Wisconsin Statutes
Wis. Stat. § 972.115 (2026)
Admissibility of defendant’s statement
✓ current as of July 2026
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972.115(2)(a)(a) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is not available, upon a request made by the defendant as provided in s. 972.10 (5) and unless the state asserts and the court finds that one of the following conditions applies or that good cause exists for not providing an instruction, the court shall instruct the jury that it is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony and that the jury may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case:
972.115(2)(a)1.1. The person refused to respond or cooperate in the interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the subject’s refusal.
972.115(2)(a)2.2. The statement was made in response to a question asked as part of the routine processing of the person.
972.115(2)(a)3.3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer’s or agent’s knowledge, the equipment malfunctioned or stopped operating.
972.115(2)(a)4.4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.
972.115(2)(a)5.5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.
972.115(2)(a)6.6. The law enforcement officer conducting the interrogation or the law enforcement officer responsible for observing an interrogation conducted by an agent of a law enforcement agency reasonably believed at the commencement of the interrogation that the offense for which the person was taken into custody or for which the person was being investigated, was not a felony.
972.115(2)(b)(b) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a proceeding heard by the court without a jury in a felony case and if an audio or audio and visual recording of the interrogation is not available, the court may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement unless the court determines that one of the conditions under par. (a) 1. to 6. applies.
972.115(4)(4) Notwithstanding ss. 968.28 to 968.37, a defendant’s lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the defendant during the interrogation.
972.115(5)(5) An audio or audio and visual recording of a custodial interrogation shall not be open to public inspection under ss. 19.31 to 19.39 before one of the following occurs:
972.115(5)(a)(a) The person interrogated is convicted or acquitted of an offense that is a subject of the interrogation.
972.115(5)(b)(b) All criminal investigations and prosecutions to which the interrogation relates are concluded.
972.115 AnnotationInstituting Innocence Reform: Wisconsin’s New Governance Experiment. Kruse. 2006 WLR 645.
Notes of Decisions
Cited in 13
cases (4 in the last 5 years), 2006–2022 · leading case: State v. Raheem Moore, 2015 WI 54 (Wis. 2015).
State v. Raheem Moore, 2015 WI 54 (Wis. 2015). “¶72 Notably, Wis. Stat. § 972.115 (2)(a) provides a remedy for a recording violation that is different from the remedy in Wis.”
State v. Banks, 2010 WI App 107 (Wis. Ct. App. 2010). “See Wis. Stat. § 972.115 (2)(a). 5 Specifically, he argues that Jacobsen's testimony should have been qualified by the fact that *786 there was no recording of the statements Banks made to him.”
State v. Kramer, 2006 WI App 133 (Wis. Ct. App. 2006). “More specifically, the newly created Wis. Stat. § 972.115 (2)(a) provides: If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is…”
State v. Lockhart, 69 A.L.R. 6th 793 (Conn. 2010). “073 (2) (2007) (policy of state is to make electronic recording of custodial interrogations of persons suspected of committing felony); Wis. Stat. § 972.115 (2) (a) (2007) (in absence of exception to recording requirement, defendant is entitled, subject to enumerated exceptions,…”
Clark v. State, 287 S.W.3d 567 (Ark. 2008). “1 (West 2006); Wis. Stat. § 972.115 (2006); N.J. Crim. Prac.”
State v. Christopher S., 338 Conn. 255 (Conn. 2021). “§ 15A-211 (f) (3) (2019) (‘‘[w]hen evidence of compliance or noncompli- ance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or non- compliance to determine whether the…”
United States v. Bruce, 550 F.3d 668 (7th Cir. 2008). “But even if the statute does impose a general recording requirement, the statute also includes six specific circumstances to which the policy does not apply, see Wis. Stat. §§ 972.115 (2)(a)(l)-(6), as well as a general exception for "good cause.”
State v. Raheem Moore (Wis. 2015). “¶72 Notably, Wis. Stat. § 972.115 (2)(a) provides a remedy for a recording violation that is different from the remedy in Wis.”
State v. David Earl Montgomery (Wis. Ct. App. 2021). “§ 972.115(2)(a) (absence of audio or visual recording of custodial statement).”
Muniz-Munoz v. Benzel (E.D. Wis. 2021). “) Muniz-Munoz argues that at the time of his 2012 jury trial Wis. Stat. § 972.115 “was in full force and effect.”
State v. Angelo D. Gray (Wis. Ct. App. 2020). “§ 972.115(2)(a)3. (2017-18), an instruction is not necessary if law enforcement in good faith failed to make the recording due to mistake or equipment failure.”
State v. Flores (Concurrence) (Conn. 2022). “§ 15A- 211 (f) (3) (2019) (‘‘[w]hen evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine whether the defendant’s…”
— Wis. Stat. § 972.115(2)(a) — 6 cases
State v. Raheem Moore, 2015 WI 54 (Wis. 2015). “¶72 Notably, Wis. Stat. § 972.115 (2)(a) provides a remedy for a recording violation that is different from the remedy in Wis.”
State v. Kramer, 2006 WI App 133 (Wis. Ct. App. 2006). “More specifically, the newly created Wis. Stat. § 972.115 (2)(a) provides: If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is…”
State v. Banks, 2010 WI App 107 (Wis. Ct. App. 2010). “See Wis. Stat. § 972.115 (2)(a). 5 Specifically, he argues that Jacobsen's testimony should have been qualified by the fact that *786 there was no recording of the statements Banks made to him.”
State v. David Earl Montgomery (Wis. Ct. App. 2021). “§ 972.115(2)(a) (absence of audio or visual recording of custodial statement).”
State v. Raheem Moore (Wis. 2015). “¶72 Notably, Wis. Stat. § 972.115 (2)(a) provides a remedy for a recording violation that is different from the remedy in Wis.”
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