Feb. 18, 2015 – The Wisconsin Judicial Council is seeking comments from State Bar of Wisconsin members on proposed amendments to the Wisconsin Rules of Evidence.
The Judicial Council is a 21-member body whose principal statutory responsibilities are to study and make recommendations relating to court pleading, practice and procedure, as well as court organization, jurisdiction, and methods of administration and operation.
Since 2009, the Judicial Council has studied ways to improve Wisconsin evidence rules. The Council received recommendations from Marquette University Law Professor Daniel Blinka, who sought input from approximately 100 circuit court judges.
Prof. Blinka highlighted a lack of uniformity between the Wisconsin rules and the federal evidence rules, explaining that Wisconsin actually adopted a version of the federal rules about a year before the federal rules of evidence were amended.
Where to Send Comments
Send all comments or suggestions related to this proposal to April Southwick by email no later than May 14, 2015.
The federal rules were subject to further revision, however, so the rules diverged from their inception. Prof. Blinka suggested that the Judicial Council conduct a study and recommend amendments to reflect current case law, correct deficient rules, and fill some gaps in the rules.
As a result of its study, the Judicial Council proposed amendments to Wis. Stats. §§ 804.01, 805.07, and 905.03 relating to inadvertent disclosure of protected or privileged information based on the federal model. The amendments were adopted by Wisconsin Supreme Court order and became effective Jan. 1, 2013 (See 2012 WI 114).
They are intended to resolve uncertainty in the courts about the effect of certain disclosures of communications or information protected by the lawyer-client privilege or as work product; specifically, those disputes involving inadvertent disclosure and subject matter waiver.
The council has completed its work on the remaining topics contained in its work plan, aside from three topics that were removed from the project and designated for individual study and action by the Judicial Council, including spoliation of evidence, the expert witness privilege under the Alt case, and Rule 502 of the Federal Rules of Evidence.
At this time, the Judicial Council recommends the following changes to the Wisconsin Rules of Evidence. The council will review and consider all comments before filing for rule changes with the Wisconsin Supreme Court and the Wisconsin Legislature.
1. Amend Wis. Stat. § 901.07, Remainder of or Related Writings or Recorded Statements.
The current statute, Wis. Stat. section 901.07, says that “when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”
Often referred to as the Rule of Completeness, the current rule focuses on a “writing,” which has caused confusion regarding whether the rule applies to oral statements.
The Council recommends amending this rule to specifically address unrecorded oral statements, and codify State v. Eugenio, 219 Wis. 2d 391, 410, 579 N.W.2d 642, 651 (1998) and State v. Anderson, 230 Wis. 2d 121, 600 N.W.2d 913 (Ct. App. 1999). The proposed amendment removes the distinction between “written” versus “oral” and shifts the focus to “recorded” and “unrecorded.”
2. Amend Wis. Stat. § 906.08, Evidence of Character and Conduct of Witness.
Current Wis. Stat. section 906.08(2) says “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than a conviction of a crime or an adjudication of delinquency as provided ins.906.09, may not be proved by extrinsic evidence. They may, however, subject tos.972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.”
In 2003, section 906.08(2)’s federal counterpart (Rule 608 of the Federal Rules of Evidence) was amended. The Judicial Council recommends amending section 906.08(2) to keep the Wisconsin rule consistent with its federal counterpart. In short, the change would replace the term “credibility” with “character for truthfulness.”
3. Amend Wis. Stat. § 906.09, Impeachment by Evidence of Conviction of Crime.
Wis. Stat. section 906.09 governs whether, for the purposes of attacking a witness’s credibility, evidence of prior convictions or other adjudications is admissible.
The text of the current rule is inconsistent with Wisconsin case law interpreting the rule. The committee also noted that the Wisconsin rule differs substantially from its federal counterpart (Rule 609, Federal Rules of Evidence), although the recommended amendment is not based on the federal model.
After considerable discussion, the drafting committee concluded that codification of Wisconsin case law was a balanced approach that would meet the needs of practitioners and the courts, while respecting the concerns raised by prosecutors.
4. Repeal Wis. Stat. § 885.205, Privileged Communications.
An attorney from the Legislative Reference Bureau (LRB) requested that the Judicial Council study Wis. Stat. section 885.205, which appears to create a privilege for communications between a student and a dean of students or a school psychologist. At this time, the Judicial Council recommends that section 885.205 be repealed.
The LRB noted that Wis. Stat. section 905.04, known in Wisconsin as the “physician-patient privilege,” also includes privileged communications between a patient and a psychologist. However, the language in section 885.205 is very different than the other privilege rules in chapter 905, and could potentially create a conflict.
There are also a number of internal drafting inconsistencies in section 885.205, which makes the rule difficult to apply. The Wisconsin Association of School Psychologists and the Wisconsin Council of Administrators of Special Services were consulted and did not oppose repeal of section 885.205.
5. Repeal Wis. Stats. §§ 885.16, Transactions with Deceased or Insane Persons, and 885.17, Transaction with Deceased Agent.
The Judicial Council recommends repeal of Wis. Stat. section 885.16, known as the “Deadman’s statute.” The statute serves as an absolute bar to a witness's testimony on his or her own behalf or interest with respect to any transaction or communication between the witness and a deceased person.
The statute, originally adopted in 1858, stems from the common law belief that a party would be tempted to misrepresent communication with a deceased party because the deceased party could not rebut the testimony. Today, many believe the archaic rule supports injustice by preventing honest claimants from proving their case. Only a handful of other states have retained this restrictive rule. The American Bar Association, the Commissioners on Uniform State Laws, and the Advisory Committee on the Federal Rules of Evidence, have advocated for its abolition.
6. Creation of Bias Rule
When the Judicial Council recommended repeal of the Deadman’s statute, it was suggested that a bias rule could be introduced to recognize the public policy behind the initial adoption of the Deadman’s statute.
The Judicial Council recommends creating a rule, with accompanying Judicial Council Committee Note, determining that evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible for the purpose of attacking the credibility of the witness.
Where to Send Comments
Send all comments or suggestions related to this proposal to April Southwick at april.southwick@wicourts.gov no later than May 14, 2015.
