885.365
885.365
Recorded telephone conversation. 885.365(1)
(1) Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state in civil actions, except as provided in
ss. 968.28 to
968.37.
885.365(2)(a)
(a) Such recording is made in a manner other than by interception and the person whose conversation is being recorded is informed at that time that the conversation is being recorded and that any evidence thereby obtained may be used in a court of law; or such recording is made through a recorder connector provided by the telecommunications utility as defined in
s. 196.01 (10) or a telecommunications carrier as defined in
s. 196.01 (8m) in accordance with its tariffs and which automatically produces a distinctive recorder tone that is repeated at intervals of approximately 15 seconds;
885.365(2)(b)
(b) The recording is made by a telecommunications utility as defined in
s. 196.01 (10), a telecommunications carrier as defined in
s. 196.01 (8m) or its officers or employees for the purpose of or incident to the construction, maintenance, conduct or operation of the services and facilities of such public utilities, or to the normal use by such public utilities of the services and facilities furnished to the public by such public utility; or
885.365(2)(c)
(c) The recording is made by a fire department or law enforcement agency to determine violations of, and in the enforcement of,
s. 941.13.
885.37
885.37
Interpreters for persons with language difficulties or hearing or speaking impairments. 885.37(1)(a)(a) If a court has notice that a person fits any of the following criteria, the court shall make the determinations specified under
par. (b):
885.37(1)(b)
(b) If a court has notice that a person who fits any of the criteria under
par. (a) has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the court shall make a factual determination of whether the language difficulty or the hearing or speaking impairment is sufficient to prevent the individual from communicating with his or her attorney, reasonably understanding the English testimony or reasonably being understood in English. If the court determines that an interpreter is necessary, the court shall advise the person that he or she has a right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided for him or her at the public's expense. Any waiver of the right to an interpreter is effective only if made voluntarily in person, in open court and on the record.
885.37(2)
(2) A court may authorize the use of an interpreter in actions or proceedings in addition to those specified in
sub. (1).
885.37(3)(a)1.
1. "Agency" includes any official, employee or person acting on behalf of an agency.
885.37(3)(a)2.
2. "Contested case" means a proceeding before an agency in which, after a hearing required by law, substantial interests of any party to the proceeding are determined or adversely affected by a decision or order in the proceeding and in which the assertion by one party of any such substantial interest is denied or controverted by another party to the proceeding.
885.37(3)(b)
(b) In any administrative contested case proceeding before a state, county or municipal agency, if the agency conducting the proceeding has notice that a party to the proceeding has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the agency shall make a factual determination of whether the language difficulty or hearing or speaking impairment is sufficient to prevent the party from communicating with others, reasonably understanding the English testimony or reasonably being understood in English. If the agency determines that an interpreter is necessary, the agency shall advise the party that he or she has a right to a qualified interpreter. After considering the party's ability to pay and the other needs of the party, the agency may provide for an interpreter for the party at the public's expense. Any waiver of the right to an interpreter is effective only if made at the administrative contested case proceeding.
885.37(3m)
(3m) Any agency may authorize the use of an interpreter in a contested case proceeding for a person who is not a party but who has a substantial interest in the proceeding.
885.37(4)(a)(a) The necessary expense of furnishing an interpreter for an indigent person under
sub. (1) or
(2) shall be paid as follows:
885.37(4)(a)1.
1. In the supreme court or the court of appeals, the director of state courts shall pay the expense.
885.37(4)(a)2.
2. In circuit court, the director of state courts shall pay the expense.
885.37(4)(a)2m.
2m. To assist the state public defender in representing an indigent in preparing for court proceedings, the state public defender shall pay the expense.
885.37(4)(a)3.
3. In municipal court, the municipality shall pay the expense.
885.37(4)(b)
(b) The necessary expense of furnishing an interpreter for an indigent party under
sub. (3) shall be paid by the unit of government for which the proceeding is held.
885.37(4)(c)
(c) The court or agency shall determine indigency under this section.
885.37(5)(a)(a) If a court under
sub. (1) or
(2) or an agency under
sub. (3) decides to appoint an interpreter, the court or agency shall follow the applicable procedure under
par. (b) or
(c).
885.37(5)(b)
(b) The department of health and family services shall maintain a list of qualified interpreters for use with persons who have hearing impairments. The department shall distribute the list, upon request and without cost, to courts and agencies who must appoint interpreters. If an interpreter needs to be appointed for a person who has a hearing impairment, the court or agency shall appoint a qualified interpreter from the list. If no listed interpreter is available or able to interpret, the court or agency shall appoint as interpreter another person who is able to accurately communicate with and convey information to and receive information from the hearing-impaired person.
