2023 Wisconsin Statutes & Annotations › Chapter 906 - Evidence — witnesses. › 906.09 - Impeachment by evidence of conviction of crime or adjudication of delinquency.

906.09
Impeachment by evidence of conviction of crime or adjudication of delinquency.
(1)
General rule. For the purpose of attacking character for truthfulness, a witness may be asked whether the witness has ever been convicted of a crime or adjudicated delinquent and the number of such convictions or adjudications. If the witness's answers are consistent with the previous determination of the court under sub. (3), then no further inquiry may be made unless it is for the purpose of rehabilitating the witness's character for truthfulness.
(2)
Exclusion. Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Factors for a court to consider in evaluating whether to admit evidence of prior convictions for the purpose of attacking a witness's truthful character include:
(a)
The lapse of time since the conviction.
(b)
The rehabilitation or pardon of the person convicted.
(c)
The gravity of the crime.
(d)
The involvement of dishonesty or false statement in the crime.
(e)
The frequency of the convictions.
(f)
Any other relevant factors.
(3)
Admissibility of conviction or adjudication. No question inquiring with respect to a conviction of a crime or an adjudication of delinquency, nor introduction of evidence with respect thereto, shall be permitted until the court determines pursuant to s. 901.04 whether the evidence should be excluded.
(5)
Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction or a delinquency adjudication inadmissible. Evidence of the pendency of an appeal is admissible.
History:  Sup. Ct. Order, 59 Wis. 2d R1, R176 (1973); 1991 a. 32; 1995 a. 77; Sup. Ct. Order No. 16-02A, 2017 WI 92, 378 Wis. 2d xiii.
NOTE:  Sup. Ct. Order No. 16-02A states that: “The Judicial Council Notes to Wis. Stats. §§ 901.07, 906.08, 906.09, and 906.16 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”
Judicial Council Note, 2017: The amendment to sub. (1) is intended to conform the rule more closely to current practice. It is consistent with  Nicholas v. State, 49 Wis. 2d 683, 183 N.W.2d 11 (1971) and State v. Bailey, 54 Wis. 2d 679, 690, 196 N.W.2d 664, 670 (1972).
The following federal Advisory Committee Note regarding the 2006 amendment to federal Rule 609 is instructive.
The amendment also substitutes the term “character for truthfulness" for the term “credibility" in the first sentence of the Rule. The limitations of Rule 609 are not applicable if a conviction is admitted for a purpose other than to prove the witness's character for untruthfulness. See, e.g., United States v. Lopez, 979 F.2d 1024 (5th Cir. 1992) (Rule 609 was not applicable where the conviction was offered for purposes of contradiction).
The amendment to sub. (2) continues to recognize the long-standing principle that this statutory exclusion is a “particularized application" of s. 904.03, State v. Gary M.B., 2004 WI 33, ¶21, 270 Wis. 2d 62, 81, 676 N.W.2d 475, 485, and codifies the holding in Gary M.B. that circuit courts are required, in determining whether to admit or exclude prior convictions, to examine a number of factors. Majority op., ¶21; Chief Justice Abrahamson's dissent, ¶56; Justice Sykes' dissent, ¶85, State v. Kuntz, 160 Wis. 2d 722, 752, 467 N.W.2d 531 (1991); State v. Kruzycki, 192 Wis. 2d 509, 525, 531 N.W.2d 429 (Ct. App. 1995); State v. Smith, 203 Wis. 2d 288, 295-96, 553 N.W.2d 824 (Ct. App. 1996). However, the committee recognizes that in conducting the balancing test, the circuit court need only consider those factors applicable to the case. Kuntz, 160 Wis. 2d at 753, 467 N.W.2d 531. Subsection (2) does not include expungement because evidence of a conviction expunged under Wis. Stat. § 973.015(1) is not admissible under this rule. State v. Anderson, 160 Wis. 2d 435, 437 (Ct. App. 1991).
