Chapter 972

Effective date note Sub. (5) is amended to require that the court provide the jury one written copy of its instructions regarding the burden of proof. [Re Order eff. 7-1-86]

972.10 Annotation The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper allegedly because the prosecutor expressed an opinion as to the defendant’s guilt, when it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor’s conviction as to what the evidence established. State v. McGee, 52 Wis. 2d 736, 190 N.W.2d 893 (1971).

972.10 Annotation No potential coercion was exerted by the trial court in its statement made to the jury requesting it to continue its deliberations for the next half hour or hour, and if not then agreed, overnight hotel arrangements would be made. Ziegler v. State, 65 Wis. 2d 703, 223 N.W.2d 442 (1974).

972.10 Annotation An objection to jury instructions will not be waived when the instructions misstate the law. Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334 (1978).

972.10 Annotation If a defendant moves for dismissal at the close of the state’s case and then presents evidence, the appellate court will consider all evidence of guilt in ruling on a motion. State v. Gebarski, 90 Wis. 2d 754, 280 N.W.2d 672 (1979).

972.10 Annotation A refusal to give a jury special instructions on identification was not an abuse of discretion. Hampton v. State, 92 Wis. 2d 450, 285 N.W.2d 868 (1979).

972.10 Annotation Control of the content and duration of closing argument is within the discretion of the trial court. State v. Stawicki, 93 Wis. 2d 63, 286 N.W.2d 612 (Ct. App. 1979).

972.10 Annotation A special instruction need not be given because a witness has been granted immunity. Linse v. State, 93 Wis. 2d 163, 286 N.W.2d 554 (1980).

972.10 Annotation A defendant who chose to be represented by counsel had no right to address the jury personally in closing arguments. Robinson v. State, 100 Wis. 2d 152, 301 N.W.2d 429 (1981).

972.10 Annotation A defendant is entitled to an instruction on a valid theory of defense if the instruction is supported by the evidence and is relevant to the issue being tried. It was not error to refuse to give an instruction regarding the defendant’s theory of defense relating to the legal basis for the motive of a witness who was not a defendant. State v. Dean, 105 Wis. 2d 390, 314 N.W.2d 151 (Ct. App. 1981).

972.10 Annotation Unless the defendant consents, it is reversible error for the court to substitute an alternate juror for a regular juror after jury deliberations have begun. State v. Lehman, 108 Wis. 2d 291, 321 N.W.2d 212 (1982).

972.10 Annotation Under the separation of powers doctrine, sub. (5) and s. 805.13 (4) require submission of written instructions to the jury on the substantive law but do not require automatic reversal when the trial court fails to do so. Instructions on the burden of proof and presumption of innocence are procedural, not substantive law. E.B. v. State, 111 Wis. 2d 175, 330 N.W.2d 584 (1983).

972.10 Annotation Entrapment instructions are upheld. State v. Saternus, 127 Wis. 2d 460, 381 N.W.2d 290 (1986).

972.10 Annotation The court must inform counsel of changes it makes to jury instructions following an instructions conference. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991).

972.10 Annotation Under rare circumstances, a jury instruction creating a conclusive presumption regarding an element of a crime may be harmless error. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991).

972.10 Annotation Instructional rulings are to be made at the close of the evidence. A party is not entitled to a mid-trial advisory ruling on whether an instruction will be given. Such a ruling, if given, is nonbinding and not subject to appeal. State v. Sohn, 193 Wis. 2d 346, 535 N.W.2d 1 (Ct. App. 1995).

972.10 Annotation Sub. (7) does not address whether a court may substitute an alternate juror for a deliberating juror with the consent of the parties under the procedure set forth in Lehman, 108 Wis. 2d 291 (1982). In this case, the defendant consented to the substitution, and that consent satisfied the procedural requirements of Lehman. State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216, 10-0411.

972.10 Annotation The right to counsel includes the right to make a closing summary of the evidence to the trier of fact. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975).

972.10 Annotation Absent an overriding interest articulated in findings, a criminal trial must be open to the public. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).

972.10 Note NOTE: See also the notes to article I, section 7, of the Wisconsin Constitution.

972.11 972.11 Evidence and practice; civil rules applicable.

972.11(1) (1) Except as provided in subs. (2) to (4), the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction. No guardian ad litem need be appointed for a defendant in a criminal action. Chapters 885 to 895 and 995, except ss. 804.02 to 804.07 and 887.23 to 887.26, shall apply in all criminal proceedings.

972.11(2) (2) 

972.11(2)(a) (a) In this subsection, “sexual conduct” means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.

972.11(2)(b) (b) If the defendant is accused of a crime under s. 940.225, 942.09, 948.02, 948.025, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, 948.09, or 948.095, or under s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5), any evidence concerning the complaining witness’s prior sexual conduct or opinions of the witness’s prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31 (11):

972.11(2)(b)1. 1. Evidence of the complaining witness’s past conduct with the defendant.

972.11(2)(b)2. 2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.

972.11(2)(b)3. 3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness.

972.11(2)(c) (c) Notwithstanding s. 901.06, the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in par. (b) applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under par. (b) 1., 2. or 3.

