Chapter 885

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.

885.41 History History: Sup. Ct. Order, 67 Wis. 2d vii (1975); 1987 a. 403.

885.41 Note Judicial Council Committee’s Note, 1975: The definition of videotaping recognizes that videotaping can be used for visual purposes with no audio recording present. The definition of operator recognizes that an operator of videotape equipment could be the same individual before whom depositions can presently be taken as authorized by s. 804.03. [Re Order effective Jan. 1, 1976]

885.42 885.42 When available.

885.42(1) (1) Depositions. Any deposition may be recorded by audiovisual videotape without a stenographic transcript. Any party to the action may arrange at the party’s expense to have a simultaneous stenographic record made. Except as provided by ss. 885.40 to 885.47, ch. 804 governing the practice and procedure in depositions and discovery shall apply.

885.42(2) (2) Other evidence. Such other evidence as is appropriate may be recorded by videotape and be presented at a trial. The court may direct a party or the court reporter to prepare a transcript of an audio or audiovisual recording presented under this subsection in accordance with SCR 71.01 (2) (e).

885.42(3) (3) Entire trial testimony and evidence. All trial proceedings, including evidence in its entirety, may be presented at a trial by videotape upon the approval of all parties and the trial judge. In determining whether to approve a videotape trial, the trial judge, after consultation with counsel, shall consider the cost involved, the nature of the action, and the nature and amount of testimony. The trial judge shall fix a date prior to the date of trial when all recorded testimony must be filed with the clerk of court.

885.42(4) (4) Trial record. At trial, videotape depositions shall be reported unless accompanied with a certified transcript submitted in accordance with SCR 71.01 (2) (d).

885.42 History History: Sup. Ct. Order, 67 Wis. 2d 585, xii (1975); 1975 c. 218; 1987 a. 403; Sup. Ct. Order No. 10-06, 2010 WI 128, 329 Wis. 2d xxvii.

885.42 Note Judicial Council Committee’s Note, 1975: Sub. (1). The definition of depositions is meant to include adverse examinations prior to trial.

885.42 Annotation Sub. (2). This subsection anticipates that certain other evidence, such as the scene of an accident or the lifestyle of an accident victim, may be presented at trial by means of videotape. This provision would also allow the majority of a trial to be conducted by means of videotape.

885.42 Annotation Sub. (3). This subsection would authorize an entire videotape trial in Wisconsin. Such a trial could only occur upon the approval of all parties and the presiding judge. Appropriate safeguards are included to ensure that this provision would be used only when clearly appropriate. Procedure for a videotape trial is subject to agreement among the parties and the court.

885.42 Annotation Sub. (4). This subsection establishes that matters presented by videotape at trial are made a part of the trial record in anticipation of a possible appeal. [Re Order effective Jan. 1, 1976]

885.43 885.43 Notice of videotape deposition. Every notice for the taking of a videotape deposition and subpoena for attendance at such deposition shall state that the deposition is to be visually recorded and preserved pursuant to the provisions of ss. 885.44 and 885.46.

885.43 History History: Sup. Ct. Order, 67 Wis. 2d 585, xii (1975); Sup. Ct. Order, 141 Wis. 2d xxxv (1987).

885.43 Note Judicial Council Committee’s Note, 1975: This provision recognizes that there should be adequate notice that a deposition by videotape is to be taken. The section requires that the notice make reference to the provisions on filing and preserving of videotape depositions. [Re Order effective Jan. 1, 1976]

885.43 Note Judicial Council Note, 1988: Videotape depositions are no longer required to be filed in court. [Re Order effective Jan. 1, 1988]

885.44 885.44 Videotape deposition procedure.