LRB-1114/1
MJL&MGD:wlj:jf
2003 - 2004 LEGISLATURE
April 23, 2003 - Introduced by Representatives Boyle, Bies, Musser, Turner,
Berceau, Lassa and
Albers, cosponsored by Senator Jauch. Referred to
Committee on Corrections and the Courts.
AB294,1,8
1An Act to amend 48.293 (3), 48.31 (2), 302.113 (9) (e), 302.114 (9) (d), 304.06 (3),
2304.06 (3d), 908.08 (title), 908.08 (1), 908.08 (2) (a), 908.08 (2) (b), 908.08 (3)
3(intro.), 908.08 (3) (a) (intro.), 908.08 (3) (b), 908.08 (4) (intro.), 908.08 (4) (i),
4908.08 (5) (a), 908.08 (5) (b), 908.08 (6), 908.08 (7), 938.293 (3), 938.31 (2),
5950.055 (2) (b), 967.04 (7) (a) (intro.), 967.04 (7) (b) 10., 967.04 (8) (a), 967.04 (8)
6(b) (intro.), 967.04 (9), 967.04 (10), 970.03 (14) (b), 971.23 (1) (e), 973.10 (2g) and
7973.10 (2m) of the statutes;
relating to: using digital recordings of a child's
8testimony.
Analysis by the Legislative Reference Bureau
Current law permits a videotape of a child's testimony to be used under certain
circumstances in criminal proceedings, proceedings to revoke a person's probation,
parole, or extended supervision, or juvenile fact-finding hearings. This bill permits
a digital recording of a child's testimony to be used under the same circumstances.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB294, s. 1
1Section
1. 48.293 (3) of the statutes is amended to read:
AB294,2,122
48.293
(3) Upon request prior to the fact-finding hearing, counsel for the
3interests of the public shall disclose to the child, through his or her counsel or
4guardian ad litem, or to the unborn child, through the unborn child's guardian ad
5litem, the existence of any videotaped
or digitally recorded oral statement of a child
6under s. 908.08 which is within the possession, custody or control of the state and
7shall make reasonable arrangements for the requesting person to view the
8videotaped oral statement. If,
subsequent to after compliance with this subsection,
9the state obtains possession, custody or control of such a
videotaped statement,
10counsel for the interests of the public shall promptly notify the requesting person of
11that fact and make reasonable arrangements for the requesting person to view the
12videotaped oral statement.
AB294, s. 2
13Section
2. 48.31 (2) of the statutes is amended to read:
AB294,3,914
48.31
(2) The hearing shall be to the court unless the child, the child's parent,
15guardian, or legal custodian, the unborn child by the unborn child's guardian ad
16litem, or the expectant mother of the unborn child exercises the right to a jury trial
17by demanding a jury trial at any time before or during the plea hearing. If a jury trial
18is demanded in a proceeding under s. 48.13 or 48.133, the jury shall consist of 6
19persons. If a jury trial is demanded in a proceeding under s. 48.42, the jury shall
20consist of 12 persons unless the parties agree to a lesser number. Chapters 756 and
21805 shall govern the selection of jurors. If the hearing involves a child victim or
22witness, as defined in s. 950.02, the court may order the taking and allow the use of
23a videotaped
or digitally recorded deposition under s. 967.04 (7) to (10) and, with the
24district attorney, shall comply with s. 971.105. At the conclusion of the hearing, the
25court or jury shall make a determination of the facts, except that in a case alleging
1a child or an unborn child to be in need of protection or services under s. 48.13 or
248.133, the court shall make the determination under s. 48.13 (intro.) or 48.133
3relating to whether the child or unborn child is in need of protection or services that
4can be ordered by the court. If the court finds that the child or unborn child is not
5within the jurisdiction of the court or, in a case alleging a child or an unborn child
6to be in need of protection or services under s. 48.13 or 48.133, that the child or
7unborn child is not in need of protection or services that can be ordered by the court
8or if the court or jury finds that the facts alleged in the petition have not been proved,
9the court shall dismiss the petition with prejudice.
