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High court seeking comments on proposed rules changes

By: Erika Strebel, [email protected]//September 14, 2016//

High court seeking comments on proposed rules changes

By: Erika Strebel, [email protected]//September 14, 2016//

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The Wisconsin Supreme Court will hold public hearings on rules changes suggested by a group of practitioners.

The justices will hear comments on two Judicial Council proposals at 9:30 a.m. Oct. 4 in the Supreme Court Hearing Room in the state Capitol in Madison.

The judicial council is a body that suggests changes in the high court’s rules and policies. It is made up of judges, practitioners and representatives of agencies such as the Department of Justice.

Parties interested in the proposals have been asked to submit comments to the court by Sept. 26. Those interested in testifying at the hearing must notify the Deputy Clerk for Rules by Oct. 3.

The first of the Judicial Council’s proposals involves repealing the state’s deadman’s statute, which is contained in Wis. Stat. 885.16 and 885.17.  The rule prevents witnesses from testifying under oath about a transaction that was reached with a person who has since died.

Legal scholars have long criticized deadman’s statutes as being too restrictive. Wisconsin’s statute has deemed unusually far reaching, though the state’s courts have already placed strict limits on when it can be used.

The council has suggested repealing the state’s deadman’s statute since at least 1972, when it petitioned the high court to adopt rules of evidence. The justices chose not to do so when it adopted those rules in 1974.

The proposal would also delete a privilege enacted by the Legislature involving communications between students and deans of students or school psychologists. The privilege overlaps with another statute that creates a privilege for communications between patients and their doctors and psychologists.

The council’s second proposal involves changes to the state’s evidence rules, including rewriting the state’s rule for introducing evidence of a past criminal conviction for impeachment purposes. The current state rule appears to track the federal version, but in practice within Wisconsin courtrooms the rule is very different. For example, the federal rule assumes lawyers can be expected before trial to discuss the possibility of introducing evidence of a witness’ previous criminal conviction. In Wisconsin, there are no pre-trial discussions.

The second proposal also includes creating a bias rule, expanding the state rule involving the admissibility of writings and recorded statements to include unwritten oral statements and revising the state’s rule governing the impeachment of witnesses by introducing evidence of specific acts, Wis. Stat. 906.08, so it matches up with its federal counterpart, FRE 608, which was amended in 2003.

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