967.04(8)(a)(a) If the court orders a deposition under sub. (7), the judge shall preside at the taking of the deposition and enforce compliance with the applicable provisions of ss. 885.44 to 885.47. Notwithstanding s. 885.44 (5), counsel may make objections and the judge shall make rulings thereon as at trial. The clerk of court shall keep the certified original recording of a deposition taken under sub. (7) in a secure place. No person may inspect or copy the deposition except by order of the court upon a showing that inspection or copying is required for editing under s. 885.44 (12) or for the investigation, prosecution or defense of the action in which it was authorized or the provision of services to the child. 967.04(8)(b)(b) If the court orders that a deposition be taken by audiovisual means under sub. (7), the court shall do all of the following: 967.04(8)(b)1.1. Schedule the deposition on a date when the child’s recollection is likely to be fresh and at a time of day when the child’s energy and attention span are likely to be greatest. 967.04(8)(b)2.2. Schedule the deposition in a room which provides adequate privacy, freedom from distractions, informality and comfort appropriate to the child’s developmental level. 967.04(8)(b)3.3. Order a recess whenever the energy, comfort or attention span of the child or other circumstances so warrant. 967.04(8)(b)4.4. Determine that the child understands that it is wrong to tell a lie and will testify truthfully if the child’s developmental level or verbal skills are such that administration of an oath or affirmation in the usual form would be inappropriate. 967.04(8)(b)5.5. Before questioning by the parties begins, attempt to place the child at ease, explain to the child the purpose of the deposition and identify all persons attending. 967.04(8)(b)6.6. Allow any questioner to have an adviser to assist the questioner, and upon permission of the judge, to conduct the questioning. 967.04(8)(b)7.7. Supervise the spatial arrangements of the room and the location, movement, and deportment of all persons in attendance. 967.04(8)(b)8.8. Allow the child to testify while sitting on the floor, on a platform, on an appropriately sized chair, or on the lap of a trusted adult, or while moving about the room within range of the visual and audio recording equipment. 967.04(8)(b)9.9. Permit the defendant to be in a position from which the defendant can communicate privately and conveniently with counsel. 967.04(8)(b)10.10. Upon request, make appropriate orders for the discovery and examination by the defendant of documents and other evidence in the possession of the state which are relevant to the issues to be covered at the deposition at a reasonable time prior thereto. 967.04(8)(b)11.11. Bar or terminate the attendance of any person whose presence is not necessary to the taking of the deposition, or whose behavior is disruptive of the deposition or unduly stressful to the child. A reasonable number of persons deemed by the court supportive of the child or any defendant may be considered necessary to the taking of the deposition under this paragraph. 967.04(9)(9) In any criminal prosecution or juvenile fact-finding hearing under s. 48.31 or 938.31, the court may admit into evidence a recorded deposition taken under subs. (7) and (8) without an additional hearing under s. 908.08. In any proceeding under s. 302.113 (9) (am), 302.114 (9) (am), 304.06 (3), or 973.10 (2), the hearing examiner may order that a deposition be taken by audiovisual means and preside at the taking of the deposition using the procedure provided in subs. (7) and (8) and may admit the recorded deposition into evidence without an additional hearing under s. 908.08. 967.04(10)(10) If a court or hearing examiner admits a recorded deposition into evidence under sub. (9), the child may not be called as a witness at the proceeding in which it was admitted unless the court or hearing examiner so orders upon a showing that additional testimony by the child is required in the interest of fairness for reasons neither known nor with reasonable diligence discoverable at the time of the deposition by the party seeking to call the child. The testimony of a child who is required to testify under this subsection may be taken in accordance with s. 972.11 (2m), if applicable. 967.04 NoteJudicial Council Note, 1985: Subs. (7) to (10) replace prior sub. (7) and ss. 967.041 to 967.043. See the legislative purpose clause in Section 1 of this act.
967.04 AnnotationLike the prior statute and rules, these provisions authorize the court or hearing examiner to order the taking of a videotape deposition from a child likely to be called as a witness in a criminal trial or a hearing in a criminal, juvenile, probation revocation or parole revocation case, and to admit that deposition into evidence at such a trial or hearing.