972.11(2)(d) (d)

972.11(2)(d)1. 1. If the defendant is accused of a crime under s. 940.225, 942.09, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095, evidence of the manner of dress of the complaining witness at the time when the crime occurred is admissible only if it is relevant to a contested issue at trial and its probative value substantially outweighs all of the following:

972.11(2)(d)1.a. a. The danger of unfair prejudice, confusion of the issues or misleading the jury.

972.11(2)(d)1.b. b. The considerations of undue delay, waste of time or needless presentation of cumulative evidence.

972.11(2)(d)2. 2. The court shall determine the admissibility of evidence under subd. 1. upon pretrial motion before it may be introduced at trial.

972.11(2m) (2m) 

972.11(2m)(a) (a) At a trial in any criminal prosecution, the court may, on its own motion or on the motion of any party, order that the testimony of any child witness be taken in a room other than the courtroom and simultaneously televised in the courtroom by means of closed-circuit audiovisual equipment if all of the following apply:

972.11(2m)(a)1. 1. The court finds all of the following:

972.11(2m)(a)1.a. a. That the presence of the defendant during the taking of the child’s testimony will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.

972.11(2m)(a)1.b. b. That taking the testimony of the child in a room other than the courtroom and simultaneously televising the testimony in the courtroom by means of closed-circuit audiovisual equipment is necessary to minimize the trauma to the child of testifying in the courtroom setting and to provide a setting more amenable to securing the child witness’s uninhibited, truthful testimony.

972.11(2m)(a)2. 2. The trial in which the child may be called as a witness will commence:

972.11(2m)(a)2.a. a. Prior to the child’s 12th birthday; or

972.11(2m)(a)2.am. am. Prior to the child’s 18th birthday if the trial is for a prosecution for a violation of s. 940.302 or 948.051; or

972.11(2m)(a)2.b. b. Prior to the child’s 16th birthday and, in addition to its finding under subd. 1., the court finds that the interests of justice warrant that the child’s testimony be taken in a room other than the courtroom and simultaneously televised in the courtroom by means of closed-circuit audiovisual equipment.

972.11(2m)(b) (b) Among the factors which the court may consider in determining the interests of justice under par. (a) 2. b. are any of the following:

972.11(2m)(b)1. 1. The child’s chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.

972.11(2m)(b)2. 2. The child’s general physical and mental health.

972.11(2m)(b)3. 3. Whether the events about which the child will testify constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.

972.11(2m)(b)4. 4. The child’s custodial situation and the attitude of other household members to the events about which the child will testify and to the underlying proceeding.

972.11(2m)(b)5. 5. The child’s familial or emotional relationship to those involved in the underlying proceeding.

972.11(2m)(b)6. 6. The child’s behavior at or reaction to previous interviews concerning the events involved.

972.11(2m)(b)7. 7. Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the child’s prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child’s subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.

972.11(2m)(b)8. 8. Whether the child manifests or has manifested symptoms associated with posttraumatic stress disorder or other mental disorders, including, without limitation, reexperiencing the events, fear of their repetition, withdrawal, regression, guilt, anxiety, stress, nightmares, enuresis, lack of self-esteem, mood changes, compulsive behaviors, school problems, delinquent or antisocial behavior, phobias or changes in interpersonal relationships.

972.11(2m)(b)9. 9. The number of separate investigative, administrative and judicial proceedings at which the child’s testimony may be required.

972.11(2m)(bm) (bm) If a court orders the testimony of a child to be taken under par. (a), the court shall do all of the following:

972.11(2m)(bm)1. 1. To the extent it is practical and subject to s. 972.10 (3), schedule the testimony on a date when the child’s recollection is likely to be fresh and at a time of day when the child’s energy and attention span are likely to be greatest.

972.11(2m)(bm)2. 2. Provide a room for the child to testify from that provides adequate privacy, freedom from distractions, informality and comfort appropriate to the child’s developmental level.

972.11(2m)(bm)3. 3. Order a recess whenever the energy, comfort or attention span of the child or other circumstances so warrant.

972.11(2m)(bm)4. 4. Determine that the child understands that it is wrong to tell a lie and will testify truthfully if the child’s developmental level or verbal skills are such that administration of an oath or affirmation in the usual form would be inappropriate.

972.11(2m)(bm)5. 5. Before questioning by the parties begins, attempt to place the child at ease, explain to the child the purpose of the testimony and identify all persons attending.

972.11(2m)(bm)6. 6. Supervise the spatial arrangements of the room and the location, movement and deportment of all persons in attendance.

972.11(2m)(bm)7. 7. Allow the child to testify while sitting on the floor, on a platform or on an appropriately sized chair, or while moving about the room within range of the visual and audio recording equipment.

972.11(2m)(bm)8. 8. Bar or terminate the attendance of any person whose behavior is disruptive or unduly stressful to the child.

972.11(2m)(c) (c) Only the following persons may be present in the room in which the child is giving testimony under par. (a):

972.11(2m)(c)1m. 1m. Any person necessary to operate the closed-circuit audiovisual equipment.

