Chapter 967

CHAPTER 967

CRIMINAL PROCEDURE — GENERAL PROVISIONS

967.01   Title and effective date.

967.02   Words and phrases defined.

967.03   District attorneys.

967.04   Depositions in criminal proceedings.

967.05   Methods of prosecution.

967.055   Prosecution of offenses; operation of a motor vehicle or motorboat; alcohol, intoxicant or drug.

967.057   Prosecution decisions based on contributions to organizations and agencies.

967.06   Determination of indigency; appointment of counsel; preparation of record.

967.07   Circuit court commissioners.

967.08   Telephone or live audiovisual proceedings.

967.09   Interpreters may serve by telephone or video.

967.10   Waiting area for victims and witnesses.

967.11   Alternatives to prosecution and incarceration; monitoring participants.

967.12   Electronic filing.

967.01 967.01 Title and effective date. Chapters 967 to 979 may be referred to as the criminal procedure code and shall be interpreted as a unit. Chapters 967 to 979 shall govern all criminal proceedings and is effective on July 1, 1970. Chapters 967 to 979 apply in all prosecutions commenced on or after that date. Prosecutions commenced prior to July 1, 1970, shall be governed by the law existing prior thereto.

967.01 History History: 1979 c. 89.

967.02 967.02 Words and phrases defined. In chs. 967 to 979, unless the context of a specific section manifestly requires a different construction:

967.02(1d) (1d) “Bail” means the amount of money set by the court which is required to be obligated and secured as provided by law for the release of a person in custody so that the person will appear before the court in which the person’s appearance may be required and that the person will comply with such conditions as are set forth in the bail bond.

967.02(1h) (1h) “Bond” means an undertaking either secured or unsecured entered into by a person in custody by which the person binds himself or herself to comply with such conditions as are set forth therein.

967.02(1p) (1p) “Clerk” means clerk of circuit court of the county including the clerk’s deputies.

967.02(1t) (1t) “Court” means the circuit court unless otherwise indicated.

967.02(2) (2) “Department” means the department of corrections, except as provided in ss. 971.14 and 975.001.

967.02(2m) (2m) “Judge” means judge of a court of record.

967.02(3m) (3m) “Judgment” means an adjudication by the court that the defendant is guilty or not guilty.

967.02(5) (5) “Law enforcement officer” means any person who by virtue of the person’s office or public employment is vested by law with the duty to maintain public order or to make arrests for crimes while acting within the scope of the person’s authority.

967.02 History History: 1971 c. 298; 1977 c. 323, 449; 1979 c. 89; 1989 a. 31; 1993 a. 486; 1995 a. 27; 1997 a. 27; 2009 a. 214; 2015 a. 196.

967.02 Annotation A John Doe judge is not the equivalent of a court, and a John Doe proceeding is not a proceeding in a court of record. State v. Washington, 83 Wis. 2d 808, 266 N.W.2d 597 (1978).

967.03 967.03 District attorneys. Wherever in chs. 967 to 980 powers or duties are imposed upon district attorneys, the same powers and duties may be discharged by any of their duly qualified deputies or assistants.

967.03 History History: 1979 c. 89; 2005 a. 434.

967.04 967.04 Depositions in criminal proceedings.

967.04(1) (1) If it appears that a prospective witness may be unable to attend or prevented from attending a criminal trial or hearing, that the prospective witness’s testimony is material and that it is necessary to take the prospective witness’s deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion and notice to the parties order that the prospective witness’s testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. If a witness is committed pursuant to s. 969.01 (3), the court shall direct that the witness’s deposition be taken upon notice to the parties. After the deposition has been subscribed, the court shall discharge the witness.

967.04(2) (2) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time. Upon request of all defendants, unless good cause to the contrary is shown, the court may order that a deposition under this section be taken on the record by telephone or live audiovisual means.

967.04(3) (3) A deposition shall be taken as provided in civil actions. At the request of a party, the court may direct that a deposition be taken on written interrogatories as provided in civil actions.

967.04(4) (4) 

967.04(4)(a) (a) If the state or a witness procures such an order, the notice shall inform the defendant that the defendant is required to personally attend at the taking of the deposition and that the defendant’s failure so to do is a waiver of the defendant’s right to face the witness whose deposition is to be taken. Failure to attend shall constitute a waiver unless the defendant was physically unable to attend.

967.04(4)(b) (b) If the defendant is not in custody, the defendant shall be paid witness fees for travel and attendance. If the defendant is in custody, the defendant’s custodian shall, at county expense, produce the defendant at the taking of the deposition. If the defendant is in custody, leave to take a deposition on motion of the state shall not be granted unless all states which the custodian will enter with the defendant in going to the place the deposition is to be taken have conferred upon the officers of this state the right to convey prisoners in and through them.

967.04(5) (5) 

967.04(5)(a) (a) At the trial or upon any hearing, a part or all of a deposition, so far as it is otherwise admissible under the rules of evidence, may be used if any of the following conditions appears to have been met:

967.04(5)(a)1. 1. The witness is dead.

967.04(5)(a)2. 2. The witness is out of state, unless it appears that the absence of the witness was procured by the party offering the deposition.

967.04(5)(a)3. 3. The witness is unable to attend or testify because of sickness or infirmity.

967.04(5)(a)4. 4. The party offering the deposition has been unable to procure the attendance of the witness by subpoena.

967.04(5)(b) (b) Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to offer all of it which is relevant to the part offered and any party may offer other parts.

967.04(6) (6) Objections to receiving in evidence a deposition may be made as in civil actions.

967.04(7) (7) 

967.04(7)(a) (a) In any criminal prosecution or any proceeding under ch. 48 or 938, any party may move the court to order that a deposition of a child who has been or is likely to be called as a witness be taken by audiovisual means. Upon notice and hearing, the court may issue an order for such a deposition if the trial or hearing in which the child may be called will commence:

967.04(7)(a)1. 1. Prior to the child’s 12th birthday; or

967.04(7)(a)2. 2. Prior to the child’s 16th birthday and the court finds that the interests of justice warrant that the child’s testimony be prerecorded for use at the trial or hearing under par. (b).

967.04(7)(b) (b) Among the factors which the court may consider in determining the interests of justice are any of the following:

967.04(7)(b)1. 1. The child’s chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.

967.04(7)(b)2. 2. The child’s general physical and mental health.

967.04(7)(b)3. 3. Whether the events about which the child will testify constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.

967.04(7)(b)4. 4. The child’s custodial situation and the attitude of other household members to the events about which the child will testify and to the underlying proceeding.

967.04(7)(b)5. 5. The child’s familial or emotional relationship to those involved in the underlying proceeding.

967.04(7)(b)6. 6. The child’s behavior at or reaction to previous interviews concerning the events involved.

967.04(7)(b)7. 7. Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the child’s prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child’s subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.