Judicial Council committee considers expanding use of depositions

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The prospect of expanding the use of depositions in Wisconsin criminal cases drew mixed feedback Tuesday at a meeting of the Wisconsin Judicial Council’s criminal procedure committee.

During a meeting and public hearing, committee members heard testimony from several attorneys and lobbyists about the prospect. Depositions are used in other states, such as Iowa and Florida, though they are not prevalent elsewhere in the country. They often are used so there are few surprises at trial, and can be effective if a witness changes his or her story when testifying.

Wisconsin allows them only in a limited capacity, when a witness cannot be present at a hearing or trial.

“Talking early on can lead to more accurate, more fair and more just results,” Thomas Aquino, a Madison attorney, told the committee.

The idea of expanding the use of depositions was brought up during a larger discussion about pre-trial discovery, which the council is proposing to expand in a criminal code rewrite proposal it has worked on for more than 20 years.

State Rep. Jim Ott, R-Mequon, introduced a version of the criminal code rewrite last session, but it did not pass. The representative said he intends to introduce it again next session.

And while the committee voted to recommend the full council tweak some of the language of the proposed code rewrite Tuesday, depositions are not part of the proposal. Committee Chairman and Court of Appeals Judge Brian Blanchard said it could be revisited at a later date.

Those who had experience with open discovery and depositions said there are few concerns about prosecutors sharing their information with defense attorneys, and vice versa.

Peter Persaud, who is with the State Public Defender’s office in Iowa City, Iowa, and spoke over the phone at Tuesday’s public hearing, said depositions usually are taken and arranged along with prosecutors, and that subpoenas for witnesses rarely are used.

When committee member Kathy Stilling asked Persaud whether not taking depositions can lead to the possibility of an ineffective assistance of counsel claim, he said that thought rarely enters his mind.

“We’re typically not looking at covering our butts,” he said, “as much as zealously representing our clients.”

Kaivon Yazdani, a Milwaukee attorney with Nistler & Condon SC and a former prosecutor in Wisconsin and Broward County, Fla., said there are pros and cons to depositions, but that overall they let both sides see the strengths and weaknesses in each case. Oftentimes, he said, defense attorneys in Wisconsin go into trials blind.

Still, Chuck Morton, a former Broward County assistant state attorney, said depositions don’t come cheap. Expanding their use will increase costs for taxpayers and the state, he said, since police officers and emergency responders have to be paid a salary to testify.

Donna Kuchler, an attorney with Kuchler & Cotton SC, Waukesha, said she has done cases in Wisconsin and Florida, and it is “difficult” to go into trial not knowing what a witness will say.

“Why is it permitted when money is at stake and not when someone’s liberty at stake?” Kuchler asked Tuesday.

Tony Gibart, a lobbyist with End Domestic Abuse Wisconsin, argued that depositions could “retraumatize” a victim, however, by forcing them to recite everything later. In response Grant Huebner, a Milwaukee County prosecutor, asked if a defendant would need to be present when a deposition is taken, and whether that could create problems for a victim.

While the committee continues to consider depositions, it plans to keep moving on the revised criminal code proposal. At a previous meeting, the committee voted to recommend striking a part of the proposal that would have eliminated preliminary hearings. The issue was a major sticking point when the bill originally was introduced.

The committee’s next meeting is July 28. It plans to bring its recommendations to the full council in September. Follow @eheisigWLJ