¶17      Turning to probative value, we examine the State’s failure to lay a foundation for the admission of the animation. See, e.g., Gribble, 248 Wis. 2d 409, ¶57 (in determining probative value, the court considered the foundation laid and the credentials of the testifying witness). Again, the State relies on Roy in support of its contention that computer-generated animation may be admitted without witness testimony that the animation fairly and accurately depicts what it purports to depict. The State contends, based on Roy, that it is not required to lay a foundation for a computer-generated animation in the same way that one is laid for a photograph or video. … However, the Roy court’s determination was not based on the fact that the evidence sought to be admitted was an animation, as opposed to photograph or video. Rather, the Roy court was addressing an expert’s ability to use an animation to illustrate his or her opinion. Here, Ambach was not illustrating an expert opinion on possible scenarios, his animation showed distances, where the defendants, the victim and witnesses were, and “what people did.” We reject the State’s argument that computer-generated animation used as a demonstrative exhibit to show the scene and events of the alleged crime is exempt from longstanding foundation requirements. ^[8]

¶18      A determination of relevance demands that evidence offered at trial be connected to the subject matter at issue. Authentication is a special aspect of relevancy and is preliminary and precedent to a question of admissibility. See Judicial Council Committee Note, 1974, Wis. Stat. § 909.01 Here, there was no authentication by any of the witnesses that the animation fairly and accurately represented their testimony and no single witness had firsthand knowledge as to what was depicted in the animation. See Wis. Stat. §§ 909.01 and 909.015^[9]; see also 2 Kenneth S. Broun, McCormick on Evidence § 214 (6th ed. 2006) (“The authenticating testimony from a witness would establish that the animated CGE is a fair and accurate representation of what the witness is trying to describe, and admission of the animation would be within the discretion of the trial judge.”). The computer-generated animation was introduced to clarify Giovannoni’s testimony; however, Giovannoni never testified that the animation fairly and accurately represented her recollection of the events.^[10] Although the animation was not expressly introduced to clarify Hohisel’s testimony, it incorporated aspects of his testimony and, like Giovannoni, Hohisel never testified to his belief that the animation captured his recollection of events. Neither did Biever. The confusion resulting from this compilation of testimony is evidenced in the trial court’s observation that the animation “illustrated” Giovannoni’s testimony when, in reality, it illustrated much more than that.

¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) ("All relevant evidence is admissible unless otherwise provided by law."). Evidence is relevant when it is probative of any material fact. Wis. Stat. § 904.01 (Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). Even Wilkens does not argue that Onken's observations of his performance on the FSTs utterly lacked probative value. Certainly, when an officer-particularly one with sixteen years of law enforcement experience and who makes an average of four OWI arrests each month-determines that a driver fails not one but three FSTs, it is more probable that the person has an illegal blood alcohol concentration than if the officer determined he or she passed the tests. We cannot conclude that the trial court erred in considering the evidence.

¶39 Finally, we determine that the circuit court did not erroneously exercise its discretion in refusing to admit testimony regarding Shomberg's offer to take a polygraph examination. … However, such an offer is only "relevant to the state of mind of a person making the offer as 'long as the person making the offer believes that the test or analysis is possible, accurate, and admissible.'" Neumann v. Neumann, 2001 WI App 61, ¶65, 242 Wis. 2d 205, 626 N.W.2d 821 (quoting State v. Santana-Lopez, 2000 WI App 122, ¶4, 237 Wis. 2d 332, 613 N.W.2d 918). 

¶40      The evidence in the record is insufficient to establish that Shomberg offered to take a polygraph examination, as opposed to agreeing to take one. …

¶41     Neither does evidence in the record support the second requirement to admit an offer to take a polygraph —— that Shomberg believed the results of a polygraph would be admissible in court. …

¶26. While a polygraph test result is inadmissible in Wisconsin, see State v. Dean, 103 Wis. 2d 228, 279, 307 N.W.2d 628 (1981), an offer to take a polygraph test is relevant to an assessment of the offeror's credibility and may be admissible for that purpose. State v. Hoffman, 106 Wis. 2d 185, 217, 316 N.W.2d 143 (Ct. App. 1982). An offer to take a polygraph test is relevant to the state of mind of the person making the offer-so long as the person making the offer believes that the test or analysis is possible, accurate, and admissible. State v. Santana-Lopez, 2000 WI App 122, ¶4, 237 Wis. 2d 332, 613 N.W.2d 918.

…

¶28. The threshold question in this case is whether Pfaff's agreement to submit to a polygraph test at the request of his attorney constitutes an "offer" to take a polygraph test. We addressed this issue in the civil case of Neumann v. Neumann, 2001 WI App 61, ¶64, 242 Wis. 2d 205, 626 N.W.2d 821.³ There, the appellant argued that the trial court erred in excluding evidence that he had offered to take a polygraph test. In rejecting this argument, we stated,

[A]s Neumann acknowledged at oral argument, he did not offer to take a polygraph examination. Instead, law enforcement asked him to take the examination and he agreed. Neumann contends that even though law enforcement suggested the test, his willingness to take the test should still be admissible under the same reasoning applied in Hoffman.

Neumann, 242 Wis. 2d 205, ¶64. Thus, an agreement to submit to a polygraph test at the suggestion or request of another is not an offer within the meaning of Hoffman.

¶29. We see no reason to create an exception to this rule where, as here, the request or suggestion for the polygraph test comes from the defendant's attorney….

¶31. We conclude that Pfaff's agreement to submit to a polygraph test at the request of his attorney was not a "offer" to take a polygraph test within the meaning of the established case law. We uphold Judge Haughney's ruling excluding Pfaff's proffered testimony.

¶29 .... Silva’s brother testified that on the day of the assault Silva attended a service that discussed the act of “sinning again.” Silva’s brother stated that Silva sat down during the discussion while everyone else remained standing. This behavior is consistent with the conduct of a person who has recently committed a crime and is admissible as such. See Paulson v. State, 118 Wis. 89, 106, 94 N.W. 771 (1903) (“Conduct of a suspected person after the crime is a legitimate subject for consideration, as bearing upon the probability of his guilt....”). Thus, the trial court correctly permitted the witness to testify to his observations of Silva’s guilt on the day of the crime.

¶43. Wright argues that Lomack's testimony was relevant on the issue of whether the police lineup was suggestive. In assessing relevance, the trial court must determine whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Wis. Stat. § 904.01. Here, Lomack's testimony was proffered for the purpose of describing the lineup and stating his belief that he had mistakenly identified Wright in the lineup. However, our examination of the Lomack offer of proof reveals nothing that impugns the integrity of either the lineup procedure or the in-court identifications by the State's eyewitnesses. In summary, without more, Lomack's inability to identify Wright at a preliminary hearing some eight months after he identified Wright at a lineup does not render the identifications of the other eyewitnesses suspect. We agree with the trial court that Lomack's testimony on the dismissed robbery charge as to the lineup procedure and his mistaken identification did not tend to make Wright's involvement in the other robberies, at which Lomack was not present, more or less probable.

¶18      Law and Discussion: It is well established that evidence of flight has probative value as to guilt. See State v. Knighten, 212 Wis. 2d 833, 838-39, 569 N.W.2d 770 (Ct. App. 1997). Analytically, flight is an admission by conduct. State v. Miller, 231 Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999). The fact of an accused’s flight is generally admissible against the accused as circumstantial evidence of consciousness of guilt and thus of guilt itself. Id. To be admissible, the defendant’s flight need not occur immediately following commission of the crime. See Gauthier v. State, 28 Wis. 2d 412, 419-20, 137 N.W.2d 101 (1965) (defendant escaped from custody while awaiting trial).

¶48      Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment, she noted at trial that “some driving skills … are affected” including judgment, reaction time and information processing. She also noted that THC “affects a person’s perception of time and space so that the ability to judge distances, speeds and relationship to other objects is also d[i]minished,” and, further, that coordination, balance and concentration are also affected. Finally, she explained that THC “does have a tendency for people to fixate their attention for a longer period of time on one type of task or another, whether it’s looking out the window to check a building or putting in a CD.” These effects all relate directly to a person’s ability to safely drive a motor vehicle. Despite the lack of testimony that Schutte experienced any of these effects prior to the collision, jurors, without speculating on Schutte’s precise level of impairment, if any, could reasonably conclude from the expert’s testimony that Schutte’s use of a substance capable of producing these effects, while (or immediately prior to) driving on a rural highway at night in adverse weather and road conditions, was a circumstance rendering it more probable that her conduct was criminally negligent.

¶15. We conclude that a blanket restriction on Richard A.P. evidence is unwarranted. Discretion to admit or exclude such evidence remains with the circuit court. We agree with the conclusions reached by the court of appeals in Richard A.P. and specifically adopt its reasoning.

¶18. Davis's expert will allegedly testify to the general character traits of sexual offenders, the tests used to determine whether an individual possesses such character traits, his findings on whether Davis possesses such character traits, and, based on these results, the likelihood that Davis committed the sexual assault. Such traits regarding the defendant's propensity to commit sexual assault are pertinent traits of his character. This evidence relates to a consequential fact, that is, whether the defendant committed sexual misconduct with a child. Further, this evidence has probative value in sexual assault cases, where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant. Such profile evidence may be extremely important to the defense. Such testimony may also be useful to the trier of fact, helping it to determine a fact in issue, that is, whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence.

Here, the refusal was used to demonstrate Doerr's conduct toward police and is directly linked to the criminal events charged against Doerr. The evidence involved Doerr's interaction with the other principal actors, the police officers, followed directly on the heels of Doerr's battery and resisting arrests, and, most importantly, makes the resisting allegations more probable. See United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir. 1984) (holding that evidence of the defendant's gang lifestyle "was not admitted to prove bad character; rather, it was intricately related to the facts of [the] case"). We conclude that the evidence was relevant and not unduly prejudicial.

¶21      Quiroz claims that under Miller, 231 Wis. 2d at 574, there is an automatic exception to the trial court’s discretionary ability to admit flight evidence whenever a defendant has an independent reason for flight that, if admitted, would unduly prejudice the defendant. Relying on his interpretation of Miller, Quiroz argues that the evidence of his flight was inadmissible because he proffered an independent reason for flight.

…

¶27      Our holding in Miller defeats rather than bolsters Quiroz’s argument. Flight evidence is not inadmissible anytime a defendant points to an unrelated crime in rebuttal. Rather, when a defendant points to an unrelated crime to explain flight, the trial court must, as it must with all evidence, determine whether to admit the flight evidence by weighing the risk of unfair prejudice with its probative value. Wis. Stat. § 904.03. As in Miller, the trial court performed the proper balancing test and determined that the independent reason for flight was not unduly prejudicial. It held hearings on the flight motions and the record reflects a rational process in its decision to admit the flight evidence and instruction. In determining that the State could introduce evidence of Quiroz’s flight, it made efforts to minimize the prejudicial effect by also ruling that the details of the other charges, proffered by Quiroz as his independent reason for flight, could “not be gone into.” Thus, during trial, the only references to the other charges were those made by Quiroz stating he fled because he was arrested for “more charges” after he posted bail for the sexual assault and exploitation charges. The record reflects the trial court’s careful rationale. The admission of the flight evidence and instruction was a well-considered and proper exercise of the trial court’s discretion.

¶43      Sveum was convicted of aggravated stalking based on his 1996 stalking conviction. Proof of this particular aggravated stalking crime requires proof of a previous conviction for a violent crime or a stalking crime involving the same victim pursuant to Wis. Stat. § 940.32(3)(b). Sveum argues that the circuit court erred by admitting evidence of his prior stalking conviction after he had agreed to stipulate to the conviction. The legal basis for Sveum’s argument is difficult to discern, but he relies on State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), a case holding that a defendant’s prior drunk driving convictions should not have gone to the jury, even though proof of the prior convictions was necessary to prove the drunk driving charge at issue in that case. Whatever persuasive value Alexander may have had in a stalking case was put to rest in State v. Warbelton, 2009 WI 6, ¶40, __ Wis. 2d __, 759 N.W.2d 557. In Warbelton, also a stalking case, the court expressly declined to apply Alexander and held that Alexander applies only to drunk driving prosecutions. Warbelton, 2009 WI 6, ¶¶3, 46, 61. We are bound by Warbelton.

¶11      The State submits that the computer-generated animation was intended as a demonstrative exhibit. The decision to admit or exclude demonstrative evidence is committed to the trial court’s discretion. ^[6] State v. Gribble, 2001 WI App 227, ¶55, 248 Wis. 2d 409, 636 N.W.2d 488. As long as the trial court demonstrates a reasonable basis for its determination, this court must defer to the trial court’s ruling. Id. In exercising its discretion, the trial court must determine whether the demonstrative evidence is relevant, Wis. Stat. §§ 904.01 and 904.02, and whether its probative value is substantially outweighed by the danger of unfair prejudice under Wis. Stat. § 904.03. ^[7] Gribble, 248 Wis. 2d 409, ¶55; State v. Peterson, 222 Wis. 2d 449, 454, 588 N.W.2d 84 (Ct. App. 1998). We conclude that the trial court erred in its determination permitting admissibility of the exhibit.

¶12      The defendants did not have notice regarding the use of the computer-generated animation. While “surprise” is not a basis for exclusion under Wis. Stat. § 904.03, “testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues.” Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶12, 305 Wis. 2d 658, 741 N.W.2d 256, review denied, 2008 WI 19, 307 Wis. 2d 293, 746 N.W.2d 810 (Jan. 22, 2008) (No. 2006AP480) (citation omitted). For several reasons, the surprise in this case was coupled with the danger of prejudice and confusion.

¶22      Far from being an exhibit which merely illustrated a lay witness’s testimony or an expert’s opinion, this exhibit was nothing more than a collage of information—bits and pieces from each of the State’s witnesses when, mixed together, effectively represented the police officer’s own version of what occurred at the time and place in question. But the animator was not an eyewitness to the crime. His assessment about how the crime actually unfolded was just that, his collage, his assessment. By bringing this nonevidentiary perspective of the evidence to life by means of the computer-generated animation, and advising the jury that this was a representation of what happened, the jury was invited to view the collage as fact. A pasting of differing and sometimes conflicting facts from a mixture of witnesses, in an order that made most sense to the State, thus became the final, conclusive historical factual presentation of the crime. This is why it was unduly prejudicial. The animation superceded the sifting and winnowing that a jury normally does when fact witnesses describe the same event in varying and sometimes contradictory ways.

¶52      In McAllister, the court of appeals addressed the felon in possession of a firearm statute, Wis. Stat. § 941.29, in which one of the elements is a prior conviction of a felony. The court reasoned that evidence offered to prove the element is always relevant. McAllister, 153 Wis.  2d at 529. However, the statute required proof only of the fact of a prior felony conviction. The type of felony conviction and narrative details regarding the felony conviction were not relevant to prove the felon in possession of a firearm charge. Id.

¶53      … When the defendant agrees to a sanitized stipulation admitting the prior conviction, there is no need for further proof relating to the nature of the conviction.

¶54      Here, Warbelton offered to stipulate to the fact that he had a prior conviction for a violent crime. The State agreed to the stipulation, and the court determined that evidence about the nature of the prior conviction would not be before the jury. Although Warbelton's 1995 judgment of conviction was entered into evidence, it was not published to the jury. The jury was told only that Warbelton had been convicted of a violent crime, and that the stipulation was conclusive proof. This procedure was proper under McAllister and Old Chief.

¶46      Despite the parallels between Alexander and this case, we decline to extend Alexander's holding to the stalking statute. Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. In these unique cases, the risk of unfair prejudice is extremely high, given the likelihood that jurors will make prohibited inferences based on the fact of multiple prior convictions, suspensions, or revocations. 

…

¶48      These likely inferences are at the heart of Wis. Stat. § 904.04, ^[19] the rule that prohibits a verdict based not on proof of the charged offense, but rather on the defendant's propensity to commit bad acts. In contrast, the element of the stalking statute that requires proof of a prior violent crime does not pose equivalent risks. Here, the jury is not likely to infer that because the defendant was convicted of a prior violent crime, it was a stalking offense. The prior offense could be one of a number of violent offenses. Additionally, the statute does not require multiple prior offenses, and therefore does not suggest a pattern of behavior. Finally, because the element does not imply a particular habit, jurors are unlikely to return a guilty verdict despite insufficient evidence of the crime charged.

¶47      Furthermore, Cooks’ ineffective assistance of counsel claim is premised on a correct trial court ruling and cannot succeed. See Ziebart, 268 Wis. 2d 468, ¶14. The probative value of Marshall’s testimony was not outweighed by any danger of unfair jury prejudice. The theory of defense was misidentification. The nature of the prior contacts between Marshall and Cooks was relevant to show Marshall had a sound basis for making his identification of Cooks at the crime scene. Moreover, Cooks testified to having eight prior convictions. This would have reasonably suggested to the jury that Cooks probably had been incarcerated in the past and therefore detracts from any additional prejudice Marshall’s testimony provided.

