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:
AB294,9,1716 967.04 (8) (b) (intro.) If the court orders a videotape or digitally recorded
17deposition under sub. (7), the court shall do all of the following:
AB294, s. 27 18Section 27. 967.04 (9) of the statutes is amended to read:
AB294,9,2419 967.04 (9) In any criminal prosecution or juvenile fact-finding hearing under
20s. 48.31 or 938.31, the court may admit into evidence a videotaped or digitally
21recorded
deposition taken under subs. (7) and (8) without an additional hearing
22under s. 908.08. In any proceeding under s. 302.113 (9) (am), 302.114 (9) (am), 304.06
23(3), or 973.10 (2), the hearing examiner may order and preside at the taking of a
24videotaped or digitally recorded deposition using the procedure provided in subs. (7)

1and (8) and may admit the videotaped or digitally recorded deposition into evidence
2without an additional hearing under s. 908.08.
AB294, s. 28 3Section 28. 967.04 (10) of the statutes is amended to read:
AB294,10,114 967.04 (10) If a court or hearing examiner admits a videotaped or digitally
5recorded
deposition into evidence under sub. (9), the child may not be called as a
6witness at the proceeding in which it was admitted unless the court or hearing
7examiner so orders upon a showing that additional testimony by the child is required
8in the interest of fairness for reasons neither known nor with reasonable diligence
9discoverable at the time of the deposition by the party seeking to call the child. The
10testimony of a child who is required to testify under this subsection may be taken in
11accordance with s. 972.11 (2m), if applicable.
AB294, s. 29 12Section 29. 970.03 (14) (b) of the statutes is amended to read:
AB294,10,1713 970.03 (14) (b) At any preliminary examination, the court shall admit a
14videotape or digitally recorded statement under s. 908.08 upon making the findings
15required under s. 908.08 (3). The child who makes the statement need not be called
16as a witness and, under the circumstances specified in s. 908.08 (5) (b), may not be
17compelled to undergo cross-examination.
AB294, s. 30 18Section 30. 971.23 (1) (e) of the statutes is amended to read:
AB294,10,2519 971.23 (1) (e) Any relevant written or recorded statements of a witness named
20on a list under par. (d), including any videotaped or digitally recorded oral statement
21of a child under s. 908.08, any reports or statements of experts made in connection
22with the case or, if an expert does not prepare a report or statement, a written
23summary of the expert's findings or the subject matter of his or her testimony, and
24the results of any physical or mental examination, scientific test, experiment or
25comparison that the district attorney intends to offer in evidence at trial.
AB294, s. 31
1Section 31. 973.10 (2g) of the statutes is amended to read:
AB294,11,102 973.10 (2g) Upon demand prior to a revocation hearing under sub. (2), the
3district attorney shall disclose to a defendant the existence of any videotaped or
4digitally recorded
oral statement of a child under s. 908.08 which is within the
5possession, custody or control of the state and shall make reasonable arrangements
6for the defendant and defense counsel to view the videotaped statement. If,
7subsequent to after compliance with this subsection, the state obtains possession,
8custody or control of such a videotaped statement, the district attorney shall
9promptly notify the defendant of that fact and make reasonable arrangements for the
10defendant and defense counsel to view the videotaped statement.
AB294, s. 32 11Section 32. 973.10 (2m) of the statutes is amended to read:
AB294,11,1412 973.10 (2m) In any administrative hearing under sub. (2), the hearing
13examiner may order the taking and allow the use of a videotaped or digitally recorded
14deposition under s. 967.04 (7) to (10).
AB294, s. 33 15Section 33. Effective date.
AB294,11,1716 (1) This act takes effect on February 1, 2003, or on the day after publication,
17whichever is later.
AB294,11,1818 (End)
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