885.37(5)(c)
(c) If an interpreter needs to be appointed for a person with an impairment or difficulty not covered under
par. (b), the court or agency may appoint any person the court or agency decides is qualified.
885.37 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975);
1975 c. 106,
199; Stats. 1975 s. 885.37;
1985 a. 266;
1987 a. 27;
1995 a. 27 ss.
7207 to
7209,
9126 (19);
1995 a. 77.
885.37 Annotation
The cost of providing an interpreter under this section is shared by the public defender paying out-of-court costs and the director of state courts paying in-court costs. State v. Tai V. Le,
184 Wis. 2d 860,
517 N.W.2d 144 (1994).
885.37 Annotation
A court has notice of language difficulty under sub. (1) (b) when it becomes aware that a defendant's difficulty with English may impair his or her ability to communicate with counsel, to understand testimony or to be understood in English and does not hinge on a request from counsel for an interpreter. State v. Yang,
201 Wis. 2d 725,
549 N.W.2d 769 (Ct. App. 1996).
885.37 Annotation
When an accused requires an interpreter and witnesses are to testify in a foreign language, the better practice may be to have 2 interpreters, one for the accused and one for the court. State v. Santiago,
206 Wis. 2d 3,
556 N.W.2d 687 (1996).
885.37 Annotation
Injustice in any Language: the Need for Improved Standards Governing Courtroom Interpretation in Wisconsin. Pantoga. 82 MLR 601 (1999).
885.37 Annotation
Se Habla Everything: The Right to an Impartial, Qualified Interpreter. Araiza. Wis. Law. Sept. 1997.
VIDEOTAPE PROCEDURE
885.40
885.40
Applicability. Sections 885.40 to
885.47 apply to all trial courts of record in this state in the receipt and utilization of testimony and other evidence recorded on videotape and to the review of cases on appeal where the record on appeal contains testimony or other evidence recorded on videotape. These sections are not intended to preclude or limit the presentation of evidence by other technical procedures.
885.40 History
History: Sup. Ct. Order, 67 Wis. 2d vii (1975).
885.40 Note
Judicial Council Committee's Note, 1975: The contents of these rules are not meant to exclude present practice whereby movies and photographs are introduced into evidence in appropriate situations. [Re Order effective Jan. 1, 1976]
885.40 Annotation
Sections 885.40 to 885.47 did not apply to police videotape of a drunk driver. State v. Haefer,
110 Wis. 2d 381,
328 N.W.2d 894 (Ct. App. 1982).
885.40 Annotation
Legal applications of videotape. Benowitz, 1974 WBB No. 3.
885.41(1)(1)
Videotaping. Videotaping is a visual or simultaneous audiovisual electronic recording.
885.41(2)
(2) Operator. Operator means a person trained to operate video equipment and may be an official qualified under
s. 804.03.
885.41 History
History: Sup. Ct. Order, 67 Wis. 2d vii (1975);
1987 a. 403.
885.41 Note
Judicial Council Committee's Note, 1975: The definition of videotaping recognizes that videotaping can be used for visual purposes with no audio recording present. The definition of operator recognizes that an operator of videotape equipment could be the same individual before whom depositions can presently be taken as authorized by s. 804.03. [Re Order effective Jan. 1, 1976]
885.42(1)(1)
Depositions. Any deposition may be recorded by audiovisual videotape without a stenographic transcript. Any party to the action may arrange at the party's expense to have a simultaneous stenographic record made. Except as provided by
ss. 885.40 to
885.47,
ch. 804 governing the practice and procedure in depositions and discovery shall apply.
885.42(2)
(2) Other evidence. Such other evidence as is appropriate may be recorded by videotape and be presented at a trial.
885.42(3)
(3) Entire trial testimony and evidence. All trial proceedings, including evidence in its entirety, may be presented at a trial by videotape upon the approval of all parties and the trial judge. In determining whether to approve a videotape trial, the trial judge, after consultation with counsel, shall consider the cost involved, the nature of the action, and the nature and amount of testimony. The trial judge shall fix a date prior to the date of trial when all recorded testimony must be filed with the clerk of court.
885.42(4)
(4) Trial record. At trial, videotape depositions and other testimony presented by videotape shall be reported.
885.42 History
History: Sup. Ct. Order,
67 Wis. 2d 585, xii (1975);
1975 c. 218;
1987 a. 403.
885.42 Note
Judicial Council Committee's Note, 1975: Sub. (1). The definition of depositions is meant to include adverse examinations prior to trial.
