Chapter 901

CHAPTER 901

EVIDENCE — GENERAL PROVISIONS

901.01   Scope.

901.02   Purpose and construction.

901.03   Rulings on evidence.

901.04   Preliminary questions.

901.05   Admissibility of certain test results.

901.053   Admissibility of evidence relating to use of protective headgear while operating certain motor vehicles.

901.055   Admissibility of results of dust testing for the presence of lead.

901.06   Limited admissibility.

901.07   Remainder of or related writings or statements.

901.08   Admissibility of sexual conduct.

901.09   Submission of writings; languages other than English.

Ch. 901 Note NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 Wis. 2d. The court did not adopt the comments but ordered them printed with the rules for information purposes.

901.01 901.01 Scope. Chapters 901 to 911 govern proceedings in the courts of the state of Wisconsin except as provided in ss. 911.01 and 972.11.

901.01 History History: Sup. Ct. Order, 59 Wis. 2d R1, R9 (1973).

901.01 Annotation Evidence: A collection of rules not in the statutes. Marion, WBB July, 1985.

901.02 901.02 Purpose and construction. Chapters 901 to 911 shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

901.02 History History: Sup. Ct. Order, 59 Wis. 2d R1, R9 (1973); 1981 c. 390.

901.03 901.03 Rulings on evidence.

901.03(1) (1) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

901.03(1)(a) (a) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

901.03(1)(b) (b) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.

901.03(2) (2) Record of offer and ruling. The judge may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The judge may direct the making of an offer in question and answer form.

901.03(3) (3) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

901.03(4) (4) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.

901.03 History History: Sup. Ct. Order, 59 Wis. 2d R1, R9 (1973); 1991 a. 32.

901.03 Annotation An offer of proof must be made as a necessary condition precedent to the review of any alleged error in the exclusion of evidence. Without an offer there is no way to determine whether the exclusion was prejudicial. State v. Moffett, 46 Wis. 2d 164, 174 N.W.2d 263.

901.03 Annotation In order for an error to be “plain error” it must be so fundamental that a new trial must be granted so as not to deny a basic constitutional right. State v. Vinson, 183 Wis. 2d 297, 515 N.W.2d 314 (Ct. App. 1994).

901.03 Annotation Not all constitutional errors are plain errors. Some may be harmless errors. The state has the burden of showing that an error is harmless beyond a reasonable doubt. State v. King, 205 Wis. 2d 81, 555 N.W.2d 174 (Ct. App. 1996), 95-3442.

901.03 Annotation When a defendant alleges that a prosecutor’s statements constituted plain error, the test is whether, in the context of the entire record of the trial, the statements so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Cameron, 2016 WI App 54, 370 Wis. 2d 661, 885 N.W.2d 611, 15-1088.

901.03 Annotation Under sub. (1), an erroneous evidentiary ruling is reversible only if a substantial right of a party is affected. That means that an error is harmless if the party benefitted by the error shows beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. State v. Monahan, 2018 WI 80, 383 Wis. 2d 100, 913 N.W.2d 894, 14-2187.

901.03 Annotation The court uses several non-exclusive factors to aid the court’s application of the harmless error rule in the evidentiary context: 1) the frequency of the error; 2) the importance of the erroneously included or excluded evidence to the prosecution’s or defense’s case; 3) the presence or absence of evidence corroborating or contradicting the erroneously included or excluded evidence; 4) whether erroneously excluded evidence merely duplicates untainted evidence; 5) the nature of the defense; 6) the nature of the state’s case; and 7) the overall strength of the state’s case. State v. Monahan, 2018 WI 80, 383 Wis. 2d 100, 913 N.W.2d 894, 14-2187.

901.04 901.04 Preliminary questions.

901.04(1) (1) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to sub. (2) and ss. 971.31 (11) and 972.11 (2). In making the determination the judge is bound by the rules of evidence only with respect to privileges and as provided in s. 901.05.

901.04(2) (2) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

901.04(3) (3) Hearing out of the presence of a jury. Hearings on any of the following shall be conducted out of the presence of the jury:

901.04(3)(a) (a) Admissibility of confessions.

901.04(3)(b) (b) In actions under s. 940.22, admissibility of evidence of the patient’s or client’s personal or medical history.

901.04(3)(c) (c) In actions under s. 940.225, 948.02, 948.025, 948.051, 948.085, or 948.095, or under s. 940.302 (2), if the court determines that the offense was sexually motivated, as defined in s. 980.01 (5), admissibility of the prior sexual conduct or reputation of a complaining witness.

901.04(3)(cm) (cm) Admissibility of evidence specified in s. 972.11 (2) (d).

901.04(3)(d) (d) Any preliminary matter if the interests of justice so requires.

901.04(4) (4) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself or herself to cross-examination as to other issues in the case.

901.04(5) (5) Weight and credibility. This section does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

901.04 History History: Sup. Ct. Order, 59 Wis. 2d R1, R14 (1975); 1975 c. 184, 421; 1985 a. 275; 1987 a. 332 s. 64; 1991 a. 32, 269; 1993 a. 97, 227; 1995 a. 456; 2005 a. 277; 2007 a. 116.

901.04 Annotation While witnesses may be questioned regarding their mental or physical condition when such matters have a bearing on their credibility, evidence that a witness was subject to epilepsy did not warrant disregarding his testimony in the absence of a showing of what effect the epilepsy had on his memory. Sturdevant v. State, 49 Wis. 2d 142, 181 N.W.2d 523 (1970).

