Chapter 885

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.

885.44(12)(c) (c) If the court enters an order under par. (a) 3., it shall, in jury trials, instruct the jury to disregard any deletions apparent in the playing of the videotape.

885.44(13) (13) Copying and transcribing.

885.44(13)(a) (a) Upon the request of any party or other person authorized by the court, the official shall provide, at the cost of the party or person, a copy of a deposition in the form of a videotape, a written transcript, or an audio recording.

885.44(13)(b) (b) When an official makes a copy of the videotape deposition in the form of a videotape or audio recording, the official shall attach a written certification to the copy. The certification shall state that the copy is a true record of the videotape testimony of the witness.

885.44(13)(c) (c) When an official makes a copy of the videotape deposition in the form of a written transcript, the official shall attach a written certification and serve the transcript pursuant to s. 804.05 (7).

885.44(14) (14) Objections at trial. Objections made at trial which have not been waived or previously raised and ruled upon shall be made before the videotape deposition is presented. The trial judge shall rule on such objections prior to the presentation of the videotape. If an objection is sustained, that portion of the videotape containing the objectionable testimony shall be deleted in the manner provided in sub. (12).

885.44 History History: Sup. Ct. Order, 67 Wis. 2d vii, xiii (1975); 1975 c. 218; Sup. Ct. Order, 141 Wis. 2d xxxv (1987); 1999 a. 85.

885.44 Note Judicial Council Committee’s Note, 1975: Subs. (2) through (5) set out the mechanical procedures for the taking of a videotape deposition. These procedures are included to ensure uniformity throughout Wisconsin. In addition, they ensure proper identification of the contents of a videotape deposition and protect against tampering. Sub. (5) is not intended to affect the provisions in other statutes on objections but is included as part of videotape deposition procedure to facilitate possible editing. It is based on a similar Ohio rule.

885.44 Annotation Sub. (6) contemplates that, as with regular depositions, the large majority of witnesses at a videotape deposition do not desire to review the deposition upon its completion.

885.44 Annotation Subs. (7) and (8) set out the procedure for certification of a videotape deposition. Certification by the official taking the deposition must also be made of a copy or audio recording of a videotape deposition and of an edited version of a deposition.

885.44 Annotation Sub. (9) allows for an expansion of time for motions on videotape objections if the parties stipulate to the additional time.

885.44 Annotation Sub. (11) requires that any editing of a videotape deposition required by a court ruling favorably on an objection can only be done by a court order. It also requires that the parties and the objecting witness receive copies of both the court’s ruling on objections and order for editing.

885.44 Annotation Sub. (12) sets out the alternatives that the court may use in ordering editing of a videotape deposition. It is included to facilitate the most expeditious and least expensive method of editing.

885.44 Annotation Sub. (13). Access to videotape recordings after filing is by court order and subject to terms prescribed by the court in order to protect the integrity of such recordings.

885.44 Annotation Sub. (14). Objections to a videotape deposition not previously resolved that are made at trial must be made prior to the actual showing of the videotape at the trial. This procedure assures timely raising of objections. [Re Order effective Jan. 1, 1976]

885.44 Note Judicial Council Note, 1988: Videotape depositions, like other discovery documents, are no longer required to be filed in court. See s. 804.01 (6), Stats. [Re Order effective Jan. 1, 1988]

885.45 885.45 Videotape costs; depositions and trials.

885.45(1) (1) The expense of videotape as a material shall be borne by the proponent.

885.45(2) (2) The reasonable expense of recording testimony on videotape shall be costs in the action.

885.45(3) (3) The expense of playing the videotape recording at trial shall be borne by the proponent of the testimony. If the proponent is entitled to costs, the expense under this subsection shall be costs in the action, not to exceed for each witness or expert witness the maximum allowable cost for witness fees under ss. 814.04 (2) and 814.67 (1) (b) and (c).

885.45(4) (4) The expense of an audio reproduction of the videotape recording sound track used by the court in ruling on objections shall be costs in the action.

885.45(5) (5) The expense of playing the videotape recording for the purpose of ruling upon objections shall be borne by one or more parties as apportioned by the court in an equitable manner. If the party bearing the expense is entitled to costs, the expense under this subsection shall be costs in the action in an amount determined by the court.

885.45(6) (6) The expense of producing the edited version of the videotape recording shall be costs in the action, provided that the expense of the videotape, as a material, shall be borne by the proponent of the testimony.

885.45(7) (7) The expense of a copy of the videotape recording and the expense of an audiotape recording of the videotape sound track shall be borne by the party requesting the copy.

885.45 History History: Sup. Ct. Order, 67 Wis. 2d vii (1975); 1983 a. 256.

885.45 Note Judicial Council Committee’s Note, 1975: This provision sets out the application of costs in the use of videotape procedure. Costs are allocated in an equitable manner between the proponent and the court or are considered costs in the action. [Re Order effective Jan. 1, 1976]

885.46 885.46 Videotape custody and preservation. The official shall maintain secure and proper storage of the original videotape recording and any edited videotape recording until:

885.46(1) (1) The final disposition of the cause where no trial is had;

885.46(2) (2) The expiration of the appeal period following trial, provided no appeal is taken;

885.46(3) (3) The final determination of the cause if an appeal is taken.

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

885.46 Note Judicial Council Committee’s Note, 1975: Sub. (1). One of the advantages of videotape is its possible reuse in other legal proceedings but the proponent of any videotape testimony retains the responsibility for submitting a recording of sufficient quality.