No witness on behalf of the state in any civil action, matter or proceeding, on behalf of either party in any criminal action or proceeding, on behalf of a municipality in a forfeiture action or on behalf of an indigent respondent in a paternity proceeding shall be entitled to any fee in advance, but shall be obliged to attend upon the service of a subpoena as therein lawfully required.
History: 1983 a. 368
; 1987 a. 201
A "witness on behalf of the state" is one who is expected to provide relevant testimony or evidence for the state. The witness may be hostile to the state. State v. Kielisch, 123 Wis. 2d 125
, 365 N.W.2d 904
(Ct. App. 1985).
State witnesses in civil actions and municipal witnesses in forfeiture actions, how paid.
Every witness on behalf of the state in any civil action or proceeding may file with the clerk of the court where the same is pending the witness's affidavit of attendance and travel, and the witness's fees shall, upon the certificate of such clerk, countersigned by the attorney general, district attorney, or acting state's attorney, be paid out of the state treasury, and shall be charged to the legal expense appropriation to the attorney general. In forfeiture actions by municipalities the clerk shall tax witness fees; however witness fees for police officers of any such municipality when collected shall be paid by the clerk to the treasurer of the municipality.
History: 1993 a. 486
State witnesses in criminal cases, how paid.
The fees of witnesses on the part of the state in every criminal action or proceeding, and of every person who is committed to jail in default of security for the person's appearance as a witness, shall be paid by the county in which the action or proceeding is had. The clerk of the court upon proof of the witness's or committed person's attendance, travel or confinement shall give each such witness or person a certificate of the number of days' attendance or confinement, the number of miles traveled, and the amount of compensation due the witness or committed person, which certificate shall be receipted for by such witness or person, and the county treasurer shall pay the amount thereof on surrender of the certificate.
History: 1993 a. 486
For fees of expert witnesses, see s. 971.16 (1)
Compensation of nonresident or indigent witness.
If a witness attends a court of record in behalf of the state and it appears that the witness came from outside this state or is indigent, the court may order that the witness be paid a specific reasonable sum for expenses and attendance, in lieu of fees. The clerk shall give a certificate for the sum, with a copy of the order affixed, and the certificate shall be paid as other court certificates are paid.
History: 1987 a. 403
Witness for indigent respondent or defendant.
Upon satisfactory proof of the financial inability of the respondent or defendant to procure the attendance of witnesses for his or her defense, the judge or supplemental court commissioner, in any paternity proceeding or criminal action or proceeding, or in any other case in which the respondent or defendant is represented by the state public defender or by assigned counsel under s. 977.08
, to be tried or heard before him or her, may direct the witnesses to be subpoenaed as he or she determines is proper and necessary, upon the respondent's or defendant's oath or affidavit or that of the respondent's or defendant's attorney. Witnesses so subpoenaed shall be paid their fees in the manner that witnesses for the state therein are paid. Determination of indigency, in full or in part, under s. 977.07
is proof of the respondent's or defendant's financial inability to procure the attendance of witnesses for his or her defense.
Disobedient witness. 885.11(1)
If any person obliged to attend as a witness shall fail to do so without any reasonable excuse, the person shall be liable to the aggrieved party for all damages occasioned by such failure, to be recovered in an action.
(2) Attendance compelled.
Every court, in case of unexcused failure to appear before it, may issue an attachment to bring such witness before it for the contempt, and also to testify.
(3) Punishment in courts.
Inexcusable failure to attend any court of record is a contempt of the court, punishable by a fine not exceeding $200.
Unexcused failure to attend a court not of record shall be a contempt, and the witness shall be fined all the costs of the witness's apprehension, unless the witness shall show reasonable cause for his or her failure; in which case the party procuring the witness to be apprehended shall pay said costs.
(5) Striking out pleading.
If any party to an action or proceeding shall unlawfully refuse or neglect to appear or testify or depose therein, either within or without the state, the court may, also, strike out the party's pleading, and give judgment against the party as upon default or failure of proof.
History: 1987 a. 155
; 1993 a. 486
See also s. 804.12 (4)
regarding failure to appear at deposition.
Sub. (5) is broad enough to include the failure to produce documents at a discovery examination, but a party cannot delay 7 years before making the motion to strike the pleading. "Unlawfully" means without legal excuse, which must be determined at a hearing. Gipson Lumber Co. v. Schickling, 56 Wis. 2d 164
, 201 N.W.2d 500
The trial court did not abuse its discretion in dismissing a plaintiff's complaint for failure to comply with a discovery order. Furrenes v. Ford Motor Co. 79 Wis. 2d 260
, 255 N.W.2d 511
Coercing witnesses before officers and boards.
