In the heated exchange between the judge and prosecutor (see 2nd video here) in the Rittenhouse trial, the judge says that he admitted "90404" evidence in other trials that the defendant was intending to shoot people on other occasions, but that he's not allowing it in this trial.

It seems to me that this kind of decision by a judge can basically make or break a case based on intent, outside of the extremely clear cut ones when the defendant says something like "I'm going to kill Mr. XYZ [specifically] because I hate him [in particular]". "90404" seems to refer to Wis. Stat. § 904.04, which seems to be about "character evidence". So, I'm curious if this kind of judge's decision to allow or not to allow such evidence can be appealed anywhere, or if his ruling is final under Wisconsin law.

  • Is there any decision of a trial judge that cannot be challenged?
    – phoog
    Commented Nov 11, 2021 at 13:06
  • @phoog: Perhaps no, but would the prosecution have to do it now, or if they "go along with it" does that mean they forfeit a right to appeal on that later? I guess that is my real Q. Commented Nov 11, 2021 at 13:08
  • 1
    Well the normal way of setting up an appeal is that you challenge the decision before the judge and then proceed in light of the adverse ruling "accepting" it for the time being while noting your objection, and then bringing the question to the appeals court at the appropriate time.
    – phoog
    Commented Nov 11, 2021 at 13:20
  • 5
    A ruling against the prosecution in a case where the defendant is found not guilty can not be appealed. Not guilty ends the process. In a criminal case in the US only one side gets to appeal. Commented Nov 11, 2021 at 16:15
  • 1
    @NateEldredge No.
    – ohwilleke
    Commented Nov 12, 2021 at 17:38

1 Answer 1


Acquittals in criminal jury trials cannot be appealed (at least in a way that affects the outcome, Colorado and a few other states allow criminal appeals by the prosecution solely for the purposes of clarifying the law prospectively).

Interlocutory appeals (i.e. appeals before the case is over) by the prosecution are allowed for pre-trial rulings (e.g. suppression of evidence rulings in a pre-trial hearing), in criminal cases, but not for evidentiary rulings made in the midst of a jury trial (which is when jeopardy attaches for the purposes of the double jeopardy rule, which is what prevents acquittals from being retried).

An error in a ruling on an admission or rejection of evidence at trial may be appealed by a convicted defendant if the alleged misapplication of the evidence rule was an abuse of discretion by the judge, and was not "harmless error" (i.e. if as part of all errors made in the case there is a reasonable probability that it changed the outcome that the jury reached).

  • 1
    I upvoted although the answer is a bit non-specific, but worth noting that interlocutory appeals regarding 904.04 have been filed by the State, sometimes successfully, e.g. State v. Pett wicourts.gov/ca/opinion/… Further, the appeals court in that case found that the lower court "erred when it excluded the evidence because of the State's 'failure' to file a pretrial motion", although the matter is somewhat complicated by the so-called Whitty rule. Commented Nov 12, 2021 at 18:09

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