Wisconsin Statutes
Wis. Stat. § 165.79 (2026)
Evidence privileged
✓ current as of July 2026
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165.79(1)(1) Evidence, information and analyses of evidence obtained from law enforcement officers by the laboratories is privileged and not available to persons other than law enforcement officers nor is the defendant entitled to an inspection of information and evidence submitted to the laboratories by the state or of a laboratory’s findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the state at a preliminary hearing and except as provided in s. 971.23. Upon request of a defendant in a felony action, approved by the presiding judge, the laboratories shall conduct analyses of evidence on behalf of the defendant. No prosecuting officer is entitled to an inspection of information and evidence submitted to the laboratories by the defendant, or of a laboratory’s findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the accused at a preliminary hearing and except as provided in s. 971.23. Employees who made examinations or analyses of evidence shall attend the criminal trial as witnesses, without subpoena, upon reasonable written notice from either party requesting the attendance.
165.79(2)(2) Upon the termination or cessation of the criminal proceedings, the privilege of the findings obtained by a laboratory may be waived in writing by the department and the prosecutor involved in the proceedings. The employees may then be subpoenaed in civil actions in regard to any information and analysis of evidence previously obtained in the criminal investigation, but the laboratories shall not engage in any investigation requested solely for the preparation for trial of a civil matter. Upon appearance as a witness or receipt of a subpoena or notice to prepare for trial in a civil action, or appearance either with or without subpoena, the laboratories shall be compensated by the party at whose request the appearance or preparation was made in a reasonable amount to be determined by the trial judge, which fee shall be paid into the state treasury. In fixing the compensation the court may give consideration to the time spent in obtaining and analyzing the evidence for the purposes of criminal proceedings.
165.79 HistoryHistory: 1977 c. 260; 1979 c. 221; 1981 c. 20; 1983 a. 459; 1985 a. 29, 267; 1995 a. 387.
165.79 AnnotationWhether to grant a defendant’s request under sub. (1) that the crime lab perform tests on the defendant’s behalf is a discretionary decision. State v. Lee, 192 Wis. 2d 260, 531 N.W.2d 351 (Ct. App. 1995).
165.79 AnnotationVacated in part. 197 Wis. 2d 959, 542 N.W.2d 143 (1996).
165.79 AnnotationCross-examination of a highly qualified witness who is familiar with the procedures used in performing the tests whose results are offered as evidence, who supervises or reviews the work of the testing analyst, and who renders the witness’s own expert opinion is sufficient to protect a defendant’s right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, 00-3065.
165.79 AnnotationUnder the facts of this case, the privilege in sub. (1) did not prevent the defendant from obtaining evidence the defendant was entitled to under s. 971.23 when the defendant received the physical evidence that the state intended to offer at trial and a copy of the crime lab report and was granted permission to submit the evidence for testing by the defendant’s own expert. The defendant was entitled to examine the crime lab analyst at trial but not at an evidentiary hearing. State v. Franszczak, 2002 WI App 141, 256 Wis. 2d 68, 647 N.W.2d 396, 01-1393.
165.79 AnnotationUnder Crawford, 541 U.S. 36 (2004), analysts’ affidavits that certified that evidence was in fact cocaine were testimonial statements, and the analysts were “witnesses” for purposes of the 6th amendment confrontation clause. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).
Notes of Decisions
Cited in 10
cases (1 in the last 5 years), 1978–2021 · leading case: State v. Franszczak, 2002 WI App 141 (Wis. Ct. App. 2002).
State v. Franszczak, 2002 WI App 141 (Wis. Ct. App. 2002). “Franszczak contends that the trial court erred by denying his request for a pretrial eviden-tiary hearing pursuant to Wis. Stat. § 165.79 (1) at which Franszczak intended to question a state crime laboratory analyst about possible contamination of the evidence submitted to the…”
State v. Dean, 307 N.W.2d 628 (Wis. 1981). “In affirming the trial court's ruling on the polygraph evidence, this court refused to relax or expand the Stanislawski rule, saying: "The procedure here followed defendant's request, the court's approval and the state crime laboratory examiner's *250 conducting the test,…”
State Ex Rel. Cholka v. Johnson, 292 N.W.2d 835 (Wis. 1980). “” The defense agreed that pursuant to sec. 165.79(3), Stats., the findings described above were admissible into evidence at the preliminary examination without requiring the expert who made the findings to testify.”