If any person, without reasonable excuse, fails to attend as a witness, or to testify as lawfully required before any arbitrator, coroner, medical examiner, board, commission, commissioner, examiner, committee, or other officer or person authorized to take testimony, or to produce a book or paper which the person was lawfully directed to bring, or to subscribe the person's deposition when correctly reduced to writing, any judge of a court of record or a circuit court commissioner in the county where the person was obliged to attend may, upon sworn proof of the facts, issue an attachment for the person, and unless the person shall purge the contempt and go and testify or do such other act as required by law, may commit the person to close confinement in the county jail until the person shall so testify or do such act, or be discharged according to law. The sheriff of the county shall execute the commitment.
See s. 785.06
Disclosure of information and sources by news person. 885.14(1)(1)
In this section, "news person" means any of the following:
Any business or organization that, by means of print, broadcast, photographic, mechanical, electronic, or other medium, disseminates on a regular and consistent basis news or information to the public, including a newspaper, magazine, or other periodical; book publisher; news agency; wire service; radio or television station or network; cable or satellite network, service, or carrier; or audio or audiovisual production company; and a parent, subsidiary, division, or affiliate of any of these businesses or organizations.
Any person who is or has been engaged in gathering, receiving, preparing, or disseminating news or information to the public for an entity described in par. (a)
, including any person supervising or assisting the person in gathering, receiving, preparing, or disseminating such news or information.
(2) Subpoenas issued to news person. 885.14(2)(a)(a)
Except as provided in par. (b)
, no person having the power to issue a subpoena may issue a subpoena compelling a news person to testify about or produce or disclose any of the following that is obtained or prepared by the news person in the news person's capacity in gathering, receiving, or preparing news or information for potential dissemination to the public:
The identity of a confidential source of any news or information.
Any information that would tend to identify the confidential source of any news or information.
Any news or information obtained or prepared in confidence by the news person.
Any news, information, or identity of any source of any news or information that is not described in subd. 1.
, or 3.
Procedure before courts.
Subject to par. (c)
, a circuit court may issue a subpoena to compel a news person to testify about or disclose or produce any news, information, or identity of any source as specified in par. (a) 4.
if the court finds, after notice to and an opportunity to be heard by the news person that the person requesting the subpoena established, based on information obtained from a person other than the news person, one of the following by clear and convincing evidence:
In a criminal prosecution or investigation that there are reasonable grounds to believe that a crime has occurred.
In a civil action or proceeding that the complaint states a claim upon which relief may be granted.
A circuit court may issue a subpoena under par. (b)
only if all of the following conditions are met:
The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.
The news, information, or identity of the source is necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.
The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.
There is an overriding public interest in the disclosure of the news, information, or identity of the source.
(3) Subpoenas issued to persons other than news persons.
No person having the power to issue a subpoena may issue a subpoena to compel a person other than a news person to testify about or produce or disclose, information, records, or communications relating to a business transaction between that person and the news person if the purpose of the subpoena is to discover any of the items listed in sub. (2) (a) 1.
A disclosure to another person or dissemination to the public of news, information, or the identity of a source as described in sub. (2) (a) 1.
by a news person does not constitute a waiver of the protection from compelled disclosure under sub. (2)
Any news, information, records, communications, or the identity of a source of any news or information obtained in violation of this section are inadmissible for any purpose in any judicial, legislative, or administrative action, proceeding, or hearing.
History: 2009 a. 400
No person may be excused from attending, testifying or producing books, papers, and documents before any court in a prosecution under s. 134.05
on the ground or for the reason that the testimony or evidence required of him or her may tend to incriminate him or her, or to subject him or her to a penalty or forfeiture. No person who testifies or produces evidence in obedience to the command of the court in the prosecution may be liable to any suit or prosecution, civil or criminal, for or on account of testifying or producing evidence; provided, that no person may be exempted from prosecution and punishment for perjury committed in so testifying.
The immunity provided under sub. (1)
is subject to the restrictions under s. 972.085
History: 1989 a. 122
Transactions with deceased or insane persons.
No party or person in the party's or person's own behalf or interest, and no person from, through or under whom a party derives the party's interest or title, shall be examined as a witness in respect to any transaction or communication by the party or person personally with a deceased or insane person in any civil action or proceeding, in which the opposite party derives his or her title or sustains his or her liability to the cause of action from, through or under such deceased or insane person, or in any action or proceeding in which such insane person is a party prosecuting or defending by guardian, unless such opposite party shall first, in his or her own behalf, introduce testimony of himself or herself or some other person concerning such transaction or communication, and then only in respect to such transaction or communication of which testimony is so given or in respect to matters to which such testimony relates. And no stockholder, officer or trustee of a corporation in its behalf or interest, and no stockholder, officer or trustee of a corporation from, through or under whom a party derives the party's interest or title, shall be so examined, except as aforesaid.