¶48      Cooks also suggests that Barth could have stipulated that Marshall knew him from prior contacts and therefore prevented the jury from knowing that he had been in prison. However, even assuming Barth was deficient for failing to so stipulate, Cooks has not established prejudice. Again, the jury could have easily inferred that Cooks had been in prison from his own testimony regarding his eight criminal convictions.

¶23      Here, the offered evidence (testimony of forced fellatio, performed by a five-year-old child victim, followed by urination in the victim’s mouth) undoubtedly aroused the jury’s “sense of horror” and “provoke[d] its instinct to punish.” See Sullivan, 216 Wis. 2d at 789-90. Revulsion as to this conduct is not significantly mitigated by the fact that McGowan was only ten years old at the time and the event was an isolated incident. Given the obvious probable prejudice to the defendant, the probative value of the evidence to prove a legitimate fact of consequence—which is not proof of the defendant’s character—should be strong indeed.  The slim reeds of probative value identified above crumble here under the weight of prejudice to the defendant. 

¶16. ... The term "Richard A.P. evidence" comes from a decision of the court of appeals in which a defendant accused of molesting a child sought to introduce character evidence through the testimony of a psychologist. State v. Richard A.P., 223 Wis. 2d 777, 795, 589 N.W.2d 674 (Ct. App. 1998). The testimony was intended to demonstrate that the defendant did not exhibit character traits consistent with a sexual disorder such as pedophilia. Id. ... Additionally, the expert would testify that absent such a diagnosable disorder, it was unlikely that such a person would molest a child. Id.

…

¶25. Richard A.P. evidence, like other expert evidence, is subject to the requirements of the rules governing the admissibility of evidence. These include not only the rules governing character evidence and expert testimony, but also Wis. Stat. § 904.03, the rule governing the exclusion of otherwise relevant evidence.

…

¶36. [T]he record supports the circuit court's conclusion that the minimal probative value of Walters's proffered expert testimony was substantially outweighed by the danger that the issues would be confused and the jury would be misled. ...

¶37. Here, due to the victims' late reporting, there was a six-year gap between the first alleged assault and Wakefield's evaluations. During the time frame when the assaults occurred, Walters had a drinking problem. However, when Wakefield evaluated him, he told her that he was no longer drinking and no longer believed that he had a problem with alcohol. At the offer of proof hearing, Wakefield testified that the tests administered assess personality, and that personalities are generally consistent, but can be altered by the consumption of alcohol. She indicated that her test results did not take into account whether the alleged assaultive behavior was triggered by alcohol consumption. This circumstance further minimized the probative value of the expert testimony.

…

¶42. Thus, we determine that there is neither a blanket restriction of Richard A.P. evidence nor is it compelled. Rather, courts must scrutinize such evidence on a case-by-case basis to assess admissibility. Such evidence has probative value in sexual assault cases where there often is no neutral witness to the assault and seldom any physical evidence implicating the defendant. Davis, 254 Wis. 2d 1, 18. Moreover, it may be of special importance to the jury by helping it to determine whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence. Id.

¶34. Whether photographs are to be admitted is a matter within the trial court's discretion. State v. Lindvig, 205 Wis. 2d 100, 108, 555 N.W.2d 197 (Ct. App. 1996). We will not disturb the court's discretionary decision "unless it is wholly unreasonable or the only purpose of the photographs is to inflame and prejudice the jury." Id. (citing State v. Hagen, 181 Wis. 2d 934, 946, 512 N.W.2d 180 (Ct. App. 1994)). "Photographs should be admitted if they help the jury gain a better understanding of material facts and should be excluded if they are not `substantially necessary' to show material facts and will tend to create sympathy or indignation or direct the jury's attention to improper considerations." Ellsworth v. Schelbrock, 229 Wis. 2d 542, 559, 600 N.W.2d 247 (Ct. App. 1999) (citing Sage v. State, 87 Wis. 2d 783, 788, 275 N.W.2d 705 (1979)).

¶35. Pfaff argues that the evidence was cumulative because he did not dispute Naumann's identity. However, Lindvig rejected the argument that a defendant's willingness to stipulate to an element could render photographs inadmissible. Lindvig makes clear that even when a party is willing to stipulate to an element, "[e]vidence is always admissible to prove an element of the charged crime even if the defendant does not dispute it at trial." Lindvig, 205 Wis. 2d at 108 (citation omitted).

…

¶37. We conclude that the trial court's decision to admit an autopsy photograph of Naumann was not wholly unreasonable. We further conclude that the purpose of the photograph was not to inflame or prejudice the jury, and Pfaff concedes that the photo is not "particularly graphic or gory in detail." The State was entitled to present the evidence as proof of an essential element of the charged crime. We therefore uphold the admission of the autopsy photograph.

¶72. In determining whether a piece of evidence is unfairly prejudicial, we have held that cautionary instructions help to limit any unfair prejudice that might otherwise result. Plymesser, 172 Wis. 2d at 596-97.

¶73. Contrary to Hunt's argument and the court of appeals' decision, the circuit court offered proper cautionary instructions on the other-acts evidence. Accordingly, any unfair prejudicial effect caused by the admittance of the other-acts evidence was substantially mitigated by the circuit court's cautionary instructions to the jury.

¶74. As noted before, the circuit court's cautionary instructions to the jury specifically told the jurors that they should not conclude from the evidence that the defendant has a certain character or a certain character trait and that the defendant acted in conformity with that trait or character. After listing proper purposes for which the jury could consider the other-acts evidence, the circuit court specifically instructed the jury that it should not conclude from the other-acts evidence that the defendant was a "bad person."

§ 904.04(1)(a)

¶16. The rules on character evidence and expert testimony allow for the admissibility of Richard A.P. evidence. Under our rules of evidence, a defendant may introduce "pertinent trait[s]" of his or her character as evidence. Wis. Stat. § 904.04(1)(a). "Pertinent" refers to the relevance of the traits. 7 Daniel Blinka, Wisconsin Practice: Wisconsin Evidence § 404.4, at 133 (2d ed. 2001). Thus, like all admissible evidence, character evidence must be relevant to the facts at issue. Relevancy has two facets: (1) the evidence must relate to a fact or proposition that is of consequence to the determination of the action and (2) the evidence must have probative value, that is, a tendency to establish those consequential propositions. Id. at § 401.1 at 82. A defendant may introduce such relevant character evidence through opinion testimony. Wis. Stat. § 904.05(1).

§ 904.04(1)(b)

¶21      It is well established that a defendant seeking to support a self-defense claim may attempt to "prov[e] prior specific instances of violence within [the defendant's] knowledge at the time of the incident."  State v. Wenger, 225 Wis. 2d 495, 507, 593 N.W.2d 467 (Ct. App. 1999) (quoting McMorris v. State, 58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973)); see also Wis. Stat. §§ 904.04 and 904.05(2).  It is also well established that admissibility of evidence proffered to show the reasonableness of the self-defense claim is within the circuit court's discretion.  State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413.  As with any "other acts evidence," the evidence is subject to the application of the balancing test involving the weighing of probative value against the danger of unfair prejudice, and considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  See Wis. Stat. § 904.03.  Assuming its probative value outweighs such considerations, we have in previous cases established the defendant's right to put on such evidence once a factual basis has been set forth for a self-defense claim, and also established the circuit court's responsibility to vet the evidence prior to admission to be sure it is valid McMorris evidence.  See, e.g., McAllister v. State, 74 Wis. 2d 246, 246 N.W.2d 511 (1976).  The question before us in this case is primarily a question of timing: whether a circuit court has the authority to order a defendant to disclose any planned McMorris evidence prior to trial, so that the factors involved in determining the evidence's admissibility can be weighed not only prior to admission, but also prior to trial.

¶26      Given the limited nature of the evidence covered in this order——that is, the requirement that McClaren give notice of the specific McMorris evidence he wants to introduce and which he was aware of on the night of the incident——this order fits comfortably into Wis. Stat. § 906.11's description of the court's sphere of control.  The court is, in fact, required to "exercise reasonable control" over the "present[ation of] evidence" so that it can be done effectively and with minimal wasted time.  See State v. Wallerman, 203 Wis. 2d 158, 168, 552 N.W.2d 128 (Ct. App. 1996).  Both concerns were specifically mentioned by the circuit court with regard to this order.  This is precisely the type of admissibility of evidence questions that circuit courts should be attempting to resolve in advance of trial. ^[9]

…

¶28      Under the circumstances presented here, where McClaren seeks to introduce McMorris evidence in support of a self-defense claim, the circuit court has the authority under Wis. Stat. § 906.11, in conjunction with Wis. Stat. § 901.04(3)(d), to order the defendant to disclose prior to trial any specific acts that he knew about at the time of the incident and that he intends to offer as evidence so that admissibility determinations can be made prior to trial.

¶43      We agree with the State.  The United States Supreme Court has established a test for excluding evidence and has said that under certain circumstances, exclusion of evidence does not violate a defendant's constitutional rights.  There are sanctions short of excluding evidence, of course.  The Court cited a case, for example, that "[gave] consideration to the effectiveness of less severe sanctions, the impact of preclusion on the evidence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful."  Taylor, 484 U.S. at 415 n.19 (citing Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir. 1983)).  However, as Taylor makes clear, even the sanction of excluding evidence against a defendant is constitutionally permissible in certain cases, such as where there have been willful violations "motivated by a desire to obtain a tactical advantage."  Taylor, 484 U.S. at 415.

¶44      As we noted above, Taylor states well the balancing of interests that goes into a court's oversight of a trial:

It is elementary, of course, that a trial court may not ignore the fundamental character of the defendant's right to offer the testimony of witnesses in his favor.  But the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests.  The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.

Id. at 414-15 (emphasis added).

¶45      Whether a violation merits the extreme sanction of exclusion must be determined by a circuit court after a violation has occurred, and under the parameters set forth by the United States Supreme Court in Taylor.

…

¶50      … It appears from the record that the circuit court intended to exclude from trial any evidence that McClaren attempted to offer at trial in violation of the order; we clarify here that while such a sanction may be permitted, lesser sanctions must be considered first, and that the extreme sanction of exclusion is permissible only after the circuit court has determined that the violation was "willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence," the test set forth in Taylor.

¶123. We conclude that evidence of a victim's violent character and of the victim's prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim of self-defense. Such evidence may be probative of a defendant's state of mind and whether she actually believed that an unlawful interference was occurring, that danger of death or great bodily harm was imminent, or that she needed to use a given amount of defensive force to prevent or terminate the unlawful interference. In determining any of these issues, the circuit court should consider all the evidence proffered.

§ 904.04(2)

¶11. Wisconsin Stat. § 904.04(2) evidence may be offered in a criminal trial or a civil suit. State v. Sullivan, 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998) and Daniel B. Blinka, Evidence of Character, Habit and "Similar Acts" in Wisconsin Civil Litigation, 73 Marq. L.Rev. 283, 289 (1989). It has been offered to prove the character of a person: (1) for the impermissible purpose of implying that the person committed a disputed past act⁶ that is consistent with his or her character, or (2) for a permissible purpose, such as showing the person acted with a plan, motive, absence of mistake.⁷ Its use is carefully regulated when the other acts are "bad acts" because the admission of such evidence may imply that the defendant is a bad person. Whitty v. State, 34 Wis. 2d 278, 292-97, 154 N.W.2d 557 (1967). As we said in Whitty, when other acts evidence is admitted, there can be "an overstrong tendency" to believe that a defendant is guilty of the crime charged simply because he or she is the kind of person who is likely to act a certain way, or that the defendant should be punished now, not necessarily for the crime charged, but because the defendant may have escaped punishment for a previous offense. Id. at 292.

For authority to the effect that “the supreme court [has] moved directly to an analysis of the legislative intent by looking to resources traditionally reserved for ambiguous statutes.” Courtney F. v. Ramiro M.C., 2004 WI App 36, ¶14.

¶14. … [I]n ch. 980 proceedings, the fact finder must necessarily consider a respondent's "relevant character traits and patterns of behavior, and the likelihood that any problematic traits or propensities have been or can be modified" in order to assure the safety of the community at large and the person himself.⁹ To look forward, we must necessarily look back. From this we conclude that Wis. Stat. § 904.04(2) is not applicable when evaluating the admissibility of evidence that is offered in a ch. 980 proceeding.

Inadequate Trial Court Reasoning

¶43. The State maintains that the court of appeals erred in interpreting Sullivan. We agree. Sullivan does not state, as the decision of the court of appeals suggests, that in situations where the circuit court fails to set forth a detailed analysis for admitting or excluding other-acts evidence, the reviewing court should summarily reverse all counts. Here the circuit court did explain its reasons for the admission of other-acts evidence, but it could have provided a more detailed Sullivan analysis for the decisions made.

¶44. Rather, Sullivan requires that the circuit court "articulate its reasoning for admitting or excluding the evidence, applying the facts of the case to the analytical framework." Sullivan, 216 Wis. 2d at 774. A circuit court's failure to delineate, with sufficient detail, the factors that influenced its decision in admitting other-acts evidence would seem to be contrary to the requirements we set forth in Sullivan. That case declared that ordinarily the appropriate recourse for the court of appeals should be to review the record independently, to determine the existence of a reasonable basis for the circuit court's discretionary decision. As noted in Sullivan:

A circuit court's failure to delineate factors that influenced its decision constitutes an erroneous exercise of discretion. When a circuit court fails to set forth its reasoning, appellate courts independently review the record to determine whether it provides a basis for the circuit court's exercise of discretion.

Id. at 781 (citations omitted).

"Sullivan" Analysis -- Particular Examples

¶29      Here, Detective Carter testified that he observed the building at 450 North 33rd Street, saw people coming, staying for a few minutes and leaving, and explained that such traffic was consistent with operating a drug house. He admitted, however, that he was unable to see which unit the people who appeared to be purchasing drugs entered. Carter also testified that on May 27, 2004 (approximately one month before the search warrant was executed), a person later identified as McAdams pulled up in a van, entered the building, left two minutes later and drove off, in response to which he and his partner followed the van, eventually stopped it due to a traffic violation, and searched it. At this point defense counsel objected, and, after much discussion, the trial court decided to disallow any more evidence about McAdams.

¶30      Dukes mischaracterizes the evidence as other acts evidence. The evidence was not evidence of another act by Dukes, was not introduced for any of the purposes listed in Wis. Stat. § 904.04(2), and was certainly not an impermissible attempt to introduce character evidence about Dukes. Rather, the evidence was introduced to show that Apartment 1 at 450 North 33rd Street was indeed a drug house. This was an element of count three, maintaining a drug house, see Wis. Stat. § 961.42(1), with which Dukes was charged. Thus, even though Dukes erroneously categorizes the evidence as other acts evidence, we disagree with his contention that the evidence was irrelevant because introducing evidence to show that a drug house existed was central to the charge of maintaining a drug house. See State v. Hammer, 2000 WI 92, ¶25, 236 Wis. 2d 686, 613 N.W.2d 629 (evidence relevant to charged crime is admissible).

¶31      We are also not convinced by Dukes’s claim that the evidence was unfairly prejudicial under Wis. Stat. § 904.03. “Unfair prejudice arises either when the evidence admitted has a tendency to influence the outcome of the jury deliberations by the use of improper means, or when it arouses in the jury a sense of horror or desire to punish.” State v. Opalewski, 2002 WI App 145, ¶23, 256 Wis. 2d 110, 647 N.W.2d 331. The evidence presented by Carter informed the jury of police surveillance of 450 North 33rd Street, that the behavior they had observed was consistent with the operation of a drug house, and that they searched a car because they suspected that it contained drugs purchased from 450 North 33rd Street and their suspicions were confirmed. In presenting the evidence, the State did not use improper means or arouse a sense of horror or a desire to punish. See id. Moreover, any potential for unfair prejudice was further diminished when the testimony about McAdams’s drug purchase was cut short by the judge in response to a defense objection

¶15      Specifically, “other-acts” character evidence can be admitted to show “proof of motive … intent … or absence of mistake or accident.” WIS. STAT. § 904.04(2).  It can also be admitted to show the bias or prejudice of a witness.  State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337 (1978). Here, the defense wanted to introduce Scull’s testimony to show that Mucha had a motive to lie and cover up what he had done, and that this was intentional, not the result of mistake or accident. The Scull evidence would also be used to show that Mucha intended to frame Missouri for a crime, which occurred because Mucha’s prejudice toward black people causes him to commit physical assaults and use excessive force. We conclude that the Scull evidence satisfied the “other purpose” prong of the Sullivan test.

¶16      We also conclude that the Scull evidence was relevant to a consequential fact. Here, the Scull testimony is very similar in substance and time to what occurred in the instant case. The Scull testimony would be very relevant in questioning Mucha’s credibility and truthfulness. It would be relevant to show that Mucha had a motive to lie about what happened between him and Missouri, that Mucha had the intent to frame Missouri for a crime he did not commit, and that Mucha’s conduct was not an accident. Thus, we also conclude that the second prong of the Sullivan test is satisfied.

