.... County
The State of Wisconsin, To ....:
You are hereby required to appear before .... (designating the court, officer or person and place of appearance), on the .... day of ...., at .... o'clock in the .... noon of that day, to give evidence in a certain cause then and there to be tried between ...., plaintiff, and ...., defendant, on the part of the .... (or to give evidence in the matter [state sufficient to identify the matter or proceeding in which the evidence is to be given] then and there to be heard, on the part of ....). Failure to appear may result in punishment for contempt which may include monetary penalties, imprisonment and other sanctions.
Given under my hand this .... day of ...., .... (year)
....(Give official title)
885.02(2)
(2) For a subpoena requiring the production of materials, the following or its equivalent may be added to the foregoing form (immediately before the attestation clause): and you are further required to bring with you the following papers and documents (describing them as accurately as possible).
885.03
885.03
Service of subpoena. Any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness's abode.
885.03 History
History: 1993 a. 486.
885.04
885.04
Municipal judge; subpoena served in state. A subpoena to require attendance before a municipal judge may be served anywhere in the state if authorized by the municipal judge, and shall require the attendance of any witness so served.
885.04 History
History: 1977 c. 305.
885.04 Annotation
This section does not authorize a municipal court to subpoena persons outside of the state; thus the court cannot order an out of state defendant to appear in person. There is no inherent authority in the court authorizing such an order. City of Sun Prairie v. Davis,
226 Wis. 2d 738,
595 N.W.2d 635 (1999).
885.05
885.05
Witness and interpreter fees. The fees of witnesses and interpreters are prescribed in
s. 814.67.
885.05 History
History: 1981 c. 317.
885.06
885.06
Witness' fees, prepayment. 885.06(1)
(1) Except when subpoenaed on behalf of the state, of a municipality in a forfeiture action, or of an indigent respondent in a paternity proceeding, no person is required to attend as a witness in any civil action, matter or proceeding unless witness fees are paid or tendered, in cash or by check, share draft or other draft, to the person for one day's attendance and for travel.
885.06(2)
(2) 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.
885.06 History
History: 1983 a. 368,
447,
538;
1987 a. 201.
885.06 Annotation
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).
885.07
885.07
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.
885.07 History
History: 1993 a. 486.
885.08
885.08
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.
885.08 History
History: 1993 a. 486.
885.08 Cross-reference
Cross-reference: For fees of expert witnesses, see s.
971.16 (1).
885.09
885.09
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.
885.09 History
History: 1987 a. 403.
885.10
885.10
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 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.
885.11
885.11
Disobedient witness. 885.11(1)(1)
Damages recoverable. 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.
885.11(2)
(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.
885.11(3)
(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.
885.11(4)
(4) Same. 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.
885.11(5)
(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.
885.11 History
History: 1987 a. 155;
1993 a. 486.
885.11 Cross-reference
Cross-reference: See also s.
804.12 (4) regarding failure to appear at deposition.
885.11 Annotation
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 and this must be determined at a hearing. Gipson Lumber Co. v. Schickling,
56 Wis. 2d 164,
201 N.W.2d 500.
885.11 Annotation
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.
885.12
885.12
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 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.
885.12 History
History: 1973 c. 272;
1993 a. 486.
885.12 Cross-reference
Cross-reference: See s.
785.06.
885.15(1)(1) 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.
885.15(2)
(2) The immunity provided under
sub. (1) is subject to the restrictions under
s. 972.085.
885.15 History
History: 1989 a. 122.
885.16
885.16
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.
885.16 History
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 his objection. However, if an examination exceeds the scope of the direct examination by questions "beyond the scope," and the examiner elicits the very information he sought to exclude, such examination "beyond the scope" constitutes a waiver of the objection. Estate of Molay,
46 Wis. 2d 450,
175 N.W.2d 254.
885.16 Annotation
While the benefit of the dead man's statute is waived where the opposite party opens the door, waiver is not effected where, 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.
885.16 Annotation
A widow, sued on a note as comaker with her husband, cannot exclude testimony as to transactions with her deceased husband, no evidence of agency being presented. Keller Implement Co. v. Eiting,
52 Wis. 2d 460,
190 N.W.2d 508.
885.16 Annotation
An attorney who drew a will directing that he be retained to probate the estate is not barred from testifying by this section. Casper v. McDowell,
58 Wis. 2d 82,
205 N.W.2d 753.
885.16 Annotation
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.
885.16 Annotation
A company waived the protection of the statute when it presented principal stockholder's widow as a witness. Younger v. Rosenow Paper & Supply Co.
