967.04(7)(b)8.8. 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.
967.04(7)(b)9.9. 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.
967.04(7)(b)10.10. 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.
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 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 is 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, the state 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. Vaillancourt. 1990 WLR 1613.
Notes of Decisions
Cited in
29
cases (
1 in the last 5 years), 1974–2023 · leading case:
State v. Kirschbaum, 535 N.W.2d 462 (Wis. Ct. App. 1995).
State v. Kirschbaum, 535 N.W.2d 462 (Wis. Ct. App. 1995).
· cites it 43× “did not testify at trial, but her videotaped deposition *19 was admitted pursuant to § 967.04, STATS. In her videotaped deposition, Amanda H.”
State v. Street, 551 N.W.2d 830 (Wis. Ct. App. 1996).
· cites it 31× “[5] However, the trial court stated that a review of the transcript of the hearing on the motion revealed that the standards established in § 967.04(7) had been met at the time the videotaped depositions were permitted.”
State v. Thomas, 425 N.W.2d 641 (Wis. 1988).
· cites it 20× “If the deposition is admitted, the child may not be called as a witness at that time 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…”
State v. Thomas, 442 N.W.2d 10 (Wis. 1989).
· cites it 16× “He used these cases to illustrate the problems that the legislative policy of sec. 967.04, Stats., sought to alleviate.”
Maryland v. Craig, 497 U.S. 836 (1990).
· cites it 2× “1989); Wis. Stat. §§ 967.04 (7) to (10) (1987-1988); Wyo.”
State v. Drusch, 407 N.W.2d 328 (Wis. Ct. App. 1987).
· cites it 4× “If admitted, the child may not be called as a witness unless the court so orders upon a showing that fairness requires the child's additional testimony.”
State v. Rogers, 539 N.W.2d 897 (Wis. Ct. App. 1995).
· cites it 2× “See § 967.04(1), Stats. Therefore, as the trial court correctly noted, Myers's statements technically are not suppressed and the State may still use them at trial if it provides a means of circumventing Rogers's hearsay objection.”
People v. Straight, 424 N.W.2d 257 (Mich. 1988).
· cites it 2× “071; Vt Rules of Evid 807; Wis Stat Ann 967.04(7)(b). The Michigan statute does not address the use of the statement for corroboration or rehabilitation.”
State v. Nelson, 406 N.W.2d 385 (Wis. 1987).
· cites it 2× “See sec. 967.04(7), Stats. (1983-84). Dr. McLean's testimony indicated that videotaping would have been possible only if it did not interrupt therapy.”
State v. Flint, 761 P.2d 1158 (Idaho 1988).
· cites it 2× “5 (Smith 1985); Wis. Stat. Ann. §§ 967.04 (7)-(10) (West 1986).”
State v. Temby, 322 N.W.2d 522 (Wis. Ct. App. 1982).
· cites it 2× “The state filed a motion pursuant to sec. 967.04, Stats., to have a deposition of Bonel-li’s testimony taken and used as evidence at trial.”
Miller v. State, 517 N.E.2d 64 (Ind. 1987).
“); Wis.Stat.Ann. § 967.04(7)-(10) (West 1986); Wis.”
Wis. Stat. § 967.04(1): 2 cases
State v. Rogers, 539 N.W.2d 897 (Wis. Ct. App. 1995).
“See § 967.04(1), Stats. Therefore, as the trial court correctly noted, Myers's statements technically are not suppressed and the State may still use them at trial if it provides a means of circumventing Rogers's hearsay objection.”
Wis. Stat. § 967.04(10): 3 cases
State v. Kirschbaum, 535 N.W.2d 462 (Wis. Ct. App. 1995).
“did not testify at trial, but her videotaped deposition *19 was admitted pursuant to § 967.04, STATS. In her videotaped deposition, Amanda H.”
State v. Thomas, 425 N.W.2d 641 (Wis. 1988).
“If the deposition is admitted, the child may not be called as a witness at that time 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…”
State v. Thomas, 442 N.W.2d 10 (Wis. 1989).
“He used these cases to illustrate the problems that the legislative policy of sec. 967.04, Stats., sought to alleviate.”
Wis. Stat. § 967.04(5)(a): 1 case
Wis. Stat. § 967.04(7): 14 cases
State v. Street, 551 N.W.2d 830 (Wis. Ct. App. 1996).
“[5] However, the trial court stated that a review of the transcript of the hearing on the motion revealed that the standards established in § 967.04(7) had been met at the time the videotaped depositions were permitted.”
