Chapter 885

885.03 Annotation Section 972.11 (1) points in two different directions. The rules of civil procedure are applicable generally to criminal proceedings and the application of the rules of civil procedure mandates reasonable diligence for substituted service of a subpoena. On the other hand, this chapter is to apply in all criminal proceedings and this section sets forth three manners for service of a subpoena that do not include the reasonable diligence mandate. Because s. 972.11 (1) explicitly references it, this chapter is the more specific textual provision. Thus, service of a witness subpoena in a criminal proceeding is controlled by this section, which provides only that “any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness’s abode.” State v. Wilson, 2017 WI 63, 376 Wis. 2d 92, 896 N.W.2d 682, 15-0671.

885.04 885.04 Municipal judge; subpoena served in state. A subpoena to require attendance before a municipal judge may be served anywhere in the state if authorized by the municipal judge and shall require the attendance of any witness so served. A subpoena to require the attendance of the defendant, whether the defendant is within or without the state, may be served by mailing it to the defendant at the address on file with the court.

885.04 History History: 1977 c. 305; 2019 a. 70; 2021 a. 240 s. 30.

885.04 Annotation Former s. 885.04, 2017 stats., does not authorize a municipal court to subpoena persons outside of the state; thus the court in this case could not order an out of state defendant to appear in person. There is no inherent authority in the court authorizing such an order. City of Sun Prairie v. Davis, 226 Wis. 2d 738, 595 N.W.2d 635 (1999), 97-1651.

885.05 885.05 Witness and interpreter fees. The fees of witnesses and interpreters are prescribed in s. 814.67.

885.05 History History: 1981 c. 317.

885.06 885.06 Witness’ fees, prepayment.

885.06(1) (1) Except when subpoenaed on behalf of the state, of a municipality in a forfeiture action, or of an indigent respondent in a paternity proceeding, no person is required to attend as a witness in any civil action, matter or proceeding unless witness fees are paid or tendered, in cash or by check, share draft or other draft, to the person for one day’s attendance and for travel.

885.06(2) (2) No witness on behalf of the state in any civil action, matter or proceeding, on behalf of either party in any criminal action or proceeding, on behalf of a municipality in a forfeiture action or on behalf of an indigent respondent in a paternity proceeding shall be entitled to any fee in advance, but shall be obliged to attend upon the service of a subpoena as therein lawfully required.

885.06 History History: 1983 a. 368, 447, 538; 1987 a. 201.

885.06 Annotation A “witness on behalf of the state” is one who is expected to provide relevant testimony or evidence for the state. The witness may be hostile to the state. State v. Kielisch, 123 Wis. 2d 125, 365 N.W.2d 904 (Ct. App. 1985).

885.07 885.07 State witnesses in civil actions and municipal witnesses in forfeiture actions, how paid. Every witness on behalf of the state in any civil action or proceeding may file with the clerk of the court where the same is pending the witness’s affidavit of attendance and travel, and the witness’s fees shall, upon the certificate of such clerk, countersigned by the attorney general, district attorney, or acting state’s attorney, be paid out of the state treasury, and shall be charged to the legal expense appropriation to the attorney general. In forfeiture actions by municipalities the clerk shall tax witness fees; however witness fees for police officers of any such municipality when collected shall be paid by the clerk to the treasurer of the municipality.

885.07 History History: 1993 a. 486.

885.08 885.08 State witnesses in criminal cases, how paid. The fees of witnesses on the part of the state in every criminal action or proceeding, and of every person who is committed to jail in default of security for the person’s appearance as a witness, shall be paid by the county in which the action or proceeding is had. The clerk of the court upon proof of the witness’s or committed person’s attendance, travel or confinement shall give each such witness or person a certificate of the number of days’ attendance or confinement, the number of miles traveled, and the amount of compensation due the witness or committed person, which certificate shall be receipted for by such witness or person, and the county treasurer shall pay the amount thereof on surrender of the certificate.

885.08 History History: 1993 a. 486.

885.09 885.09 Compensation of nonresident or indigent witness. If a witness attends a court of record in behalf of the state and it appears that the witness came from outside this state or is indigent, the court may order that the witness be paid a specific reasonable sum for expenses and attendance, in lieu of fees. The clerk shall give a certificate for the sum, with a copy of the order affixed, and the certificate shall be paid as other court certificates are paid.

885.09 History History: 1987 a. 403.

885.10 885.10 Witness for indigent respondent or defendant. Upon satisfactory proof of the financial inability of the respondent or defendant to procure the attendance of witnesses for his or her defense, the judge or supplemental court commissioner, in any paternity proceeding or criminal action or proceeding, or in any other case in which the respondent or defendant is represented by the state public defender or by assigned counsel under s. 977.08, to be tried or heard before him or her, may direct the witnesses to be subpoenaed as he or she determines is proper and necessary, upon the respondent’s or defendant’s oath or affidavit or that of the respondent’s or defendant’s attorney. Witnesses so subpoenaed shall be paid their fees in the manner that witnesses for the state therein are paid. Determination of indigency under s. 977.07 is proof of the respondent’s or defendant’s financial inability to procure the attendance of witnesses for his or her defense.

885.10 History History: 1977 c. 305; 1983 a. 377, 447, 538; 1985 a. 135; 2001 a. 61; 2017 a. 359.

885.11 885.11 Disobedient witness.

885.11(1) (1) Damages recoverable. If any person obliged to attend as a witness shall fail to do so without any reasonable excuse, the person shall be liable to the aggrieved party for all damages occasioned by such failure, to be recovered in an action.

885.11(2) (2) Attendance compelled. Every court, in case of unexcused failure to appear before it, may issue an attachment to bring such witness before it for the contempt, and also to testify.

885.11(3) (3) Punishment in courts. Inexcusable failure to attend any court of record is a contempt of the court, punishable by a fine not exceeding $200.

885.11(4) (4) Same. Unexcused failure to attend a court not of record shall be a contempt, and the witness shall be fined all the costs of the witness’s apprehension, unless the witness shall show reasonable cause for his or her failure; in which case the party procuring the witness to be apprehended shall pay said costs.

885.11(5) (5) Striking out pleading. If any party to an action or proceeding shall unlawfully refuse or neglect to appear or testify or depose therein, either within or without the state, the court may, also, strike out the party’s pleading, and give judgment against the party as upon default or failure of proof.

885.11 History History: 1987 a. 155; 1993 a. 486.

885.11 Cross-reference Cross-reference: See also s. 804.12 (4) regarding failure to appear at deposition.

885.11 Annotation Sub. (5) is broad enough to include the failure to produce documents at a discovery examination, but a party cannot delay seven years before making the motion to strike the pleading. “Unlawfully” means without legal excuse, which must be determined at a hearing. Gipson Lumber Co. v. Schickling, 56 Wis. 2d 164, 201 N.W.2d 500 (1972).

885.11 Annotation The trial court did not abuse its discretion in dismissing a plaintiff’s complaint for failure to comply with a discovery order. Furrenes v. Ford Motor Co., 79 Wis. 2d 260, 255 N.W.2d 511 (1977).

885.12 885.12 Coercing witnesses before officers and boards. If any person, without reasonable excuse, fails to attend as a witness, or to testify as lawfully required before any arbitrator, coroner, medical examiner, board, commission, commissioner, examiner, committee, or other officer or person authorized to take testimony, or to produce a book or paper which the person was lawfully directed to bring, or to subscribe the person’s deposition when correctly reduced to writing, any judge of a court of record or a circuit court commissioner in the county where the person was obliged to attend may, upon sworn proof of the facts, issue an attachment for the person, and unless the person shall purge the contempt and go and testify or do such other act as required by law, may commit the person to close confinement in the county jail until the person shall so testify or do such act, or be discharged according to law. The sheriff of the county shall execute the commitment.

885.12 History History: 1973 c. 272; 1993 a. 486; 2001 a. 61.

885.12 Cross-reference Cross-reference: See s. 785.06.

885.14 885.14 Disclosure of information and sources by news person.

885.14(1) (1) Definition. In this section, “news person” means any of the following:

885.14(1)(a) (a) Any business or organization that, by means of print, broadcast, photographic, mechanical, electronic, or other medium, disseminates on a regular and consistent basis news or information to the public, including a newspaper, magazine, or other periodical; book publisher; news agency; wire service; radio or television station or network; cable or satellite network, service, or carrier; or audio or audiovisual production company; and a parent, subsidiary, division, or affiliate of any of these businesses or organizations.

885.14(1)(b) (b) Any person who is or has been engaged in gathering, receiving, preparing, or disseminating news or information to the public for an entity described in par. (a), including any person supervising or assisting the person in gathering, receiving, preparing, or disseminating such news or information.

885.14(2) (2) Subpoenas issued to news person.

885.14(2)(a) (a) Prohibition. Except as provided in par. (b), no person having the power to issue a subpoena may issue a subpoena compelling a news person to testify about or produce or disclose any of the following that is obtained or prepared by the news person in the news person’s capacity in gathering, receiving, or preparing news or information for potential dissemination to the public:

885.14(2)(a)1. 1. The identity of a confidential source of any news or information.

885.14(2)(a)2. 2. Any information that would tend to identify the confidential source of any news or information.

885.14(2)(a)3. 3. Any news or information obtained or prepared in confidence by the news person.

885.14(2)(a)4. 4. Any news, information, or identity of any source of any news or information that is not described in subd. 1., 2., or 3.

