State v. Gary

Supreme Court of Wisconsin · 2004 · Evidence

270 Wis.2d 62 (2004)

Updated August 22, 2026

EvidenceImpeachment by prior convictionStrategic waiverWis. Stat. 906.09prior convictionsimpeachmentcredibilityinvited error

Facts

Before trial, Gary moved to limit the number of his prior convictions that could be used for impeachment, objecting to three convictions from the 1970s as too old and unrelated to truthfulness. The circuit court ruled that all five prior convictions could be used. After losing that objection, Gary testified on direct examination that he had been convicted of crimes five times, and the State did not raise the convictions during the evidentiary phase. The case turned largely on credibility, and the jury received a limiting instruction that the convictions could be used only to assess Gary's credibility, not as proof of guilt.

Issue

Did Gary strategically waive his objection to the admission of his prior convictions by introducing them first on direct examination after the court ruled they were admissible? If not, did the circuit court erroneously exercise its discretion under Wis. Stat. § 906.09 by admitting Gary's three oldest prior convictions for impeachment?

Rule

Under Wisconsin law, a defendant does not commit strategic waiver when he unsuccessfully objects to the introduction of evidence and then preemptively introduces that evidence solely to lessen its prejudicial effect. For impeachment by prior conviction under Wis. Stat. § 906.09, prior convictions are presumptively admissible as relevant to credibility, but may be excluded if their probative value is substantially outweighed by the danger of unfair prejudice; in applying that balancing, courts should consider factors such as lapse of time, rehabilitation or pardon, gravity of the crime, involvement of dishonesty or false statement, and, when there are multiple convictions, their frequency.

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a burglary trial in Milwaukee, Devin Cole moves in limine to bar impeachment with four prior convictions, arguing that two are too old and unfairly prejudicial. The judge rules that all four may be used. When Devin testifies, his lawyer asks on direct whether he has been convicted of crimes, and Devin answers, "Four times," before the prosecutor asks anything about them.

On appeal, Devin argues that the judge erred in admitting the two old convictions. The prosecution responds that Devin waived the issue by introducing the convictions first. How should the appellate court rule?

Explanation. Under the majority rule, there is no strategic waiver when a defendant objects to the evidence, the objection is overruled, and the defendant then introduces the evidence only to lessen its prejudicial impact. That is treated as defensive trial strategy, not a meaningful election to use the evidence for the defendant's own benefit.