¶17      The final prong addresses whether the probative value of the Scull testimony would be substantially outweighed by the danger of unfair prejudice, waste of time or confusing the jury. See WIS. STAT. § 904.03. Would it unfairly prejudice the State to allow Scull’s testimony? We think not. The State, like this court, operates with the priority of searching for truth and justice. Our system depends upon all witnesses being forthright and truthful and taking seriously the oath to tell the truth when testifying in a legal proceeding. Evidence that challenges the credibility of a State’s witness promotes that goal and cannot be summarily dismissed as overly prejudicial. When the jury hears all of the witnesses who can provide relevant information on the issues, it can make a fair assessment as to who is being truthful. This is of particular importance in a case that relies primarily on whether the officer or the defendant is telling the truth. It is not appropriate for this court, nor was it appropriate for the trial court, to assume that the defendant was lying and the officer was telling the truth. Resolution of credibility issues and questions of fact must be determined by the factfinder.

¶82      Criminal History Generally Inadmissible. Ordinarily evidence of a defendant's criminal history is not admissible because when such evidence is admitted, there can be an "overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts" and because of "the confusion of issues which might result from bringing in evidence of other crimes." ^[38] Evidence of a defendant's criminal history may serve as "an invitation to focus on an accused's character" and to "magnif[y] the risk that jurors will punish the accused for being a bad person regardless of his or her guilt of the crime charged." ^[39]

…

¶86      … We agree with the State, defense counsel, and the circuit court, concluding that the State improperly introduced evidence of the defendant's criminal history when the State called the jury's attention to a recognizance bond bearing the defendant's name and when a State witness referred to the bond as "a court bail bond, some kind of court paperwork for [the defendant]" and then a "recognizance of bond in a criminal case . . . a posting of $1,000 by the defendant."

¶65      The question that inevitably occurs to an outsider looking at this shooting is why Payano shot at the door. This implicates Payano's claim of self-defense. It also implicates his motive and knowledge. Motive and knowledge are both enumerated purposes for the admission of other acts evidence under Wis. Stat. § 904.04(2).

¶66      Payano has never asserted that the other acts evidence was not offered for a proper purpose. In fact, in his brief to this court, Payano explicitly acknowledges that "these are acceptable purposes for offering 'other acts' evidence." The circuit court did not erroneously exercise its discretion on the issue of purpose.

¶72      As the circuit court's ruling makes clear, the central dispute at trial was whether Payano acted reasonably in self-defense and defense of others when he shot Officer Lutz——whether he knew or should have known it was the police at the apartment door when he shot the gun. In other words, as the State argued, "the jury needed to decide between two competing motives for the shooting: to protect his family, as Payano argued; or to buy time to hide drug evidence, as the State argued." (Emphasis added.) Payano's entire defense theory was premised on the fact that he acted reasonably to protect himself and his family when he shot Officer Lutz. Hence, what Payano knew or reasonably believed at the time of the shooting was paramount to the "determination of the action." Wis. Stat. § 904.01; Sullivan, 216 Wis.  2d at 772; see also Wis. Stat. § 939.48 (1) and (4).

…

¶75      In sum, Kojis's testimony and the information he provided to Officer Lutz was offered by the State to undermine Payano's claim of self-defense and defense of others by offering an alternative theory of the case, that Payano's shooting of Officer Lutz was criminal rather than privileged. Consequently, the State's other acts evidence satisfies the first prong of the relevancy analysis because it was offered to help prove a "fact [or proposition] that is of consequence to the determination of" Payano's guilt or innocence. Wis. Stat. § 904.01.

¶76      The other acts evidence satisfies the second prong of the relevancy test as well, because its admission made the State's claim——that Payano shot the gun to deter the police from entering the apartment so that he would have time to get rid of drugs——more probable than it would have been without the evidence, and it made Payano's claim——that he shot the gun to protect himself and his family——less probable than it would have been without the evidence. See Wis. Stat. § 904.01; Sullivan, 216 Wis. 2d at 772; Blinka, supra, § 404.6 at 181; see also Sullivan, 216 Wis. 2d at 784 ("Evidence of other acts may be admitted if it tends to undermine an innocent explanation for an accused's charged criminal conduct."); Kourtidias, 206 Wis. 2d at 582 ("[T]his other acts evidence was very relevant to this theory of defense.").

¶93      There is no denying that the other acts evidence regarding a gun and a large amount of cocaine being present at Payano's apartment the day before the shooting may have caused the "the jury [to] draw the forbidden propensity [or character] inference." Blinka, supra, § 404.6 at 185. It is certainly plausible that some members of the jury may have decided to convict Payano based on "improper means" upon hearing the other acts evidence. See Sullivan, 216 Wis.  2d at 789-90; Johnson, 184 Wis.  2d at 340 (citing Christensen, 77 Wis.  2d at 61).

¶94      Having said that, this is not a classic case of unfair prejudice, like McGowan, where the other acts evidence is so similar in nature to the charged act that there is danger the jury will simply presume the defendant's guilt in the current case. See McGowan, 291 Wis.  2d 212, ¶¶1-2, 9-10, 23. Moreover, the danger of unfair prejudice is not as great as it would be if the other acts evidence were used to prove Payano's identity or that he committed the charged offense. Cf. Whitty, 34 Wis. 2d at 294 ("[T]he standards of relevancy should be stricter when prior-crime [or other acts] evidence is used to prove identity or the doing of the act charged than when the evidence is offered on the issue of knowledge, intent or other state of mind. McCormick, Evidence (hornbook series), p. 331, sec. 157."). Although we cannot say that the other acts evidence presented no danger of unfair prejudice to Payano, the danger was not exceptionally high given the nature of the evidence compared with the nature of the charged offense.<

¶95      Instead, similar to the other acts evidence offered in Pharr and Johnson, the evidence offered by the State in this case is directly linked and necessary to the determination of Payano's guilt. …

…

¶103    The court limited the use of the evidence to "a very narrow point"——namely, as proof that Payano shot the gun, knowing that the police were at the door, so that he could get rid of drugs——and there is no suggestion that the evidence was used for any reason beyond that "very narrow point." In fact, the court of appeals makes mention in two different paragraphs of its opinion that the State did not use the evidence for any improper purpose. See Payano, 312 Wis.  2d 224, ¶¶31, 35 ("[T]he prosecutor complied with the trial court's restriction . . . .").

¶104    Although the lack of a cautionary instruction may be the deciding factor in some cases of whether the evidence is admissible under Wis. Stat. § 904.03, see Wis JI——Criminal 275 at 3, that is not the situation here because the probative value of the evidence far outweighed its danger of unfair prejudice, with or without a limiting instruction, see supra, ¶¶93-98.

¶58. First, the circuit court could reasonably have concluded, as it did, that the other-acts evidence was admissible for the purpose of establishing context. Other-acts evidence is permissible to show the context of the crime and to provide a complete explanation of the case. Pharr, 115 Wis. 2d at 348-49; Shillcutt, 116 Wis. 2d at 236. The context of other-acts evidence in this case provided insight as to the unique circumstances in the Hunt household. The other-acts evidence provided an understanding of the abuse that took place in the home, and the authority and control Hunt possessed over Ruth, Angelica, and the children living with them. Moreover, the other-acts evidence of abuse toward Ruth, and drug use, provided a context in which the jury could understand the victims' and witnesses' fear of the defendant and their pattern of recantations.

¶59. The other-acts evidence was permissible to show the victims' state of mind, to corroborate information provided to the police, and to establish the credibility of victims and witnesses in light of their recantations. Such purposes have been held to be permissible purposes in Wisconsin. See State v. C.V.C., 153 Wis. 2d 145, 450 N.W.2d 463 (Ct. App. 1989) (holding that the other-acts evidence that husband had been charged with false imprisonment and sexual assault of his wife and had threatened his wife's life some two years earlier was properly admitted for limited purpose of showing the wife's state of mind on issue of whether she consented to acts of sexual intercourse); Kluck v. State, 223 Wis. 381, 389, 269 N.W. 683 (1936) (holding that, where other criminal acts are so connected with the offense charged that their commission directly tends to prove some element of the latter, such as guilty knowledge, or some specific intent, evidence of such other acts is admissible to explain or to corroborate the evidence showing the act charged); State v. Schaller, 199 Wis. 2d 23, 43, 544 N.W.2d 247 (Ct. App. 1995) (holding that evidence of the defendant's abuse of his child in a public park as testified to by third-party witnesses was admissible to illustrate extent to which his wife would go to extricate her husband, the defendant, from potential criminal prosecution and to assist jury in evaluating whether the wife was being truthful when she later recanted sexual assault charges against husband). While only mentioned in the cautionary instructions given, preparation or plan was also a permissible purpose for admission of other-acts evidence.

¶60. Next, the circuit court could reasonably have concluded that the other-acts evidence was admissible for the purpose of establishing opportunity and motive. When a defendant's motive for an alleged sexual assault is an element of the charged crime, we have held that other crimes evidence may be offered for the purpose of establishing opportunity and motive. State v. Davidson, 2000 WI 91, ¶57, 236 Wis. 2d 537, 616 N.W.2d 606 (citations omitted). As noted before, Hunt was charged with two counts of first-degree sexual assault of a child (Wis. Stat. § 948.02(1)), one count of repeated sexual assault of the same child (Wis. Stat. § 948.025(1)), one count of first-degree sexual assault resulting in the pregnancy of a child (Wis. Stat. § 940.225(1)(a)), one count of exposing a child to harmful materials (Wis. Stat. § 948.11(2)(a)), and one count of second-degree sexual assault by use of force (Wis. Stat. § 940.225(2)(a)). As such, five out of the six crimes Hunt was charged with related to sexual assault. There is no doubt that sexual assault, involving either sexual contact or sexual intercourse, requires an intentional or volitional act by the perpetrator. See State v. Olson, 2000 WI App 158, ¶6-12, 238 Wis. 2d 74, 616 N.W.2d 144. As an example, under Wis. Stat. § 948.01(5)(a), sexual contact is defined as:

Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.

The other-acts evidence was properly admitted to prove motive because purpose is an element of sexual assault, and motive and opportunity are relevant to purpose. State v. Plymesser, 172 Wis. 2d 583, 593-96, 493 N.W.2d 376 (1992). Thus, Hunt's motive or opportunity for allegedly touching or having intercourse with Tiffany J. was part of the corpus of the crimes charged, and evidence relevant to the motive or opportunity was therefore admissible. Id.

¶20. Although, as the supreme court explained, consent, in the context of sexual conduct, "is unique to the individual," id., and although, therefore, the prior non-consent of one person to sexual contact may not be introduced solely to prove the non-consent of another person to sexual contact, the preclusion of such other-acts evidence is not absolute. Where, as here, the other-acts evidence of non-consent relates not only to sexual contact but also to a defendant's modus operandi encompassing conduct inextricably connected to the strikingly similar alleged criminal conduct at issue, the evidence of non-consent may be admissible to establish motive, intent, preparation, plan, and absence of mistake or accident under Wis. Stat. § 904.04(2).

¶21. In this case, the trial court recognized that, while the assaults of Daryl and Mary differed in some respects, they shared what the court termed "some strong similarities ... in terms of the person representing [himself to be] a police officer and the basic act of physical and sexual degradation." Noteworthy, also, was Ziebart's vigilante-like modus operandi; his determination to deal with "crack whores," in Mary's assault, and "drug addicts," in Daryl's.

...

¶24.... Where, as here, a defense of consent is inextricably connected to a defendant's conduct surrounding and including sexual contact, and where other-acts evidence is probative of a modus operandi rebutting that defense, Alsteen does not preclude an instruction advising the jury that it may consider the evidence on the issue of whether an alleged victim consented to the defendant's conduct.⁶

¶25. We also acknowledge that the authorities are divided on this issue.⁷ And we recognize that, in this case, the trial court could have accurately instructed the jury without using the words "consent" or "non-consent." Thus, we go on to explain why, even if we were troubled by a jury instruction that might seem inconsistent with Alsteen, we would conclude that any possible error was harmless.

---

⁶ Ironically, in the instant case, an important difference between the two assaults-the gender of the victims-further supports our decision. Mary, a woman, was confronted by Ziebart who sexually assaulted her and, in vigilante fashion, claimed to be ridding the streets of "crack whores," and pretended to be a police officer. Evidence of Ziebart's strikingly similar attack on Daryl, a man, was highly probative. Indeed, the "uniqueness" of non-consent would seem to recede as Ziebart maintained his modus operandi regardless of the gender of his victims.

⁷ See Sheri B. Ross, Yes or No to Consent? Conforming Rule 404(B) to Society's New Understanding of Acquaintance Rape, 48 U. Miami L. Rev. 343, 366-67 (1993) ("Corroborative evidence both reduces the possibility that the victim is lying and increases the probability that the defendant committed the crime.... Under this standard, the defendant's prior conduct [of committing sexual assaults] says something about the victim's present conduct-that she is not lying.... This inference does not imply that simply because one woman refused, this woman also refused. [Rather,] [i]t is [the defendant's] prior conduct that makes it more likely that she[, the victim here,] did not consent to sexual intercourse."). But see State v. Mitchell, 633 N.W.2d 295, 299-300 (Iowa 2001) (concluding that use of other-acts evidence from another victim of child sexual abuse cannot be used to bolster the complainant's credibility and corroborate her testimony); accord State v. Glodgett, 749 A.2d 283, 693-96 (N.H. 2000).

¶17 As Jackson also argues, evidence of Carlos Williams’s prior felony conviction enhanced his out-of-court admission to Papka that he, and not Jackson, handled the gun in the store because it subjected him to being charged with possessing a firearm while a felon. Indeed, this is the very rationale underlying the admission of hearsay statements that are against the declarant’s penal interest; the potential consequences of such an admission makes it unlikely that the out-of-court declaration is not true. See State v. Buelow, 122 Wis. 2d 465, 477, 363 N.W.2d 255, 262 (Ct. App. 1984) (“The circumstantial guaranty of reliability for the exception against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.”). Further, the State, apparently deliberately, left the jury with the false impression that Carlos Williams did not have a felony record when it asked Sergeant Bennett the following question to which Bennett replied, “no”: “Did you have any reason to believe that Carlos Williams was a felon or person prohibited for any reason by either a felony conviction or a domestic violence injunction that there was any prohibition in Carlos Williams handling a gun at that time?” Although true to the extent that it reflected Bennett’s knowledge in February of 2004 when the West Milwaukee officers went to the gun store and arrested Jackson, it left the jury with the misleading impression that Carlos Williams was not a felon. Additionally, in her closing argument, the prosecutor told the jury: “So for some reason Carlos Williams--and this speaks to his character--when he sees police officers feels the need to flee stores [sic].” (Emphasis added.) It was equally or even more likely that, as a convicted felon, Carlos Williams did not want to hang around a gun store when the police were there. But, of course, the jury did not know that Carlos Williams was a convicted felon, and the trial court’s apparent failure to recognize that Carlos Williams’s felony status was a significant fact for the jury to use in weighing the truthfulness of what Carlos Williams told Papka was a misapplication of the law and, accordingly, an erroneous exercise of discretion.

¶28     As the State pointed out in its brief, the one occasion on which Braun allegedly grabbed the wheel of his father's vehicle was dissimilar in several respects to the occasion in which Braun allegedly grabbed the wheel of Muckerheide's vehicle. There was no evidence that, on the prior occasion, Braun had been intoxicated or under the influence of drugs, but there was evidence that Braun had been drinking and doing cocaine prior to the accident in Muckerheide's vehicle. There is no dispute that an individual often acts differently when he/she is under the influence of drugs and alcohol. Additionally, Braun's father would have testified that Braun had gestured toward the steering wheel on several occasions, whereas Muckerheide never asserted that Braun had made gestures toward the steering wheel in Muckerheide's vehicle prior to the accident. Finally, there is no evidence that Braun had ever grabbed the steering wheel when riding with Muckerheide on occasions prior to the accident, as Braun had allegedly done when riding with his father.

¶29      Due to these dissimilarities, we conclude that Muckerheide's offered other acts evidence does not make a consequential fact more probable or less probable. Id. at 785-86. As this court stated in Whitty v. State, 34 Wis. 2d 278, 291-92, 149 N.W.2d 557 (1967), our seminal case regarding other acts evidence, it is universally established that evidence of other acts "is not admitted in evidence for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged."

¶14. There are three hurdles that evidence of a person's other acts must clear: (1) the evidence must be "relevant," Wis. Stat. Rules 904.01 & 904.02; (2) the evidence must not be excluded by Wis. Stat. Rule 904.04(2); and (3) the "probative value" of the evidence must not be "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by the considerations of undue delay, waste of time, or needless presentation of cumulative evidence," Wis. Stat. Rule 904.03. See State v. Sullivan, 216 Wis. 2d 768, 772-773, 576 N.W.2d 30, 32-33 (1998). Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 904.01. This is not a high hurdle; evidence is relevant if it "'tends to cast any light'" on the controversy. Zdiarstek v. State, 53 Wis. 2d 420, 428, 192 N.W.2d 833, 837 (1972) (quoted source omitted). Additionally, although evidence of bad things that a person may have done "is not admissible to prove the character of a person in order to show that the person acted in conformity therewith," such evidence may be introduced for other reasons, including proof of "opportunity" and "intent." Rule 904.04(2). We analyze the evidence against this background.  