In State v. Gary M.B., the majority observed that “in the future, it would be prudent for circuit courts to explicitly set forth their reasoning in ruling on § 906.09(2) matters in order to demonstrate that they considered the relevant balancing factors applicable in the case before them." 2004 WI 33, ¶35, 270 Wis. 2d 62, 87-88, 676 N.W.2d 475, 488. Chief Justice Abrahamson noted, “[t]he purposes of requiring a circuit court to perform this process on the record are many. The process increases the probability that a circuit court will reach the correct result, provides appellate courts with a more meaningful record to review, provides the parties with a decision that is comprehensible, and increases the transparency and accountability of the judicial system." Chief Justice Abrahamson's dissent, ¶48.
This section applies to both civil and criminal actions. When a plaintiff was asked by his own attorney whether he had ever been convicted of a crime, he could be asked on cross-examination as to the number of times. Underwood v. Strasser, 48 Wis. 2d 568, 180 N.W.2d 631 (1970).
It was not error to give an instruction as to prior convictions effect on credibility when the prior case was a misdemeanor. McKissick v. State, 49 Wis. 2d 537, 182 N.W.2d 282 (1971).
When a defendant's answers on direct examination with respect to the number of the defendant's prior convictions were inaccurate or incomplete, the correct and complete facts could be brought out on cross-examination, during which it was permissible to mention the crime by name in order to insure that the witness understood the particular conviction being referred to. Nicholas v. State, 49 Wis. 2d 683, 183 N.W.2d 11 (1971).
Proffered evidence that a witness had been convicted of drinking offenses 18 times in the last 19 years could be rejected as immaterial if the evidence did not affect the witness's credibility. Barren v. State, 55 Wis. 2d 460, 198 N.W.2d 345 (1972).
When a witness truthfully acknowledges a prior conviction, inquiry into the nature of the conviction may not be made. Voith v. Buser, 83 Wis. 2d 540, 266 N.W.2d 304 (1978).
A defendant's two prior convictions for burglary were admissible to prove intent to use gloves, a long pocket knife, a crowbar, and a pillow case as burglarious tools. Vanlue v. State, 96 Wis. 2d 81, 291 N.W.2d 467 (1980).
Cross-examination on prior convictions without the trial court's threshold determination under sub. (3) was prejudicial. Gyrion v. Bauer, 132 Wis. 2d 434, 393 N.W.2d 107 (Ct. App. 1986).
An accepted guilty plea constitutes a “conviction" for purposes of impeachment under sub. (1). State v. Trudeau, 157 Wis. 2d 51, 458 N.W.2d 383 (Ct. App. 1990).
An expunged conviction is not admissible to attack witness credibility. State v. Anderson, 160 Wis. 2d 435, 466 N.W.2d 681 (Ct. App. 1991).
Whether to admit evidence of prior convictions for impeachment purposes requires consideration of: 1) the lapse of time since the conviction; 2) the rehabilitation of the person convicted; 3) the gravity of the crime; and 4) the involvement of dishonesty in the crime. If allowed, the existence and number of convictions may be admitted, but the nature of the convictions may not be discussed. State v. Smith, 203 Wis. 2d 288, 553 N.W.2d 824 (Ct. App. 1996), 94-3350.
Evidence that exposed a witness's prior life sentences and that the witness could suffer no penal consequences from confessing to the crime in question was properly admitted. State v. Scott, 2000 WI App 51, 234 Wis. 2d 129, 608 N.W.2d 753, 98-3105.
Even if the circuit court did not expressly state on the record that it considered the possible danger of unfair prejudice, the fact that the court gave a limiting instruction can reveal that the trial court considered the possibly prejudicial nature of evidence and was seeking to ensure that it was properly utilized by the jury in reaching its verdict. State v. Gary M.B., 2004 WI 33, 270 Wis. 2d 62, 676 N.W.2d 475, 01-3393.
Neither Seen nor Heard: Impeachment by Prior Conviction and the Continued Failure of the Wisconsin Rule to Protect the Criminal Defendant-Witness. Straka. 2018 WLR 1193.