Wisconsin Statutes
Wis. Stat. § 901.04 (2026)
Preliminary questions
✓ current as of July 2026
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901.04(1)(1) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to sub. (2) and ss. 971.31 (11) and 972.11 (2). In making the determination the judge is bound by the rules of evidence only with respect to privileges and as provided in s. 901.05.
901.04(2)(2) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
901.04(3)(3) Hearing out of the presence of a jury. Hearings on any of the following shall be conducted out of the presence of the jury:
901.04(3)(b)(b) In actions under s. 940.22, admissibility of evidence of the patient’s or client’s personal or medical history.
901.04(3)(c)(c) In actions under s. 940.225, 948.02, 948.025, 948.051, 948.085, or 948.095, or under s. 940.302 (2), if the court determines that the offense was sexually motivated, as defined in s. 980.01 (5), admissibility of the prior sexual conduct or reputation of a complaining witness.
901.04(4)(4) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself or herself to cross-examination as to other issues in the case.
901.04(5)(5) Weight and credibility. This section does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
901.04 HistoryHistory: Sup. Ct. Order, 59 Wis. 2d R1, R14 (1975); 1975 c. 184, 421; 1985 a. 275; 1987 a. 332 s. 64; 1991 a. 32, 269; 1993 a. 97, 227; 1995 a. 456; 2005 a. 277; 2007 a. 116.
901.04 AnnotationWhile witnesses may be questioned regarding their mental or physical condition when such matters have a bearing on their credibility, evidence that a witness was subject to epilepsy did not warrant disregarding his testimony in the absence of a showing of what effect the epilepsy had on his memory. Sturdevant v. State, 49 Wis. 2d 142, 181 N.W.2d 523 (1970).
901.04 AnnotationA voluntary confession was not rendered inadmissible although the arrest was made outside the statutory jurisdictional limits of the arresting officer. State v. Ewald, 63 Wis. 2d 165, 216 N.W.2d 213 (1974).
901.04 AnnotationA psychiatric witness whose qualifications as an expert were conceded had no scientific knowledge on which to base an opinion as to the accused’s lack of specific intent to kill. There was no basis for a finding under subs. (1) or (2) to admit the testimony. State v. Dalton, 98 Wis. 2d 725, 298 N.W.2d 398 (Ct. App. 1980).
901.04 AnnotationA defendant has no confrontation clause rights as to hearsay at a pretrial motion hearing. The trial court could rely on hearsay in making its decision. State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990).
901.04 AnnotationSub. (1) permits an out-of-court declaration by a party’s alleged co-conspirator to be considered by the trial court in determining whether there was a conspiracy. State v. Whitaker, 167 Wis. 2d 247, 481 N.W.2d 649 (Ct. App. 1992).
901.04 AnnotationBefore a demonstrative videotape may be admitted there must be a foundation that it is a fair and accurate reproduction of what was seen and was produced under conditions reasonably similar to conditions of the actual event. Even with the foundation established, the evidence may be excluded on a finding that its probative value is outweighed by its prejudicial effect. State v. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998), 97-3737.
901.04 AnnotationAs with evidence bearing directly on consciousness of guilt, evidence of consciousness of innocence is also relevant. An offer to take a polygraph test or a DNA test is relevant as long as the person offering to take the test believes the test to be possible, accurate, and admissible. However an offer to take a DNA test would be a mere hollow gesture if the offeror knew that a test would reveal nothing. State v. Santana-Lopez, 2000 WI App 122, 237 Wis. 2d 332, 613 N.W.2d 918, 99-0742.
901.04 AnnotationThe results of polygraph examinations are inadmissible in civil cases. While an offer to take a polygraph examination may be relevant to the offeror’s credibility, that a person agreed to a polygraph at the request of law enforcement has not been found admissible and could not be without proof that the person believed the results would accurately indicate whether he or she was lying. Estate of Neumann v. Neumann, 2001 WI App 61, 242 Wis. 2d 205, 626 N.W.2d 821, 00-0557.
901.04 AnnotationWhile a defendant’s offer to take a polygraph test is admissible because it may reflect a consciousness of innocence, an agreement to submit to a polygraph test at the suggestion or request of another is not an offer and is not admissible. There is no exception to this rule when the request or suggestion for the polygraph test comes from the defendant’s attorney. State v. Pfaff, 2004 WI App 31, 269 Wis. 2d 786, 676 N.W.2d 562, 03-1268.
901.04 AnnotationUnder the circumstances of the case, when a defendant seeks to introduce evidence of prior specific instances of violence within the defendant’s knowledge at the time of the incident in support of a self-defense claim, the circuit court has the authority under s. 906.11, in conjunction with sub. (3) (d), to order the defendant to disclose prior to trial any specific acts that the defendant knew about at the time of the incident and that the defendant intends to offer as evidence so that admissibility determinations can be made prior to trial. State v. McClaren, 2009 WI 69, 318 Wis. 2d 261, 767 N.W.2d 550, 07-2382.
901.04 AnnotationIn making preliminary factual determinations, courts may examine the evidence, including hearsay statements, sought to be admitted. Bourjaily v. United States, 483 U.S. 171 (1987).
Notes of Decisions
Cited in 53
cases (6 in the last 5 years), 1980–2025 · leading case: State v. Ringer, 2010 WI 69 (Wis. 2010).