¶28      Looking at the first factor, the State concedes that this witness’s testimony was offered for identification purposes, an admissible purpose under Wis. Stat. § 904.04(2). As to the second Sullivan factor, the misidentification of Davis as the burglar, under circumstances similar to those of the other burglaries, relates to a fact that was of consequence to the jury’s determination and was relevant. This is not a situation where someone accused of a crime makes a general claim that someone else must have done it. Rather, here we have a burglary victim who twice misidentified Davis as the person he saw in his apartment. This fact provided Davis with the opportunity to attempt to prove that someone else, someone who looks a great deal like Davis, was burglarizing and robbing homes within the same general time frame. Indeed, the State originally charged Davis with the Hartwig burglary in the same complaint as the other burglaries. Consequently, this evidence was of great probative value. Thus, a proper Sullivan analysis would have shifted the balance in favor of admitting the evidence.

…

¶30      There is little chance that this witness would have caused an undue diversion or would have confused the jury. The proposed witness’s testimony went to the heart of the dispute. The State contended that Davis committed all the charged crimes. Davis claimed someone else committed them. Indeed, proof that a victim misidentified Davis and that Davis had previously been charged with burglary was significant in determining the identification issue. Moreover, while admitting this evidence may have changed the result of the trial, under our system of law, the State is charged with the duty of seeking justice, not simply obtaining convictions. Making sure that the truly guilty are convicted is tantamount to doing justice. We do not believe the State would have been unfairly prejudiced by the admission of this evidence, evidence that satisfied the Sullivan test and was the foundation of Davis’s defense. Thus, the trial court erroneously exercised its discretion when it denied Davis’s motion to call Hartwig as a witness. As a result, we are satisfied that the real controversy has not been fully tried, and we exercise our statutory right under Wis. Stat. § 752.35 to reverse the judgment of conviction and remand for a new trial.  

¶20. Evidence that Ehlers sold marijuana to Sonny has to clear the … three Sullivan hurdles …. The trial court recognized that "[w]hether Mr. Ehlers sold marijuana from the 7-Eleven store would be relevant" to bolster White's contention that he had purchased the marijuana for which he paid $325 from Ehlers at the store. We agree. Additionally, the evidence of Ehlers's prior marijuana sales to Sonny would not be excluded by Wis. Stat. Rule 904.04(2) because it goes to Ehlers's "intent" and "opportunity" to use the store as a convenient place to accommodate his marijuana customers. Finally, this evidence, too, went to the core of White's defense: that on October 10, 2000, he bought marijuana from Ehlers and was "shorted." Thus, as with the allegation that Ehlers had stolen from his employer, the probative value of evidence that he used his employer's property as a store from which to sell marijuana was not "substantially outweighed" by any of the considerations in Wis. Stat. Rule 904.03.

¶44. Alternatively, Wright argues that Lomack's testimony was admissible as other acts evidence of a third-party perpetrator pursuant to Scheidell. Scheidell involved the admissibility of other acts evidence committed by an unknown third party, which was proffered by the accused on the issue of identity. Id. at 287. The supreme court set forth a three-step analytical framework to be applied when a defendant proffers such other acts evidence. Id. at 306. The first step is to determine whether the other acts evidence is offered for a permissible purpose under Wis. Stat. § 904.04(2), such as to establish motive, opportunity, plan, knowledge or identity. Scheidell, 227 Wis. 2d at 306. The second step is to determine whether the other acts evidence is relevant such that it relates to a fact or proposition that is of consequence to the determination of the action. The final step is to determine the probative value of the proffered testimony or its tendency to make a consequential fact more or less probable than it would be without the evidence. Id. at 307. The purpose of this test is to assure that the other acts evidence does more than raise conjecture or speculation. Id. at 305.

¶45. Wright's argument under Scheidell is a nonstarter. Without more, we hold that the mere inability of a victim to identify the defendant as the perpetrator of a similar uncharged crime perforce takes the jury into the realm of conjecture or speculation. Unlike Scheidell, where the defendant sought to present evidence of a similar crime committed by an unknown third party while the defendant was in jail, id. at 291, Lomack's proffered testimony does not demonstrate that Wright was incapable of committing the similar crime. At the most, Lomack's proffered testimony merely shows that he could not identify Wright as the robber; it does not demonstrate that Wright could not have committed the offense. As such, Lomack's testimony does not tend to make a consequential fact more or less probable than it would be absent his testimony. Id. at 307. We agree with the State: "When there is a series of similar crimes, the fact that the State is unable to prove that the defendant committed all of the crimes does not tend to establish that the defendant did not commit any of the crimes." Lomack's testimony was not competent other acts evidence under Scheidell, and the trial court did not err in excluding it.

• First, permissible purpose under Wis. Stat. § 904.04(2) (here, identity, which is certainly permissible).
• Second, relevance, comprised of two sub-steps. (A) relation to a consequential fact or proposition (here, identity again, which passes this test); (B) probative value, which turns on nearness in time, place, etc. (and in practice probably turns on sufficient similarities between charged and extrinsic crime). Similarities don't have to be strong enough to amount to "signature," but do have to establish "more than conjecture or speculation." The court disdains generalization, except to belabor the obvious: the greater the similarity, complexity, distinctiveness and frequency, the greater the case for admissibility.
• Third, "the court must balance the probity (sic) of the evidence, considering the similarities between the other act and the crime alleged, against the considerations contained in Wis. Stat. § 904.03. ..." The court acknowledges a laundry list of similarities in this case but says that they aren't "so distinctively similar as to support the inference that some unknown third party, and not Scheidell, committed the charged crime." Therefore, the evidence is deemed inadmissible.

¶38. We must also take into consideration, however, the fact that Collins was thirteen years old when the prior acts allegedly took place. The difference between a thirteen year old and a twenty year old is much more significant than the difference between someone who is thirty-three and someone who is forty. Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult. See Roberts v. State, 634 S.W.2d 767 (Tex. Crim. App. 1982); Edward J. Imwinklried, Uncharged Misconduct § 8.08 at 27 (1999).

Nor was there a strong similarity between the incidents. Other than the fact that both involved intent to steal from a residence, no similarities were shown. ¶39. The rule on misconduct evidence is one of exclusion. ¶40. Therefore, because the prior misconduct was remote in time and lacked similarity in relation to the charged offenses, it lacked probative value and should have been excluded. ¶41. (The error, however, is deemed harmless.)

• 1). The evidence was offered for an acceptable purpose, namely intent, motive, and absence of mistake or accident. ¶58.
• 2a). The evidence was relevant, the court rejecting Veach's argument that an element must be disputed before extrinsic evidence may be deemed relevant to that element. ¶77. (Note: The court therefore devotes much of the opinion to discussing an irrelevancy -- the idea that Veach didn't really concede intent. ¶¶60-76.)
• 2b). The incidents were sufficiently similar to have probative value: young girl, father(-like) relationship. ¶¶79-82. Acknowledged dissimilarities, and lengthy passage of time, are overcome by the idea that the prior incidents "obviously had at least some probative value" -- to show motive and absence of mistake/accident. ¶¶83-84.
• 3). The other acts were "graphic, disturbing, and extremely prejudicial," but the danger of unfair prejudice didn't outweigh probative value, especially given the greater latitude rule (relaxed admissibility for extrinsic acts in child sexual assault cases).

Go To Brief

¶22. Here, the prior acts testified to by Love were very similar to the events surrounding the charged offense and, as a result, Love's testimony had a strong tendency to make Volk's defense less probable than if she had not testified. Unlike the "other acts" evidence rejected by our supreme court in Sullivan which consisted of one prior incident lacking unusual facts or physical contact, Love's testimony involved a series of incidents involving complex facts and physical contact similar to that alleged by Swim. See id. at 788-89. Specifically, the altercations described by Love were similar in that Volk had been drinking, the violence was perpetrated against a domestic partner and Volk's actions involved strikes to the head and choking. We are satisfied that Love's testimony served to make it less probable that Volk did not intend to harm Swim or that Swim injured herself. As such, the evidence satisfied the second aspect of the second prong of Sullivan.

¶5 ... In a written decision, the trial court properly applied the Sullivan three-step analysis:

The acts which took place some years ago are remarkably similar to the allegations before the Court in this case ... [and the] evidence does tend to make the consequential fact or proposition more probable than it would be without it. It further can be relevant if used in regard to credibility of the child witness.

Finally, as to the probative value, the Court does not believe it is outweighed by undue prejudice, confusion of issues, or misleading of the jury or by considerations of undue delay waste of time or needless presentation of cumulative evidence.

While these other acts may be chronologically old, they are very similar in nature.

The trial court did not err in deciding that [t]he probative value in this case outweighs the danger of unfair prejudice. We hold that the trial court properly exercised its discretion in admitting the other acts evidence.

¶23. We are satisfied that the reference to the outstanding warrants is not classic "other acts" evidence invoking Wis. Stat. § 904.04(2) analysis. Rather, the existence of the warrants is "part of the panorama of evidence" that directly supports Seefeldt's defense and sits at the heart of his right to present exculpatory evidence. See Johnson, 184 Wis. 2d at 349, 354 (Anderson, P.J., concurring). Therefore, Carroll's remarks did not cause the jury to hear any information that would have rendered the proceedings unfair to the State.

• Similarity: The prior acts were similar to the charged act, especially in that "(i)n each instance, a child within a familial or quasi-familial setting was sexually assaulted." ¶18.
• Remoteness in time: Though the prior acts occurred 15-25 years earlier, they weren't remote (court stresses the repetitive nature and similarities of the acts, i.e., "a pattern of consistent activity"). ¶¶21-22.
• Prejudice: The prior acts weren't unfairly prejudicial: testimony challenged as unduly prejudicial was either unobjected-to and self-inflicted (i.e., brought out on cross without objection) and therefore waived, ¶25, citing United States v. Ohler, 529 U.S. 753, 755 (2000); or wasn't of such nature as to "provoke hostility and revulsion." ¶27.

And, certain other challenges to closing argument as exacerbating prejudicial effect are held waived by lack of objection. ¶29.

¶14. The next step is whether the 1992 conviction was relevant; that is, whether under Wis. Stat. § 904.01, it relates to a fact or proposition that is of consequence to the determination of the action and if it has probative value. Id. "`The measure of probative value in assessing relevance is the similarity between the charged offense and the other act.' Similarity is demonstrated by showing the `nearness of time, place, and circumstance' between the other act and the alleged crime." Hammer, 2000 WI 92 at ¶31 (citations omitted). Stated otherwise, the greater the similarity between the two acts, the greater the relevance and probative value. Here is where the State's argument fails. In Hammer, the supreme court found that the adult-child distinction did not impact on probative value because the victims, with one exception, were all near the age of majority. Id. at ¶32. That is not the case here. The victim in the other act was twenty-three years old, well past the age of majority. The victim in the charged act was a fourteen-year-old boy-four years away from the age of majority. This distinction is significant.

¶15. Moreover, unlike the "mirror image" acts in Hammer, the other act here was substantially dissimilar from the charged act. The other act occurred in a private bedroom following an illegal entry, in the middle of the night, while the victim was sleeping; the sexual contact was through the victim's clothes. The charged act is drastically different: it occurred in a public place, during the day, while the victim was awake; the sexual contact was directly to the skin, and no illegal entry was involved. These differences greatly reduce the probative value of the 1992 conviction, and lean toward making the earlier act propensity evidence. The State suggests that the two acts are similar in several ways; i.e., both victims were young male strangers, both involved isolated victims in places close to the perpetrator's home, neither incident involved force, and the sexual contact in both was with the victim's penis. Even with the application of the greater latitude rule, we cannot conclude that this suggested list of similarities overcomes the greater dissimilarities. The State's list presents factors or similarities that are, for the most part, common to most sexual assaults.

¶11 In reviewing the list set forth in WIS. STAT. § 904.04(2), we reject each of the proper 'other purposes' under which the State and the trial court argued the prior acts evidence should be admitted. First, the evidence was not admissible to show intent because intent was not an element of the offense charged. See State v. Danforth, 129 Wis. 2d 187, 202-03, 385 N.W.2d 125 (1986). The State concedes that intent was not an element it had to prove on the sexual assault charges, but argues that intent was an element on the kidnapping charge and, therefore, admissible. This argument, made only on appeal, is a stretch at best. It is clear throughout the entire trial court transcript that the other acts evidence was being introduced as relevant to the sexual assault, not the kidnapping. The State also contends that the evidence was used to show intent to hold the victim to servitude for sex as in State v. Grande, 169 Wis. 2d 422, 433, 485 N.W.2d 282 (Ct. App. 1992). This argument, however, was never made in the trial court and the cautionary instruction on the other acts evidence never mentioned this other purpose. In addition, the prosecutor's closing argument focused on linking the prior acts with the charged offenses. The State, therefore, has waived both arguments. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980).

¶12 Similarly, the other acts cannot be properly admitted to show motive. Other crimes evidence may be admitted to establish motive for the charged offense if there is a relationship between the other acts and the charged offense, see e.g., Holmes v. State, 76 Wis. 2d 259, 268-69, 251 N.W.2d 56 (1977), or if there is a purpose element to the charged crime, see State v. Friedrich, 135 Wis. 2d 1, 22, 398 N.W.2d 763 (1987). Here, neither can be satisfied. There was no connection between Cofield's earlier convictions and the Lee case, and there is no evidence that the prior offense provided a reason for committing the charged offenses or that there was some link between them. Further, there is no purpose element in the crimes charged in this case.

¶13 The State argues that the similarities between the old and new offenses demonstrated a common scheme or plan. That is, a knife was used in each incident, the race of the women was the same, all of the victims were in their twenties or thirties, they were all women Cofield had seen before, and he told each of them that if they were compliant, they would not get hurt. Our supreme court has addressed the concept of 'plan' as that term is used in WIS. STAT. § 904.04(2):

The word 'plan' in sec. 904.04(2) means a design or scheme formed to accomplish some particular purpose. Evidence showing a plan establishes a definite prior design, plan, or scheme which includes the doing of the act charged. As Wigmore states, there must be 'such a concurrence of common features that the various acts are materially to be explained as caused by a general plan of which they are the individual manifestations.'

State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d 94 (1977) (citation and footnote omitted). In other words, similarity of facts is not enough to admit other acts under this 'other purpose.' There must be some evidence that the prior acts were a step in a plan leading to the charged offense, or some other result of which the charged offense was but one step. See State v. Roberson, 157 Wis. 2d 447, 453, 459 N.W.2d 611 (Ct. App. 1990). This linkage is simply not present here. There is no evidence that the prior acts were simply a step in a plan leading up to the Lee incident. In addition, there are as many dissimilarities between the earlier acts and the charged offenses as there are similarities. In the charged offense, Cofield shared cocaine with the victim, he put the knife down, the incident took place in his apartment as opposed to the victim's bedroom, he allowed the victim to leave to retrieve her child, and the instant case occurred during the day.

Greater Latitude Rule

¶14      … The supreme court has provided significant guidance concerning the use of other acts evidence in child sexual assault cases. In State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, the court discussed the three-step framework, which was originally set forth in State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998), that courts must follow when deciding whether to admit other acts evidence in all Wisconsin cases:

1.  Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2)?
2.  Is the other acts evidence relevant under Wis. Stat. § (Rule) 904.01? 
3.  Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice, confusion, or delay under Wis. Stat. § (Rule) 904.03?

Davidson, 236 Wis. 2d 537, ¶35. Davidson also recognized that “alongside this general framework, there also exists in Wisconsin law the longstanding principle that in sexual assault cases, particularly cases that involve sexual assault of a child, courts permit a ‘greater latitude of proof as to other like occurrences.’” Id., ¶36 (citations omitted). Davidson held that “in sexual assault cases, especially those involving assaults against children, the greater latitude rule applies to the entire analysis of whether evidence of a defendant’s other crimes was properly admitted at trial.” Id., ¶51.

¶19      We conclude the circuit court correctly decided that the greater latitude rule was available in cases where the other acts evidence is pornography, not prior sexual assaults, if the adult victim functions at the level of a child due to disabilities. We also conclude the court properly exercised its discretion in applying the rule in this case. ^[5] Thus, in analyzing the circuit court’s decision we will bear in mind that the application of the rule permits a more liberal admission of other crimes evidence, while also recognizing that the rule does not relieve a court of the duty to ensure that the other acts evidence is admissible under the proper legal standards. See id. at 52.

…

¶21      … The first step requires only that the other acts evidence be offered for a permissible purpose. We conclude the circuit court reasonably concluded that the State satisfied this requirement by identifying the permissible purpose of motive and explaining that the State wanted to show that Normington was motivated by his sexual interest in inserting objects into body orifices when he inserted the toilet plunger into Bob’s anus.

¶22      We turn next to the second step, which requires an inquiry into the relevance of the pornography evidence. …

…

¶24      Because inserting a toilet plunger into another person’s anus is an unusual thing to do, knowing why a person might be motivated to do such a thing is highly significant to deciding whether Normington did it.  A reasonable inference from the evidence that Normington viewed pornography showing the insertion of objects into a person’s anus is that he found that practice sexually arousing.  A reasonable judge could conclude that this inference makes it more probable that Normington would insert an object into Bob’s anus than if there were no evidence he had a sexual interest in the insertion of objects into a person’s anus.

