LRBs0068/1
MGD:wlj&kjf:jf
2005 - 2006 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2005 ASSEMBLY BILL 261
March 30, 2005 - Offered by Representative Kleefisch.
AB261-ASA1,1,9
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: use of and access to audiovisual
8recordings of a child's statement in certain court and administrative
9proceedings.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB261-ASA1,2,911
48.293
(3) Upon request prior to the fact-finding hearing, counsel for the
12interests of the public shall disclose to the child, through his or her counsel or
1guardian ad litem, or to the unborn child, through the unborn child's guardian ad
2litem, the existence of any
videotaped audiovisual recording of an oral statement of
3a child under s. 908.08 which is within the possession, custody or control of the state
4and shall make reasonable arrangements for the requesting person to view the
5videotaped oral statement. If,
subsequent to after compliance with this subsection,
6the state obtains possession, custody or control of such a
videotaped statement,
7counsel for the interests of the public shall promptly notify the requesting person of
8that fact and make reasonable arrangements for the requesting person to view the
9videotaped oral statement.
AB261-ASA1,3,711
48.31
(2) The hearing shall be to the court unless the child, the child's parent,
12guardian, or legal custodian, the unborn child by the unborn child's guardian ad
13litem, or the expectant mother of the unborn child exercises the right to a jury trial
14by demanding a jury trial at any time before or during the plea hearing. If a jury trial
15is demanded in a proceeding under s. 48.13 or 48.133, the jury shall consist of 6
16persons. If a jury trial is demanded in a proceeding under s. 48.42, the jury shall
17consist of 12 persons unless the parties agree to a lesser number. Chapters 756 and
18805 shall govern the selection of jurors. If the hearing involves a child victim or
19witness, as defined in s. 950.02, the court may order
the taking that a deposition be
20taken by audiovisual means and allow the use of a
videotaped recorded deposition
21under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s.
22971.105. At the conclusion of the hearing, the court or jury shall make a
23determination of the facts, except that in a case alleging a child or an unborn child
24to be in need of protection or services under s. 48.13 or 48.133, the court shall make
25the determination under s. 48.13 (intro.) or 48.133 relating to whether the child or
1unborn child is in need of protection or services that can be ordered by the court. If
2the court finds that the child or unborn child is not within the jurisdiction of the court
3or, in a case alleging a child or an unborn child to be in need of protection or services
4under s. 48.13 or 48.133, that the child or unborn child is not in need of protection
5or services that can be ordered by the court or if the court or jury finds that the facts
6alleged in the petition have not been proved, the court shall dismiss the petition with
7prejudice.
AB261-ASA1, s. 3
8Section
3. 302.113 (9) (e) of the statutes is amended to read:
AB261-ASA1,3,129
302.113
(9) (e) If a hearing is to be held under par. (am) before the division of
10hearings and appeals in the department of administration, the hearing examiner
11may order
the taking that a deposition be taken by audiovisual means and allow the
12use of a
videotaped recorded deposition under s. 967.04 (7) to (10).
AB261-ASA1, s. 4
13Section
4. 302.114 (9) (d) of the statutes is amended to read:
AB261-ASA1,3,1714
302.114
(9) (d) If a hearing is to be held under par. (am) before the division of
15hearings and appeals in the department of administration, the hearing examiner
16may order
the taking that a deposition be taken by audiovisual means and allow the
17use of a
videotaped recorded deposition under s. 967.04 (7) to (10).
AB261-ASA1,4,1519
304.06
(3) Every paroled prisoner remains in the legal custody of the
20department unless otherwise provided by the department. If the department alleges
21that any condition or rule of parole has been violated by the prisoner, the department
22may take physical custody of the prisoner for the investigation of the alleged
23violation. If the department is satisfied that any condition or rule of parole has been
24violated it shall afford the prisoner such administrative hearings as are required by
25law. Unless waived by the parolee, the final administrative hearing shall be held
1before a hearing examiner from the division of hearings and appeals in the
2department of administration who is licensed to practice law in this state. The
3hearing examiner shall enter an order revoking or not revoking parole. Upon request
4by either party, the administrator of the division of hearings and appeals shall review
5the order. The hearing examiner may order
the taking
that a deposition be taken by
6audiovisual means and allow the use of a
videotaped recorded deposition under s.
7967.04 (7) to (10). If the parolee waives the final administrative hearing, the
8secretary of corrections shall enter an order revoking or not revoking parole. If the
9examiner, the administrator upon review, or the secretary in the case of a waiver
10finds that the prisoner has violated the rules or conditions of parole, the examiner,
11the administrator upon review, or the secretary in the case of a waiver, may order the
12prisoner returned to prison to continue serving his or her sentence, or to continue on
13parole. If the prisoner claims or appears to be indigent, the department shall refer
14the prisoner to the authority for indigency determinations specified under s. 977.07
15(1).
AB261-ASA1,4,2517
304.06
(3d) Upon demand prior to a revocation hearing under sub. (3), the
18district attorney shall disclose to a defendant the existence of any
videotaped 19audiovisual recording of an oral statement of a child under s. 908.08 which is within
20the possession, custody or control of the state and shall make reasonable
21arrangements for the defendant and defense counsel to view the
videotaped 22statement. If,
subsequent to after compliance with this subsection, the state obtains
23possession, custody or control of such a
videotaped statement, the district attorney
24shall promptly notify the defendant of that fact and make reasonable arrangements
25for the defendant and defense counsel to view the
videotaped statement.
AB261-ASA1,5,3
2908.08 (title)
Videotaped
Audiovisual recordings of statements of
3children.