63 Wis. 2d 548,
217 N.W.2d 841.
885.16 Annotation
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-petitioners' 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.
885.16 Annotation
The husband of the niece of the testator, who was a residuary legatee in prior wills, is not disqualified from testifying as to his conversations with the testator even though the niece was an incompetent witness under the statute. In re Estate of Christen,
72 Wis. 2d 8,
239 N.W.2d 528.
885.16 Annotation
The protection of the dead man's statute was waived where 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 (1979).
885.16 Annotation
Deposition questions about a transaction with decedent did not result in a total waiver of the dead man statute for purposes of trial. In Matter of Estate of Vorel,
105 Wis. 2d 112,
312 N.W.2d 850 (Ct. App. 1981).
885.16 Annotation
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 (1992).
885.16 Annotation
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 (1999).
885.16 Annotation
Raising the dead man's statute in federal court. Pendleton. Wis. Law. March 1990.
885.16 Annotation
The Wisconsin Deadman's Statute: The Last Surviving Vestige of an Abandoned Common Law Rule. Stevens. 82 MLR 281 (1998).
885.17
885.17
Transactions with deceased agent. No party, 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 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, when such agent is dead or insane, or otherwise legally incompetent as a witness unless the opposite party shall first be examined or examine some other witness in his or her behalf in respect to some transaction or communication between such agent and such other party or person; or unless the testimony of such 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 transaction or communication of which testimony is so given or to the matters to which such testimony relates.
885.17 History
History: 1993 a. 486.
885.17 Annotation
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.
885.17 Annotation
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).
885.205
885.205
Privileged communications. 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:
885.205(1)
(1) This prohibition may be waived by the student.
885.205(2)
(2) 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.
885.205(3)
(3) This prohibition does not extend to a criminal case when such dean has been regularly subpoenaed to testify.
885.205 History
History: 1993 a. 486.
885.23
885.23
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. 767.48. 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.
885.23 History
History: 1979 c. 352;
1995 a. 100.
885.235
885.235
Chemical tests for intoxication. 885.235(1)(a)
(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.
885.235(1g)
(1g) In any action or proceeding in which it is material to prove that a person was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration while operating or driving a motor vehicle or, if the vehicle is a commercial motor vehicle, on duty time, while operating a motorboat, except a sailboat operating under sail alone, while operating a snowmobile, while operating an all-terrain vehicle or while handling a firearm, evidence of the amount of alcohol in the person's blood at the time in question, as shown by chemical analysis of a sample of the person's blood or urine or evidence of the amount of alcohol in the person's breath, is admissible on the issue of whether he or she was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration if the sample was taken within 3 hours after the event to be proved. The chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect:
885.235(1g)(a)1.1. The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but less than 0.08 is relevant evidence on the issue of being under the combined influence of alcohol and a controlled substance, a controlled substance analog or any other drug, but, except as provided in
par. (d) or
sub. (1m), is not to be given any prima facie effect.
885.235(1g)(a)2.
2. The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but less than 0.1 is relevant evidence on the issue of being under the combined influence of alcohol and a controlled substance, a controlled substance analog or any other drug but, except as provided in
par. (d) or
sub. (1m), is not to be given any prima facie effect.
885.235(1g)(b)
(b) Except with respect to the operation of a commercial motor vehicle as provided in
par. (d), the fact that the analysis shows that the person had an alcohol concentration of more than 0.04 but less than 0.1 is relevant evidence on the issue of intoxication or an alcohol concentration of 0.1 or more but is not to be given any prima facie effect.
885.235(1g)(bd)
(bd) Except with respect to the operation of a commercial motor vehicle as provided in
par. (d), the fact that the analysis shows that the person had an alcohol concentration of more than 0.04 but less than 0.08 is relevant evidence on the issue of intoxication or an alcohol concentration of 0.08 or more, but is not to be given any prima facie effect.
885.235(1g)(c)
(c) The fact that the analysis shows that the person had an alcohol concentration of 0.1 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.1 or more.
885.235(1g)(cd)
(cd) In cases involving persons who have 2 or more prior convictions, suspensions or revocations, as counted under
s. 343.307 (1), the fact that the analysis shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.08 or more.
885.235(1g)(d)
(d) The fact that the analysis shows that the person had an alcohol concentration of 0.04 or more is prima facie evidence that he or she was under the influence of an intoxicant with respect to operation of a commercial motor vehicle and is prima facie evidence that he or she had an alcohol concentration of 0.04 or more.
885.235(2)
(2) The concentration of alcohol in the blood shall be taken prima facie to be three-fourths of the concentration of alcohol in the urine.