AB294, s. 3
10Section
3. 302.113 (9) (e) of the statutes is amended to read:
AB294,3,1411
302.113
(9) (e) If a hearing is to be held under par. (am) before the division of
12hearings and appeals in the department of administration, the hearing examiner
13may order the taking and allow the use of a videotaped
or digitally recorded 14deposition under s. 967.04 (7) to (10).
AB294, s. 4
15Section
4. 302.114 (9) (d) of the statutes is amended to read:
AB294,3,1916
302.114
(9) (d) If a hearing is to be held under par. (am) before the division of
17hearings and appeals in the department of administration, the hearing examiner
18may order the taking and allow the use of a videotaped
or digitally recorded 19deposition under s. 967.04 (7) to (10).
AB294, s. 5
20Section
5. 304.06 (3) of the statutes is amended to read:
AB294,4,1621
304.06
(3) Every paroled prisoner remains in the legal custody of the
22department unless otherwise provided by the department. If the department alleges
23that any condition or rule of parole has been violated by the prisoner, the department
24may take physical custody of the prisoner for the investigation of the alleged
25violation. If the department is satisfied that any condition or rule of parole has been
1violated it shall afford the prisoner such administrative hearings as are required by
2law. Unless waived by the parolee, the final administrative hearing shall be held
3before a hearing examiner from the division of hearings and appeals in the
4department of administration who is licensed to practice law in this state. The
5hearing examiner shall enter an order revoking or not revoking parole. Upon request
6by either party, the administrator of the division of hearings and appeals shall review
7the order. The hearing examiner may order the taking and allow the use of a
8videotaped
or digitally recorded deposition under s. 967.04 (7) to (10). If the parolee
9waives the final administrative hearing, the secretary of corrections shall enter an
10order revoking or not revoking parole. If the examiner, the administrator upon
11review, or the secretary in the case of a waiver finds that the prisoner has violated
12the rules or conditions of parole, the examiner, the administrator upon review, or the
13secretary in the case of a waiver, may order the prisoner returned to prison to
14continue serving his or her sentence, or to continue on parole. If the prisoner claims
15or appears to be indigent, the department shall refer the prisoner to the authority
16for indigency determinations specified under s. 977.07 (1).
AB294, s. 6
17Section
6. 304.06 (3d) of the statutes is amended to read:
AB294,5,218
304.06
(3d) Upon demand prior to a revocation hearing under sub. (3), the
19district attorney shall disclose to a defendant the existence of any videotaped
or
20digitally recorded oral statement of a child under s. 908.08 which is within the
21possession, custody or control of the state and shall make reasonable arrangements
22for the defendant and defense counsel to view the
videotaped statement. If,
23subsequent to after compliance with this subsection, the state obtains possession,
24custody or control of such a
videotaped statement, the district attorney shall
1promptly notify the defendant of that fact and make reasonable arrangements for the
2defendant and defense counsel to view the
videotaped statement.
AB294, s. 7
3Section
7. 908.08 (title) of the statutes is amended to read:
AB294,5,4
4908.08 (title)
Videotaped or digitally recorded statements of children.
AB294, s. 8
5Section
8. 908.08 (1) of the statutes is amended to read:
AB294,5,106
908.08
(1) In any criminal trial or hearing, juvenile fact-finding hearing under
7s. 48.31 or 938.31 or revocation hearing under s. 302.113 (9) (am), 302.114 (9) (am),
8304.06 (3), or 973.10 (2), the court or hearing examiner may admit into evidence the
9videotaped
or digitally recorded oral statement of a child who is available to testify,
10as provided in this section.