History: 1993 a. 486 885.16 Annotation
Under the dead man's statute if an objection properly made is overruled, the objecting counsel can cross-examine without risk of waiving the objection. However, if an examination exceeds the scope of the direct examination by questions "beyond the scope," and the examiner elicits the very information sought to excluded, such examination "beyond the scope" constitutes a waiver of the objection. Estate of Molay, 46 Wis. 2d 450
, 175 N.W.2d 254
While the benefit of the dead man's statute is waived when the opposite party opens the door, waiver is not effected when testimony elicited from an interested survivor established only independent facts made up of physical actions of the parties and no inquiry was made into what, if anything, actually transpired between the decedent and the interested survivor with regard to these actions. Johnson v. Mielke, 49 Wis. 2d 60
, 181 N.W.2d 503
A widow, sued on a note as comaker with her husband, cannot exclude testimony as to transactions with her deceased husband on the ground that her husband had acted as her agent in the transaction when no evidence of agency was presented. Keller Implement Co. v. Eiting, 52 Wis. 2d 460
, 190 N.W.2d 508
An attorney who drew a will directing that he be retained to probate the estate was not barred from testifying by this section. Casper v. McDowell, 58 Wis. 2d 82
, 205 N.W.2d 753
An interested person may testify as to overhearing a conversation the deceased had with 2 other persons, also since deceased, while the witness was in another room. Estate of Nale, 61 Wis. 2d 654
, 213 N.W.2d 552
A company waived the protection of the statute when it presented a principal stockholder's widow as a witness. Younger v. Rosenow Paper & Supply Co. 63 Wis. 2d 548
, 217 N.W.2d 841
In a petition for proof of heirship by the natural son of the deceased and a cross-petition by the deceased's niece and nephew alleging that the son had been adopted by his aunt, testimony by the cross-petitioner's mother, a sister-in-law of the deceased, as to conversations with the deceased were not precluded by this section because she did not stand to gain or lose from the direct legal operation and the effect of the judgment, and her interest in a judgment in favor of her children was too remote and speculative to bring her within the statute's restrictions. Estate of Komarr, 68 Wis. 2d 473
, 228 N.W.2d 681
The protection of the dead man's statute was waived when counsel objected to the admissibility of evidence rather than to the competency of the witness. In Matter of Estate of Reist, 91 Wis. 2d 209
, 281 N.W.2d 86
Deposition questions about a transaction with the decedent did not result in a total waiver of the dead man's statute for purposes of trial. In Matter of Estate of Vorel, 105 Wis. 2d 112
, 312 N.W.2d 850
(Ct. App. 1981).
The core meaning of this section is that it disqualifies a witness to a transaction or communication with a decedent from testifying about that transaction or communication in his or her favor, or in the favor of any party to the case claiming under the witness. The statute does not preclude an opposing party from calling adversely a witness to a communication or transaction with a decedent. A witness to a communication or transaction with the decedent may not proclaim himself or herself to be incompetent to testify under the statute if no other party makes that objection. Bell v. Neugart, 2002 WI App 180
, 256 Wis. 2d 969
, 650 N.W.2d 52
Under ch. 766, the marital property act, in any claim for unpaid wages a non-wage earning spouse has the same interest in the potential income as the spouse who earned the wages. In the case of an unrepaid loan of marital property each spouse would have the same ownership interest. To the extent both spouses have the same ownership interest in the property that gives rise to an action, and the same right to control and manage that property, each spouse's interest in the outcome of the litigation is as present, certain, and vested and each is barred form testifying regarding the transaction. Gerczak v. Gerczak, 2005 WI App 168
, 285 Wis. 2d 397
, 702 N.W.2d 72
Established Wisconsin law recognizing that the testimony of a drafting attorney as to the statements made to him or her by the testator is admissible on the question of intent once such extrinsic evidence becomes admissible. Czaplewski v. Shepherd, 2012 WI App 116
, 344 Wis. 2d 440
, 823 N.W.2d 523
The core meaning of this section is that it disqualifies a witness to a transaction or communication with a decedent from testifying about that transaction or communication in his or her favor, or in favor of any party to the case claiming under the witness. A witness's interest must be present, certain, and vested, not just a remote or contingent interest. Because any interest in avoiding a threat of malpractice, real or imagined, would be a remote or contingent interest, the trial court properly exercised its discretion in permitting an attorney who drafted a will to testify about the testator's intent. Czaplewski v. Shepherd, 2012 WI App 116
, 344 Wis. 2d 440
, 823 N.W.2d 523
