906.13 Prior statements of witnesses.

(1) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown or its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel upon the completion of that part of the examination.

(2) Extrinsic evidence of prior inconsistent statement of a witness.

(a) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless any of the following is applicable:

1. The witness was so examined while testifying as to give the witness an opportunity to explain or to deny the statement.

2. The witness has not been excused from giving further testimony in the action.

3. The interests of justice otherwise require.

(b) Paragraph (a) does not apply to admissions of a party-opponent as defined in s. 908.01 (4) (b).

History: Sup. Ct. Order, 59 Wis. 2d R1, R197 (1973); 1991 a. 32; 1999 a. 85.

A witness for the defense could be impeached by prior inconsistent statements to the district attorney even though made in the course of plea bargaining as to a related offense. Taylor v. State, 52 Wis. 2d 453, 190 N.W.2d 208 (1971).

A statement by a defendant, not admissible as part of the prosecution's case because it was taken without the presence of the defendant's counsel, may be used on cross-examination for impeachment if the statement is trustworthy. Wold v. State, 57 Wis. 2d 344, 204 N.W.2d 482 (1973).

A bright line test for determining whether a defendant's prior inconsistent statement is admissible for impeachment is whether it was compelled. State v. Pickett, 150 Wis. 2d 720, 442 N.W.2d 509 (Ct. App. 1989).

This section is applicable in criminal cases. A defense investigator's reports of witness interviews are statements under sub. (1) but only must be disclosed if defense counsel has examined the witness concerning the statements made to the investigator. State v. Hereford, 195 Wis. 2d 1054, 537 N.W.2d 62 (Ct. App. 1995), 94-1596.

A prior inconsistent statement is admissible under sub. (2) without first confronting the witness with that statement. Under sub. (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. State v. Smith, 2002 WI App 118, 254 Wis. 2d 654, 648 N.W.2d 15, 01-1662.