No officer, clerk, agent, employe or servant of any corporation or limited liability company in any such action may be excused from attending or testifying or from producing books, papers, tariffs, contracts, agreements, records, files or documents, in his or her possession or under his or her control, in obedience to the subpoena of any court in which any such civil action is pending or before any officer or court empowered or authorized to take deposition or testimony in any such action, in obedience to the subpoena of the officer or court, or of any officer or court empowered to issue a subpoena in that behalf, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him or her, may tend to incriminate him or her or subject him or her to a penalty or a forfeiture, but no such officer, clerk, agent, employe or servant shall be prosecuted, or subjected to any penalty or forfeiture, for or on account of testifying or producing evidence, documentary or otherwise, before the court or officer, or any court or officer empowered to issue subpoena in that behalf, or in any such case or proceeding except a prosecution for perjury or false swearing in giving the testimony.
The immunity provided under sub. (2)
is subject to the restrictions under s. 972.085
In case of the failure or neglect of any corporation or limited liability company, or of any such officer, clerk, agent, employe or servant, to produce any such book, paper, tariff, contract, agreement, record, file or document, secondary evidence of the contents of any or either of the same may be given, and such secondary evidence shall be of the same force and effect as the original.
History: 1989 a. 122
; 1993 a. 112
Since the immunity which attaches under (2) or 77.61 (12), Stats. 1969, is merely coextensive with a defendant's 5th amendment rights against self-incrimination, and since the 5th amendment privilege does not attach to the records of a corporation, defendants' claim of immunity has no merit. State v. Alioto, 64 W (2d) 354, 219 NW (2d) 585.
Settlement and advance payment of claim for damages. 885.285(1)(1)
No admission of liability shall be inferred from the following:
A settlement with or any payment made to an injured person, or to another on behalf of any injured person, or any person entitled to recover damages on account of injury or death of such person; or
A settlement with or any payment made to a person or on the person's behalf to another for injury to or destruction of property.
Any settlement or payment under sub. (1)
is not admissible in any legal action unless pleaded as a defense.
Any settlement or advance payment under sub. (1)
shall be credited against any final settlement or judgment between the parties. Upon motion to the court in the absence of the jury and on submission of proper proof prior to entry of judgment on a verdict, the court shall apply the provisions of s. 895.045
and then shall reduce the amount of the damages so determined by the amount of the payments made. Any rights of contribution between joint tort-feasors shall be determined on the amount of the verdict prior to reduction because of a settlement or advance payment.
The period fixed for the limitation for the commencement of actions shall be as provided by s. 893.12
History: 1975 c. 327
; 1979 c. 323
See note to 893.12, citing Abraham v. Milwaukee Mutual Insurance Co. 115 W (2d) 678, 341 NW (2d) 414 (Ct. App. 1983).
See note to 893.12, citing Riley v. Doe, 152 W (2d) 766, 449 NW (2d) 83 (Ct. App. 1989).
Recorded telephone conversation. 885.365(1)
Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state in civil actions, except as provided in ss. 968.28
Such recording is made in a manner other than by interception and the person whose conversation is being recorded is informed at that time that the conversation is being recorded and that any evidence thereby obtained may be used in a court of law; or such recording is made through a recorder connector provided by the telecommunications utility as defined in s. 196.01 (10)
or a telecommunications carrier as defined in s. 196.01 (8m)
in accordance with its tariffs and which automatically produces a distinctive recorder tone that is repeated at intervals of approximately 15 seconds;
The recording is made by a telecommunications utility as defined in s. 196.01 (10)
, a telecommunications carrier as defined in s. 196.01 (8m)
or its officers or employes for the purpose of or incident to the construction, maintenance, conduct or operation of the services and facilities of such public utilities, or to the normal use by such public utilities of the services and facilities furnished to the public by such public utility; or
The recording is made by a fire department or law enforcement agency to determine violations of, and in the enforcement of, s. 941.13
Interpreters for persons with language difficulties or hearing or speaking impairments. 885.37(1)(a)(a)
If a court has notice that a person fits any of the following criteria, the court shall make the determinations specified under par. (b)
If a court has notice that a person who fits any of the criteria under par. (a)
has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the court shall make a factual determination of whether the language difficulty or the hearing or speaking impairment is sufficient to prevent the individual from communicating with his or her attorney, reasonably understanding the English testimony or reasonably being understood in English. If the court determines that an interpreter is necessary, the court shall advise the person that he or she has a right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided for him or her at the public's expense. Any waiver of the right to an interpreter is effective only if made voluntarily in person, in open court and on the record.
A court may authorize the use of an interpreter in actions or proceedings in addition to those specified in sub. (1)
"Agency" includes any official, employe or person acting on behalf of an agency.