AB261-ASA1,5,95
908.08
(1) In any criminal trial or hearing, juvenile fact-finding hearing under
6s. 48.31 or 938.31 or revocation hearing under s. 302.113 (9) (am), 302.114 (9) (am),
7304.06 (3), or 973.10 (2), the court or hearing examiner may admit into evidence the
8videotaped audiovisual recording of an oral statement of a child who is available to
9testify, as provided in this section.
AB261-ASA1, s. 9
10Section
9. 908.08 (2) (a) of the statutes is amended to read:
AB261-ASA1,5,1811
908.08
(2) (a) Not less than 10 days
prior to before the trial or hearing, or such
12later time as the court or hearing examiner permits upon cause shown, the party
13offering the statement shall file with the court or hearing officer an offer of proof
14showing the caption of the case, the name and present age of the child who has given
15the statement, the date, time and place of the statement and the name and business
16address of the
videotape camera operator. That party shall give notice of the offer
17of proof to all other parties, including notice of reasonable opportunity for them to
18view the
videotape prior to statement before the hearing under par. (b).
AB261-ASA1,6,220
908.08
(2) (b)
Prior to Before the trial or hearing in which the statement is
21offered and upon notice to all parties, the court or hearing examiner shall conduct
22a hearing on the statement's admissibility. At or
prior to before the hearing, the court
23shall view the
videotape statement. At the hearing, the court or hearing examiner
24shall rule on objections to the statement's admissibility in whole or in part. If the trial
1is to be tried by a jury, the court shall enter an order for editing as provided in s.
2885.44 (12).
AB261-ASA1, s. 11
3Section
11. 908.08 (3) (intro.) of the statutes is amended to read:
AB261-ASA1,6,54
908.08
(3) (intro.) The court or hearing examiner shall admit the
videotape 5statement recording upon finding all of the following:
AB261-ASA1, s. 12
6Section
12. 908.08 (3) (a) (intro.) of the statutes is amended to read:
AB261-ASA1,6,87
908.08
(3) (a) (intro.) That the trial or hearing in which the
videotape statement 8recording is offered will commence:
AB261-ASA1,6,1110
908.08
(3) (b) That the
videotape
recording is accurate and free from excision,
11alteration and visual or audio distortion.
AB261-ASA1, s. 14
12Section
14. 908.08 (4) (intro.) of the statutes is amended to read:
AB261-ASA1,6,1613
908.08
(4) (intro.) In determining whether the interests of justice warrant the
14admission of
a videotape an audiovisual recording of a statement of a child who is
15at least 12 years of age but younger than 16 years of age, among the factors which
16the court or hearing examiner may consider are any of the following:
AB261-ASA1,6,2018
908.08
(4) (i) Whether admission of the
videotape statement recording would
19reduce the mental or emotional strain of testifying or reduce the number of times the
20child will be required to testify.
AB261-ASA1,7,322
908.08
(5) (a) If the court or hearing examiner admits a
videotape recorded 23statement under this section, the party who has offered the statement into evidence
24may nonetheless call the child to testify immediately after the
videotape statement
25is shown to the trier of fact. Except as provided in par. (b), if that party does not call
1the child, the court or hearing examiner, upon request by any other party, shall order
2that the child be produced immediately following the showing of the
videotape 3statement to the trier of fact for cross-examination.
AB261-ASA1,7,85
908.08
(5) (b) If a
videotape recorded statement under this section is shown at
6a preliminary examination under s. 970.03 and the party who offers the statement
7does not call the child to testify, the court may not order under par. (a) that the child
8be produced for cross-examination at the preliminary examination.
AB261-ASA1,7,1210
908.08
(6) Videotaped Recorded oral statements of children under this section
11in the possession, custody or control of the state are discoverable under ss. 48.293 (3),
12304.06 (3d), 971.23 (1) (e) and 973.10 (2g).
AB261-ASA1,7,1714
908.08
(7) At a trial or hearing under sub. (1), a court or a hearing examiner
15may also admit into evidence
a videotape an audiovisual recording of an oral
16statement of a child that is hearsay and is admissible under this chapter as an
17exception to the hearsay rule.
AB261-ASA1,8,319
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 audiovisual recording of an oral statement of
22a
juvenile 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.
AB261-ASA1,8,135
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 that a deposition be taken by audiovisual means 8and allow the use of a
videotaped recorded deposition under s. 967.04 (7) to (10) and,
9with the district attorney, shall comply with s. 971.105. At the conclusion of the
10hearing, the court shall make a determination of the facts. If the court finds that the
11juvenile is not within the jurisdiction of the court or the court finds that the facts
12alleged in the petition or citation have not been proved, the court shall dismiss the
13petition or citation with prejudice.
AB261-ASA1,8,1915
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 depositions
by audiovisual means under s. 908.08 or 967.04 (7) and (8)
19and the duty to expedite proceedings under s. 971.105.
AB261-ASA1, s. 23
20Section
23. 967.04 (7) (a) (intro.) of the statutes is amended to read:
AB261-ASA1,8,2521
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 that a
videotaped 23deposition of a child who has been or is likely to be called as a witness
be taken by
24audiovisual means. Upon notice and hearing, the court may issue an order for such
25a deposition if the trial or hearing in which the child may be called will commence:
AB261-ASA1, s. 24
1Section
24. 967.04 (7) (b) 10. of the statutes is amended to read:
AB261-ASA1,9,42
967.04
(7) (b) 10. Whether
the use of a
videotaped 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.
AB261-ASA1,9,146
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 recording of a deposition
taken 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.
AB261-ASA1, s. 26
15Section
26. 967.04 (8) (b) (intro.) of the statutes is amended to read:
AB261-ASA1,9,1716
967.04
(8) (b) (intro.) If the court orders
that a
videotape deposition
be taken
17by audiovisual means under sub. (7), the court shall do all of the following: