904.03 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

History: Sup. Ct. Order, 59 Wis. 2d R1, R73 (1973).

It was within the discretion of the trial court under this section to admit the victim's bloodstained nightgown and to allow it to be sent to the jury room when: 1) the nightgown clearly was of probative value, since available photographs failed to show the underside of the garment; 2) the article was not of a nature that would shock the sensibilities of the jury and inflame it to the prejudice of defendant; and 3) no objection was made to sending the item to the jury room. Jones v. State, 70 Wis. 2d 41, 233 N.W.2d 430 (1975).

Evidence of alcoholic degenerative impairment of the plaintiff's judgment had limited probative value, far outweighed by possible prejudice. Walsh v. Wild Masonry Co., Inc. 72 Wis. 2d 447, 241 N.W.2d 416 (1976).

The trial court did not abuse its discretion in refusing to admit exhibits offered at the 11th hour to establish a defense by proof of facts not previously referred to. Roeske v. Diefenbach, 75 Wis. 2d 253, 249 N.W.2d 555 (1977).

When evidence was introduced for the purpose of identification, the probative value of conduct during a prior rape case exceeded the prejudicial effect. Sanford v. State, 76 Wis. 2d 72, 250 N.W.2d 348 (1977).

When the defendant was charged with attempted murder of police officers in pursuit of the defendant following an armed robbery, the probative value of evidence concerning the armed robbery and showing motive for the murder attempt was not substantially outweighed by the danger of unfair prejudice. Holmes v. State, 76 Wis. 2d 259, 251 N.W.2d 56 (1977).

If evidence of other conduct is not offered for a valid purpose under sub. (2), the balancing test under s. 904.03 is inapplicable. State v. Spraggin, 77 Wis. 2d 89, 252 N.W.2d 94 (1977).

In a prosecution for possession of amphetamines, it was an abuse of discretion to admit and send to the jury room a syringe and hypodermic needles that had only slight relevance to the charge. Schmidt v. State, 77 Wis. 2d 370, 253 N.W.2d 204 (1977).

The right of confrontation is limited by this section if the probative value of the desired cross-examination is outweighed by the possibility of unfair or undue prejudice. Chapin v. State, 78 Wis. 2d 346, 254 N.W.2d 286 (1977).

The trial court abused its discretion by excluding an official blood alcohol chart offered in evidence by an accused driver. State v. Hinz, 121 Wis. 2d 282, 360 N.W.2d 56 (Ct. App. 1984).

When evidence of a sexual assault was the only evidence of an element of a charged kidnapping offense, withholding the evidence on the basis of unfair prejudice unfairly precluded the state from obtaining a conviction. State v. Grande, 169 Wis. 2d 422, 485 N.W.2d 282 (Ct. App. 1992).

A defendant's intoxication, for purposes of motor vehicle statutes, did not per se demonstrate that the defendant's statements were untrustworthy. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994).

The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall, 202 Wis. 2d 29, 549 N.W.2d 418 (1996), 94-1213.

While prior convictions are an element of drunk driving, s. 346.63 (1) (b), admitting evidence of that element may not be proper. Admitting any evidence of prior convictions and submitting the element of the defendant's status as a prior offender to the jury when the defendant admitted to the element was an erroneous exercise of discretion. State v. Alexander, 214 Wis.2d 628, 571 N.W.2d 662 (1997), 96-1973.

The state, like the 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 an officer or the defendant is telling the truth. It is not 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. State v. Missouri, 2006 WI App 74, 291 Wis. 2d 466, 714 N.W.2d 595, 05-1486.

While surprise is not included in this section as a basis on which to exclude otherwise relevant evidence, testimony that 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 Medical Center, 2007 WI App 218, 305 Wis. 2d 658, 741 N.W.2d 256, 06-0480.

Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. Absent evidence that the defendant was himself a gang member, a gang expert's testimony should not have been allowed when the expert's testimony insinuated, without any basis, that the defendant was a part of the gang culture, if not actually a member of a gang. State v. Burton, 2007 WI App 237, 306 Wis. 2d 403, 743 N.W.2d 152, 06-2436.

Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. State v. Warbelton, 2009 WI 6, 315 Wis. 2d 253, 759 N.W.2d 557, 07-0105.

It is well established that evidence of flight has probative value as to guilt. Flight evidence is not inadmissible other acts evidence and 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 determine whether to admit the evidence by weighing the risk of unfair prejudice with its probative value. State v. Quiroz, 2009 WI App 120, 320 Wis. 2d 706, 772 N.W.2d 710, 08-1473.

The general rule is that the prosecution is entitled to prove its case by evidence of its own choice and that a criminal defendant may not stipulate or admit his or her way out of the full evidentiary force of the case as the government chooses to present it. State v. Conner, 2009 WI App 143, 321 Wis. 2d 449, 775 N.W.2d 105, 08-1296.

There is no blanket rule barring or limiting the admission of the type of evidence that linked the cartridge case and bullet to the gun in this case. The admission and scope of such evidence is left to the reasonable discretion of the trial courts to exercise under this section and s. 906.11, and to cross-examination by adversary counsel. State v. Jones, 2010 WI App 133, 329 Wis. 2d 498, 791 N.W.2d 390, 09-2835.

The 6th amendment confrontation clause is not satisfied merely because the evidence offered by a defendant might be properly excluded under this section. The confrontation clause limits a trial court's ordinary discretion to limit cross-examination and demands careful scrutiny of the purported reason for limiting cross-examination. A trial court violates the confrontation clause when the court applies ordinary balancing under this section to limit cross-examination by a defendant on issues central to the defense without giving any special consideration to the defendant's constitutional right to confront witnesses against him. Rhodes v. Dittmann, 903 F.3d 646 (2018).