Section 972.11. Evidence and practice; civil rules applicable.

 

(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.

(2)  

(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.

(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) :

1. Evidence of the complaining witness's past conduct with the defendant.

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.

3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness.

(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.

(d)

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:

a. The danger of unfair prejudice, confusion of the issues or misleading the jury.

b. The considerations of undue delay, waste of time or needless presentation of cumulative evidence.

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

(2m)  

(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:

1. The court finds all of the following:

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.

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.

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

a. Prior to the child's 12th birthday; or

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.

(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:

1. The child's chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.

2. The child's general physical and mental health.

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.

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.

5. The child's familial or emotional relationship to those involved in the underlying proceeding.

6. The child's behavior at or reaction to previous interviews concerning the events involved.

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.

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.

9. The number of separate investigative, administrative and judicial proceedings at which the child's testimony may be required.

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

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.

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.

3. Order a recess whenever the energy, comfort or attention span of the child or other circumstances so warrant.

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.

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.

6. Supervise the spatial arrangements of the room and the location, movement and deportment of all persons in attendance.

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.

8. Bar or terminate the attendance of any person whose behavior is disruptive or unduly stressful to the child.

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

1m. Any person necessary to operate the closed-circuit audiovisual equipment.

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.

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.

(3)  

(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:

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

2. The court finds that the evidence is relevant and that its probative value outweighs its prejudicial nature.

(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.

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

(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.

(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:

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

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

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

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 . 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). Erroneously admitted and false testimony of a victim that she 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). Sub. (2) (b), the rape shield law, bars, with 2 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). This section does not violate the separation of powers doctrine. State v. Mitchell, 144 Wis. 2d 596 , 424 N.W.2d 698 (1988). 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 , 256, 432 N.W.2d 913 (1988). 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 5 factors and the court must perform a balancing test. State v. Pulizzano, 155 Wis. 2d 633 , 456 N.W.2d 325 (1990). 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). 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). Sub. (2) requires exclusion of testimony of a victim's possible prior sexual conduct although when the alleged victim is an 8-year-old child, physical evidence of sexual contact may create an unjust inference that the sexual contact was by sexual assault. In Interest of Michael R.B. 175 Wis. 2d 713 , 499 N.W.2d 641 (1993). That the complaining witness in a sexual assault case had previously consented to sexual intercourse has virtually no probative value regarding whether she 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). 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 . Evidence regarding prior sexual assault by a 3rd party does not fall within one of the statutory exceptions. The Pulizzano test is applied. State v. Dodson, 219 Wis. 2d 65 , 580 N.W.2d 181 (1998), 96-1306 . Not all comparison testimony that an alleged sexual assault victim's behavior was consistent with that of child sexual assault victims opens the door to cross-examination about the alleged victim's sexual behavior prior to the alleged assault. State v. Dunlap, 2002 WI 19 , 250 Wis. 2d 466 , 640 N.W.2d 112 , 99-2189 . This section does not allow a criminal defendant access to the civil subpoena duces tecum power embodied in s. 805.07(2). State v. Schaefer, 2008 WI 25 , 308 Wis. 2d 279 , 746 N.W.2d 457 , 06-1826 . In order to admit evidence of alleged prior untruthful allegations of sexual assault under sub. (2) (b) 3., the circuit court must first conclude from the proffered evidence that a jury could reasonably find that the complainant made prior untruthful allegations of sexual assault. The judge must determine whether a jury, acting reasonably, could find that it is more likely than not that the complainant made prior untruthful allegations of sexual assault. State v. Ringer, 2010 WI 69 , 326 Wis. 2d 351 , 785 N.W.2d 448 , 08-0652 . The trial court erred when it essentially held that for evidence of the past sexual conduct between the defendant and victim to be admissible, it must be of the same type and nature that is charged as a crime. Neither the language of sub. (2) (b), nor relevant case law, require that the prior sexual conduct between the accuser and the accused be the same as that alleged in a criminal case. State v. Sarfraz, 2013 WI App 57 , 348 Wis. 2d 57 , 832 N.W.2d 346 , 12-0337 . Under sub. (2) (b) 1. and s. 971.31 (11), evidence of the complainant's alleged past sexual conduct with the defendant is admissible only if the defendant makes a 3-part showing that: 1) the proffered evidence relates to sexual activities between the complainant and the defendant; 2) the evidence is material to a fact at issue; and 3) the evidence of sexual contact with the complainant is of sufficient probative value to outweigh its inflammatory and prejudicial nature. In determining that evidence of prior sexual conduct has a highly prejudicial effect, the legislature crafted into the rape shield law a balancing test that assumes, absent an evidentiary showing to the contrary, that the proffered evidence is more prejudicial than probative. State v. Sarfraz, 2014 WI 78 , 356 Wis. 2d 460 , 851 N.W.2d 235 , 12-0337 . The exceptions to this section do not require proffered evidence of past sexual conduct between the accuser and the defendant to be the same as the criminal conduct alleged against the defendant. State v. Sarfraz, 2014 WI 78 , 356 Wis. 2d 460 , 851 N.W.2d 235 , 12-0337 . This section protects complaining witnesses in sexual assault cases from being questioned about sexual conduct, but a false charge of sexual assault is not sexual conduct. Redmond v. Kingston, 240 F.3d 590 (2001). Prior Untruthful Allegations Under Wisconsin's Rape Shield Law: Will Those Words Come Back to Haunt You? Berry. 2002 WLR 1237.