Use in criminal cases and proceedings under chapters 48, 51, 55, 938, and 980.
Waivers and stipulations.
Subpoenas, who may issue.
The subpoena need not be sealed, and may be signed and issued as follows:
By any judge or clerk of a court or court commissioner or municipal judge, within the territory in which the officer or the court of which he or she is the officer has jurisdiction, to require the attendance of witnesses and their production of lawful instruments of evidence in any action, matter or proceeding pending or to be examined into before any court, magistrate, officer, arbitrator, board, committee or other person authorized to take testimony in the state.
By the attorney general or any district attorney or person acting in his or her stead, to require the attendance of witnesses, in behalf of the state, in any court or before any magistrate and from any part of the state.
By the chairperson of any committee of any county board, town board, common council or village board to investigate the affairs of the county, town, city or village, or the official conduct or affairs of any officer thereof.
By any arbitrator, coroner, medical examiner, board, commission, commissioner, examiner, committee or other person authorized to take testimony, or by any member of a board, commission, authority or committee which is authorized to take testimony, within their jurisdictions, to require the attendance of witnesses, and their production of documentary evidence before them, respectively, in any matter, proceeding or examination authorized by law; and likewise by the secretary of revenue and by any agent of the department of agriculture, trade and consumer protection.
See s. 805.07
concerning issuance of subpoenas by attorneys of record.
A taxpayer subpoenaed by the department of revenue has limited discovery rights. State v. Beno, 99 Wis. 2d 77
, 298 N.W.2d 405
(Ct. App. 1980).
A school board may issue a subpoena to compel the attendance of a witness at an expulsion hearing. Racine Unified School District v. Thompson, 107 Wis. 2d 657
, 321 N.W.2d 334
(Ct. App. 1982).
A John Doe judge has exclusive authority to subpoena witnesses in a John Doe proceeding based upon the language of s. 968.26. Hipp v. Circuit Court for Milwaukee County, 2008 WI 67
, 310 Wis. 2d 342
, 750 N.W.2d 873
A subpoenaed witness must attend a continued or postponed hearing and remain in attendance until excused. 68 Atty. Gen. 251.
Form of subpoena. 885.02(1)(1)
The subpoena may be in the following form:
State of Wisconsin
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)
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).
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.
History: 1993 a. 486
Section 972.11 (1) points in two different directions. The rules of civil procedure are applicable generally to criminal proceedings and the application of the rules of civil procedure mandates reasonable diligence for substituted service of a subpoena. On the other hand, this chapter is to apply in all criminal proceedings and this section sets forth three manners for service of a subpoena that do not include the reasonable diligence mandate. Because s. 972.11 (1) explicitly references it, this chapter is the more specific textual provision. Thus, service of a witness subpoena in a criminal proceeding is controlled by this section, which provides only that “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." State v. Wilson, 2017 WI 63
, 376 Wis. 2d 92
, 896 N.W.2d 682
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. A subpoena to require the attendance of the defendant, whether the defendant is within or without the state, may be served by mailing it to the defendant at the address on file with the court.
Former s. 885.04, 2017 stats., does not authorize a municipal court to subpoena persons outside of the state; thus the court in this case could not 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
Witness and interpreter fees.
The fees of witnesses and interpreters are prescribed in s. 814.67
History: 1981 c. 317
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.
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.
History: 1983 a. 368
; 1987 a. 201
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).
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.
History: 1993 a. 486
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.
History: 1993 a. 486
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.
History: 1987 a. 403
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 supplemental 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 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.
Disobedient witness. 885.11(1)(1)
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.
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.
Punishment in courts.
Inexcusable failure to attend any court of record is a contempt of the court, punishable by a fine not exceeding $200.
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.
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.
History: 1987 a. 155
; 1993 a. 486
See also s. 804.12 (4)
regarding failure to appear at deposition.
Sub. (5) is broad enough to include the failure to produce documents at a discovery examination, but a party cannot delay seven years before making the motion to strike the pleading. “Unlawfully" means without legal excuse, which must be determined at a hearing. Gipson Lumber Co. v. Schickling, 56 Wis. 2d 164
, 201 N.W.2d 500
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
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 a circuit 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.
See s. 785.06
Disclosure of information and sources by news person. 885.14(1)(1)
In this section, “news person" means any of the following:
Any business or organization that, by means of print, broadcast, photographic, mechanical, electronic, or other medium, disseminates on a regular and consistent basis news or information to the public, including a newspaper, magazine, or other periodical; book publisher; news agency; wire service; radio or television station or network; cable or satellite network, service, or carrier; or audio or audiovisual production company; and a parent, subsidiary, division, or affiliate of any of these businesses or organizations.
Any person who is or has been engaged in gathering, receiving, preparing, or disseminating news or information to the public for an entity described in par. (a)
, including any person supervising or assisting the person in gathering, receiving, preparing, or disseminating such news or information.
Subpoenas issued to news person. 885.14(2)(a)
Except as provided in par. (b)
, no person having the power to issue a subpoena may issue a subpoena compelling a news person to testify about or produce or disclose any of the following that is obtained or prepared by the news person in the news person's capacity in gathering, receiving, or preparing news or information for potential dissemination to the public:
The identity of a confidential source of any news or information.
Any information that would tend to identify the confidential source of any news or information.
Any news or information obtained or prepared in confidence by the news person.
Any news, information, or identity of any source of any news or information that is not described in subd. 1.
, or 3.
Procedure before courts.
Subject to par. (c)
, a circuit court may issue a subpoena to compel a news person to testify about or disclose or produce any news, information, or identity of any source as specified in par. (a) 4.
if the court finds, after notice to and an opportunity to be heard by the news person that the person requesting the subpoena established, based on information obtained from a person other than the news person, one of the following by clear and convincing evidence:
In a criminal prosecution or investigation that there are reasonable grounds to believe that a crime has occurred.
In a civil action or proceeding that the complaint states a claim upon which relief may be granted.
A circuit court may issue a subpoena under par. (b)
only if all of the following conditions are met:
The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.
The news, information, or identity of the source is necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.
The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.
There is an overriding public interest in the disclosure of the news, information, or identity of the source.
Subpoenas issued to persons other than news persons.
No person having the power to issue a subpoena may issue a subpoena to compel a person other than a news person to testify about or produce or disclose, information, records, or communications relating to a business transaction between that person and the news person if the purpose of the subpoena is to discover any of the items listed in sub. (2) (a) 1.
A disclosure to another person or dissemination to the public of news, information, or the identity of a source as described in sub. (2) (a) 1.
by a news person does not constitute a waiver of the protection from compelled disclosure under sub. (2)
Any news, information, records, communications, or the identity of a source of any news or information obtained in violation of this section are inadmissible for any purpose in any judicial, legislative, or administrative action, proceeding, or hearing.
History: 2009 a. 400
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.
The immunity provided under sub. (1)
is subject to the restrictions under s. 972.085
History: 1989 a. 122