) (c) A court may admit evidence otherwise barred by this section if necessary to prevent a manifest injustice.

904.15 History History: 1997 a. 264.

904.16 904.16 Health care reports.

904.16(1) (1) In this section:

904.16(1)(a) (a) “Health care provider” has the meaning given in s. 146.38 (1) (b).

904.16(1)(b) (b) “Regulatory agency” means the department of safety and professional services or the division within the department of health services that conducts quality assurance activities related to health care providers.

904.16(2) (2) Except as provided in sub. (3), the following may not be used as evidence in a civil or criminal action brought against a health care provider: