Chapter 885

885.285 Annotation The waiver by the defendant medical provider in a medical malpractice action of the copayment portion of the amount due for the plaintiff’s medical treatment did not constitute a payment under this section or s. 893.12. Young v. Aurora Medical Center of Washington County, Inc., 2004 WI App 71, 272 Wis. 2d 300, 679 N.W.2d 549, 03-0224.

885.335 885.335 Actions concerning real estate abutting Great Lakes water.

885.335(1) (1) No claim or counterclaim may be made in an action relating to the possession or title of any real estate if the claim or counterclaim is based on an assertion that the property includes portions of land that may have at one time been submerged beneath a Great Lakes water if any of the following apply:

885.335(1)(a) (a) The property is upland, as defined in s. 30.2039 (1) (f), and the use of the property has not materially changed, as defined in s. 30.2039 (4).

885.335(1)(b) (b) The property was designated as land held in fee title ownership by a determination made under s. 30.2039 (2) (d) that establishes the boundary between land held in trust by the state and land held in fee title ownership.

885.335(1)(c) (c) The property is held in fee title ownership as determined under s. 30.2039 (3).

885.335(1)(d) (d) The use of the property is approved under s. 30.2034.

885.335(2) (2) This section does not apply to administrative and judicial review of decisions of the department of natural resources under s. 30.2034 or 30.2039 or ch. 227.

885.335 History History: 2023 a. 247.

885.365 885.365 Recorded telephone conversation.

885.365(1) (1) Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state in civil actions, except as provided in ss. 968.28 to 968.37.

885.365(2) (2) Subsection (1) shall not apply where:

885.365(2)(a) (a) Such recording is made in a manner other than by interception and the person whose conversation is being recorded is informed at that time that the conversation is being recorded and that any evidence thereby obtained may be used in a court of law; or such recording is made through a recorder connector provided by the telecommunications utility as defined in s. 196.01 (10) or a telecommunications carrier as defined in s. 196.01 (8m) in accordance with its tariffs and which automatically produces a distinctive recorder tone that is repeated at intervals of approximately 15 seconds;

885.365(2)(b) (b) The recording is made by a telecommunications utility as defined in s. 196.01 (10), a telecommunications carrier as defined in s. 196.01 (8m) or its officers or employees for the purpose of or incident to the construction, maintenance, conduct or operation of the services and facilities of such public utilities, or to the normal use by such public utilities of the services and facilities furnished to the public by such public utility; or

885.365(2)(c) (c) The recording is made by a fire department or law enforcement agency to determine violations of, and in the enforcement of, s. 941.13.

885.365 History History: 1971 c. 40 s. 93; 1977 c. 173 s. 168; 1985 a. 297; 1987 a. 399; 1993 a. 496.

885.37 885.37 Interpreters in municipal courts and administrative agency contested cases.

885.37(1) (1) If a municipal court has notice that a person who is a juvenile or parent subject to ch. 938, or who is a witness in a proceeding under ch. 938, has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the court shall make a factual determination of whether the language difficulty or the hearing or speaking impairment is sufficient to prevent the individual from communicating with his or her attorney, reasonably understanding the English testimony or reasonably being understood in English. If the court determines that an interpreter is necessary, the court shall advise the person that he or she has a right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided for him or her at the public’s expense. Any waiver of the right to an interpreter is effective only if made voluntarily in person, in open court and on the record.

885.37(2) (2) A municipal court may authorize the use of an interpreter in actions or proceedings in addition to those specified in sub. (1).

885.37(3) (3) 

885.37(3)(a) (a) In this subsection:

885.37(3)(a)1. 1. “Agency” includes any official, employee or person acting on behalf of an agency.

885.37(3)(a)2. 2. “Contested case” means a proceeding before an agency in which, after a hearing required by law, substantial interests of any party to the proceeding are determined or adversely affected by a decision or order in the proceeding and in which the assertion by one party of any such substantial interest is denied or controverted by another party to the proceeding.

885.37(3)(b) (b) In any administrative contested case proceeding before a state, county or municipal agency, if the agency conducting the proceeding has notice that a party to the proceeding has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the agency shall make a factual determination of whether the language difficulty or hearing or speaking impairment is sufficient to prevent the party from communicating with others, reasonably understanding the English testimony or reasonably being understood in English. If the agency determines that an interpreter is necessary, the agency shall advise the party that he or she has a right to a qualified interpreter. After considering the party’s ability to pay and the other needs of the party, the agency may provide for an interpreter for the party at the public’s expense. Any waiver of the right to an interpreter is effective only if made at the administrative contested case proceeding.

885.37(3m) (3m) Any agency may authorize the use of an interpreter in a contested case proceeding for a person who is not a party but who has a substantial interest in the proceeding.

885.37(4) (4) 

885.37(4)(a) (a) The necessary expense of furnishing an interpreter for an indigent person in a municipal court shall be paid by the municipality.

885.37(4)(b) (b) The necessary expense of furnishing an interpreter for an indigent party under sub. (3) shall be paid by the unit of government for which the proceeding is held.

885.37(4)(c) (c) The court or agency shall determine indigency under this section.

885.37(5) (5) 

885.37(5)(a) (a) If a municipal court under sub. (1) or (2) or an agency under sub. (3) decides to appoint an interpreter, the court or agency shall follow the applicable procedure under par. (b) or (c).

885.37(5)(b) (b) The department of health services shall maintain a list of qualified interpreters for use with persons who have hearing impairments. The department shall distribute the list, upon request and without cost, to courts and agencies who must appoint interpreters. If an interpreter needs to be appointed for a person who has a hearing impairment, the court or agency shall appoint a qualified interpreter from the list. If no listed interpreter is available or able to interpret, the court or agency shall appoint as interpreter another person who is able to accurately communicate with and convey information to and receive information from the hearing-impaired person.

885.37(5)(c) (c) If an interpreter needs to be appointed for a person with an impairment or difficulty not covered under par. (b), the court or agency may appoint any person the court or agency decides is qualified.

885.37 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); 1975 c. 106, 199; Stats. 1975 s. 885.37; 1985 a. 266; 1987 a. 27; 1995 a. 27 ss. 7207 to 7209, 9126 (19); 1995 a. 77; 2001 a. 16; 2007 a. 20 s. 9121 (6) (a); 2021 a. 238 s. 44.

885.37 Annotation A court has notice of a language difficulty when it becomes aware that a defendant’s difficulty with English may impair the defendant’s ability to communicate with counsel, to understand testimony, or to be understood in English and does not hinge on a request from counsel for an interpreter. State v. Yang, 201 Wis. 2d 725, 549 N.W.2d 769 (Ct. App. 1996), 95-0583.

885.37 Annotation The hearing on the accommodation should precede the substantive hearing. Strook v. Kedinger, 2009 WI App 31, 316 Wis. 2d 548, 766 N.W.2d 219, 07-2898.

885.38 885.38 Interpreters in circuit and appellate courts.

885.38(1) (1) In this section:

885.38(1)(a) (a) “Court proceeding” means any proceeding before a court of record.

885.38(1)(b) (b) “Limited English proficiency” means any of the following:

885.38(1)(b)1. 1. The inability, because of the use of a language other than English, to adequately understand or communicate effectively in English in a court proceeding.

885.38(1)(b)2. 2. The inability, due to a speech impairment, hearing loss, deafness, deaf-blindness, or other disability, to adequately hear, understand, or communicate effectively in English in a court proceeding.

885.38(1)(c) (c) “Qualified interpreter” means a person who is able to do all of the following:

885.38(1)(c)1. 1. Readily communicate with a person who has limited English proficiency.

885.38(1)(c)2. 2. Orally transfer the meaning of statements to and from English and the language spoken by a person who has limited English proficiency in the context of a court proceeding.

885.38(1)(c)3. 3. Readily and accurately interpret for a person who has limited English proficiency, without omissions or additions, in a manner that conserves the meaning, tone, and style of the original statement, including dialect, slang, and specialized vocabulary.

885.38(2) (2) The supreme court shall establish the procedures and policies for the recruitment, training, and certification of persons to act as qualified interpreters in a court proceeding and for the fees imposed for the training and certification, and for the coordination, discipline, retention, and training of those interpreters. Any fees collected under this subsection shall be credited to the appropriation under s. 20.680 (2) (gc).

885.38(3) (3) 

885.38(3)(a) (a) If the court determines that the person has limited English proficiency and that an interpreter is necessary, the court shall advise the person that he or she has the right to a qualified interpreter at the public’s expense if the person is one of the following:

885.38(3)(a)1. 1. A party in interest.

885.38(3)(a)2. 2. A witness, while testifying in a court proceeding.

885.38(3)(a)3. 3. An alleged victim, as defined in s. 950.02 (4).

885.38(3)(a)4. 4. A parent or legal guardian of a minor party in interest or the legal guardian of a party in interest.

885.38(3)(a)5. 5. Another person affected by the proceedings, if the court determines that the appointment is necessary and appropriate.

885.38(3)(b) (b) The court may appoint more than one qualified interpreter in a court proceeding when necessary.

885.38(3)(c) (c) If a person with limited English proficiency, as defined in sub. (1) (b) 2., is part of a jury panel in a court proceeding, the court shall appoint a qualified interpreter for that person.

885.38(3)(d) (d) If a person with limited English proficiency requests the assistance of the clerk of circuit courts regarding a legal proceeding, the clerk may provide the assistance of a qualified interpreter to respond to the person’s inquiry.

885.38(3)(e) (e) A qualified interpreter appointed under this subsection may, with the approval of the court, provide interpreter services outside the court room that are related to the court proceedings, including during court-ordered psychiatric or medical exams or mediation.

885.38(3)(f) (f) A court may authorize the use of a qualified interpreter in actions or proceedings in addition to those specified in par. (a).

885.38(4) (4) 

885.38(4)(a) (a) The court may accept the waiver of the right to a qualified interpreter by a person with limited English proficiency at any point in the court proceeding if the court advises the person of the nature and effect of the waiver and determines on the record that the waiver has been made knowingly, intelligently, and voluntarily.

885.38(4)(b) (b) At any point in the court proceeding, for good cause, the person with limited English proficiency may retract his or her waiver and request that a qualified interpreter be appointed.

885.38(5) (5) Every qualified interpreter, before commencing his or her duties in a court proceeding, shall take a sworn oath that he or she will make a true and impartial interpretation. The supreme court may approve a uniform oath for qualified interpreters.

885.38(6) (6) Any party to a court proceeding may object to the use of any qualified interpreter for good cause. The court may remove a qualified interpreter for good cause.

885.38(7) (7) The delay resulting from the need to locate and appoint a qualified interpreter may constitute good cause for the court to toll the time limitations in the court proceeding.

885.38(8) (8) 

885.38(8)(a) (a) Except as provided in par. (b), the necessary expenses of providing qualified interpreters to persons with limited English proficiency under this section shall be paid as follows:

885.38(8)(a)1. 1. The county in which the circuit court is located shall pay the expenses in all proceedings before a circuit court and when the clerk of circuit court uses a qualified interpreter under sub. (3) (d). The county shall be reimbursed in the manner determined by the director of state courts under s. 758.19 for expenses paid under this subdivision.

885.38(8)(a)2. 2. The court of appeals shall pay the expenses in all proceedings before the court of appeals.

885.38(8)(a)3. 3. The supreme court shall pay the expenses in all proceedings before the supreme court.

885.38(8)(b) (b) The state public defender shall pay the expenses for interpreters assisting the state public defender in representing an indigent person in preparing for court proceedings.

885.38 History History: 2001 a. 16; 2003 a. 33; 2007 a. 20; 2015 a. 55.

885.38 Annotation A court has notice of a language difficulty when it becomes aware that a defendant’s difficulty with English may impair the defendant’s ability to communicate with counsel, to understand testimony, or to be understood in English and does not hinge on a request from counsel for an interpreter. State v. Yang, 201 Wis. 2d 725, 549 N.W.2d 769 (Ct. App. 1996), 95-0583.

885.38 Annotation When an accused requires an interpreter and witnesses are to testify in a foreign language, the better practice may be to have two interpreters, one for the accused and one for the court. State v. Santiago, 206 Wis. 2d 3, 556 N.W.2d 687 (1996), 94-1200.

885.38 Annotation Fair trials require comprehension of the spoken word by parties, witnesses, and fact-finders. A witness’s comprehension affects the analysis of whether a trial court cut off cross-examination prematurely. State v. Yang, 2006 WI App 48, 290 Wis. 2d 235, 712 N.W.2d 400, 05-0817.

885.38 Annotation The legislature intended for the courts to provide necessary interpreters for both the hearing impaired and for those of limited English proficiency regardless of their ability to pay. Courts may not tax the parties for these costs. OAG 9-08.

885.38 Annotation Injustice in any Language: The Need for Improved Standards Governing Courtroom Interpretation in Wisconsin. Pantoga. 82 MLR 601 (1999).

885.38 Annotation Se Habla Everything: The Right to an Impartial, Qualified Interpreter. Araiza. Wis. Law. Sept. 1997.

885.38 Annotation New Interpreter Code of Ethics. Lamelas. Wis. Law. Mar. 2003.

subch. II of ch. 885 SUBCHAPTER II

VIDEOTAPE PROCEDURE

885.40 885.40 Applicability. Sections 885.40 to 885.47 apply to all trial courts of record in this state in the receipt and utilization of testimony and other evidence recorded on videotape and to the review of cases on appeal where the record on appeal contains testimony or other evidence recorded on videotape. These sections are not intended to preclude or limit the presentation of evidence by other technical procedures.

885.40 History History: Sup. Ct. Order, 67 Wis. 2d vii (1975).

885.40 Note Judicial Council Committee’s Note, 1975: The contents of these rules are not meant to exclude present practice whereby movies and photographs are introduced into evidence in appropriate situations. [Re Order effective Jan. 1, 1976]

885.40 Annotation Sections 885.40 to 885.47 did not apply to police videotape of a drunk driver. State v. Haefer, 110 Wis. 2d 381, 328 N.W.2d 894 (Ct. App. 1982).

885.40 Annotation Legal Applications of Videotape. Benowitz. WBB June 1974.

885.41 885.41 Definitions.

885.41(1) (1) Videotaping. Videotaping is a visual or simultaneous audiovisual electronic recording.

885.41(2) (2) Operator. Operator means a person trained to operate video equipment and may be an official qualified under s. 804.03.