972.11(2m)(c)2m. 2m. The parents of the child, the guardian or legal custodian of the child or, if no parent, guardian or legal custodian is available or the legal custodian is an agency, one individual whose presence would contribute to the welfare and well-being of the child.

972.11(2m)(c)3m. 3m. One person designated by the attorney for the state and approved by the court and one person designated by either the defendant or the attorney for the defendant and approved by the court.

972.11(3) (3) 

972.11(3)(a) (a) In a prosecution under s. 940.22 involving a therapist and a patient or client, evidence of the patient’s or client’s personal or medical history is not admissible except if:

972.11(3)(a)1. 1. The defendant requests a hearing prior to trial and makes an offer of proof of the relevancy of the evidence; and

972.11(3)(a)2. 2. The court finds that the evidence is relevant and that its probative value outweighs its prejudicial nature.

972.11(3)(b) (b) The court shall limit the evidence admitted under par. (a) to relevant evidence which pertains to specific information or examples of conduct. The court’s order shall specify the information or conduct that is admissible and no other evidence of the patient’s or client’s personal or medical history may be introduced.

972.11(3)(c) (c) Violation of the terms of the order is grounds for a mistrial but does not prevent the retrial of the defendant.

972.11(3m) (3m) A court may not exclude evidence in any criminal action or traffic forfeiture action for violation of s. 346.63 (1) or (5), or a local ordinance in conformity with s. 346.63 (1) or (5), on the ground that the evidence existed or was obtained outside of this state.

972.11(4) (4) Upon the motion of any party or its own motion, a court may order that any exhibit or evidence be delivered to the party or the owner prior to the final determination of the action or proceeding if all of the following requirements are met:

972.11(4)(a) (a) There is a written stipulation by all the parties agreeing to the order.

972.11(4)(b) (b) No party will be prejudiced by the order.

972.11(4)(c) (c) A complete photographic or other record is made of any exhibits or evidence so released.

972.11 History History: Sup. Ct. Order, 59 Wis. 2d R1, R7 (1973); Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1975 c. 184, 422; 1979 c. 89; 1981 c. 147 ss. 1, 2; 1983 a. 165, 449; 1985 a. 275; 1987 a. 332 s. 64; 1993 a. 16, 97, 227, 359; 1995 a. 456; 1997 a. 319; 1999 a. 185; 2001 a. 16; 2005 a. 155, 277; 2007 a. 116; 2011 a. 271; 2015 a. 292; 2023 a. 238.

972.11 Annotation Writing about sexual desires or activities was not itself prior “sexual conduct.” The victim’s notes expressing sexual desires and fantasies were, therefore, admissible. State v. Vonesh, 135 Wis. 2d 477, 401 N.W.2d 170 (Ct. App. 1986).

972.11 Annotation Erroneously admitted and false testimony of a victim that the victim was a virgin at the time of a disputed assault so pervasively affected the trial that the issue of consent was not fully tried. State v. Penigar, 139 Wis. 2d 569, 408 N.W.2d 28 (1987).

972.11 Annotation Sub. (2) (b), the rape shield law, bars, with two narrow exceptions, evidence of all sexual activity by a complainant not incident to the alleged assault. State v. Gulrud, 140 Wis. 2d 721, 412 N.W.2d 139 (Ct. App. 1987).

972.11 Annotation This section does not violate the separation of powers doctrine. State v. Mitchell, 144 Wis. 2d 596, 424 N.W.2d 698 (1988).

972.11 Annotation In limited circumstances, expert testimony about the consistency of a sexual assault complainant’s behavior with victims of the same type of crime may be offered for the purpose of helping the trier of fact understand the evidence to determine a fact in issue, as long as the expert does not give an opinion about the veracity of the complainant’s allegations. State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988).

972.11 Annotation This section does not on its face violate the constitutional right to present evidence but may in particular circumstances violate that right. To establish the right to present otherwise excluded evidence, the defendant must make an offer of proof establishing five factors, and the court must perform a balancing test. State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990).

972.11 Annotation Summary judgment does not apply to cases brought under the criminal code. State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992).

972.11 Annotation Section 805.03 authorizing sanctions for failure to comply with court orders is applicable to criminal actions. State v. Heyer, 174 Wis. 2d 164, 496 N.W.2d 779 (Ct. App. 1993).

972.11 Annotation Sub. (2) requires exclusion of testimony of a victim’s possible prior sexual conduct although when the alleged victim is an eight-year-old child, physical evidence of sexual contact may create an unjust inference that the sexual contact was by sexual assault. Michael R.B. v. State, 175 Wis. 2d 713, 499 N.W.2d 641 (1993).

972.11 Annotation That the complaining witness in a sexual assault case had previously consented to sexual intercourse has virtually no probative value regarding whether the witness consented to sexual intercourse under the use or threat of violence. State v. Neumann, 179 Wis. 2d 687, 508 N.W.2d 54 (Ct. App. 1993).

972.11 Annotation When the state questioned an alleged rapist about the victim’s motive to lie, it did not open the door for admission of evidence of prior acts of consensual sex. State v. Jackson, 216 Wis. 2d 646, 575 N.W.2d 475 (1998), 96-1618.