Wis. Stat. § 967.08 doesn’t permit telephone testimony at criminal jury trial

State v. Micha S. Pruitt, 2016AP251-CR, District 4, 8/18/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The statute permitting telephone proceedings in criminal cases, § 967.08, does not permit the presentation of testimony by telephone during a criminal jury trial.

The state sought interlocutory review of a circuit court order allowing Pruitt to have one her witnesses testify by telephone at her jury trial. (¶¶1-4). The court of appeals reverses the circuit court’s order:

¶8     The statute [§ 967.08 ] specifically enumerates the proceedings that are included within its parameters. [State v.] Vennemann, 180 Wis. 2d [81,] 96[, 508 N.W.2d 404 (1993)]. Criminal jury trials are not among those enumerated proceedings. “[A] specific alternative in a statute is reflective of the legislative intent that any alternative not so enumerated is to be excluded.” Id. at 96. By its plain language, the statute makes no provision for permitting witnesses to testify by telephone at criminal jury trials….

¶9     It is not difficult to discern why this is so. “[I]t is ordinarily the task of a jury to decide both the credibility of a witness and the weight to be given to his or her testimony.” State v. Jenkins, 2014 WI 59, ¶75, 355 Wis. 2d 180, 848 N.W.2d 786 (Crooks, J. concurring). As the State notes, juries make their credibility determinations in part by observing the witnesses, their demeanors, and their body language. Allowing a witness to testify by telephone takes these tools away. Nor can the prosecutor or the jury verify whether the witness is consulting notes or other written materials, which would not ordinarily be permitted during in-person testimony, during the witness’s telephone testimony.

In granting Pruitt’s request the circuit court cited its power under § 906.11 to control court proceedings and the presentation of evidence. (¶4). That statute doesn’t override the dictates of § 967.08:

¶16    “‘[W]hile we agree that the evidentiary rule § 906.11(1) provides the circuit court with broad discretion in its control over the presentation of evidence at trial, that discretion is not unfettered.’ Rather, Wis. Stat. § 906.11 ‘must give way where the exercise of discretion runs afoul of other statutory provisions that are not discretionary.’” State v. Smith, 2002 WI App 118, ¶15, 254 Wis. 2d 654, 648 N.W.2d 15 (quoting Waters v. Pertzborn, 2001 WI 62, ¶31, 243 Wis. 2d 703, 627 N.W.2d 497).

¶17    Wisconsin Stat. § 906.11 does not, in the words of Smith, 254 Wis. 2d 654, ¶15, “trump” Wis. Stat. § 967.08, because § 967.08 limits the circuit court’s discretion with respect to the presentation of testimony by telephone. Accordingly, the circuit court here incorrectly invoked § 906.11 to permit telephone testimony in a proceeding that as a whole may not be conducted by telephone under § 967.08….