Help Me Doc! Theories of Admissibility of Other Acts Evidence in Medical Malpractice Cases. Gardner. 87 MLR 981 (2004).
Methods of proving character. 904.05(1)(1)
Reputation or opinion.
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
Specific instances of conduct.
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct.
Sup. Ct. Order, 59 Wis. 2d R1, R80 (1973); 1991 a. 32
A detective's opinion of a drug addict's reputation for truth and veracity did not qualify to prove reputation in the community because it was based on 12 varying opinions of persons who knew the addict, from which a community reputation could not be ascertained. Edwards v. State, 49 Wis. 2d 105
, 181 N.W.2d 383
When a defendant's character evidence is by expert opinion and the prosecution's attack on the basis of the opinion is answered evasively or equivocally, then the trial court may allow the prosecution to present evidence of specific incidents of conduct. King v. State, 75 Wis. 2d 26
, 248 N.W.2d 458
In order for specific acts of violence to be admissible, “character or a trait of character of a person" must be “an essential element of a charge, claim, or defense." In a homicide case in which a claim of self-defense is raised, character evidence may be admissible as evidence of the defendant's state of mind so long as the defendant had knowledge of the prior acts at the time of the offense. State v. Jackson, 2014 WI 4
, 352 Wis. 2d 249
, 841 N.W.2d 791
Self-defense — prior acts of the victim. 1974 WLR 266.
Habit; routine practice. 904.06(1)(1)
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.
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.
Sup. Ct. Order, 59 Wis. 2d R1, R83 (1973); 1975 c. 184
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
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).
The greater latitude given under Davidson
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
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
History: Sup. Ct. Order, 59 Wis. 2d R1, R87 (1973).
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 681
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).
Evidence of post-event remedial measures may be introduced under both negligence and strict liability theories. D.L. v. Huebner, 110 Wis. 2d 581
, 329 N.W.2d 890
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.
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
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
The plaintiff's letter suggesting a compromise between codefendants was not admissible to prove the liability of a defendant. Production Credit Ass'n v. Rosner, 78 Wis. 2d 543
, 255 N.W.2d 79
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 v. Packerland Packing Co., 82 Wis. 2d 225
, 262 N.W.2d 109
Communications in mediation. 904.085(1)(1)
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.
“Mediator" means the neutral facilitator in mediation, its agents and employees.
“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.
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
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.
does not apply to any written agreement, stipulation or settlement made between 2 or more parties during or pursuant to mediation.
Subsection (3) (a)
does not prohibit the admission of evidence otherwise discovered, although the evidence was presented in the course of mediation.
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.
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.
Sup. Ct. Order No. 93-03
, 179 Wis. 2d xv (1993); 1995 a. 227
; 1997 a. 59
; 2005 a. 443
; Sup. Ct. Order No. 09-12
, 2010 WI 31, 323 Wis. 2d xvii; 2011 a. 32
; 2017 a. 143
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.
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. Waste Management of Wisconsin, Inc., 2008 WI App 128
, 313 Wis. 2d 803
, 758 N.W.2d 167
“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. Waste Management of Wisconsin, Inc., 2008 WI App 128
, 313 Wis. 2d 803
, 758 N.W.2d 167
Sounding the Depths of Wisconsin's Mediation Privilege. La Fave. Wis. Law. July/Aug. 2016.
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.
History: Sup. Ct. Order, 59 Wis. 2d R1, R93 (1973).
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.
Sup. Ct. Order, 59 Wis. 2d R1, R94 (1973); 1991 a. 32
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).
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).
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).
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
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
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.
Sup. Ct. Order, 59 Wis. 2d R1, R97 (1973); 1991 a. 32
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)
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.
This section does not apply to any statement taken by any officer having the power to make arrests.
Sup. Ct. Order, 59 Wis. 2d R1, R99 (1973); 1991 a. 32
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 and Truckers Casualty Co., 2017 WI App 45
, 377 Wis. 2d 177
, 900 N.W.2d 610
Postaccident Statements by Injured Parties. La Fave. Wis. Law. Sept. 1997.
Information concerning crime victims. 904.13(2)
In any action or proceeding under ch. 938
or chs. 967
, 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.
History: 1985 a. 132
; 1995 a. 77
Inadmissibility of statement by health care provider of apology or condolence. 904.14(1)(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.
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:
The statement, gesture, or conduct is made or occurs before the commencement of the civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration.
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.
History: 2013 a. 242
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
is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding.
does not apply to information relating to possible criminal conduct.
does not apply if the person receiving advice or counseling under s. 93.51
or assistance under s. 93.41
consents to admission or discovery of the communication.
A court may admit evidence otherwise barred by this section if necessary to prevent a manifest injustice.