Chapter 885

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.

885.44(1) (1) Official. Videotape depositions may be taken by persons authorized by s. 804.03.

885.44(2) (2) Required information. The deposition shall begin by the operator stating on camera:

885.44(2)(a) (a) The operator’s name and business address;

885.44(2)(b) (b) The name and business address of the operator’s employer;

885.44(2)(c) (c) The date, time and place of the deposition;

885.44(2)(d) (d) The caption of the case;

885.44(2)(e) (e) The name of the witness; and

885.44(2)(f) (f) The party on whose behalf the deposition is being taken. Counsel shall identify themselves on camera. The person before whom the deposition is taken shall then identify himself or herself and swear or affirm the witness on camera. At the conclusion of the deposition the operator shall state on camera that the deposition is concluded. When the length of the deposition requires the use of more than one tape, the end of each tape and the beginning of each succeeding tape shall be announced on camera by the operator.

885.44(3) (3) Camera. More than one camera may be used, either in sequence or simultaneously.

885.44(4) (4) Timing of deposition. The deposition shall be timed by a date-time generator which shall show continually each hour, minute and second of each tape of the deposition.

885.44(5) (5) Objections. Objections may be made as provided in s. 804.05 (4) (b).

885.44(6) (6) Submission to witness. After a videotape deposition is taken, submission of the videotape to the witness for examination is deemed waived unless such submission is requested by the witness.

885.44(7) (7) Certification of original videotape deposition. The official before whom the videotape deposition is taken shall cause a written certification to be attached to the original videotape. The certification shall state that the witness was fully sworn or affirmed by the official and that the videotape is a true record of the testimony given by the witness. If the witness has not waived the right to a showing and examination of the videotape deposition, the witness shall also sign the certification.

885.44(8) (8) Certification of edited videotape deposition. The official who edits an original videotape deposition shall attach a written certification to the edited copy of the videotape deposition. The certification shall state that the editing complies with the rulings of the court and that the original videotape deposition has not been affected by the editing process.

885.44(9) (9) Motions on objections. Motions for ruling upon objections shall be made with the court within 30 days of recording of the videotape deposition or within a reasonable time stipulated by the parties.

885.44(11) (11) Ruling on objections. In ruling on objections the court may view the entire videotape or pertinent parts thereof, listen to an audiotape of the videotape sound track, or direct the objecting party to file a partial transcript. The court shall make written rulings on objections and an order for editing. Copies of the court’s rulings and order for editing shall be sent to the parties and the objecting witness.

885.44(12) (12) Editing alternatives.

885.44(12)(a) (a) The original videotape shall not be affected by any editing process. In its order for editing the court may do any of the following:

885.44(12)(a)1. 1. Order the official to keep the original videotape intact and make an edited copy of the videotape that deletes all references to objections and objectionable material.

885.44(12)(a)2. 2. Order the person showing the original videotape at trial to suppress the objectionable audio portions of the videotape.

885.44(12)(a)3. 3. Order the person showing the original videotape at trial to suppress the objectionable audio and video portions of the videotape.

885.44(12)(b) (b) If the court enters an order under par. (a) 2., it shall, in jury trials, instruct the jury to disregard the video portions of the presentation when the audio portion is suppressed.