885.14(2)(b) (b) Procedure before courts. Subject to par. (c), a circuit court may issue a subpoena to compel a news person to testify about or disclose or produce any news, information, or identity of any source as specified in par. (a) 4. if the court finds, after notice to and an opportunity to be heard by the news person that the person requesting the subpoena established, based on information obtained from a person other than the news person, one of the following by clear and convincing evidence:

885.14(2)(b)1. 1. In a criminal prosecution or investigation that there are reasonable grounds to believe that a crime has occurred.

885.14(2)(b)2. 2. In a civil action or proceeding that the complaint states a claim upon which relief may be granted.

885.14(2)(c) (c) A circuit court may issue a subpoena under par. (b) only if all of the following conditions are met:

885.14(2)(c)1. 1. The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.

885.14(2)(c)2. 2. The news, information, or identity of the source is necessary to the maintenance of a party’s claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.

885.14(2)(c)3. 3. The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.

885.14(2)(c)4. 4. There is an overriding public interest in the disclosure of the news, information, or identity of the source.

885.14(3) (3) Subpoenas issued to persons other than news persons. No person having the power to issue a subpoena may issue a subpoena to compel a person other than a news person to testify about or produce or disclose, information, records, or communications relating to a business transaction between that person and the news person if the purpose of the subpoena is to discover any of the items listed in sub. (2) (a) 1. to 3.

885.14(4) (4) Distribution. A disclosure to another person or dissemination to the public of news, information, or the identity of a source as described in sub. (2) (a) 1. to 4. by a news person does not constitute a waiver of the protection from compelled disclosure under sub. (2) or (3).

885.14(5) (5) Inadmissibility. Any news, information, records, communications, or the identity of a source of any news or information obtained in violation of this section are inadmissible for any purpose in any judicial, legislative, or administrative action, proceeding, or hearing.

885.14 History History: 2009 a. 400.

885.14 Annotation Sub. (4) does not state that the reporter privilege cannot be waived in any circumstances; it delineates a particular circumstance in which, consistent with a free and independent press, disclosure will not constitute waiver. The circumstance identified in sub. (4) was not the situation that was presented in this case, in which a reporter chose to join a party’s legal team. The reporter privilege under this section did not apply in that situation. Colborn v. Netflix Inc., 608 F. Supp. 3d 736 (2022).

885.15 885.15 Immunity.

885.15(1) (1) No person may be excused from attending, testifying or producing books, papers, and documents before any court in a prosecution under s. 134.05 on the ground or for the reason that the testimony or evidence required of him or her may tend to incriminate him or her, or to subject him or her to a penalty or forfeiture. No person who testifies or produces evidence in obedience to the command of the court in the prosecution may be liable to any suit or prosecution, civil or criminal, for or on account of testifying or producing evidence; provided, that no person may be exempted from prosecution and punishment for perjury committed in so testifying.

885.15(2) (2) The immunity provided under sub. (1) is subject to the restrictions under s. 972.085.

885.15 History History: 1989 a. 122.

885.205 885.205 Privileged communications. No dean of men, dean of women or dean of students at any institution of higher education in this state, or any school psychologist at any school in this state, shall be allowed to disclose communications made to such dean or psychologist or advice given by such dean or psychologist in the course of counseling a student, or in the course of investigating the conduct of a student enrolled at such university or school, except:

885.205(1) (1) This prohibition may be waived by the student.

885.205(2) (2) This prohibition does not include communications which such dean needs to divulge for the dean’s own protection, or the protection of those with whom the dean deals, or which were made to the dean for the express purpose of being communicated to another, or of being made public.

885.205(3) (3) This prohibition does not extend to a criminal case when such dean has been regularly subpoenaed to testify.

885.205 History History: 1993 a. 486.

885.23 885.23 Genetic tests in civil actions. Whenever it is relevant in a civil action to determine the parentage or identity of any child, person or corpse, the court, by order, shall direct any party to the action and any person involved in the controversy to submit to one or more genetic tests as provided in s. 767.84. The results of the tests shall be receivable as evidence in any case where exclusion from parentage is established or where a probability of parentage is shown to exist. Whenever the court orders the genetic tests and one of the parties refuses to submit to the tests that fact shall be disclosed upon trial.

885.23 History History: 1979 c. 352; 1995 a. 100; 2005 a. 443 s. 265.

885.23 Annotation Section 767.80 (1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. The proper vehicle for determining parentage is a motion by the father under this section for a determination of parentage within the pending wrongful death action. Shannon E.T. v. Alicia M.V.M., 2007 WI 29, 299 Wis. 2d 601, 728 N.W.2d 636, 05-0077.

885.235 885.235 Chemical tests for intoxication.