¶20      We cannot conclude that the allegations are sufficiently factually similar to justify admission of Janis’s testimony as other acts evidence. Assuming the truthfulness of both Sasha and Janis for purposes of this analysis, we conclude that a single assault, by one young child on another young child, eight years before repeated assaults by an adult on a different child who was three years older than the first victim, together with significant differences in the nature and quality of the assaults, does not tend to make the latter frequent and more complex assaults of Sasha more probable. Nor does such testimony make Sasha’s testimony about the later events more credible because of the significant differences in the details involving the earlier event and the later events. Nor does the conduct of a ten-year-old child give “context” to, or provide evidence of the motive or intent of, an adult some eight or more years later. See Barreau, 257 Wis. 2d 203, ¶38 (“Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult.”).

¶86. We have ruled that "Wisconsin courts permit a more liberal admission of other crimes evidence in sexual assault cases than in other cases." Davidson, 236 Wis. 2d 537, ¶44; State v. Hammer, 2000 WI 92, ¶23, 236 Wis. 2d 686, 613 N.W.2d 629. Accordingly, in a sex crime case, the admissibility of other-acts evidence must be viewed in light of the greater latitude test….

¶88. Applying the above rules to the facts of this case, we hold that that the circuit court was correct here in applying the greater latitude rule in the determination of whether other-acts evidence was admissible. Accordingly, we hold that the court of appeals was in error in its determination regarding the applicability of greater latitude in sex crimes cases, particularly when a child victim is involved.

¶51 We conclude that in sexual assault cases, especially those involving assaults against children, the greater latitude rule applies to the entire analysis of whether evidence of a defendant's other crimes was properly admitted at trial. The effect of the rule is to permit the more liberal admission of other crimes evidence in sex crime cases in which the victim is a child.

¶59 In each of the three steps of its other acts analysis, the majority explains that it is applying the greater latitude rule, citing to Davidson, 2000 WI 91, ¶51. Engaging in such a nuanced approach to the greater latitude rule seems unnecessary because the bottom line is that, whether for one step or for all three, the majority will admit other acts evidence in child sexual assault cases. To apply the rule separately to each step simply lengthens the majority's discussion to arrive at the predictable conclusion that prior acts have been admitted properly under Wis. Stat. § (Rule) 904.04(2).

Waiver

¶5. We conclude that the trial court's ruling, that other acts evidence would be admissible, did not require Frank to enter into the Wallerman stipulation. However, by entering into the stipulation and rendering the other acts evidence inadmissible, Frank waived his right to appeal the other acts ruling. We conclude that other acts evidence must be introduced at trial before a criminal defendant can argue reversible error. In any event, we agree with the State that Frank did not give up a defense by entering into the Wallerman stipulation. ...

¶9. Generally, when a trial court rules that certain evidence is admissible, the admission cannot be deemed prejudicial error unless the evidence actually is admitted against the party objecting to it. ....

¶14. .... Frank had a choice. He could have declined to enter into a Wallerman stipulation, thereby allowing the State to introduce the other acts evidence against him and preserving the issue of the admissibility for appellate review. Or, he could have entered into a Wallerman stipulation, thereby precluding the admission of the evidence and forfeiting his right to appellate review of the admissibility of the evidence. ...

¶118. We determine that to the extent Wallerman and DeKeyser imply that the state and the circuit court are obligated to accept Wallerman stipulations, those cases are incorrect and must be overruled. We conclude that requiring the state or the circuit court to accept a Wallerman stipulation is directly contrary to Wisconsin law as stated in Davidson and Hammer, and in the case of child sexual assaults, is also contrary to the greater latitude rule. While we do not hold that Wallerman stipulations are invalid per se, we do hold that, with the exception of stipulations to a defendant's status, the state and the court are not obligated to accept stipulations to elements of a crime even if the stipulations are offered in compliance with the four-part test set forth in Wallerman. ...

¶123. We do not mean to imply that Wallerman stipulations are per se invalid, even in child sexual assault cases. We simply conclude that the state and the court do not have to agree to Wallerman stipulations.

§ 904.10

¶20      We agree with Norwood that Wis. Stat. § 904.10 prohibited the use of statements from his correspondence to the court. Norwood stated that he wanted to avoid trial. Nothing in the record indicates that the State was amenable to dismissing the case. That fact left Norwood with two choices:  plead or go to trial.  Obviously, the only way he could avoid trial was to enter a plea. An offer to plead guilty or no contest was therefore implicit in the admitted statements. …

¶21      We reject the trial court’s rationale that Norwood ’s statements could come in as party admissions.  Wisconsin Stat. § 908.01(4)(b) deals with admissions by a party as a general rule. Admissions incidental to an offer to plead, however, 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. Wisconsin Stat. § 904.10 trumps § 908.01(4)(b)….

¶20      Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka, Wisconsin Evidence § 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently, "at least under the present state of the scientific art"). We see no reason at this time to treat these two methods of "honesty testing" differently.

¶21      Our analysis, as detailed below, primarily requires us to determine whether a defendant's statement was given at an interview totally discrete from the voice stress analysis. If the defendant's statement was given at an interview that was totally discrete from the voice stress analysis test, its admission is not automatically precluded. The statement, however, is also subject to ordinary principles of voluntariness. Therefore, if the statement is given at an interview that is totally discrete from the voice stress analysis test and the statement is voluntarily given, the statement is admissible.

…

¶44      While some prior precedent from this court and the court of appeals may not have clearly or perhaps even properly articulated the underlying rationale for excluding statements made during honesty testing, ^[16] the underlying rationale is simply that our state legislature has generally precluded such a scenario under the plain language of Wis. Stat. § 905.065. ^[17] Wisconsin Stat. § 905.065(2) states, "[a] person has a privilege to refuse to disclose and to prevent another from disclosing any oral or written communications during or any results of an examination using an honesty testing device in which the person was the test subject."

¶45      Therefore, the legislature has decided that statements made during honesty testing are generally excluded, but if those statements are given at an interview that is totally discrete from the honesty testing, under the factors articulated in this opinion, and the statement was given voluntarily, then the statement is admissible. However, if the statements and examination are not totally discrete events but instead are considered one event, then the statements must be excluded by virtue of Wis. Stat. § 905.065.

¶23      Under the totality of the circumstances, we conclude that Davis's statement was not so closely associated with the voice stress analysis test so as to render it one event; rather, the statement and voice stress analysis were two totally discrete events. Whether a statement is considered part of the test or a totally discrete event is largely dependent upon whether the voice stress analysis is over at the time the statement is given and the defendant knows the analysis is over. Greer, 265 Wis.  2d 463, ¶12. To make this determination, the following factors should be weighed and considered: (1) whether the defendant was told the test was over; (2) whether any time passed between the analysis and the defendant's statement; (3) whether the officer conducting the analysis differed from the officer who took the statement; (4) whether the location where the analysis was conducted differed from where the statement was given; and (5) whether the voice stress analysis was referred to when obtaining a statement from the defendant. See id., ¶¶12-16 (articulating and applying these principles).

¶30      In the case at hand, the voice stress analysis and the interview were totally discrete events: Two different officers were involved——one conducted the examination and the other conducted the interview. Before any statement was made, Detective Buenning stated, "I'm finished here," closed up his laptop, and left the room with all the voice stress analysis equipment. The interviewing officer did not refer to the polygraph examination or its results during the interview, and the examination and interview took place in different rooms.

¶31      While here, very little time passed between the examination and interview, time alone is not dispositive. For example, in McAdoo, the examination and interview were virtually seamless. However, in McAdoo, as in the case at hand, the interviewer never referred back to the polygraph examination or results, and the equipment was removed from the defendant. Even if little time passes between the two events, the statement may still be admissible so long as two totally discrete events occurred. See Johnson, 193 Wis.  2d at 389 (concluding that neither Barrera v. State ^[14] nor Schlise proscribe a bright-line rule of timing and instead look to the totality of the circumstances). "[W]here there is a distinct break between the two events and the post-polygraph interview does not specifically relate back to the . . . test, the events are sufficiently attenuated." Johnson, 193 Wis.  2d at 389. Unlike the case at hand, in Schlise the interview and examination were conducted by the same person, in the same room, and even the test examiner considered the procedure one event. Schlise, 86 Wis.  2d at 43.

¶15. In light of the purpose of both the privilege and exceptions in Wis. Stat. § 905.05(3)(b), we conclude it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. It is also irrelevant whether a crime against the spouse is the "primary crime" rather than incidental to, or a necessary by-product of, a crime against the third party. The purpose of the third-party exception in para. (3)(b) is best carried out if committing a crime against a third party "in the course of" committing a crime against one's spouse is interpreted to encompass conduct that is both itself a crime against a third party and a crime against one's spouse. We therefore conclude that Richard committed sexual assaults against Melissa "in the course of" committing a crime against Tracy within the meaning of § 905.05(3)(b).

¶16. Richard may also be contending that adultery is not "a crime against" his wife. However, he apparently concedes that adultery is defined as a crime by Wis. Stat. § 944.16(1), which provides:

Adultery. Whoever does either of the following is guilty of a Class E felony:

(1) A married person who has sexual intercourse with a person not the married person's spouse....

It may be that adultery is no longer prosecuted as a crime, and that many people no longer view adultery as deserving of criminal punishment. But adultery is nevertheless defined as a crime under the statutes of this State, and therefore it plainly is a "crime" within the meaning of Wis. Stat. § 905.05(3)(b). We also see no ambiguity concerning whether adultery is a crime "against" Richard's wife. Certainly she is injured, although not physically, by her husband having sexual relations with a person other than herself. Even if we assume, for purposes of argument, that there is an ambiguity on this point, we conclude that construing a "crime against the other [spouse]" to include adultery is more consistent with the purposes of the privilege and exceptions in para. (3)(b). When a married person commits a sex crime against a third person, that married person has transgressed against his or her spouse as well as the third person, and the justification for preventing one spouse from testifying against the other no longer outweighs the interests of ascertaining the truth.

¶17. Accordingly, we conclude that under Wis. Stat. § 905.05(3)(b) Tracy's testimony is admissible despite Richard's invocation of the spousal privilege because he was charged with crimes of sexual assault against a third party, Melissa, committed "in the course of" committing the crime of adultery "against the other [spouse]," Tracy.

¶33. With the benefit of these above-stated standards, we now move to the second issue: the application of the procedures in this case. The parties here agree, as do we, that it was error for the circuit court to rely upon an unsworn memo in determining whether the identities of the confidential informants should be disclosed. Section 905.10(3)(b) specifically states: "The showing [by the State] will ordinarily be in the form of affidavits but the judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit." Under the plain language of the statute, affidavits or testimony are the two options given the circuit court. Both of these options provide for sworn evidence. If the judge finds that the affidavits provided are inadequate, as in this case, the court may then take testimony. By relying upon an unsworn memo, the circuit court here failed to follow the statute. Additionally, we note that the danger of relying upon unsworn evidence played out in this very case. Here, two memos purportedly from Detective Bloedorn were submitted to the court. One of those memos was a forgery created by the defendant. Fortunately, here, the forgery was discovered. We find, however, that relying upon unsworn evidence for purposes of the in camera process under Wis. Stat. § 905.10(3)(b) is error. This memo, at least as used during the in camera procedure, shall not be considered as evidence to be relied upon in this review.

¶34. We also find that the circuit court erred by independently requesting additional information from law enforcement, a request that led to receipt of the unsworn memo from Detective Bloedorn. The circuit court relied upon that independently gathered information to make a ruling on disclosure. Again, if the affidavits collected are inadequate, the judge has the option of hearing testimony. Wis. Stat. § 905.10(3)(b). Judges are generally prohibited from independently gathering evidence by the rules of judicial ethics. Supreme Court Rule 60.04(1)(g) prohibits a judge from engaging in ex parte communications concerning a pending action, with several exceptions not applicable here. The Comment to the rule states, in part, "A judge must not independently investigate facts in a case and must consider only the evidence presented." Id. A judge must not go out and gather evidence in a pending case. To do so is error. The judge here did disclose his communication with law enforcement to both parties before ruling upon the motion for disclosure. He also provided the unsworn memo to the defense before trial. These were appropriate actions under SCR 60.04. See Comment to SCR 60.04(1)(g). These actions, though, cannot balance the potential harm done by seeking evidence independently and then relying upon such evidence in making a ruling.

¶24. We now reaffirm our holding in Dowe that the concurrence in Outlaw states the test to be applied in determining whether an informant's identity must be disclosed. Based on the language of the concurrence, a defendant must show that an informer's testimony is necessary to the defense before a court may require disclosure. See Outlaw, 108 Wis. 2d at 139 (Callow, J., concurring). "Necessary" in this context means that the evidence must support an asserted defense to the degree that the evidence could create reasonable doubt. See id. at 141-42. The court of appeals in the instant case relied upon the lead opinion for a point of law upon which the concurrence-majority opinion controls. As such, the court of appeals erred in its statement of the law.

¶32. Based upon the above analysis of the law, the following procedures should be used by Wisconsin circuit courts when determining whether an informant's identity should be disclosed. Once a defendant has made an initial showing that there is a reasonable probability that an informant may be able to give testimony necessary to the fair determination of the issue of guilt or innocence, the state has the opportunity to show, in camera, facts relevant to determining whether or not the informant can, in fact, provide such testimony. If, and only if, the court determines that an informer's testimony is necessary to the defense in that it could create a reasonable doubt of the defendant's guilt in jurors' minds, must the privilege give way. Outlaw, 108 Wis. 2d at 141-42 (Callow, J., concurring).

¶34. Thus, under the comment to SCR 20:1.6, the attorney-client privilege applies in situations other than those "where evidence is sought from the lawyer through compulsion of law." The confidentiality rule applies not merely to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information unless the client consents after consultation, except as stated in the Rule.

A. Observations and Perceptions and the Attorney-Client Privilege

¶35. As noted above, courts in other jurisdictions are split on the question of whether an attorney's opinions, perceptions, and impressions of his or her client are covered by the attorney-client privilege. The majority of these courts have held that the attorney-client privilege only protects confidential communications between an attorney and his or her client. An attorney's opinions, perceptions, and impressions of a former client's mental competency are, therefore, not protected by the privilege if they do not reveal the substance of their communications….

¶36. However, a number of other courts have held that disclosure of even non-verbal communications, such as the ones at issue here, violates the attorney-client privilege….

¶37. These cases hold that it is difficult, or nearly impossible, for an attorney to testify regarding an opinion of the client's competency to proceed without violating the attorney-client privilege….

¶40. We agree with the jurisdictions that hold that an attorneys opinions, perceptions, and impressions of a client's competency to proceed are protected by the attorney-client privilege. An attorney's opinion of a client's mental competency is based largely upon private communications with the client. In a law review article, The Role of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or Officer of the Court?, the author Rodney Uphoff states:

 . . . it is clear that a criminal defense lawyer . . . often forms his opinion of a client's competency largely as a result of private communications with the client. The protection of the attorney-client privilege is not limited only to the client's words but may include the client's nonverbal communications. A number of courts have held that a lawyer can be compelled to testify regarding counsel's opinion of a client's competency even though the lawyer's observations would involve privileged client communications, but the better reasoned position is that a lawyer's opinion about a client's competence or state of mind is inextricably mixed with the client's private communications.

1988 Wis. L. Rev. 65, 91. (citations omitted)

¶4 We agree with the circuit court. We conclude that a lawyer, without the consent or knowledge of a client, cannot waive the attorney-client privilege by voluntarily producing privileged documents (which the attorney does not recognize as privileged) to an opposing attorney in response to a discovery request. We hold that only the client can waive the attorney-client privilege under Wis. Stat. § (Rule) 905.11 regarding attorney-client privileged documents.

…

¶32 First, according to the text of Wis. Stat. §§ (Rules) 905.03(2) and (3) and 905.11, the client holds and controls the attorney-client privilege and only the client can waive it.

¶33 Second, according to Wisconsin case law interpreting Wis. Stat. §§ 905.03 and 905.11, the client, not the attorney, must waive the privilege….

…

¶36 Third, although we acknowledge that under agency law, ordinarily a litigant is bound by the acts of counsel during the representation, the court of appeals' reliance on the agency theory and, for example, Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991), is misplaced here….

…

¶40 One reason we applied the agency doctrine in Johnson was that the agency doctrine promoted the functioning of the justice system. The court-ordered dismissal in Johnson would conduct harmful to an adversary and the justice system. In the present case, the clients are already motivated to prevent release of attorney-client privileged documents, and protecting the attorney-client privilege promotes the functioning of the justice system.

…

¶42 The purpose of the attorney-client privilege is to promote "full and frank communication" between client and attorney. Full and frank communication is in turn promoted by endowing the communication with confidentiality.

…

¶48 We acknowledge that the information obtained from the documents before the plaintiffs made any objection to the disclosure cannot easily be erased from the minds of defense counsel or the defendants with whom the documents were shared. The defendants argue that it is not reasonable or practical to try to "unring the bell." But a return of the documents and the circuit court's prohibition of their use is the only remedy available in this proceeding.