State v. Ringer, 2010 WI 69 (Wis. 2010). “¶ 32 We arrive at that determination by examining Wis. Stat. § 901.04 , which governs preliminary questions concerning the admissibility of evidence and cross-references *458 Wis.”
State v. Head, 2002 WI 99 (Wis. 2002). “Under Wis. Stat. § 901.04 (1) (1997-98), [1] Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge.”
State v. Jiles, 2003 WI 66 (Wis. 2003). “the admissibility of evidence-" Wis. Stat. § 901.04 (1). This exemption is "restate[d], for convenience," in Wis.”
Braylon Seifert v. Kay M. Balink, M.D., 2017 WI 2 (Wis. 2017). “at 593 ; Wis. Stat. § 901.04 . 15 The parties do not dispute that Dr.”
Martindale v. Ripp, 2001 WI 113 (Wis. 2001). “The general rule in Wisconsin is that expert testimony is properly admitted into evidence if, after the circuit court finds a witness is qualified to answer a particular question, the testimony might "assist the trier of fact." Wis.”
State v. Gray, 590 N.W.2d 918 (Wis. 1999). “To determine the relevancy of other acts evidence which is conditioned on showing another fact, such as showing that the defendant is connected to the uncharged forged prescriptions, we turn to Wis. Stat. § 901.04 (2) which provides as follows: (2) Relevancy conditioned on fact.”
In Interest of Michael RB, 499 N.W.2d 641 (Wis. 1993). “Roenning with respect to Laura's enlarged hymenal opening; (4) a calendar kept by Michael's mother detailing Michael's whereabouts during April of 1990; and (5) evidence going to support defense counsel's assertions of bias on the part of Laura because of alleged ongoing…”
State v. Glenn T. Zamzow, 2017 WI 29 (Wis. 2017). “The State generally has the burden of proof at a suppression hearing that the evidence is admissible at the hearing.”
State v. McClaren, 2009 WI 69 (Wis. 2009). “11 , in conjunction with Wis. Stat. § 901.04 (3)(d), to order the defendant to disclose prior to trial any specific acts that he knew about at the time of the incident and that he intends to offer as evidence so that admissibility determinations can be made prior to trial.”
State v. Hezzie R., 580 N.W.2d 660 (Wis. 1998). “However, before a court may admit the prior adjudication, it must make a determination, in accord with Wis. Stat. § 901.04 , if the evidence should be excluded because "its probative *883 value is substantially outweighed by the danger of unfair prejudice.”
State v. Timothy E. Dobbs, 2020 WI 64 (Wis. 2020). “Wis. Stat. § 901.04 ; see also This four-part inquiry is consistent with how federal 20 courts analyze exposition testimony.”
State v. Guerard, 2004 WI 85 (Wis. 2004). “045 (4) presents a question of conditional relevance under Wis. Stat. § 901.04 (2), which provides: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to…”
— Wis. Stat. § 901.04(1) — 16 cases
State v. Jiles, 2003 WI 66 (Wis. 2003). “the admissibility of evidence-" Wis. Stat. § 901.04 (1). This exemption is "restate[d], for convenience," in Wis.”
State v. Ringer, 2010 WI 69 (Wis. 2010). “¶ 32 We arrive at that determination by examining Wis. Stat. § 901.04 , which governs preliminary questions concerning the admissibility of evidence and cross-references *458 Wis.”
State v. Agacki, 595 N.W.2d 31 (Wis. Ct. App. 1999).
State v. Frambs, 460 N.W.2d 811 (Wis. Ct. App. 1990).
Reiman Assocs., Inc. v. R/A Advert., Inc., 306 N.W.2d 292 (Wis. Ct. App. 1981).
— Wis. Stat. § 901.04(2) — 6 cases
State v. Ringer, 2010 WI 69 (Wis. 2010). “¶ 32 We arrive at that determination by examining Wis. Stat. § 901.04 , which governs preliminary questions concerning the admissibility of evidence and cross-references *458 Wis.”
State v. Gray, 590 N.W.2d 918 (Wis. 1999). “To determine the relevancy of other acts evidence which is conditioned on showing another fact, such as showing that the defendant is connected to the uncharged forged prescriptions, we turn to Wis. Stat. § 901.04 (2) which provides as follows: (2) Relevancy conditioned on fact.”
State v. Schindler, 429 N.W.2d 110 (Wis. Ct. App. 1988).
State v. Salter, 346 N.W.2d 318 (Wis. Ct. App. 1984).
State v. Omar S. Coria-Granados (Wis. Ct. App. 2021).
— Wis. Stat. § 901.04(3) — 1 case
State v. Padilla, 329 N.W.2d 263 (Wis. Ct. App. 1982).
— Wis. Stat. § 901.04(3)(d) — 1 case
State v. McClaren, 2009 WI 69 (Wis. 2009). “11 , in conjunction with Wis. Stat. § 901.04 (3)(d), to order the defendant to disclose prior to trial any specific acts that he knew about at the time of the incident and that he intends to offer as evidence so that admissibility determinations can be made prior to trial.”
— Wis. Stat. § 901.04(5) — 1 case
Reiman Assocs., Inc. v. R/A Advert., Inc., 306 N.W.2d 292 (Wis. Ct. App. 1981).
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