Section 967.04. Depositions in criminal proceedings.

 

(1)  If it appears that a prospective witness may be unable to attend or prevented from attending a criminal trial or hearing, that the prospective witness's testimony is material and that it is necessary to take the prospective witness's deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion and notice to the parties order that the prospective witness's testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. If a witness is committed pursuant to s. 969.01 (3) , the court shall direct that the witness's deposition be taken upon notice to the parties. After the deposition has been subscribed, the court shall discharge the witness.

(2)  The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time. Upon request of all defendants, unless good cause to the contrary is shown, the court may order that a deposition under this section be taken on the record by telephone or live audiovisual means.

(3)  A deposition shall be taken as provided in civil actions. At the request of a party, the court may direct that a deposition be taken on written interrogatories as provided in civil actions.

(4)  

(a) If the state or a witness procures such an order, the notice shall inform the defendant that the defendant is required to personally attend at the taking of the deposition and that the defendant's failure so to do is a waiver of the defendant's right to face the witness whose deposition is to be taken. Failure to attend shall constitute a waiver unless the defendant was physically unable to attend.

(b) If the defendant is not in custody, the defendant shall be paid witness fees for travel and attendance. If the defendant is in custody, the defendant's custodian shall, at county expense, produce the defendant at the taking of the deposition. If the defendant is in custody, leave to take a deposition on motion of the state shall not be granted unless all states which the custodian will enter with the defendant in going to the place the deposition is to be taken have conferred upon the officers of this state the right to convey prisoners in and through them.

(5)  

(a) At the trial or upon any hearing, a part or all of a deposition, so far as it is otherwise admissible under the rules of evidence, may be used if any of the following conditions appears to have been met:

1. The witness is dead.

2. The witness is out of state, unless it appears that the absence of the witness was procured by the party offering the deposition.

3. The witness is unable to attend or testify because of sickness or infirmity.

4. The party offering the deposition has been unable to procure the attendance of the witness by subpoena.

(b) Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to offer all of it which is relevant to the part offered and any party may offer other parts.

(6)  Objections to receiving in evidence a deposition may be made as in civil actions.

(7)  

(a) In any criminal prosecution or any proceeding under ch. 48 or 938 , any party may move the court to order that a deposition of a child who has been or is likely to be called as a witness be taken by audiovisual means. Upon notice and hearing, the court may issue an order for such a deposition if the trial or hearing in which the child may be called will commence:

1. Prior to the child's 12th birthday; or

2. Prior to the child's 16th birthday and the court finds that the interests of justice warrant that the child's testimony be prerecorded for use at the trial or hearing under par. (b) .

(b) Among the factors which the court may consider in determining the interests of justice are any of the following:

1. The child's chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.

2. The child's general physical and mental health.

3. Whether the events about which the child will testify constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.

4. The child's custodial situation and the attitude of other household members to the events about which the child will testify and to the underlying proceeding.

5. The child's familial or emotional relationship to those involved in the underlying proceeding.

6. The child's behavior at or reaction to previous interviews concerning the events involved.

7. Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the child's prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child's subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.

8. Whether the child manifests or has manifested symptoms associated with posttraumatic stress disorder or other mental disorders, including, without limitation, reexperiencing the events, fear of their repetition, withdrawal, regression, guilt, anxiety, stress, nightmares, enuresis, lack of self-esteem, mood changes, compulsive behaviors, school problems, delinquent or antisocial behavior, phobias or changes in interpersonal relationships.

9. The number of separate investigative, administrative and judicial proceedings at which the child's testimony may be required, the likely length of time until the last such proceeding, and the mental or emotional strain associated with keeping the child's recollection of the events witnessed fresh for that period of time.

10. Whether the use of a recorded deposition would reduce the mental or emotional strain of testifying and whether the deposition could be used to reduce the number of times the child will be required to testify.

(8)  

(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.

(b) If the court orders that a deposition be taken by audiovisual means under sub. (7) , the court shall do all of the following:

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.

2. Schedule the deposition in a room which provides adequate privacy, freedom from distractions, informality and comfort appropriate to the child's developmental level.

3. Order a recess whenever the energy, comfort or attention span of the child or other circumstances so warrant.

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.

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.

6. Allow any questioner to have an adviser to assist the questioner, and upon permission of the judge, to conduct the questioning.

7. Supervise the spatial arrangements of the room and the location, movement, and deportment of all persons in attendance.

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.

9. Permit the defendant to be in a position from which the defendant can communicate privately and conveniently with counsel.

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.

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.

(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 .

(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.

1983 a. 197 ; 1985 a. 262 ; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1989 a. 31 ; 1993 a. 486 ; 1995 a. 77 ; 1997 a. 252 , 319 ; 1999 a. 85 ; 2001 a. 109 ; 2005 a. 42 . Judicial 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. Like 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. This 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. Sub. (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). Sub. (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] Judicial 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] Because 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). Use at trial of a videotaped deposition of an 8-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); Confirmed and supplemented, 150 Wis. 2d 374 , 442 N.W.2d 10 (1989). A 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 . If 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 , 111 L. Ed. 2d 666 (1990). State v. Thomas: Face to Face With Coy and Craig — Constitutional Invocation of Wisconsin's Child-Witness Protection Statute. 1990 WLR 1613.