¶19. The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. State v. Nielsen, 2001 WI App 192, 32, 247 Wis. 2d 466, 487-88, 634 N.W.2d 325, review denied, 2001 WI 117, 247 Wis. 2d 1036, 635 N.W.2d 784 (Wis. Oct. 23, 2001) (No. 00-3224-CR). The court must look at the context in which the statement was made in order to determine the manifest intention that prompted it and its natural and necessary impact on the jury. Id.

¶34. Based on the above considerations, we set forth the following standard: the preliminary showing for an in camera review requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant. We conclude that the information will be "necessary to a determination of guilt or innocence" if it "tends to create a reasonable doubt that might not otherwise exist." See Fuller, 667 N.E.2d at 855. This test essentially requires the court to look at the existing evidence in light of the request and determine, as the Shiffra court did, whether the records will likely contain evidence that is independently probative to the defense.

¶35. In creating this standard, we intend to place the burden on the defendant to reasonably investigate information related to the victim before setting forth an offer of proof and to clearly articulate how the information sought corresponds to his or her theory of defense. A good faith request will often require support through motion and affidavit from the defendant. Our standard is not intended, however, to be unduly high for the defendant before an in camera review is ordered by the circuit court. The defendant, of course, will most often be unable to determine the specific information in the records. Therefore, in cases where it is a close call, the circuit court should generally provide an in camera review. See Walther, 2001 WI App at ¶14. We have confidence in the circuit courts to then make a proper determination as to whether disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611. A circuit court may always defer ruling on such a request or require a defendant to bring a subsequent motion if the record has not had time to develop. A motion for seeking discovery for such privileged documents should be the last step in a defendant's pretrial discovery.

Here, as in Lederer, the defense offered nothing more than "the mere possibility" that the records "might produce some evidence helpful to the defense." Lederer, however, was decided before Shiffra. The broad language of Shiffra-"that the sought-after evidence is relevant and may be helpful to the defense," Shiffra, 175 Wis.2d at 608, 499 N.W.2d at 723 (emphasis added)-certainly would seem to suggest a very low threshold for a defendant to establish the basis for an in camera inspection. A closer reading of Shiffra, however, reveals that a defendant must establish more than "the mere possibility" that psychiatric records "may be helpful" in order to justify disclosure for an in camera inspection.

¶51. Before trial, the circuit court found that there was nothing relevant in D.F.'s treatment records that was not also in Dr. Pucci's summary report. Although Dr. Pucci ventured beyond the scope of her summary report at trial in that the report did not say she would give Jensen testimony, it does not automatically follow that Rizzo was entitled to D.F.'s treatment records. Because Dr. Pucci's factual testimony was anticipated, her Jensen testimony did not change the scope of relevant information in D.F.'s treatment records. The argument that Rizzo could somehow impeach Dr. Pucci's expert knowledge of the common behaviors of sexual assault victims by accessing the treatment records of one of her patients is not persuasive.

¶52. Rizzo also argues that he needed D.F.'s treatment records to cross-examine Dr. Pucci because it was unclear whether a statement in quotation marks in Dr. Pucci's summary report was attributable to Dr. Pucci or to D.F.'s parents. The statement said that D.F. was 'lying, and manipulative, and good at diverting attention.' Dr. Pucci testified that these were not the parents' exact words, but rather her interpretation of what they had said. She explained that she placed them in quotation marks to signify that she was quoting another source, an intake form.

¶53. Rizzo's position appears to be that he was entitled to cross-examine Dr. Pucci using the treatment records because if the records would have revealed the source of the quote as D.F.'s parents, this would have undermined Dr. Pucci's credibility. We do not adopt Rizzo's position because it would eviscerate the procedure for in camera review set forth in Shiffra, which protects a victim's confidential records. In effect, Rizzo's position would provide that the defendant must receive full access to the victim's treatment records in every case in order to effectively cross-examine an expert who treated the victim. That is in stark contrast to the in camera procedure under Shiffra, which specifically balanced the victim's interest in confidentiality against the constitutional rights of the defendant. See 175 Wis. 2d at 609-10.

¶11 Here, Walther established more than the mere possibility that the requested records 'may be necessary to a fair determination of guilt or innocence.' See Shiffra, 175 Wis. 2d at 610. The information Walther provided, both in counsel's affidavit and supplemental submissions, about the child's background and treatment history, in combination with the information about the reported sexual assaults at St. Aemilian's, established more than the mere possibility that the requested records would reveal information necessary to a fair determination of guilt or innocence....

¶14 ... (W)e caution trial courts to carefully consider, in cases presenting 'close call[s],' the consequences of cutting off in camera review. As emphasized in Shiffra, and as reiterated in Munoz, a trial court's in camera review 'is a limited intrusion that often provides the best tool for resolving conflicts between the sometimes competing goals of confidential privilege and the right to put on a defense.' Munoz, 200 Wis. 2d at 400 (quoting Shiffra, 175 Wis. 2d at 611-12).

¶15. This court recently analyzed whether waiver of the attorney-client privilege must be intentional under Wis. Stat. § 905.11. Sampson Children's Trust v. Sampson 1979 Trust, 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831, review granted, 2003 WI 140, 266 Wis. 2d 60, 671 N.W.2d 847 (Wis. Oct. 1, 2003) (No. 02-1515). There, the court held "as recognized by the Federal Advisory Committee note to proposed Fed. R. Evid. 511, which was adopted in Wisconsin as Wis. Stat. Rule 905.11, the formulation of waiver by Johnson v. Zerbst, 304 U.S. 458, 464 (1938), as the intentional relinquishment of a known right, does not apply to waiver of evidentiary privileges." Sampson, 265 Wis. 2d 803, ¶11. Thus, if the "holder of the privilege" "voluntarily discloses" a communication shielded by evidentiary privilege under Wis. Stat. § 905.04, that disclosure need only be volitional. Sampson, 265 Wis. 2d 803, ¶17. "[O]nce confidentiality is destroyed through voluntary disclosure, no subsequent claim of privilege can restore it, and knowledge or lack of knowledge of the existence of the privilege appears to be irrelevant." Id., ¶11 (citation omitted).

¶16. Dawn contends that our holding in Sampson does not apply in this case because there we were discussing the attorney-client privilege. While we agree that there are nuances of Sampson that are inapposite to this case, it remains that the Sampson court held that a waiver of the attorney-client privilege under Wis. Stat. § 905.11 need only be volitional, not intentional. We see no sound reason to adopt a different rule in a counselor-patient setting. We therefore reject Dawn's contention that the trial court erred in failing to consider her lack of intention in waiving Kirstin's privilege by voluntary disclosure of confidential information to a third party.

¶7        We do not address these issues regarding waiver because we conclude that there is no privilege here. Fears reported the sexual assault to the authorities, presumably pursuant to his mandatory reporting obligations under Wis. Stat. § 48.891 [sic, 48.981]. Under the circumstances presented, we conclude that Fears' reporting the abuse to the authorities under Wis. Stat. § 48.891 extinguishes Kirstin's privilege under Wis. Stat. (Rule) § 905.04(4)(e)2. Thus, there is no privilege with respect to any "confidential communications made or information obtained or disseminated for purposes of  . . . treatment of the patient's . . . mental or emotional condition . . . " with respect to the sexual abuse. See Wis. Stat. (Rule) § 905.04(2). Therefore, any information the counselors at Choices have that is relevant to the prosecution or defense of Denis for the sexual assault is not privileged. Accordingly, we affirm the decision of the court of appeals on other grounds.

…

¶37      The therapist-patient privilege in Wis. Stat. (Rule) § 905.04(2) is a testimonial rule of evidence. …

¶38      However, this privilege is not absolute. …

¶39      … Our review of the statute's language indicates that the child abuse exception applies when three criteria are satisfied. 

¶40      The first criterion requires an "examination" of the child to have occurred.  … [T]he term "examination" refers to and can encompass a wide variety of exploratory practices. …

¶41      The second criterion requires that the examination create "a reasonable ground for an opinion" of the enumerated providers that the child has been abused or neglected. 

¶42      The third criterion requires that the opinion must relate to abuse or neglect that was caused by means other than accident or infliction by another.

¶43     When these criteria are satisfied, Wis. Stat. (Rule) § 905.04(4)(e)2 states that "[t]here is no privilege."  …  We agree with the State that these criteria are satisfied here.

¶48      According to Wis. Stat. § 48.981(2), counselors are legally required to report to the authorities if the counselor has "reasonable cause to suspect" that the child "has been abused or neglected." …

…

¶53      … Where a counselor reports child abuse under Wis. Stat. § 48.981(2) and (3), that counselor has expressed a "reasonable ground for an opinion  . . . that the abuse or neglect was other than accidentally caused or inflicted by another."  See Wis. Stat. (Rule) § 905.04(4)(e)2. ^[19] 

¶54      Here, Fears formed a reasonable suspicion that child abuse occurred ….

¶55      Accordingly, because the strictures of Wis. Stat. (Rule) § 905.04(4)(e)2. have been met, there is no privilege with regard to any confidential communications Kirstin made at Choices Family Services regarding the sexual assault for purposes of treatment. ^[20]  See Wis. Stat. (Rule) § 905.04(2) ("privilege" refers to "confidential communications made or information obtained or disseminated for purposes of  . . . treatment of the patient's . . . mental or emotional condition . . . . ").

---

^[19] This syllogism will not always hold true. Those required to report under Wis. Stat. § 48.981 include many persons not mentioned in Wis. Stat. (Rule) § 905.04(4)(e)2. Thus, for example, if a teacher has a reasonable suspicion that a child is abused, and that child has been seeing a counselor, the teacher's reporting does not abrogate the child's counselor-patient relationship.
 ^[20] We limit the breadth of the exception's application because Kirstin went to counseling for many reasons. The exception applies to the extent that any communications made for mental health treatment regarding the sexual abuse are not privileged. Kirstin's other communications that related to other reasons for attending counseling remain privileged, unless they relate to the opinion that Kirstin was abused or neglected.

Also see cases here.

¶62   Finally, we consider Miller’s argument that he is entitled to a new trial based on allegations contained in an affidavit in which Miller avers that the fishing-trip juror told an investigator hired by Miller that he changed his vote to “guilty” to end jury deliberations so that he could leave for his fishing trip. Wisconsin Stat. § 906.06(2) provides that a juror may not provide testimony in an inquiry into the validity of a verdict “except … on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” To be entitled to an evidentiary hearing inquiring into the validity of a verdict, the party seeking to set aside a verdict on grounds of extraneous prejudicial information or outside influence must make a preliminary showing by affidavit or nonjuror evidence. Manke v. Physicians Ins. Co. of Wisconsin, Inc., 2006 WI App 50, ¶25, 289 Wis. 2d 750, 712 N.W.2d 40. The affidavit or nonjuror evidence must demonstrate that “the subject matter of the proposed hearing is within an exception to Wis. Stat. § 906.06(2) and must assert facts that, if true, would require a new trial.” Id. Whether the affidavit in this case meets this legal standard is a question of law, which we review de novo. Id. at ¶19.

¶63   We conclude Miller’s affidavit fails to allege facts that would entitle him to an evidentiary hearing inquiring into the validity of the verdict, let alone entitle him to a new trial. Miller claims that the fishing-trip juror’s “impending departure for his annual trip, and no doubt the chiding he could expect from his buddies,” was an outside influence improperly brought to bear upon the juror. We conclude that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an “outside influence” within the meaning of Wis. Stat. § 906.06(2).

¶16      As a lay witness, Ambach’s testimony should have been limited to matters of which he had personal knowledge. See Wis. Stat. § 906.02. … Contrary to the State’s assertions, the computer-generated animation was not simply a demonstrative exhibit—like a rough drawing on a chalkboard—used to illustrate a testifying lay witness’s testimony. See Anderson v. State, 66 Wis. 2d 233, 248, 223 N.W.2d 879 (1974). Rather, as Ambach testified at trial, it was intended to depict the State’s three key witnesses’ “memories” and show “what people did.” Thus, the animation combined elements from the testimony of Giovannoni, Hohisel, and Biever with measurements provided by Clapper to produce an animation which summarized the State’s version of what occurred. As a lay witness lacking personal knowledge, Ambach’s testimony to that effect was inadmissible.

¶57      In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk, and Wolfgram was removed after the direct examination. Wolfgram therefore had very little contact with the jury after his involvement became known. Thus, as in Cullen, the jury could have been exposed to Wolfgram's potential influence for only a very limited period of time.

¶58      Further, this case involves a jury learning that the bailiff talked to a prosecution witness and urged him to call the police shortly after the crime took place. The potential for prejudice in such a case is no greater than when it is a juror who knows the complaining witness, as was the case in King.

¶59      Finally, the circuit court took a number of measures to assure that Ford was not prejudiced. It replaced the bailiff to avoid the possibility that the jurors would inquire about his observations. Because Ford requested that Wolfgram be subpoenaed as a witness, the court excluded the bailiff from the courtroom and instructed him not to discuss the case with witnesses.

¶60      More important, the circuit court inquired as to whether the jurors could decide the case fairly and impartially. …

¶39      Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis. Stat. Rule 906.11, Wisconsin’s version of Rule 611 of the Federal Rules of Evidence. See United States v. Garcia, 625 F.2d 162, 169 (7th Cir. 1980) (“There is, of course, nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality.”). Absent a blurt-out in response to an open-ended question that significantly prejudices the adversary, it is rare for an open-ended question to require reversal. See State v. Jeannie M.P., 2005 WI App 183, ¶8, 286 Wis. 2d 721, 731, 703 N.W.2d 694, 699 (trial lawyer did not provide constitutionally deficient performance when he explained at a postconviction evidentiary hearing that he had a strategic reason for asking an open-ended question). Rodriguez has not shown prejudice here; much of what the officers “added” was cumulative, and, further, if Rodriguez’s trial lawyer had objected, the prosecutor could have simply reviewed his notes and asked more focused questions to each officer.

¶35      … Rule 906.08(2) permits the cross-examination of a witness about “extrinsic” matters, “if probative of truthfulness or untruthfulness.” Certainly, lying on direct-examination, and repeating the lie on cross-examination, is “probative of truthfulness.” Moreover, Rodriguez opened the door, and the prosecutor was fully justified in calling him on it. See Harris v. New York, 401 U.S. 222, 223–226 (1971) (prosecutor did not violate defendant’s rights by introducing on cross-examination the defendant’s statement to the police even though the defendant had not been warned of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), because the defendant opened the door by denying matters he admitted in that uncounseled statement) (“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.”) (citations omitted). Further, in context, the prosecutor’s use of the words “lie” and “lying” was not, as Rodriguez contends, the prosecutor’s “personal[] comment” on Rodriguez’s credibility; it was the prosecutor’s confronting Rodriguez with what Rodriguez tacitly at least admitted were inconsistencies in his testimony, when he acknowledged that he did, indeed, have unexecuted warrants. Rodriguez’s claim that what the prosecutor did denied him a fair trial is without merit.

¶33. We cannot conclude that the circuit court's refusal to strike Thomalla's testimony was improper. While Thomalla's past misconduct and misleading testimony may have impaired his credibility, it does not make his testimony incredible as a matter of law. See In re Spengler, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999) (holding that court of appeals may not reverse circuit court's determinations regarding credibility unless the witness is credible or incredible as a matter of law). First, we agree with the circuit court that although Thomalla may have given inaccurate testimony regarding his job titles and the length of time he held a particular job, there is no dispute that he is a licensed psychologist or that he has experience evaluating sexually violent persons. Second, we are not convinced that Thomalla's dishonesty regarding his curriculum vitae suggests his opinion regarding the likelihood that Sprosty will reoffend is similarly unreliable.

¶11      Inquiry into a witness’s bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Evidence § 1367 (Chadbourn rev. 1974). Although, as Van Arsdall observes, this does not mean there can be no limits on a defendant’s cross-examination seeking to expose bias, the great engine only has power if the trial court does not apply too-restrictive a governor or, to use an old railroading term, shunt it to a “dead track.” We analyze Yang’s confrontation-denial contention against this background.

