972.09 Hostile witness in criminal cases. Where testimony of a witness at any preliminary examination, hearing or trial in a criminal action is inconsistent with a statement previously made by the witness, the witness may be regarded as a hostile witness and examined as an adverse witness, and the party producing the witness may impeach the witness by evidence of such prior contradictory statement. When called by the defendant, a law enforcement officer who was involved in the seizure of evidence shall be regarded as a hostile witness and may be examined as an adverse witness at any hearing in which the legality of such seizure may properly be raised.
History: Sup. Ct. Order, 59 Wis. 2d R1, R6 (1973); 1993 a. 486.
The defendant was not prejudiced by receipt in evidence of a hostile state witness's entire statement rather than only those portions she acknowledged at trial, for while prior inconsistent statements may not be introduced until they have been read to the witness in order that the witness may explain the contradiction, it appeared herein that the unread portion of the statement was not inconsistent with the witness' testimony at trial, but would have been objectionable as hearsay if such objection had been made. When the question is raised as to the propriety of use of a prior inconsistent statement of a witness, and request is made for hearing outside the presence of the jury, the more appropriate procedure is to excuse the jury. Bullock v. State, 53 Wis. 2d 809, 193 N.W.2d 889 (1972).
This section does not forbid the use of prior inconsistent statements of a witness as substantive evidence when no objection is made by counsel. There is no duty on the trial court to sua sponte reject the evidence or to instruct the jury that the evidence is limited to impeachment. Irby v. State, 60 Wis. 2d 311, 210 N.W.2d 755 (1973).