Chapter 904

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:

904.16(2)(a) (a) Reports that a regulatory agency requires a health care provider to give or disclose to that regulatory agency.

904.16(2)(b) (b) Statements of, or records of interviews with, employees of a health care provider related to the regulation of the health care provider obtained by a regulatory agency.

904.16(3) (3) This section does not prohibit the use of the reports, statements, and records described in sub. (2) in any administrative proceeding conducted by a regulatory agency. This section does not apply to reports protected under s. 146.997.

904.16 History History: 2011 a. 2; 2013 a. 166.