¶14   Burton’s central argument on appeal is that Warmington’s testimony was squarely barred by State v. Long, 2002 WI App 114, 255 Wis. 2d 729, 647 N.W.2d 884. There, we stated that “[f]or a witness’s gang affiliation to be relevant to show bias in favor of [the defendant], the State was required to establish [the defendant]’s gang affiliation.” Id., ¶19. …

¶15   … The State argues that Bowens’ and Jones’ gang connections are relevant to show not, as in Long, their bias in favor of the defendant, but rather their “bias against the prosecution.” …

¶16   But the State’s focus only on Warmington’s identification of Bowens and Jones as gang members ignores the much broader reach of Warmington’s testimony. ^[6] Identifying witnesses as gang members may be admissible where there is a tight fit between their gang membership and some specific motivation to be untruthful, as is generally present in common-membership cases. See Abel, 469 U.S. at 47-48. But this is not what Warmington testified to; rather, he spoke in generalities about people “up in that area” not cooperating with the police out of fear of retaliation, or because “they in some way, shape, or form participated in something that led to them being shot.” Warmington went on to testify that “witnesses” (here it is unclear whether he is talking about gang members or neighborhood residents) will make “excited utterances” to the police that they later deny. ^[7]

¶17   We agree with Burton that this testimony, whether viewed as going to bias or character for truthfulness, was prejudicial because it invited the jury to discredit the several witnesses who testified favorably to Burton, either by tarring them with undemonstrated gang affiliation or simply based on the neighborhood in which they live. We see little, if any, probative value in this sort of testimony. …

¶18   We also find objectionable Warmington’s testimony that a gang member who had been “publicly embarrassed” would “feel the need to gain that respect back … through retaliation, through physical confrontation, a fight, a shooting.” Though Warmington did not mention Burton by name, the whole line of questions and answers is obviously intended as support for the prosecution theory that Burton shot Bowens in retaliation for the alleged robbery; indeed, the prosecution explicitly sought to introduce this testimony to show Burton’s motive. As Burton points out, the State adduced no evidence that he was in any gang ….

¶19   Given the low to nonexistent probative value and highly prejudicial nature of the portions of Warmington’s testimony we have discussed, we hold that the circuit court misused its discretion in admitting it. See Wis. Stat. § 904.03.

• The witness testified only with the aid of a translator and had obvious difficulty answering questions (“a witness’s comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely. … his inquiry into that area was not yet closed.  Accordingly, the trial court’s invocation of, in essence, ‘asked-and-denied’ to move the trial along was not yet justified, given the critical nature of motive to Yang’s defense.”) ¶13.
• Although the inquiry would not have directly proved the defense theory, the desired inference was one “Yang was entitled to argue to the jury; not every fact in a trial is provable by direct-evidence. … Indeed, … are routinely told that circumstantial evidence can be as valuable to the jury as direct evidence[.]” ¶14.
• Yang asserted, in opening statement, the fact sought to be established by the inquiry and it is therefore assumed that there was a good-faith basis for the questioning; nor would the jury have been bound by the witness’s denial. “Thus, Yang was entitled to have the jury decide from his lawyer’s questions and the nature of his former wife’s responses whether she was telling the truth[.]” ¶15.

¶20      Moreover, WIS. STAT. § 906.08(2) provides:

      SPECIFIC INSTANCES OF CONDUCT.  Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility … may not be proved by extrinsic evidence. They may, however … if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination ….

¶21      Based on this statute, at a minimum, defense counsel should have been able to ask Mucha about the Scull incident during cross-examination. The Scull incident was not remote in time, and was probative of whether Mucha was being truthful or untruthful.

¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not 'evidence that the witness has been convicted of a crime.' See Wis. Stat. § 906.09(1). Although Chu may be correct that the jury may have viewed Weiss differently if it had known about the prior incidents, he fails to explain how the evidence would have been admissible. It was not automatically admissible, and Chu does not identify grounds for its admissibility.

¶38. Instead, Chu's entire argument is based on his premise that Weiss had a motive to lie on the witness stand because of the deferred prosecution agreement. He cites United States v. Croucher, 532 F.2d 1042, 1045 (5th Cir. 1976), for the proposition that prior arrests that have not led to a conviction may be used to demonstrate a witness's motive to strike a good bargain with the government. In doing so, he appears to argue that Weiss would lie to improve her bargaining position with the State with respect to charges arising from her arrest.

¶39. Here, however, Weiss's criminal charge had been dismissed with prejudice by the time she testified. Indeed, the charge was dismissed even before Chu made admissions to Weiss. Additionally, Weiss had already paid the forfeiture associated with the ordinance violations by the time of trial. Accordingly, Weiss had no need, and thus no motive, to strike any bargain with the government. To the extent Chu is attempting to argue that evidence of the deferred prosecution agreement would have been admissible to show Weiss's motive to lie, we reject his argument.

¶44. The State charged Gundy as an accomplice to Ross's criminal activity. Gundy was arrested in Maryland, and brought back to Milwaukee where he was held in custody. Ross contends that pursuant to a plea agreement, Gundy was released from custody, and secured leniency in return for his testimony against Ross. Ross argues that he should have been allowed to make inquiry about Gundy's release from custody as a possible motive for false testimony. If that were the case, indeed Ross's counsel would have been entitled to question Gundy about his release from custody. The error of this contention, however, as pointed out by the trial court, is that Gundy had secured his release before a plea agreement had been reached.

¶45. Thus, a reasonable basis existed to limit the scope of cross-examination. Furthermore, Ross was able to cross-examine Gundy about the benefits of his plea bargain-namely, that as a result of his agreement to testify, Gundy's potential incarceration had been reduced from thirty-five years to ten years, and that if convicted, the State would recommend straight probation without any jail time. From this review, we conclude that a reasonable basis existed for the trial court to limit the scope of factors that may have motivated Gundy's decision to testify against Ross.

¶24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶9.) The statute reflects the presumption that "a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted." State v. Kruzycki, 192 Wis. 2d 509, 524, 531 N.W.2d 429 (Ct. App. 1995). The decision whether to admit prior conviction evidence for impeachment purposes under § 906.09 lies within the trial court's discretion. Id. at 525. We will uphold a trial court's discretionary decision if it correctly applied accepted legal standards to the facts of record and used a rational process to reach a reasonable conclusion, putting aside "whether we would have made the same ruling." Id.

¶25. The trial court allowed all five of Gary's convictions to be admitted based solely on its understanding that there is "a presumption in the statute ... [that] ... allows for prior convictions to be brought in because [they] do[] say something about the person's credibility." ...

¶26. Wisconsin Stat. § 906.09 does not end with the "general rule," however. Subsection (2) requires that a court also consider whether conviction evidence should be excluded because "its probative value is substantially outweighed by the danger of unfair prejudice." …

¶¶27. Because the trial court did not weigh the probative value of the three oldest convictions against the danger of unfair prejudice after Gary objected to their admission, we conclude that it did not engage in a proper exercise of discretion. See, e.g., State v. Smith, 203 Wis. 2d 288, 295-96, 553 N.W.2d 824 (Ct. App. 1996). Had it done so, the court might have concluded that Gary's three twenty-five-year-old convictions for relatively minor offenses were not sufficiently probative of his credibility to merit mention at trial. Although we may independently review the record to determine whether the proper legal standard applied to the facts of record support the trial court's ruling, we decline to do so here. Because there were no evidentiary proceedings (and only very brief argument) on the issue in the trial court, the record provides no basis for us to conclude that, had the court applied the correct legal standard, it would have reached the same result.  

¶31. The privilege against self-incrimination is guaranteed by art. I, § 8, of the Wisconsin Constitution and by the Fifth Amendment to the United States Constitution. State v. Adams, 221 Wis. 2d 1, 7, 584 N.W.2d 695 (Ct. App. 1998). The use of a defendant's silence for impeachment purposes has been long decided. It has been held improper for the State to comment upon a defendant's choice to remain silent at or before trial. Id. at 7-8 (citing Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) (defendant claiming privilege in face of accusation); Doyle v. Ohio, 426 U.S. 610, 619 (1976) (constitutional error to impeach a defendant with his or her post-arrest, post-Miranda silence)).

¶32. If, however, the defendant opens the door to government questioning by his own remarks about his post-arrest behavior or by defense counsel's questioning, see Doyle, 426 U.S. at 619 n.11 (discussing prosecution's permissible use of post-arrest silence to "challenge the defendant's testimony as to his behavior following arrest"), the government may use the defendant's silence for the limited purpose of impeaching his testimony. United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994). At the same time, it may not argue that the defendant's silence is inconsistent with his claim of innocence. Id.

¶33. The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. United States v. Mora, 845 F.2d 233, 235 (10th Cir. 1988). The court must look at the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact on the jury. Id. Whether a defendant's right to remain silent was violated is a question involving the application of constitutional principles to undisputed facts that we review de novo. See Adams, 221 Wis. 2d at 6.
...

¶36 ... We conclude that Nielsen opened the door to government questioning by his counsel's questioning, and the State was permitted to clarify that Nielsen had not answered all questions for the limited purpose of impeaching the inference that Nielsen had continued to actively deny the assault throughout the interview....

¶30. With due process as our touchstone, we conclude that when a defendant seeks to suppress witness statements as the product of coercion, the police misconduct must be more than that set forth in Clappes. It must be egregious such that it produces statements that are unreliable as a matter of law. The coercion must be egregious because, as we have shown, it is typically 'egregious' police misconduct that offends due process. Our concern is with police misconduct that, by its nature, undermines confidence in the reliability of a witness's statements. Witness statements obtained by police methods that induce lying have no place in our system of justice because a conviction based on unreliable evidence undermines the fundamental fairness of a defendant's trial. In short, due process demands that the State not marshal its resources against an accused in a manner that results in a conviction based on unreliable evidence obtained through egregious police practices.

¶31. Upon an examination of the case law and the parties' arguments, we glean several factors to consider in determining whether police misconduct is egregious such that it produces statements that are unreliable as a matter of law. These factors include (1) whether a witness was coached on what to say; (2) whether investigating authorities asked questions blatantly tailored to extract a particular answer, see Gonzales, 164 F.3d at 1289; (3) whether the authorities made a threat with consequences that would be unlawful if carried out, see United States v. Tingle, 658 F.2d 1332, 1335-36 (9th Cir. 1981); (4) whether the witness was given an express and unlawful quid pro quo; (5) whether the State had a separate legitimate purpose for its conduct, Tingle, 658 F.2d at 1337; and, (6) whether the witness was represented by an attorney at the time of the coercion or statement, see Merkt, 764 F.2d at 269. The presence of the first four factors weighs in favor of suppression while the presence of the second two factors weighs against it. Application of these and other relevant factors will help to ensure that it is unreliable evidence that is suppressed. It will also help to guarantee that the State does not obtain convictions based on practices that offend fundamental fairness.

¶32. In cases where an application of the factors results in a determination that witness statements at issue will not be suppressed, the defendant nevertheless retains the ability to test the credibility of the witness statements through, among other approaches, cross-examination before the jury. See Nerison, 136 Wis. 2d at 45. Cross-examination is an essential tool for "sifting the conscience of the witness" and thereby protecting a defendant's rights at trial. State v. Bauer, 109 Wis. 2d 204, 208 n.3, 325 N.W.2d 857 (1982) (citing Mattox v. United States, 156 U.S. 237, 242-43 (1895)). The jury, of course, has the duty to scrutinize and weigh the testimony of witnesses and to determine the effect of the evidence as a whole. See Hampton v. State, 92 Wis. 2d 450, 462, 285 N.W.2d 868 (1979); Wis JI--Criminal 300.5 These safeguards--cross-examination and the jury's role in weighing the evidence--help ensure a fair trial where due process does not require the suppression of witness statements."

¶35      The first three alleged instances of misconduct are similar. In each instance, the prosecutor sought to demonstrate the possible unreliability of one witness’s recollection by using seemingly inconsistent recollections of another witness. For example, in one instance the prosecutor asked: “So if all other witnesses said that at 11:00 your mom was already home … that would be wrong?” We see no Haseltine problem with these three instances because the prosecutor was not asking a witness to opine as to whether another witness was telling the truth.

¶36      The fourth alleged instance does appear to have involved a Haseltine violation. The prosecutor asked a police investigator: “Do you believe [a witness the investigator interviewed] was being truthful when she gave [certain] information to you …?” The investigator answered, “I believe she was being truthful.” It does not appear that this exchange was offered for any purpose other than bolstering the credibility of the other witness. Cf. State v. Snider, 2003 WI App 172, ¶27, 266 Wis. 2d 830, 668 N.W.2d 784 (detective’s testimony offered to show the detective’s thought process during his investigation); State v. Smith, 170 Wis. 2d 701, 718-19, 490 N.W.2d 40 (Ct. App. 1992) (a detective’s testimony that he did not believe a witness was properly introduced to show why he continued interrogating the witness). Accordingly, we will assume that the exchange ran afoul of Haseltine.

¶21. Further, even if the 1992 conviction could have been properly admitted, using this evidence on cross-examination was improper. Other acts evidence is admitted for a specific purpose. Here, arguably, the evidence was admitted to show motive, intent, or plan. The evidence cannot be admitted or used to prove bad character or propensity to commit crimes. The cross-examination of Holmes regarding the 1992 conviction was clearly used to attack Meehan's character-to show that he lied and concealed this information from his significant other. This was improper.

¶32      Further, we are satisfied that Police Chief Stone's testimony regarding Steve Stone's oral statements to the police was not hearsay, since such statements were properly admissible as prior inconsistent statements under Wis. Stat. § 908.01(4)(a). During direct examination by the State, Steve Stone testified that he did not see Nelis on top of Diane S. when he entered the bedroom, and that he did not remember whether Diane S. was crying or bleeding.

Steve Stone testified, and was dismissed as a witness. Chief Stone then testified to a prior statement Steve Stone had made. The concurrence makes the point that prosecutorial witness-declarant Steve Stone wasn’t “subject to cross-examination concerning the statement,” as required by § 908.01(4), because the defense simply was never informed of the prior statement, ¶¶56-63. However, the defense never showed that Steve Stone was “unavailable” after being dismissed as a witness and for that reason it can’t be said he wasn’t “subject to cross-examination,” ¶¶64-72. The majority, though a bit less than crystal-clear, apparently agrees with the concurrence on this point, ¶46 n. 5. Take careful note, then, of the dissent observation that § 906.13(2)(a), requires “that a witness must be given the opportunity, while testifying, to explain or to deny the statement,” ¶62:

¶63      … Contemplating the fact situation before us, a leading treatise on Wisconsin evidence concludes that for purposes of Wis. Stat. § 908.04(1), a witness is not subject to cross-examination "where the prior statement is never mentioned during the examination of the witness, the witness is then excused from testifying, and the statement is later proffered through extrinsic evidence (i.e., another witness or a document)." 7 Daniel D. Blinka, Wisconsin Practice: Evidence 544 (2d ed. 2001). …

Stress, “is then excused”: when that condition doesn’t obtain then failure to mention the statement to the witness doesn’t bar extrinsic proof, State v. Zebelum Smith, 2002 WI App 118, ¶13. (Just some things to keep in mind during the heat of trial.)

¶13. Thus, the trial court was clearly wrong in ruling that Smith had not established a proper foundation in order to introduce the alleged inconsistent statements under Wis. Stat. § 906.13(2)(a)2. A prior inconsistent statement is admissible under Wis. Stat. § 906.13(2) without first confronting the witness with that statement. Under § 906.13(2)(a)2 and 3, extrinsic evidence of prior inconsistent statements is admissible if the witness has not been excused from giving further testimony in the case, or if the interest of justice otherwise requires its admission. See Ruiz v. State, 75 Wis. 2d 230, 232-33, 249 N.W.2d 277 (1977). In the instant case, because Smith intended to introduce extrinsic evidence of alleged prior inconsistent statements of the victim - inconsistent with testimony that the victim had previously given - who was under subpoena, and, therefore, not excused from giving further testimony in the action, we conclude that such evidence is admissible pursuant to § 906.13(2)(a)2.

¶39 … (A)ppellate courts are sensitive to judicial intervention by a trial judge in the form of judicial witnesses and judicial questioning ….

¶40 … We have always recognized judicial authority to call and interrogate witnesses but simultaneously admonished caution against judicial abuse. …

¶41 The struggle for balance appears again in State v. Nutley, 24 Wis. 2d 527, 129 N.W.2d 155 (1964), overruled on other grounds by State v. Stevens, 26 Wis. 2d 451, 463, 132 N.W.2d 502 (1965). … In the conflicted manner typical of decisions in this area, we reasoned: "While the court cannot function as a partisan, it may take necessary steps to aid in the discovery of truth." Id.

¶42 In State v. Asfoor, the tension between the competing interests was very apparent. … The court concluded that the jury was not improperly influenced by "any action" of the court, and therefore rejected the defendant's bias claim. Id.

¶43 Over the years, this court has demonstrated particular concern about the impression that judicial questions might convey to a jury. …

¶44 The opinions of our appellate courts are replete with precatory admonitions that trial judges must not function as partisans or advocates, State v. Garner, 54 Wis. 2d 100, 104, 194 N.W.2d 649 (1972), or betray bias or prejudice, State v. Driscoll, 263 Wis. 230, 238, 56 N.W.2d 788 (1953), or engage in excessive examination, Breunig v. American Family Insurance Co., 45 Wis. 2d 536, 548, 173 N.W.2d 619 (1970), particularly in front of juries. Last term, we reversed a conviction after a suppression hearing in which a circuit judge crossed the line of propriety. State v. Jiles, 2003 WI 66, ¶39, 262 Wis. 2d 457, 663 N.W.2d 798 ("The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the assistant district attorney is reduced to a bystander.").

