Chapter 885

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.

885.56(1)(g) (g) Whether the court is satisfied that it can sufficiently know and control the proceedings at the remote location so as to effectively extend the courtroom to the remote location.

885.56(1)(h) (h) Whether the participation of an individual from a remote location presents the person at the remote location in a diminished or distorted sense such that it negatively reflects upon the individual at the remote location to persons present in the courtroom.

885.56(1)(i) (i) Whether the use of videoconferencing diminishes or detracts from the dignity, solemnity, and formality of the proceeding so as to undermine the integrity, fairness, and effectiveness of the proceeding.

885.56(1)(j) (j) Whether the person proposed to appear by videoconferencing presents a significant security risk to transport and present personally in the courtroom.

885.56(1)(k) (k) Waivers and stipulations of the parties offered pursuant to s. 885.62.

885.56(1)(L) (L) Any other factors that the court may in each individual case determine to be relevant.

885.56(2) (2) The denial of the use of videoconferencing technology is not appealable.

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

885.56 Note Comment, 2008: Section 885.56 is intended to give the circuit court broad discretion to permit the use of videoconferencing technology when the technical and operation standards of s. 885.54 are met, while providing clear guidance in the exercise of that discretion. Under this section, the circuit court may permit the use of videoconferencing technology in almost any situation, even over objection, except as provided under s. 885.60. On the other hand, the court may deny the use of videoconferencing technology in any circumstance, regardless of the guidelines. This is consistent with the intent of this legislation to vest circuit courts with broad discretion to advance the use of videoconferencing technology in court proceedings under the standards and guidelines set out, but to reserve to courts the prerogative to deny its use without explanation. A circuit court’s denial of the use of videoconferencing is not appealable as an interlocutory order, but to the extent the denial involves issues related to a party’s ability to present its case and broader issues related to the presentation of evidence, the denial can be appealed as part of the appeal of the final judgment.

885.56 Annotation The criteria found in s. 807.13 (2) (c) for telephone testimony are similar in many ways to the criteria found in sub. (1) for videoconferencing testimony, and the procedure for requesting telephonic testimony under s. 807.13 (2) (c) is consistent with the procedure for requesting videoconferencing testimony under s. 885.60. However, s. 807.13 (2) does not apply to postconviction hearings. This section and s. 885.60 are the pertinent statutes that govern a circuit court’s consideration of a defendant’s motion for remote testimony. State v. Atwater, 2021 WI App 16, 396 Wis. 2d 535, 958 N.W.2d 533, 19-1977.

885.56 Annotation At the same time the Wisconsin Supreme Court promulgated this section, it included a comment that specifically describes the intent of sub. (2). Sub. (2) is intended to prevent interlocutory appeals of a circuit court’s decision granting or denying videoconferencing testimony. Sub. (2) allows a party to argue that the court erred when it granted or denied a motion for videoconferencing testimony—just as a party can argue that the court erred with regard to any other nonfinal decision leading up to a final decision that is appealable as a matter of right. State v. Atwater, 2021 WI App 16, 396 Wis. 2d 535, 958 N.W.2d 533, 19-1977.

885.58 885.58 Use in civil cases and special proceedings.

885.58(1) (1) Subject to the standards and criteria set forth in ss. 885.54 and 885.56 and to the limitations of sub. (2), a circuit court may, on its own motion or at the request of any party, in any civil case or special proceeding permit the use of videoconferencing technology in any pre-trial, trial, or post-trial hearing.

885.58(2) (2) 

885.58(2)(a) (a) A proponent of a witness via videoconferencing technology at any evidentiary hearing or trial shall file a notice of intention to present testimony by videoconference technology 30 days prior to the scheduled start of the proceeding. Any other party may file an objection to the testimony of a witness by videoconferencing technology within 10 days of the filing of the notice of intention. If the time limits of the proceeding do not permit the time periods provided for in this paragraph, the court may in its discretion shorten the time to file notice of intention and objection.

885.58(2)(b) (b) The court shall determine the objection in the exercise of its discretion under the criteria set forth in s. 885.56.

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

885.58 Note Comment, 2008: Regarding section 885.58, civil cases and special proceedings in general pose few problems of constitutional dimension concerning the use of videoconferencing technology and offer litigants the potential of significant savings in trial expenses. For these reasons, this technology will likely gain rapid acceptance resulting in expanding use. Where objections are raised, the rule provides that the circuit court will resolve the issue pursuant to the standards and decisional guidance set out in ss. 885.54 and 885.56.

885.60 885.60 Use in criminal cases and proceedings under chapters 48, 51, 55, 938, and 980.

885.60(1) (1) Subject to the standards and criteria set forth in ss. 885.54 and 885.56 and to the limitations of sub. (2), a circuit court may, on its own motion or at the request of any party, in any criminal case or matter under chs. 48, 51, 55, 938, or 980, permit the use of videoconferencing technology in any pre-trial, trial or fact-finding, or post-trial proceeding.

885.60(2) (2) 

885.60(2)(a) (a) Except as may otherwise be provided by law, a defendant in a criminal case and a respondent in a matter listed in sub. (1) is entitled to be physically present in the courtroom at all trials and sentencing or dispositional hearings.

885.60(2)(b) (b) A proponent of a witness via videoconferencing technology at any evidentiary hearing, trial, or fact-finding hearing shall file a notice of intention to present testimony by videoconference technology 20 days prior to the scheduled start of the proceeding. Any other party may file an objection to the testimony of a witness by videoconference technology within 10 days of the filing of the notice of intention. If the time limits of the proceeding do not permit the time periods provided for in this paragraph, the court may in its discretion shorten the time to file notice of intention and objection.

885.60(2)(c) (c) If an objection is made by the plaintiff or petitioner in a matter listed in sub. (1), the court shall determine the objection in the exercise of its discretion under the criteria set forth in s. 885.56.

885.60(2)(d) (d) If an objection is made by the defendant or respondent in a matter listed in sub. (1), regarding any proceeding where he or she is entitled to be physically present in the courtroom, the court shall sustain the objection. For all other proceedings in a matter listed in sub. (1), the court shall determine the objection in the exercise of its discretion under the criteria set forth in s. 885.56.

885.60 History History: Sup. Ct. Order No. 07-12, 2008 WI 37, 305 Wis. 2d xli; 2011 a. 32.

885.60 Note Comment, 2008: It is the intent of s. 885.60 to scrupulously protect the rights of criminal defendants and respondents in matters which could result in loss of liberty or fundamental rights with respect to their children by preserving to such litigants the right to be physically present in court at all critical stages of their proceedings. This section also protects such litigants’ rights to adequate representation by counsel by eliminating the potential problems that might arise where counsel and litigants are either physically separated, or counsel are with litigants at remote locations and not present in court.

885.60 Annotation “Critical stages of the proceedings” is not defined under this section, but incorporates existing law as well as new law as it is adopted or decided. This section is not intended to create new rights in litigants to be physically present which they do not otherwise possess; it is intended merely to preserve such rights, and to avoid abrogating by virtue of the adoption of this subchapter any such rights.

885.60 Annotation This section is also intended to preserve constitutional and other rights to confront and effectively cross-examine witnesses. It provides the right to prevent the use of videoconferencing technology to present such adverse witnesses, but rather require that such witnesses be physically produced in the courtroom. In requiring a defendant’s objection to the use of videoconferencing to be sustained, this section also preserves the defendant’s speedy trial rights intact.