State Ex Rel. Huser v. Rasmussen, 267 N.W.2d 285 (Wis. 1978). “2 *608 In any event, sec. 165.79(3), Stats., specifically provides for the admissibility at a preliminary examination of certified reports prepared by the state crime laboratory.”
Lhost v. State, 271 N.W.2d 121 (Wis. 1978). “In regard to the court's reasoning it was stated in Gaddis at 126: "The procedure here followeddefendant's request, the court's approval and the state crime laboratory examiner's conducting the test, under sec. 165.79, Stats. could be viewed as an additional alternative…”
State v. Lee, 531 N.W.2d 351 (Wis. Ct. App. 1995). “Lee and Casey both filed motions pursuant to § 165.79(1), STATS., requesting that the trial court order the Crime Lab to perform certain additional tests on the substances.”
State Ex Rel. Cholka v. Johnson, 270 N.W.2d 438 (Wis. Ct. App. 1978). “Second, the state contends that the probable cause of Wilma Wilson’s death can be shown by a state crime laboratory “Report of Laboratory Findings” submitted pursuant to sec. 165.79(3), Stats., which provides: “(3) At any preliminary examination a report of the laboratory’s…”
State v. Dishman, 311 N.W.2d 217 (Wis. Ct. App. 1981). “At those preliminary hearings in which the State introduces the report of the State Crime Laboratory chemist, the de *174 fendant has the right to compel the State to produce the chemist for cross-examination in accordance with sec. 165.79(3), Stats. 1 This right of the…”
State v. Ferguson, 536 N.W.2d 116 (Wis. Ct. App. 1995). “7 Finally, Ferguson asserts in his reply brief that the crime laboratory is entitled to expert witness fees only under § 165.79 (2), Stats. We note that this statute applies to use of crime laboratory expert witnesses in civil cases; it does not apply here.”
State v. Quentin L. Rogers (Wis. Ct. App. 2021). “§ 165.79 reads in relevant part: (continued) 16 No.”
— Wis. Stat. § 165.79(1) — 3 cases
State v. Franszczak, 2002 WI App 141 (Wis. Ct. App. 2002). “Franszczak contends that the trial court erred by denying his request for a pretrial eviden-tiary hearing pursuant to Wis. Stat. § 165.79 (1) at which Franszczak intended to question a state crime laboratory analyst about possible contamination of the evidence submitted to the…”
State v. Lee, 531 N.W.2d 351 (Wis. Ct. App. 1995). “Lee and Casey both filed motions pursuant to § 165.79(1), STATS., requesting that the trial court order the Crime Lab to perform certain additional tests on the substances.”
State v. Quentin L. Rogers (Wis. Ct. App. 2021). “§ 165.79 reads in relevant part: (continued) 16 No.”
— Wis. Stat. § 165.79(3) — 4 cases
State Ex Rel. Cholka v. Johnson, 292 N.W.2d 835 (Wis. 1980). “” The defense agreed that pursuant to sec. 165.79(3), Stats., the findings described above were admissible into evidence at the preliminary examination without requiring the expert who made the findings to testify.”
State Ex Rel. Huser v. Rasmussen, 267 N.W.2d 285 (Wis. 1978). “2 *608 In any event, sec. 165.79(3), Stats., specifically provides for the admissibility at a preliminary examination of certified reports prepared by the state crime laboratory.”
State Ex Rel. Cholka v. Johnson, 270 N.W.2d 438 (Wis. Ct. App. 1978). “Second, the state contends that the probable cause of Wilma Wilson’s death can be shown by a state crime laboratory “Report of Laboratory Findings” submitted pursuant to sec. 165.79(3), Stats., which provides: “(3) At any preliminary examination a report of the laboratory’s…”
State v. Dishman, 311 N.W.2d 217 (Wis. Ct. App. 1981). “At those preliminary hearings in which the State introduces the report of the State Crime Laboratory chemist, the de *174 fendant has the right to compel the State to produce the chemist for cross-examination in accordance with sec. 165.79(3), Stats. 1 This right of the…”
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