AB294, s. 9
11Section
9. 908.08 (2) (a) of the statutes is amended to read:
AB294,5,1912
908.08
(2) (a) Not less than 10 days
prior to before the trial or hearing, or such
13later time as the court or hearing examiner permits upon cause shown, the party
14offering the statement shall file with the court or hearing officer an offer of proof
15showing the caption of the case, the name and present age of the child who has given
16the statement, the date, time and place of the statement and the name and business
17address of the
videotape camera operator. That party shall give notice of the offer
18of proof to all other parties, including notice of reasonable opportunity for them to
19view the
videotape prior to statement before the hearing under par. (b).
AB294, s. 10
20Section
10. 908.08 (2) (b) of the statutes is amended to read:
AB294,6,221
908.08
(2) (b)
Prior to Before the trial or hearing in which the statement is
22offered and upon notice to all parties, the court or hearing examiner shall conduct
23a hearing on the statement's admissibility. At or
prior to before the hearing, the court
24shall view the videotape
or digitally recorded statement. At the hearing, the court
25or hearing examiner shall rule on objections to the statement's admissibility in whole
1or in part. If the trial is to be tried by a jury, the court shall enter an order for editing
2as provided in s. 885.44 (12).
AB294, s. 11
3Section
11. 908.08 (3) (intro.) of the statutes is amended to read:
AB294,6,54
908.08
(3) (intro.) The court or hearing examiner shall admit the videotape
or
5digitally recorded statement upon finding all of the following:
AB294, s. 12
6Section
12. 908.08 (3) (a) (intro.) of the statutes is amended to read:
AB294,6,87
908.08
(3) (a) (intro.) That the trial or hearing in which the videotape
or
8digitally recorded statement is offered will commence:
AB294, s. 13
9Section
13. 908.08 (3) (b) of the statutes is amended to read:
AB294,6,1110
908.08
(3) (b) That the videotape
or digitally recorded statement is accurate
11and free from excision, alteration and visual or audio distortion.
AB294, s. 14
12Section
14. 908.08 (4) (intro.) of the statutes is amended to read:
AB294,6,1613
908.08
(4) (intro.) In determining whether the interests of justice warrant the
14admission of a videotape
or digitally recorded statement of a child who is at least 12
15years of age but younger than 16 years of age, among the factors which the court or
16hearing examiner may consider are any of the following:
AB294, s. 15
17Section
15. 908.08 (4) (i) of the statutes is amended to read:
AB294,6,2018
908.08
(4) (i) Whether admission of the videotape
or digitally recorded 19statement would reduce the mental or emotional strain of testifying or reduce the
20number of times the child will be required to testify.
AB294, s. 16
21Section
16. 908.08 (5) (a) of the statutes is amended to read:
AB294,7,322
908.08
(5) (a) If the court or hearing examiner admits a videotape
or digitally
23recorded statement under this section, the party who has offered the statement into
24evidence may nonetheless call the child to testify immediately after the
videotape 25statement is shown to the trier of fact. Except as provided in par. (b), if that party
1does not call the child, the court or hearing examiner, upon request by any other
2party, shall order that the child be produced immediately following the showing of
3the
videotape statement to the trier of fact for cross-examination.
AB294, s. 17
4Section
17. 908.08 (5) (b) of the statutes is amended to read:
AB294,7,85
908.08
(5) (b) If a videotape
or digitally recorded statement under this section
6is shown at a preliminary examination under s. 970.03 and the party who offers the
7statement does not call the child to testify, the court may not order under par. (a) that
8the child be produced for cross-examination at the preliminary examination.
AB294, s. 18
9Section
18. 908.08 (6) of the statutes is amended to read:
AB294,7,1210
908.08
(6) Videotaped
or digitally recorded oral statements of children under
11this section in the possession, custody or control of the state are discoverable under
12ss. 48.293 (3), 304.06 (3d), 971.23 (1) (e) and 973.10 (2g).