"Contested case" means a proceeding before an agency in which, after a hearing required by law, substantial interests of any party to the proceeding are determined or adversely affected by a decision or order in the proceeding and in which the assertion by one party of any such substantial interest is denied or controverted by another party to the proceeding.
In any administrative contested case proceeding before a state, county or municipal agency, if the agency conducting the proceeding has notice that a party to the proceeding has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the agency shall make a factual determination of whether the language difficulty or hearing or speaking impairment is sufficient to prevent the party from communicating with others, reasonably understanding the English testimony or reasonably being understood in English. If the agency determines that an interpreter is necessary, the agency shall advise the party that he or she has a right to a qualified interpreter. After considering the party's ability to pay and the other needs of the party, the agency may provide for an interpreter for the party at the public's expense. Any waiver of the right to an interpreter is effective only if made at the administrative contested case proceeding.
Any agency may authorize the use of an interpreter in a contested case proceeding for a person who is not a party but who has a substantial interest in the proceeding.
The necessary expense of furnishing an interpreter for an indigent person under sub. (1)
shall be paid as follows:
In the supreme court or the court of appeals, the director of state courts shall pay the expense.
In circuit court, the director of state courts shall pay the expense.
To assist the state public defender in representing an indigent in preparing for court proceedings, the state public defender shall pay the expense.
In municipal court, the municipality shall pay the expense.
The necessary expense of furnishing an interpreter for an indigent party under sub. (3)
shall be paid by the unit of government for which the proceeding is held.
The court or agency shall determine indigency under this section.
If a court under sub. (1)
or an agency under sub. (3)
decides to appoint an interpreter, the court or agency shall follow the applicable procedure under par. (b)
The department of health and family services shall maintain a list of qualified interpreters for use with persons who have hearing impairments. The department shall distribute the list, upon request and without cost, to courts and agencies who must appoint interpreters. If an interpreter needs to be appointed for a person who has a hearing impairment, the court or agency shall appoint a qualified interpreter from the list. If no listed interpreter is available or able to interpret, the court or agency shall appoint as interpreter another person who is able to accurately communicate with and convey information to and receive information from the hearing-impaired person.
If an interpreter needs to be appointed for a person with an impairment or difficulty not covered under par. (b)
, the court or agency may appoint any person the court or agency decides is qualified.
Sup. Ct. Order, 67 W (2d) 585, 760 (1975); 1975 c. 106
; Stats. 1975 s. 885.37; 1985 a. 266
; 1987 a. 27
; 1995 a. 27
, 9126 (19)
; 1995 a. 77
The cost of providing an interpreter under this section is shared; the public defender paying out-of-court costs and the director of state courts paying in-court costs. State v. Tai V. Le, 184 W (2d) 860, 517 NW (2d) 144 (1994).
A court has notice of language difficulty under sub. (1) (b) when it becomes aware that a defendant's difficulty with English may impair his or her 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 W (2d) 721, 549 NW (2d) 769 (Ct. App. 1996).
Applicability. Sections 885.40
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.
History: Sup. Ct. Order, 67 W (2d) vii (1975).
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]
Sections 885.40 to 885.47 did not apply to police videotape of drunk driver. State v. Haefer, 110 W (2d) 381, 328 NW (2d) 894 (Ct. App. 1982).
Legal applications of videotape. Benowitz, 1974 WBB No. 3.
Videotaping is a visual or simultaneous audiovisual electronic recording.
Operator means a person trained to operate video equipment and may be an official qualified under s. 804.03
Sup. Ct. Order, 67 W (2d) vii (1975); 1987 a. 403
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]
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
, ch. 804
governing the practice and procedure in depositions and discovery shall apply.
(2) Other evidence.
Such other evidence as is appropriate may be recorded by videotape and be presented at a trial.
(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.
(4) Trial record.
At trial, videotape depositions and other testimony presented by videotape shall be reported.
Sup. Ct. Order, 67 W (2d) 585, xii (1975); 1975 c. 218
; 1987 a. 403
Judicial Council Committee's Note, 1975: Sub. (1). The definition of depositions is meant to include adverse examinations prior to trial.
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.
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.
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]
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
History: Sup. Ct. Order, 67 W (2d) 585, xii (1975); Sup. Ct. Order, 141 W (2d) xxv. (1987)
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]
Judicial Council Note, 1988. Videotape depositions are no longer required to be filed in court. [Re Order effective Jan. 1, 1988]
Videotape deposition procedure. 885.44(1)
Videotape depositions may be taken by persons authorized by s. 804.03
(2) Required information.
The deposition shall begin by the operator stating on camera:
The name and business address of the operator's employer;
The date, time and place of the deposition;
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.
More than one camera may be used, either in sequence or simultaneously.
(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.