¶14      Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio, 426 U.S. 610 (1976), which we applied in State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996), and State v. Nielsen, 2001 WI App 192, ¶31, 247 Wis. 2d 466, 634 N.W.2d 325, the two cases on which Cockrell primarily relies. Cockrell does not cite to any cases that do not use the Doyle due process framework to analyze a prosecutor’s use of a defendant’s silence to cross-examine the defendant and in closing argument. ^[3] Therefore, we analyze Cockrell’s challenge under the due process clause of the Fourteenth Amendment. The application of constitutional principles to undisputed facts presents a question of law, which we review de novo. See, 247 Wis. 2d 466, ¶32.

¶16      Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest. One situation is where the defendant’s testimony conveys that he or she cooperated with the police; it is not then fundamentally unfair for the prosecutor on cross-examination to elicit, or in closing argument to comment upon, the fact that the defendant was non-responsive or remained silent in answer to certain questions. …

¶17      Other situations in which courts have found no violation of due process under Doyle include those where the defendant volunteered on direct his reason for not telling the police his version of the crime, United States ex rel. Saulsbury v. Greer, 702 F.2d 651 (7th Cir. 1983), and where the defendant testified that he attempted to tell the officers what happened but they would not let him speak. United States v. Mavrick, 601 F.2d 921 (7th Cir. 1979).

¶18      However, even if the defendant “opens the door” to cross-examination or closing argument on his post- Miranda silence, to be permissible under the due process clause, the State’s response must be directed at impeaching the defendant’s credibility regarding his testimony. …

¶24      Cockrell argues that the cross-examination was improper because he did not testify that he cooperated with police, but instead accurately stated that he had declined to answer questions about the incident. Therefore, he asserts, unlike Wulff and Nielsen, there was no reason to impeach his credibility on that point and the cross-examination had the impermissible purpose of suggesting he fabricated his trial testimony. …

…

¶26      … However, Cockrell did more than volunteer that he declined to answer questions about the shooting: he explained why he declined—that he wanted an attorney present so his story would not be misinterpreted.

…

¶30      … However, we do not agree this is fundamentally unfair. Had Cockrell said nothing about declining to talk to the police about the shooting incident itself, the State under Doyle could not have used Cockrell’s post- Miranda silence to suggest that his trial testimony about the man in the back seat was fabricated. However, Cockrell chose to volunteer what he did and did not say to the police and why. In these circumstances it is not fundamentally unfair to permit the State to “explor[e] the soundness of that explanation [for not telling the police that he acted in self-defense] by measuring it against the defendant’s subsequent failure to assert it … [after he obtained counsel].” Saulsbury, 702 F.2d at 656.

¶31      … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences, if accepted by the jury, might make it more likely it will find the defendant guilty. See Wulff, 200 Wis. 2d at 343-44.

¶32      In this case, the prosecutor wanted the jury to infer that Cockrell was not telling the truth as to why he did not tell the police about the man in the back seat. It is true that, if the jury accepted these inferences, it was more likely to decide Cockrell did not act in self-defense but was instead guilty of attempted homicide. However, we do not agree that this is the same as asking the jury to make a direct inference of guilt from Cockrell’s silence.

¶33      The due process inquiry under Doyle is whether the cross-examination of Cockrell or the challenged comments in closing argument were fundamentally unfair to Cockrell given his volunteered testimony on declining to talk to the police about the shooting and his reason for that. Balancing the defense and prosecution interests and applying “considerations of fairness within the context of the truth-seeking function of trials[,]” Mavrick, 601 F.2d at 933, we conclude the challenged cross-examination and closing argument were not fundamentally unfair.

¶18      Wisconsin employs the “relevancy test” to resolve the admission of challenged scientific, technical or other specialized evidence. State v. Peters, 192 Wis. 2d 674, 687-88, 534 N.W.2d 867 (Ct. App. 1995). The test is straightforward and simple, expert testimony is admissible if (1) it is relevant, (2) the witness is qualified based on his or her “specialized knowledge,” and (3) the testimony will help the trier of fact in determining an issue of fact. Id. The relevancy test does not require the reliability of the underlying scientific evidence be established. Id. at 688. Wisconsin’s approach is unique because the vast majority of jurisdictions employ some form of the federal reliability test embodied either in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), or the combination of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).  

¶10 "The admissibility of expert opinion testimony lies in the discretion of the circuit court." State v. St. George, 2002 WI 50, ¶37, 252 Wis. 2d 499, 643 N.W.2d 777 (citing Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698; State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999)). "We review a circuit court's decision to admit or exclude evidence under an erroneous exercise of discretion standard." Martindale, 246 Wis. 2d 67, ¶28 (citations omitted). We apply the erroneous exercise of discretion standard to both evidentiary issues in this case.

¶11 The inquiry into a circuit court's exercise of "discretion in making an evidentiary ruling is highly deferential. . . ." Id., ¶29. As we have previously stated:

The question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record. The test is not whether this court agrees with the ruling of the trial court, but whether appropriate discretion was in fact exercised.

Id. (citations omitted).

"We will not find an erroneous exercise of discretion if there is a rational basis for a circuit court's decision." Id. (citations omitted).

¶27 n. 3. .... Comparison testimony is permitted so long as it does not include conclusions about the battered person's actual beliefs at the time of the offense, about the reasonableness of those beliefs or about the person's state of mind before, during and after the criminal act. State v. Richardson, 189 Wis. 2d 418, 426, 525 N.W.2d 378 (Ct. App. 1994). Thus, counsel could have elicited testimony from Kelly and Adams comparing Peters' situation to the profile of a battered woman. Further, Jennifer Parker, a domestic violence expert retained for the purposes of the postconviction hearing, stated that she could have testified about the lasting impact of verbal and psychological abuse on victims generally and how Peters compared to the profile of the verbally and psychologically battered woman she had constructed. Comparison testimony from Kelly, Adams and Parker could have provided a context both from which the judge could have made an informed determination about whether to issue a self-defense jury instruction and from which the jury could understand, and in the case of perfect self-defense assess the reasonableness of, Peters' beliefs that she was in imminent danger of death or great bodily harm and that the force used was necessary to defend herself. See id. at 427.

Mayer next argues that the trial court erred by allowing expert testimony of BWS because there was no evidence that Kathryn suffered from the syndrome. Although the trial court did not admit Schnorr as an expert expressly on BWS, Mayer claims that the trial court effectively did so by allowing her to testify as an expert on victims of domestic abuse generally. Based on his interpretation of State v. Bednarz, 179 Wis.2d 460, 507 N.W.2d 168 (Ct. App. 1993), Mayer contends that an expert can testify about the common characteristics of victims of domestic abuse only when those characteristics result from BWS.

... Bednarz simply does not prevent a trial court from admitting expert testimony on characteristics of domestic abuse victims when the requirements of § 907.02, Stats., are met.

¶35      In State v. Watson, 227 Wis. 2d 167, 195, 595 N.W.2d 403 (1999), the supreme court explained: “In Kolpin v. Pioneer Power & Light, 162 Wis. 2d 1, 37, 469 N.W.2d 595 (1991), we stated that ‘even if [the expert] arguably relied on hearsay in forming [the expert’s] opinion, [the expert’s] opinion is still admissible.’” We note, however, that

[Wisconsin Stat. §] 907.03 is not a hearsay exception. Hearsay data upon which the expert’s opinion is predicated may not be automatically admitted into evidence by the proponent and used for the truth of the matter asserted unless the data are otherwise admissible under a recognized exception to the hearsay rule. (Citation omitted.)

State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993).

¶36      Safarik was asked to analyze all of the evidence from the Recob home to determine if their simultaneous death was naturally or criminally caused—the medical examiner had ruled out accident or suicide. Naturally, he would seek out information on simultaneous death by natural causes to test his hypothesis that the deaths were the result of a crime. The statistics relied upon by Christakis of Harvard and Anderson of the CDC were not admitted into evidence; rather, they served to illustrate the basis for the opinion they shared that it was statistically impossible for a couple to suffer simultaneous death from natural causes—an opinion Safarik took into consideration when reaching his conclusion that death was by a criminal act. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (The trial court may, in its discretion, allow an expert to testify to otherwise inadmissible facts for the limited purpose of serving as a basis of the expert’s opinion.). The trial court did not err in permitting Safarik to rely upon the opinions of Christakis and Anderson.  

¶8 It is well settled that it is “proper for a physician to make a diagnosis based in part upon medical evidence of which he has no personal knowledge but which he gleaned from the reports of others.” Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284, 299, 254 N.W.2d 255 (1977). However, there are two important qualifications of this rule. First, although WIS. STAT. § 907.03 allows an expert to base an opinion on hearsay, it does not transform the hearsay into admissible evidence. State v. Watson, 227 Wis. 2d 167, 198, 595 N.W.2d 403 (1999). The circuit court must determine when the underlying hearsay may reach the trier of fact through examination of the expert, with cautioning instructions, and when it must be excluded altogether. Id. at 200-01. In State v. Coogan, 154 Wis. 2d 387, 399 n.4, 453 N.W.2d 186 (Ct. App. 1990), we sounded a cautionary note:

We need not reach the question of whether an expert’s opinion based solely on inadmissible evidence, but that of a type reasonably relied on in his field, is admissible. However, this court has suggested that at some point when the reliability of the underlying evidence is called seriously into question, it is permissible to bar the expert’s testimony.

¶9 Second, WIS. STAT. § 907.03 does not give license to the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. State v. Williams, 2002 WI 58, ¶19, 253 Wis. 2d 99, 644 N.W.2d 919. In Williams, the supreme court relied upon United States v. Lawson, 653 F.2d 299 (7th Cir. 1981), to reach this conclusion. In Lawson, the challenge was that the admission of hearsay in the testimony of an examining psychiatrist violated Lawson’s right to confront the witnesses against him. Id. at 301. The examining psychiatrist testified that he never interviewed Lawson privately but reached his opinion by relying upon reports and material he received from two treating physicians, other staff at the hospital and other sources. Id. The Seventh Circuit agreed with Lawson that “the introduction of expert testimony based in large part on hearsay may raise serious constitutional problems if there is no adequate opportunity to cross-examine the witness.” Id.

An expert’s testimony that was based entirely on hearsay reports, while it might satisfy Rule 703, would nevertheless violate a defendant’s constitutional right to confront adverse witnesses. The Government could not, for example, simply produce a witness who did nothing but summarize out-of-court statements made by others. A criminal defendant is guaranteed the right to an effective cross-examination.

Id. at 302 (footnote omitted). The court also noted that the right of confrontation might necessitate giving a defendant the opportunity to cross-examine the person or persons who prepared the underlying data on which the expert relied. Id. at 302 n.8.

Indeed, expert testimony almost necessarily relies on hearsay, which means that a potential confrontation objection hovers nearby. Indeed, ¶9 fn. 5 cites with seeming approval State v. Towne, 453 A.2d 1133 (Vt. 1982), which found not only hearsay error where the testifying expert told the jury that a nontestifying expert agreed with his diagnosis, but also a confrontation violation "because Towne was prevented from cross-examining and exploring the qualifications of the nontestifying expert." See also Howard v. Walker, 2nd Cir No. 01-2471, 4/26/05 (expert reliance on inadmissible evidence such as hearsay generally permissible, but limits on cross-examination in this instance violated confrontation).

¶29. Section 907.03 implicitly recognizes that an expert's opinion may be based in part on the results of scientific tests or studies that are not her own. It is rare indeed that an expert can give an opinion without relying to some extent upon information furnished by others. Reardon, 806 F.2d at 42. Thus, contrary to Williams' assertion, Koresch need not have performed the tests herself to form an admissible expert opinion based upon them, and Williams' characterization of Koresch's testimony as something other than an expert opinion lacks merit.

¶23. Wisconsin, unlike the federal courts, considers the reliability of scientific evidence a question of weight and credibility for the trier of fact to decide. Id. at 690. A party can challenge the reliability of such evidence through cross-examination or other means of impeachment. Id. The evidence is admissible as long as it is relevant, the witness testifying to such evidence is a qualified expert, and the evidence will assist the fact finder in understanding the evidence or determining some factual issue. Id. at 687-88. Wilkens has not challenged the trial court's consideration of the FST evidence on any of these grounds.

¶24. We hold that nothing precluded the trial court from considering Onken's testimony about what he observed when he administered the FSTs to Wilkens. The reliability of this evidence was totally irrelevant for purposes of its admissibility. … Hence, an admissibility challenge premised exclusively on the unreliability of the observations misses the mark.

¶25      The general field of crime scene analysis has been recognized as being a body of specialized knowledge. United State v. Meeks, 35 M.J. 64 (C.M.A. 1992). …

¶¶26     Through education and experience, Safarik had the necessary knowledge to provide helpful answers the jury could use in answering the central question, whether the Recobs died simultaneously from natural causes or as the result of homicide. …

…

¶28      The jury was required to resolve a double homicide with no witnesses. The bodies were found in a decomposed and mummified state, raising questions as to the manner or cause of death. The jurors, faced with such a repellent job, would be assisted by a specialized analysis of the crime scene in light of other equivocal deaths and homicide cases. “A homicide and its crime scene, after all, are not matters likely to be within the knowledge of an average” juror. Meeks, 35 M.J. at 68-69. <> ¶29      One example of Safarik’s specialized analysis is his conclusion that there was “staging” at the death scene that was consistent with homicide. … It is beyond the everyday knowledge of an average juror to recognize evidence of “staging” or to understand the implication of such evidence. And, it is certainly beyond the ability of the average juror to correlate all nine factors Safarik considered in reaching his expert opinion. ^[6]

¶15     In 2002, at the time of the circuit court's decision to exclude testimony from Shomberg's expert, New Jersey was the only state to mandate sequential rather than simultaneous lineup procedures. In the intervening years, much has been learned about the processes and limitations of memory. There has been a wealth of information that has come to the public that has increased awareness of some of the inherent difficulties with eyewitness identification. …

¶16     In State v. Dubose, this court recognized that "[t]he research strongly supports the conclusion that eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined." State v. Dubose, 2005 WI 126, ¶30, ___ Wis. 2d ___, 699 N.W.2d 582. …

¶17      Were this case to come before the circuit court today, given the developments that have occurred in the interim, it is highly likely that the judge would have allowed the expert to testify on factors that influence identification and memory. However, the issue before us is not what we would have done, or what a court might do today. The issue is whether, at the time of the decision, the bases upon which the circuit court decided to exclude Shomberg's expert testimony constituted an erroneous exercise of discretion. The court clearly felt that the limitations of eyewitness identification, as articulated by counsel for Shomberg, were known and understood by the court. ^[6] Neither counsel's written motion nor oral advocacy at the motion hearing was sufficient to satisfy the court that Shomberg's eyewitness expert would assist the trier of fact "to determine a fact in issue," especially since the arguments were known and understood by the court. ^[7] Wis. Stat. § 907.02. We conclude that the "'court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of the record,'" and therefore it was not an erroneous exercise of discretion for the circuit court to deny Shomberg's motion to admit expert eyewitness testimony. Martindale, 246 Wis. 2d 67, ¶29 (citations omitted). ^[8] 

¶19 As noted previously, appellate courts use the deferential erroneous exercise of discretion standard when reviewing a circuit court's decision to admit expert testimony. We are satisfied that the circuit court did not erroneously exercise its discretion in admitting Cohen's testimony, because the circuit court's decision rested on a reasonable basis and was in accordance with both accepted legal standards and the facts in the record. Cohen's testimony was the type of expert testimony that was envisioned by Wis. Stat. § 907.02, because it encompassed specialized financial knowledge that would assist the jury in understanding the evidence presented at LaCount's trial. Such testimony also could assist the jury in determining a fact in issue in the case, here, whether LaCount's transaction with Wills involved a security.

¶22 We are further satisfied that Cohen did not impermissibly testify on a legal issue, contrary to LaCount's claim that Cohen improperly testified on the definition of an investment contract. Cohen did testify that the basic features of an investment contract were someone "handing over some money," while "expecting the other person or some other person besides [themselves] to do something to generate a return for [them] on that money."

¶23 However, even if Cohen's statement that a security covered basically everything "you can't figure out" was overly broad, the jurors were properly instructed that they were not bound by any expert's opinion, that they were the sole judges of the facts, and that the court was the sole judge of the law. Jurors are presumed to have followed jury instructions. See State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992). Cohen's testimony was generally consistent with the jury instructions that were given and, thus, with Wisconsin law. Under such circumstances, "[w]e are unable to perceive any prejudicial error." State v. DiMaggio, 49 Wis. 2d 565, 580, 182 N.W.2d 466 (1971). In that case, we emphasized the therapeutic effect of the circuit court's correct instructions. size=3> Id. at 579-80.

¶21. We agree with the court of appeals that Dr. Pucci's testimony made the requisite comparison between D.F.'s behavior and the common behaviors of sexual assault victims. In arguing that it did not, the State is asking this court to hold that Dr. Pucci's testimony would have been Jensen evidence only if she had used magic words such as 'D.F.'s behaviors are consistent with that of persons known to be sexual assault victims.' We decline to adopt such a mechanistic approach. Instead, we determine that a jury would interpret the prosecutor's questions along with Dr. Pucci's answer to provide the comparison that is the essence of Jensen evidence.

¶22. The phrasing of the prosecutor's questions and the substance of Dr. Pucci's answer combined to send a clear message to the jury that D