885.235(1) (1) In this section:

885.235(1)(a) (a) “Alcohol concentration” means the number of grams of alcohol in 100 milliliters of a person’s blood or the number of grams of alcohol in 210 liters of a person’s breath.

885.235(1)(b) (b) “Controlled substance” has the meaning specified in s. 961.01 (4).

885.235(1)(bd) (bd) “Controlled substance analog” has the meaning given in s. 961.01 (4m).

885.235(1)(c) (c) “Drug” has the meaning specified in s. 450.01 (10).

885.235(1)(d) (d) “Restricted controlled substance” means any of the following:

885.235(1)(d)1. 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

885.235(1)(d)1m. 1m. The heroin metabolite 6-monoacetylmorphine.

885.235(1)(d)2. 2. A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in subd. 1.

885.235(1)(d)3. 3. Cocaine or any of its metabolites.

885.235(1)(d)4. 4. Methamphetamine.

885.235(1)(d)5. 5. Delta-9-tetrahydrocannabinol, excluding its precursors or metabolites, at a concentration of one or more nanograms per milliliter of a person’s blood.

885.235(1g) (1g) In any action or proceeding in which it is material to prove that a person was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration while operating or driving a motor vehicle or, if the vehicle is a commercial motor vehicle, on duty time, while operating a motorboat, except a sailboat operating under sail alone, while operating a snowmobile, while operating an all-terrain vehicle or utility terrain vehicle or while handling a firearm, evidence of the amount of alcohol in the person’s blood at the time in question, as shown by chemical analysis of a sample of the person’s blood or urine or evidence of the amount of alcohol in the person’s breath, is admissible on the issue of whether he or she was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration if the sample was taken within 3 hours after the event to be proved. The chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect:

885.235(1g)(a) (a) The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but less than 0.08 is relevant evidence on the issue of being under the combined influence of alcohol and a controlled substance, a controlled substance analog or any other drug, but, except as provided in par. (d) or sub. (1m), is not to be given any prima facie effect.

885.235(1g)(b) (b) Except with respect to the operation of a commercial motor vehicle as provided in par. (d), the fact that the analysis shows that the person had an alcohol concentration of more than 0.04 but less than 0.08 is relevant evidence on the issue of intoxication or an alcohol concentration of 0.08 or more but is not to be given any prima facie effect.

885.235(1g)(c) (c) The fact that the analysis shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.08 or more.

885.235(1g)(d) (d) The fact that the analysis shows that the person had an alcohol concentration of 0.04 or more is prima facie evidence that he or she was under the influence of an intoxicant with respect to operation of a commercial motor vehicle and is prima facie evidence that he or she had an alcohol concentration of 0.04 or more.

885.235(1k) (1k) In any action or proceeding in which it is material to prove that a person had a detectable amount of a restricted controlled substance in his or her blood while operating or driving a motor vehicle or, if the vehicle is a commercial motor vehicle, on duty time, while operating a motorboat, except a sailboat operating under sail alone, while operating a snowmobile, while operating an all-terrain vehicle or utility terrain vehicle, or while handling a firearm, if a chemical analysis of a sample of the person’s blood shows that the person had a detectable amount of a restricted controlled substance in his or her blood, the court shall treat the analysis as prima facie evidence on the issue of the person having a detectable amount of a restricted controlled substance in his or her blood without requiring any expert testimony as to its effect.

885.235(1m) (1m) In any action under s. 23.33 (4c) (a) 3., 23.335 (12) (a) 3., 30.681 (1) (bn), 346.63 (2m) or (7), or 350.101 (1) (c), evidence of the amount of alcohol in the person’s blood at the time in question, as shown by chemical analysis of a sample of the person’s blood or urine or evidence of the amount of alcohol in the person’s breath, is admissible on the issue of whether he or she had an alcohol concentration in the range specified in s. 23.33 (4c) (a) 3., 23.335 (12) (a) 3., 30.681 (1) (bn), 346.63 (2m), or 350.101 (1) (c) or an alcohol concentration above 0.0 under s. 346.63 (7) if the sample was taken within 3 hours after the event to be proved. The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but not more than 0.08 is prima facie evidence that the person had an alcohol concentration in the range specified in s. 23.33 (4c) (a) 3., 23.335 (12) (a) 3., 30.681 (1) (bn), 346.63 (2m), or 350.101 (1) (c) or an alcohol concentration above 0.0 under s. 346.63 (7).

885.235(2) (2) The concentration of alcohol in the blood shall be taken prima facie to be three-fourths of the concentration of alcohol in the urine.

885.235(3) (3) If the sample of breath, blood or urine was not taken within 3 hours after the event to be proved, evidence of the amount of alcohol in the person’s blood or breath as shown by the chemical analysis is admissible only if expert testimony establishes its probative value and may be given prima facie effect only if the effect is established by expert testimony.