901.04 Annotation A voluntary confession was not rendered inadmissible although the arrest was made outside the statutory jurisdictional limits of the arresting officer. State v. Ewald, 63 Wis. 2d 165, 216 N.W.2d 213 (1974).

901.04 Annotation A psychiatric witness whose qualifications as an expert were conceded had no scientific knowledge on which to base an opinion as to the accused’s lack of specific intent to kill. There was no basis for a finding under subs. (1) or (2) to admit the testimony. State v. Dalton, 98 Wis. 2d 725, 298 N.W.2d 398 (Ct. App. 1980).

901.04 Annotation A defendant has no confrontation clause rights as to hearsay at a pretrial motion hearing. The trial court could rely on hearsay in making its decision. State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990).

901.04 Annotation Sub. (1) permits an out-of-court declaration by a party’s alleged co-conspirator to be considered by the trial court in determining whether there was a conspiracy. State v. Whitaker, 167 Wis. 2d 247, 481 N.W.2d 649 (Ct. App. 1992).

901.04 Annotation Before a demonstrative videotape may be admitted there must be a foundation that it is a fair and accurate reproduction of what was seen and was produced under conditions reasonably similar to conditions of the actual event. Even with the foundation established, the evidence may be excluded on a finding that its probative value is outweighed by its prejudicial effect. State v. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998), 97-3737.

901.04 Annotation As with evidence bearing directly on consciousness of guilt, evidence of consciousness of innocence is also relevant. An offer to take a polygraph test or a DNA test is relevant as long as the person offering to take the test believes the test to be possible, accurate, and admissible. However an offer to take a DNA test would be a mere hollow gesture if the offeror knew that a test would reveal nothing. State v. Santana-Lopez, 2000 WI App 122, 237 Wis. 2d 332, 613 N.W.2d 918, 99-0742.

901.04 Annotation Evidence of criminal acts by an accused that were intended to obstruct or avoid punishment was not evidence of “other acts” admissible under sub. (2), but was admissible to prove consciousness of guilt of the principal criminal charge. State v. Bauer, 2000 WI App 206, 238 Wis. 2d 687, 617 N.W.2d 902, 99-2589.

901.04 Annotation The results of polygraph examinations are inadmissible in civil cases. While an offer to take a polygraph examination may be relevant to the offeror’s credibility, that a person agreed to a polygraph at the request of law enforcement has not been found admissible and could not be without proof that the person believed the results would accurately indicate whether he or she was lying. Estate of Neumann v. Neumann, 2001 WI App 61, 242 Wis. 2d 205, 626 N.W.2d 821, 00-0557.

901.04 Annotation While a defendant’s offer to take a polygraph test is admissible because it may reflect a consciousness of innocence, an agreement to submit to a polygraph test at the suggestion or request of another is not an offer and is not admissible. There is no exception to this rule when the request or suggestion for the polygraph test comes from the defendant’s attorney. State v. Pfaff, 2004 WI App 31, 269 Wis. 2d 786, 676 N.W.2d 562, 03-1268.

901.04 Annotation 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 s. 906.11, in conjunction with sub. (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, 07-2382.

901.04 Annotation In making preliminary factual determinations, courts may examine the evidence, including hearsay statements, sought to be admitted. Bourjaily v. United States, 483 U.S. 171 (1987).

901.05 901.05 Admissibility of certain test results.

901.05(1) (1) In this section, “HIV” means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

901.05(2) (2) Except as provided in sub. (3), the results of an HIV test, as defined in s. 252.01 (2m), are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding, as evidence of a person’s character or a trait of his or her character for the purpose of proving that he or she acted in conformity with that character on a particular occasion unless the evidence is admissible under s. 904.04 (1) or 904.05 (2) and unless the following procedures are used:

901.05(2)(a) (a) The court may determine the admissibility of evidence under this section only upon a pretrial motion.

901.05(2)(b) (b) Evidence which is admissible under this section must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial.

901.05(3) (3) The results of a test or tests under s. 938.296 (4) or (5) or 968.38 (4) or (5) and the fact that a person has been ordered to submit to such a test or tests under s. 938.296 (4) or (5) or 968.38 (4) or (5) are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding.

901.05 History History: 1987 a. 70; 1989 a. 201 ss. 34, 36; 1991 a. 269; 1993 a. 32; 1995 a. 77; 1999 a. 188; 2009 a. 209.

901.053 901.053 Admissibility of evidence relating to use of protective headgear while operating certain motor vehicles. Evidence of use or nonuse of protective headgear by a person, other than a person required to wear protective headgear under s. 23.33 (3g), 23.335 (8) (a) or (b), or 347.485 (1), who operates or is a passenger on a utility terrain vehicle, as defined in s. 23.33 (1) (ng), a motorcycle, as defined in s. 340.01 (32), an all-terrain vehicle, as defined in s. 340.01 (2g), or a snowmobile, as defined in s. 340.01 (58a), on or off a highway, is not admissible in any civil action for personal injury or property damage. This section does not apply to the introduction of such evidence in a civil action against the manufacturer or producer of the protective headgear arising out of any alleged deficiency or defect in the design or manufacture of the protective headgear or, with respect to such use of protective headgear, in a civil action on the sole issue of whether the protective headgear contributed to the personal injury or property damage incurred by another person.

901.053 History History: 2003 a. 148; 2011 a. 208; 2015 a. 170.

901.055 901.055 Admissibility of results of dust testing for the presence of lead. The results of a test for the presence of lead in dust are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding unless the test was conducted by a person certified for this purpose by the department of health services.

901.055 History History: 1999 a. 113; 2007 a. 20 s. 9121 (6) (a).

901.06 901.06 Limited admissibility. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.