967.04 NoteThis revision repeals statutory language limiting such videotape depositions to cases where there is a substantial likelihood that the child would otherwise suffer severe mental or emotional strain. It authorizes such depositions to be taken whenever the trial or hearing at which the evidence is to be offered will commence before the child’s 16th birthday. If it will commence after the child’s 12th birthday, however, the court or hearing examiner must also determine whether the interests of justice warrant the taking and use of the child’s testimony in this fashion. A nonexhaustive list of factors to be considered in making this determination is provided in sub. (7) (b), substantially similar to prior s. 967.041 (3), stats.
967.04 NoteSub. (8) (a) is substantially similar to prior ss. 967.042 (3) and (4) and 967.043. Sub. (8) (b) is substantially similar to prior s. 967.042 (2).
967.04 NoteSub. (10) is new. It prohibits the child from being called as a witness at the trial or hearing in which the videotape statement is admitted into evidence unless fairness so requires for reasons not known or reasonably discoverable when the deposition was taken. [85 Act 262]
967.04 NoteJudicial Council Note, 1988: Sub. (2) is amended to allow depositions to be taken on the record by telephone or live audio-visual means on request of all defendants, unless good cause to the contrary is shown. [Re Order effective Jan. 1, 1988]
967.04 AnnotationBecause there was no showing that the witness was permanently ill, the defendant was denied the constitutional right to confrontation by the court’s allowing the use of the witness’s deposition. Sheehan v. State, 65 Wis. 2d 757, 223 N.W.2d 600 (1974). 967.04 AnnotationUse at trial of a videotaped deposition of an eight-year-old sexual assault victim during which the screen was placed between the victim and the accused did not deny the right of confrontation. State v. Thomas, 144 Wis. 2d 876, 425 N.W.2d 641 (1988). 967.04 AnnotationA retrial with new counsel does not render a videotape deposition admissible at the first trial inadmissible at the retrial without a showing that additional testimony by the child deponent was required in the interest of fairness. State v. Kirschbaum, 195 Wis. 2d 11, 535 N.W.2d 462 (Ct. App. 1995), 94-0899. 967.04 AnnotationIf the state makes an adequate showing of necessity, it may use a special procedure, such as one-way closed-circuit television, to transmit a child witness’s testimony to the court without face-to-face confrontation with the defendant. Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990). 967.04 AnnotationState v. Thomas: Face to Face With Coy and Craig—Constitutional Invocation of Wisconsin’s Child-Witness Protection Statute. 1990 WLR 1613.
967.05967.05 Methods of prosecution. 967.05(1)(1) A prosecution may be commenced by the filing of: 967.05(1)(b)(b) In the case of a corporation or limited liability company, an information; 967.05(2)(2) The trial of a misdemeanor action shall be upon a complaint. 967.05(3)(3) The trial of a felony action shall be upon an information. 967.05 HistoryHistory: 1979 c. 291; 1993 a. 112. 967.055967.055 Prosecution of offenses; operation of a motor vehicle or motorboat; alcohol, intoxicant or drug. 967.055(1)(a)(a) The legislature intends to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or having a prohibited alcohol concentration, as defined in s. 340.01 (46m), offenses concerning the operation of motor vehicles by persons with a detectable amount of a restricted controlled substance in his or her blood, and offenses concerning the operation of commercial motor vehicles by persons with an alcohol concentration of 0.04 or more. 967.055(1)(b)(b) The legislature intends to encourage the vigorous prosecution of offenses concerning the operation of motorboats by persons under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog to a degree which renders him or her incapable of operating a motorboat safely, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of operating a motorboat safely or having an alcohol concentration of 0.08 or more. 967.055(1m)(b)(b) “Restricted controlled substance” means any of the following: 967.055(1m)(b)1.1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol. 967.055(1m)(b)5.5. Delta-9-tetrahydrocannabinol, excluding its precursors or metabolites, at a concentration of one or more nanograms per milliliter of a person’s blood. 