885.42 Annotation
Sub. (2). This subsection anticipates that certain other evidence, such as the scene of an accident or the lifestyle of an accident victim, may be presented at trial by means of videotape. This provision would also allow the majority of a trial to be conducted by means of videotape.
885.42 Annotation
Sub. (3). This subsection would authorize an entire videotape trial in Wisconsin. Such a trial could only occur upon the approval of all parties and the presiding judge. Appropriate safeguards are included to ensure that this provision would be used only when clearly appropriate. Procedure for a videotape trial is subject to agreement among the parties and the court.
885.42 Annotation
Sub. (4). This subsection establishes that matters presented by videotape at trial are made a part of the trial record in anticipation of a possible appeal. [Re Order effective Jan. 1, 1976]
885.43
885.43
Notice of videotape deposition. Every notice for the taking of a videotape deposition and subpoena for attendance at such deposition shall state that the deposition is to be visually recorded and preserved pursuant to the provisions of
ss. 885.44 and
885.46.
885.43 History
History: Sup. Ct. Order,
67 Wis. 2d 585, xii (1975); Sup. Ct. Order, 141 Wis. 2d xxv. (1987)
885.43 Note
Judicial Council Committee's Note, 1975: This provision recognizes that there should be adequate notice that a deposition by videotape is to be taken. The section requires that the notice make reference to the provisions on filing and preserving of videotape depositions. [Re Order effective Jan. 1, 1976]
885.43 Note
Judicial Council Note, 1988. Videotape depositions are no longer required to be filed in court. [Re Order effective Jan. 1, 1988]
885.44
885.44
Videotape deposition procedure. 885.44(1)
(1)
Official. Videotape depositions may be taken by persons authorized by
s. 804.03.
885.44(2)
(2) Required information. The deposition shall begin by the operator stating on camera:
885.44(2)(b)
(b) The name and business address of the operator's employer;
885.44(2)(c)
(c) The date, time and place of the deposition;
885.44(2)(f)
(f) The party on whose behalf the deposition is being taken. Counsel shall identify themselves on camera. The person before whom the deposition is taken shall then identify himself or herself and swear or affirm the witness on camera. At the conclusion of the deposition the operator shall state on camera that the deposition is concluded. When the length of the deposition requires the use of more than one tape, the end of each tape and the beginning of each succeeding tape shall be announced on camera by the operator.
885.44(3)
(3) Camera. More than one camera may be used, either in sequence or simultaneously.
885.44(4)
(4) Timing of deposition. The deposition shall be timed by a date-time generator which shall show continually each hour, minute and second of each tape of the deposition.
885.44(6)
(6) Submission to witness. After a videotape deposition is taken, submission of the videotape to the witness for examination is deemed waived unless such submission is requested by the witness.
885.44(7)
(7) Certification of original videotape deposition. The official before whom the videotape deposition is taken shall cause a written certification to be attached to the original videotape. The certification shall state that the witness was fully sworn or affirmed by the official and that the videotape is a true record of the testimony given by the witness. If the witness has not waived the right to a showing and examination of the videotape deposition, the witness shall also sign the certification.
885.44(8)
(8) Certification of edited videotape deposition. The official who edits an original videotape deposition shall attach a written certification to the edited copy of the videotape deposition. The certification shall state that the editing complies with the rulings of the court and that the original videotape deposition has not been affected by the editing process.
885.44(9)
(9) Motions on objections. Motions for ruling upon objections shall be made with the court within 30 days of recording of the videotape deposition or within a reasonable time stipulated by the parties.
885.44(11)
(11) Ruling on objections. In ruling on objections the court may view the entire videotape or pertinent parts thereof, listen to an audiotape of the videotape sound track, or direct the objecting party to file a partial transcript. The court shall make written rulings on objections and an order for editing. Copies of the court's rulings and order for editing shall be sent to the parties and the objecting witness.
885.44(12)(a)(a) The original videotape shall not be affected by any editing process. In its order for editing the court may do any of the following:
885.44(12)(a)1.
1. Order the official to keep the original videotape intact and make an edited copy of the videotape that deletes all references to objections and objectionable material.
885.44(12)(a)2.
2. Order the person showing the original videotape at trial to suppress the objectionable audio portions of the videotape.
885.44(12)(a)3.
3. Order the person showing the original videotape at trial to suppress the objectionable audio and video portions of the videotape.
885.44(12)(b)
(b) If the court enters an order under
par. (a) 2., it shall, in jury trials, instruct the jury to disregard the video portions of the presentation when the audio portion is suppressed.
885.44(12)(c)
(c) If the court enters an order under
par. (a) 3., it shall, in jury trials, instruct the jury to disregard any deletions apparent in the playing of the videotape.
