Chapter 885

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.

885.46 Annotation Sub. (2). Release of videotape recordings may be done only by order of the court. Such release may only occur after completion of the proceeding for which the videotape has been used. [Re Order effective Jan. 1, 1976]

885.47 885.47 Videotape playback equipment.

885.47(1) (1) Playback equipment. Each court may establish rules providing for the availability of playback or reproducing equipment. Such rules shall provide for an adequately trained operator. Minimum playback equipment shall be a videotape player of a commonly available type and one monitor having at least a 14 inch diagonal screen. Color equipment is not required. If a party uses videotape which is not compatible with the available playback equipment, the party shall furnish playback equipment or convert the videotape to a format compatible with the available playback equipment at the party’s expense, which shall not be chargeable as costs.

885.47 History History: Sup. Ct. Order, 67 Wis. 2d xiii (1975); 1975 c. 218; Sup. Ct. Order, 101 Wis. 2d xi (1981); Sup. Ct. Order, 141 Wis. 2d xxxv (1987).

885.47 Note Judicial Council Committee’s Note, 1975: Sub. (2) [(1)]. Each court in Wisconsin is encouraged to establish rules for making available videotape playback or reproducing equipment. Such availability could be secured through purchase, leasing, rental, or borrowing from another court. Each court establishing such rules must provide for a trained videotape operator. [Re Order effective Jan. 1, 1976]

subch. III of ch. 885 SUBCHAPTER III

USE OF VIDEOCONFERENCING IN THE
CIRCUIT COURTS

885.50 885.50 Statement of intent.

885.50(1) (1) It is the intent of the Supreme Court that videoconferencing technology be available for use in the circuit courts of Wisconsin to the greatest extent possible consistent with the limitations of the technology, the rights of litigants and other participants in matters before the courts, and the need to preserve the fairness, dignity, solemnity, and decorum of court proceedings. Further, it is the intent of the Supreme Court that circuit court judges be vested with the discretion to determine the manner and extent of the use of videoconferencing technology, except as specifically set forth in this subchapter.

885.50(2) (2) In declaring this intent, the Supreme Court finds that careful use of this evolving technology can make proceedings in the circuit courts more efficient and less expensive to the public and the participants without compromising the fairness, dignity, solemnity, and decorum of these proceedings. The Supreme Court further finds that an open-ended approach to the incorporation of this technology into the court system under the supervision and control of judges, subject to the limitations and guidance set forth in this subchapter, will most rapidly realize the benefits of videoconferencing for all concerned.

885.50(3) (3) In declaring this intent, the Supreme Court further finds that improper use of videoconferencing technology, or use in situations in which the technical and operational standards set forth in this subchapter are not met, can result in abridgement of fundamental rights of litigants, crime victims, and the public, unfair shifting of costs, and loss of the fairness, dignity, solemnity, and decorum of court proceedings that is essential to the proper administration of justice.

885.50 History History: Sup. Ct. Order No. 07-12, 2008 WI 37, 305 Wis. 2d xli.

885.50 Note Comment, 2008: Section 885.50 is intended to recognize and summarize the larger debate concerning the use of videoconferencing technology in the courts, and to provide a clear statement of the Supreme Court’s intent concerning such use, which should be helpful guidance to litigants, counsel and circuit and appellate courts in interpreting and applying these rules.

885.50 Annotation This subchapter is not intended to give circuit court judges the authority to compel county boards to acquire, maintain or replace videoconferencing equipment. Rather, it is intended to provide courts with authority and guidance in the use of whatever videoconferencing equipment might be made available to them.

885.50 Annotation Bridging the Distance: Videoconferencing in Wisconsin Circuit Courts. Leineweber. Wis. Law. July 2008.

885.52 885.52 Definitions. In this subchapter:

885.52(1) (1) “Circuit court” includes proceedings before circuit court judges and commissioners, and all references to circuit court judges include circuit court commissioners.