967.055(2)(a)(a) Notwithstanding s. 971.29, if the prosecutor seeks to dismiss or amend a charge under s. 346.63 (1) or (5) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle or an improper refusal under s. 343.305, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public’s interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, in deterring the operation of motor vehicles by persons with a detectable amount of a restricted controlled substance in his or her blood, or in deterring the operation of commercial motor vehicles by persons with an alcohol concentration of 0.04 or more. The court may not approve an application to amend the vehicle classification from a commercial motor vehicle to a noncommercial motor vehicle unless there is evidence in the record that the motor vehicle being operated by the defendant at the time of his or her arrest was not a commercial motor vehicle. 967.055(2)(b)(b) Notwithstanding s. 971.29, if the prosecutor seeks to dismiss or amend a charge under s. 30.681 (1) or a local ordinance in conformity therewith, a charge under s. 30.681 (2), a charge under s. 30.684 (5) or a local ordinance in conformity therewith or a charge under s. 940.09 or 940.25 if the offense involved the use of a motorboat, except a sailboat operating under sail alone, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public’s interest in deterring the operation of motorboats by persons who are under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of operating a motorboat safely, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of operating a motorboat safely. 967.055(3)(3) No deferred prosecution. A prosecutor may not place a person in a deferred prosecution program if the person is accused of or charged with any of the following offenses: 967.055 AnnotationSub. (2) does not conflict with the separation of powers doctrine and is constitutional. State v. Dums, 149 Wis. 2d 314, 440 N.W.2d 814 (Ct. App. 1989). 967.055 AnnotationThe plain language of sub. (2) (a) clearly shows that the legislature intended to except operating while intoxicated (OWI) prosecutions from the general rule set forth in s. 971.29 (1) allowing charges to be amended without court approval at any time prior to arraignment. State v. Corvino, 2016 WI App 52, 370 Wis. 2d 681, 883 N.W.2d 169, 15-0584. 967.057967.057 Prosecution decisions based on contributions to organizations and agencies. A prosecutor may not, in exchange for a person’s payment of money, other than restitution, to any organization or agency, dismiss or amend a charge alleging a criminal offense or elect not to commence a criminal prosecution. 967.057 HistoryHistory: 1999 a. 58, 186; 2007 a. 84. 967.057 AnnotationA prosecutor may engage in negotiations relating to a defendant’s reimbursement of blood withdrawal expenses, but a prosecutor may not, as a result of a defendant’s payment or offer of payment of blood withdrawal expenses, dismiss or amend the charge, citation, or complaint or forego the initiation of a criminal prosecution, action, or special proceeding based on the violation. OAG 11-09. 967.06967.06 Determination of indigency; appointment of counsel; preparation of record. 967.06(1)(1) As soon as practicable after a person has been detained or arrested in connection with any offense that is punishable by incarceration, or in connection with any civil commitment proceeding, or in any other situation in which a person is entitled to counsel regardless of ability to pay under the constitution or laws of the United States or this state, the person shall be informed of his or her right to counsel. 967.06(2)(a)(a) Except as provided in par. (b), a person entitled to counsel under sub. (1) who indicates at any time that he or she wants to be represented by a lawyer, and who claims that he or she is not able to pay in full for a lawyer’s services, shall immediately be permitted to contact the authority for indigency determinations specified under s. 977.07 (1). The authority for indigency determination in each county shall have daily telephone access to the county jail in order to identify all persons who are being held in the jail. The jail personnel shall provide by phone information requested by the authority. 967.06(2)(b)(b) If the person indicating that he or she wants to be represented by a lawyer is detained under ch. 48, 51, 55, 938, or 980, the person shall be referred for appointment of counsel as provided under s. 48.23 (4), 51.60, 55.105, 938.23 (4), or 980.03 (2) (a), whichever is applicable. 967.06(3)(3) In any case in which the state public defender provides representation to an indigent person, the public defender may request that the applicable court reporter or clerk of circuit court prepare and transmit any transcript or court record. The request shall be complied with. The state public defender shall, from the appropriation under s. 20.550 (1) (a), compensate the court reporter or clerk of circuit court for the cost of preparing, duplicating, and mailing the documents. 967.06 HistoryHistory: Sup. Ct. Order, 71 Wis. 2d ix (1975); 1977 c. 29, 418; 1979 c. 356; 1981 c. 20; 1983 a. 377; 1993 a. 16; 2007 a. 20; 2017 a. 59, 184. 967.06 AnnotationThe defendant was entitled to court-appointed counsel in a state-initiated civil contempt action. Brotzman v. Brotzman, 91 Wis. 2d 335, 283 N.W.2d 600 (Ct. App. 1979). 