AB294, s. 19
13Section
19. 908.08 (7) of the statutes is amended to read:
AB294,7,1714
908.08
(7) At a trial or hearing under sub. (1), a court or a hearing examiner
15may also admit into evidence a videotape
or digitally recorded oral statement of a
16child that is hearsay and is admissible under this chapter as an exception to the
17hearsay rule.
AB294, s. 20
18Section
20. 938.293 (3) of the statutes is amended to read:
AB294,8,319
938.293
(3) Upon request prior to the fact-finding hearing, the district
20attorney shall disclose to the juvenile, and to the juvenile's counsel or guardian ad
21litem, the existence of any videotaped
or digitally recorded oral statement of a
22juvenile child under s. 908.08 which is within the possession, custody or control of
23the state and shall make reasonable arrangements for the requesting person to view
24the
videotaped oral statement. If,
subsequent to after compliance with this
25subsection, the state obtains possession, custody or control of such a
videotaped
1statement, the district attorney shall promptly notify the requesting person of that
2fact and make reasonable arrangements for the requesting person to view the
3videotaped oral statement.
AB294, s. 21
4Section
21. 938.31 (2) of the statutes is amended to read:
AB294,8,135
938.31
(2) The hearing shall be to the court. If the hearing involves a child
6victim, as defined in s. 938.02 (20m) (a) 1., or a child witness, as defined in s. 950.02
7(5), the court may order the taking and allow the use of a videotaped
or digitally
8recorded deposition under s. 967.04 (7) to (10) and, with the district attorney, shall
9comply with s. 971.105. At the conclusion of the hearing, the court shall make a
10determination of the facts. If the court finds that the juvenile is not within the
11jurisdiction of the court or the court finds that the facts alleged in the petition or
12citation have not been proved, the court shall dismiss the petition or citation with
13prejudice.
AB294, s. 22
14Section
22. 950.055 (2) (b) of the statutes is amended to read:
AB294,8,1915
950.055
(2) (b) Advice to the judge, when appropriate and as a friend of the
16court, regarding the child's ability to understand proceedings and questions. The
17services may include providing assistance in determinations concerning the taking
18of videotaped
or digitally recorded depositions under s. 908.08 or 967.04 (7) and (8)
19and the duty to expedite proceedings under s. 971.105.
AB294, s. 23
20Section
23. 967.04 (7) (a) (intro.) of the statutes is amended to read:
AB294,8,2521
967.04
(7) (a) (intro.) In any criminal prosecution or any proceeding under ch.
2248 or 938, any party may move the court to order the taking of a videotaped
or
23digitally recorded deposition of a child who has been or is likely to be called as a
24witness. Upon notice and hearing, the court may issue an order for such a deposition
25if the trial or hearing in which the child may be called will commence:
AB294, s. 24
1Section
24. 967.04 (7) (b) 10. of the statutes is amended to read:
AB294,9,42
967.04
(7) (b) 10. Whether a videotaped
or digitally recorded deposition would
3reduce the mental or emotional strain of testifying and whether the deposition could
4be used to reduce the number of times the child will be required to testify.
AB294, s. 25
5Section
25. 967.04 (8) (a) of the statutes is amended to read:
AB294,9,146
967.04
(8) (a) If the court orders a deposition under sub. (7), the judge shall
7preside at the taking of the deposition and enforce compliance with the applicable
8provisions of ss. 885.44 to 885.47. Notwithstanding s. 885.44 (5), counsel may make
9objections and the judge shall make rulings thereon as at trial. The clerk of court
10shall keep the certified original videotape
or digitally recorded deposition under sub.
11(7) in a secure place. No person may inspect or copy the deposition except by order
12of the court upon a showing that inspection or copying is required for editing under
13s. 885.44 (12) or for the investigation, prosecution or defense of the action in which
14it was authorized or the provision of services to the child.
AB294, s. 26
15Section
26. 967.04 (8) (b) (intro.) of the statutes is amended to read: