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Changes to rules of evidence regarding impeachment, bias take effect

The supreme court’s Order 16-02A, 2017 WI 92, effective January 1, 2018, amends some rules of evidence that apply frequently in criminal cases:

  • It clarifies the rule of completeness, § 901.07, by providing the rule is applicable to oral testimony as well as written testimony and to provide guidance on how and when to apply the rule.
  • It revises § 906.08, governing impeachment of witnesses, to parallel Federal Rule of Evidence 608, by changing the reference to introduction of specific acts “for the purpose of attacking or supporting the witness’s credibility” to specific acts “for the purpose of attacking or supporting the witness’s character for truthfulness,” thus clarifying that the prohibition on extrinsic evidence of specific acts applies only when the sole reason for offering the evidence is to attack or support the witness’s character for truthfulness, and does not to bar extrinsic evidence for bias, competency and contradiction impeachment, which are governed by other rules of evidence.
  • It amends § 906.09, regarding impeachment with prior convictions or adjudications, to conform the rule to current practice, make it more closely mirror Federal Rule of Evidence 608, and list the factors a court must consider in deciding whether to allow a prior conviction to be used for impeachment.
  • It creates § 906.16, “Bias of Witness,” which reads: “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.” The Judicial Council note to the rule indicates it is a codification of common law in Wisconsin and that bias, prejudice or interest is not a collateral matter, and can be established by extrinsic evidence.

For more, see the notes included in the amendments made by the Order.

H/T to Jim Kroner on WACDL’s list serve.

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