967.06 AnnotationThis section gives the public defender the right to receive juvenile records of indigent clients notwithstanding s. 48.396 (2). State ex rel. S.M.O., 110 Wis. 2d 447, 329 N.W.2d 275 (Ct. App. 1982). 967.06 AnnotationIf the court is put on notice that the accused has a language difficulty, the court must make a factual determination whether an interpreter is necessary; if so, the accused must be made aware of the right to an interpreter, at public cost if the accused is indigent. Waiver of the right must be made voluntarily in open court on the record. State v. Neave, 117 Wis. 2d 359, 344 N.W.2d 181 (1984). 967.06 AnnotationPolice had no duty to inform a suspect during custodial interrogation that a lawyer retained by the suspect’s family was present. State v. Hanson, 136 Wis. 2d 195, 401 N.W.2d 771 (1987). 967.06 AnnotationThe county must provide free transcripts to the state public defender. State v. Dresel, 136 Wis. 2d 461, 401 N.W.2d 855 (Ct. App. 1987). 967.06 AnnotationA public defender appointed as postconviction counsel is entitled to all court records including the presentence investigation report; access may not be restricted under s. 972.15 (4). Oliver v. Goulee, 179 Wis. 2d 376, 507 N.W.2d 145 (Ct. App. 1993). 967.06 AnnotationThe state public defender may be denied access to jail inmates who have not requested counsel, and jail authorities need only provide over the telephone that information necessary for the public defender to assess the need to make an indigency determination in person under s. 977.07 (1) for an inmate who has requested counsel and claims indigency. Section SPD 2.03 (3) and (5) (July 1990), Wis. Adm. Code, exceeds the bounds of this section. 78 Atty. Gen. 133. 967.07967.07 Circuit court commissioners. A circuit court commissioner may exercise powers or perform duties specified for a judge if such action is permitted under s. 757.69. 967.07 HistoryHistory: 1977 c. 323; 2001 a. 61. 967.08967.08 Telephone or live audiovisual proceedings. 967.08(1)(1) The court may, upon the motion of any party or upon its own motion, conduct proceedings referred to in this section by telephone or live audiovisual means, if available. A party may petition the court to conduct a proceeding by telephone or live audiovisual means. If the proceeding is required to be reported under SCR 71.01 (2), the proceeding shall be reported by a court reporter who is in simultaneous voice communication with all parties to the proceeding. Regardless of the physical location of any party to a proceeding conducted by telephone or live audiovisual means, any plea, waiver, stipulation, motion, objection, decision, order or other action taken by the court or any party shall have the same effect as if made in open court. With the exceptions of scheduling conferences, pretrial conferences, and, during hours the court is not in session, setting, review, modification of bail and other conditions of release under ch. 969, the proceeding shall be conducted in a courtroom or other place reasonably accessible to the public. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker, live audiovisual means, or, upon request to the court, by allowing a person entitled to attend to listen to or view the proceedings without charge. 967.08(2)(2) The court may permit any criminal proceeding under chs. 968 to 973 to be conducted by telephone or live audiovisual means if both parties consent to do so. 967.08(4)(4) If any party objects to the use of telephone or live audiovisual means for a critical stage of the proceedings, the court shall sustain the objection. 967.08(5)(5) For any other objections to the use of telephone or live audiovisual means, the court shall consider the factors outlined in s. 885.56 in determining whether to sustain or overrule the objection. 967.08 HistoryHistory: Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 403; Sup. Ct. Order, 158 Wis. 2d xvii (1990); 1995 a. 27, 387; 1997 a. 252; 2021 a. 141. Effective date noteJudicial Council Note, 1988: This section [created] allows various criminal proceedings to be conducted by telephone conference or live audio-visual means, if available. Requirements for reporting and public access are preserved. [Re Order eff. 1-1-88]
967.08 NoteJudicial Council Note, 1990: [Re amendment of (1)] Supreme Court Rule 71.01 (2) specifies when a verbatim record is required of a judicial proceeding. Such a record should not be required solely because the proceeding is conducted by telephone or live audio-visual means. Likewise, the requirement in the prior rule that all telephone proceedings be conducted in the courtroom or other reasonably accessible public place discouraged the practice of setting and modifying bail by telephone conference during hours the court was not in session.