885.52(2) (2) “Participants” includes litigants, counsel, witnesses while on the stand, judges, and essential court staff, but excludes other interested persons and the public at large.

885.52(3) (3) “Videoconferencing” means an interactive technology that sends video, voice, and data signals over a transmission circuit so that two or more individuals or groups can communicate with each other simultaneously using video monitors.

885.52 History History: Sup. Ct. Order No. 07-12, 2008 WI 37, 305 Wis. 2d xli.

885.54 885.54 Technical and operational standards.

885.54(1) (1) Videoconferencing technology used in circuit court proceedings shall meet the following technical and operational standards:

885.54(1)(a) (a) Participants shall be able to see, hear, and communicate with each other.

885.54(1)(b) (b) Participants shall be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceeding.

885.54(1)(c) (c) Video and sound quality shall be adequate to allow participants to observe the demeanor and non-verbal communications of other participants and to clearly hear what is taking place in the courtroom to the same extent as if they were present in the courtroom.

885.54(1)(d) (d) Parties and counsel at remote locations shall be able, upon request, to have the courtroom cameras scan the courtroom so that remote participants may observe other persons present and activities taking place in the courtroom during the proceedings.

885.54(1)(e) (e) In matters set out in par. (g), counsel for a defendant or respondent shall have the option to be physically present with the client at the remote location, and the facilities at the remote location shall be able to accommodate counsel’s participation in the proceeding from such location. Parties and counsel at remote locations shall be able to mute the microphone system at that location so that there can be private, confidential communication between them.

885.54(1)(f) (f) If applicable, there shall be a means by which documents can be transmitted between the courtroom and the remote location.

885.54(1)(g) (g) In criminal matters, and in proceedings under chs. 48, 51, 55, 938, and 980, if not in each other’s physical presence, a separate private voice communication facility shall be available so that the defendant or respondent and his or her attorney are able to communicate privately during the entire proceeding.

885.54(1)(h) (h) The proceeding at the location from which the judge is presiding shall be visible and audible to the jury and the public, including crime victims, to the same extent as the proceeding would be if not conducted by videoconferencing.

885.54(2) (2) The moving party, including the circuit court, shall certify that the technical and operational standards at the court and the remote location are in compliance with the requirements of sub. (1).

885.54 History History: Sup. Ct. Order No. 07-12, 2008 WI 37, 305 Wis. 2d xli; Sup. Ct. Order No. 08-21, 2008 WI 111, filed 7-30-08.

885.54 Note Comment, 2008: Section 885.54 is intended to establish stringent technical and operational standards for the use of videoconferencing technology over objection, and in considering approval by the circuit court of waivers or stipulations under s. 885.62. Mobile cart-based systems will not meet these standards in many or even most situations, but may still be used pursuant to a waiver or stipulation approved by the court. The effect will be to encourage the installation of multiple camera systems, while still allowing the use of cart-based systems when participants are in agreement to do so, which is likely to be much of the time.

885.56 885.56 Criteria for exercise of court’s discretion.

885.56(1) (1) In determining in a particular case whether to permit the use of videoconferencing technology and the manner of proceeding with videoconferencing, the circuit court may consider one or more of the following criteria:

885.56(1)(a) (a) Whether any undue surprise or prejudice would result.

885.56(1)(b) (b) Whether the proponent of the use of videoconferencing technology has been unable, after a diligent effort, to procure the physical presence of a witness.

885.56(1)(c) (c) The convenience of the parties and the proposed witness, and the cost of producing the witness in person in relation to the importance of the offered testimony.

885.56(1)(d) (d) Whether the procedure would allow for full and effective cross-examination, especially when the cross-examination would involve documents or other exhibits.

885.56(1)(e) (e) The importance of the witness being personally present in the courtroom where the dignity, solemnity, and decorum of the surroundings will impress upon the witness the duty to testify truthfully.

885.56(1)(f) (f) Whether a physical liberty or other fundamental interest is at stake in the proceeding.