State v. Kirschbaum, 535 N.W.2d 462 (Wis. Ct. App. 1995).
“did not testify at trial, but her videotaped deposition *19 was admitted pursuant to § 967.04, STATS. In her videotaped deposition, Amanda H.”
State v. Drusch, 407 N.W.2d 328 (Wis. Ct. App. 1987).
“If admitted, the child may not be called as a witness unless the court so orders upon a showing that fairness requires the child's additional testimony.”
State v. Thomas, 442 N.W.2d 10 (Wis. 1989).
“He used these cases to illustrate the problems that the legislative policy of sec. 967.04, Stats., sought to alleviate.”
State v. Nelson, 406 N.W.2d 385 (Wis. 1987).
“See sec. 967.04(7), Stats. (1983-84). Dr. McLean's testimony indicated that videotaping would have been possible only if it did not interrupt therapy.”
Wis. Stat. § 967.04(7)(a): 6 cases
State v. Street, 551 N.W.2d 830 (Wis. Ct. App. 1996).
“[5] However, the trial court stated that a review of the transcript of the hearing on the motion revealed that the standards established in § 967.04(7) had been met at the time the videotaped depositions were permitted.”
State v. Thomas, 425 N.W.2d 641 (Wis. 1988).
“If the deposition is admitted, the child may not be called as a witness at that time 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…”
State v. Kirschbaum, 535 N.W.2d 462 (Wis. Ct. App. 1995).
“did not testify at trial, but her videotaped deposition *19 was admitted pursuant to § 967.04, STATS. In her videotaped deposition, Amanda H.”
State v. Thomas, 442 N.W.2d 10 (Wis. 1989).
“He used these cases to illustrate the problems that the legislative policy of sec. 967.04, Stats., sought to alleviate.”
Wis. Stat. § 967.04(7)(b): 4 cases
State v. Street, 551 N.W.2d 830 (Wis. Ct. App. 1996).
“[5] However, the trial court stated that a review of the transcript of the hearing on the motion revealed that the standards established in § 967.04(7) had been met at the time the videotaped depositions were permitted.”
People v. Straight, 424 N.W.2d 257 (Mich. 1988).
“071; Vt Rules of Evid 807; Wis Stat Ann 967.04(7)(b). The Michigan statute does not address the use of the statement for corroboration or rehabilitation.”
State v. Kirschbaum, 535 N.W.2d 462 (Wis. Ct. App. 1995).
“did not testify at trial, but her videotaped deposition *19 was admitted pursuant to § 967.04, STATS. In her videotaped deposition, Amanda H.”
State v. Thomas, 442 N.W.2d 10 (Wis. 1989).
“He used these cases to illustrate the problems that the legislative policy of sec. 967.04, Stats., sought to alleviate.”
Wis. Stat. § 967.04(7M10): 2 cases
State v. Thomas, 425 N.W.2d 641 (Wis. 1988).
“If the deposition is admitted, the child may not be called as a witness at that time 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…”
State v. Flint, 761 P.2d 1158 (Idaho 1988).
“5 (Smith 1985); Wis. Stat. Ann. §§ 967.04 (7)-(10) (West 1986).”
Wis. Stat. § 967.04(8): 2 cases
State v. Kirschbaum, 535 N.W.2d 462 (Wis. Ct. App. 1995).
“did not testify at trial, but her videotaped deposition *19 was admitted pursuant to § 967.04, STATS. In her videotaped deposition, Amanda H.”
State v. Street, 551 N.W.2d 830 (Wis. Ct. App. 1996).
“[5] However, the trial court stated that a review of the transcript of the hearing on the motion revealed that the standards established in § 967.04(7) had been met at the time the videotaped depositions were permitted.”
Wis. Stat. § 967.04(8)(b): 1 case
State v. Thomas, 425 N.W.2d 641 (Wis. 1988).
“If the deposition is admitted, the child may not be called as a witness at that time 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…”
Wis. Stat. § 967.04(9): 2 cases
State v. Kirschbaum, 535 N.W.2d 462 (Wis. Ct. App. 1995).
“did not testify at trial, but her videotaped deposition *19 was admitted pursuant to § 967.04, STATS. In her videotaped deposition, Amanda H.”
State v. Thomas, 425 N.W.2d 641 (Wis. 1988).
“If the deposition is admitted, the child may not be called as a witness at that time 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…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.
