Wisconsin Statutes & Annotations
Chapter 885 - Witnesses and oral testimony.
885.56 - Criteria for exercise of court's discretion.

885.56 Criteria for exercise of court's discretion.
(1) In determining in a particular case whether to permit the use of videoconferencing technology and the manner of proceeding with videoconferencing, the circuit court may consider one or more of the following criteria:
(a) Whether any undue surprise or prejudice would result.
(b) Whether the proponent of the use of videoconferencing technology has been unable, after a diligent effort, to procure the physical presence of a witness.
(c) The convenience of the parties and the proposed witness, and the cost of producing the witness in person in relation to the importance of the offered testimony.
(d) Whether the procedure would allow for full and effective cross-examination, especially when the cross-examination would involve documents or other exhibits.
(e) The importance of the witness being personally present in the courtroom where the dignity, solemnity, and decorum of the surroundings will impress upon the witness the duty to testify truthfully.
(f) Whether a physical liberty or other fundamental interest is at stake in the proceeding.
(g) Whether the court is satisfied that it can sufficiently know and control the proceedings at the remote location so as to effectively extend the courtroom to the remote location.
(h) Whether the participation of an individual from a remote location presents the person at the remote location in a diminished or distorted sense such that it negatively reflects upon the individual at the remote location to persons present in the courtroom.
(i) Whether the use of videoconferencing diminishes or detracts from the dignity, solemnity, and formality of the proceeding so as to undermine the integrity, fairness, and effectiveness of the proceeding.
(j) Whether the person proposed to appear by videoconferencing presents a significant security risk to transport and present personally in the courtroom.
(k) Waivers and stipulations of the parties offered pursuant to s. 885.62.
(L) Any other factors that the court may in each individual case determine to be relevant.
(2) The denial of the use of videoconferencing technology is not appealable.
History: Sup. Ct. Order No. 07-12, 2008 WI 37, 305 Wis. 2d xli.
Comment, 2008: Section 885.56 is intended to give the circuit court broad discretion to permit the use of videoconferencing technology when the technical and operation standards of s. 885.54 are met, while providing clear guidance in the exercise of that discretion. Under this section, the circuit court may permit the use of videoconferencing technology in almost any situation, even over objection, except as provided under s. 885.60. On the other hand, the court may deny the use of videoconferencing technology in any circumstance, regardless of the guidelines. This is consistent with the intent of this legislation to vest circuit courts with broad discretion to advance the use of videoconferencing technology in court proceedings under the standards and guidelines set out, but to reserve to courts the prerogative to deny its use without explanation. A circuit court's denial of the use of videoconferencing is not appealable as an interlocutory order, but to the extent the denial involves issues related to a party's ability to present its case and broader issues related to the presentation of evidence, the denial can be appealed as part of the appeal of the final judgment.
The criteria found in s. 807.13 (2) (c) for telephone testimony are similar in many ways to the criteria found in sub. (1) for videoconferencing testimony, and the procedure for requesting telephonic testimony under s. 807.13 (2) (c) is consistent with the procedure for requesting videoconferencing testimony under s. 885.60. However, s. 807.13 (2) does not apply to postconviction hearings. This section and s. 885.60 are the pertinent statutes that govern a circuit court's consideration of a defendant's motion for remote testimony. State v. Atwater, 2021 WI App 16, 396 Wis. 2d 535, 958 N.W.2d 533, 19-1977.
At the same time the Wisconsin Supreme Court promulgated this section, it included a comment that specifically describes the intent of sub. (2). Sub. (2) is intended to prevent interlocutory appeals of a circuit court's decision granting or denying videoconferencing testimony. Sub. (2) allows a party to argue that the court erred when it granted or denied a motion for videoconferencing testimony— just as a party can argue that the court erred with regard to any other nonfinal decision leading up to a final decision that is appealable as a matter of right. State v. Atwater, 2021 WI App 16, 396 Wis. 2d 535, 958 N.W.2d 533, 19-1977.