A "transaction" under this section means a "mutual transaction between the deceased and the surviving party, one in which they both actively participate." The statute does not bar a witness from testifying as to his or her observations and description of an event or a physical situation, if such testimony does not involve a mutual transaction in which the deceased actively participated. Rutter v. Copper, 2012 WI App 128
, 344 Wis. 2d 596
, 824 N.W.2d 885
"Communication," as used in this section, includes statements made to a deceased, irrespective of whether or how the deceased responded. Informing a person about what that person is doing is an effort to communicate something, and so the dead man's statute prohibits testimony about that communication. Rutter v. Copper, 2012 WI App 128
, 344 Wis. 2d 596
, 824 N.W.2d 885
Current law expresses disdain for the dead man's statute and requires courts to construe it narrowly and restrict its application whenever possible. Havlicek/Fleisher Enterprise, Inc. v. Bridgeman, 788 F. Supp. 389
In order to render a witness incompetent under this section, a party must show: 1) a transaction or communication between the decedent and the witness; 2) the witness has an interest in the matter at hand; and 3) the liability or cause of action of the party advocating incompetency arose through, from, or under the deceased. Schimpf v. Gerald, Inc. 52 F. Supp. 2d 976
The Wisconsin Deadman's Statute: The Last Surviving Vestige of an Abandoned Common Law Rule. Stevens. 82 MLR 281 (1998).
The Deadman's Statutes: Who is an Interested Party in Wisconsin? Dibley. 87 MLR 1025 (2004).
Raising the dead man's statute in federal court. Pendleton. Wis. Law. March 1990.
Transactions with deceased agent.
No party, and no person from, through, or under whom a party derives the party's interest or title, may be examined as a witness in respect to any transaction or communication by the party or person personally with an agent of the adverse party or an agent of the person from, through, or under whom such adverse party derives his or her interest or title, if the agent is dead, mentally ill, or adjudicated incompetent as a witness, unless the opposite party shall first be examined or some other witness in his or her behalf examined in respect to some transaction or communication between the agent and the other party or person; or unless the testimony of the agent, at any time taken, be first read or given in evidence by the opposite party; and then, in either case respectively, only in respect to such the transaction or communication of which testimony is so given or to the matters to which the testimony relates.
History: 1993 a. 486
; 2005 a. 387
The dead man's statute is not available to benefit the automobile insurer of a corporation concerning a transaction whereby an officer-agent accepted title of his wife's automobile for the corporation, since the insurer did not derive its interest "from, through or under" the corporation by virtue of its contract to insure. Knutson v. Mueller, 68 Wis. 2d 199
, 228 N.W.2d 342
Employees of a party, including corporate employees, are not within the disqualification imposed by this section. Hunzinger Construction Co. v. Granite Resources Corp. 196 Wis. 2d 327
, 538 N.W.2d 804
(Ct. App. 1995), 94-1626
No dean of men, dean of women or dean of students at any institution of higher education in this state, or any school psychologist at any school in this state, shall be allowed to disclose communications made to such dean or psychologist or advice given by such dean or psychologist in the course of counseling a student, or in the course of investigating the conduct of a student enrolled at such university or school, except:
This prohibition may be waived by the student.
This prohibition does not include communications which such dean needs to divulge for the dean's own protection, or the protection of those with whom the dean deals, or which were made to the dean for the express purpose of being communicated to another, or of being made public.
This prohibition does not extend to a criminal case when such dean has been regularly subpoenaed to testify.
History: 1993 a. 486
Genetic tests in civil actions.
Whenever it is relevant in a civil action to determine the parentage or identity of any child, person or corpse, the court, by order, shall direct any party to the action and any person involved in the controversy to submit to one or more genetic tests as provided in s. 767.84
. The results of the tests shall be receivable as evidence in any case where exclusion from parentage is established or where a probability of parentage is shown to exist. Whenever the court orders the genetic tests and one of the parties refuses to submit to the tests that fact shall be disclosed upon trial.
Section 767.80 (1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. The proper vehicle for determining parentage is a motion by the father under this section for a determination of parentage within the pending wrongful death action. Shannon E. T. v. Alicia M. V.M. 2007 WI 29
, 299 Wis. 2d 601
, 728 N.W.2d 636
Chemical tests for intoxication. 885.235(1)(a)
"Alcohol concentration" means the number of grams of alcohol in 100 milliliters of a person's blood or the number of grams of alcohol in 210 liters of a person's breath.