WJI opposes bill allowing early testimony of "elders"

Johnson

By Gretchen Schuldt

A bill pending in the state Legislature that would allow "elder" victims and witnesses to provide early testify in criminal cases is unnecessary and provides undue benefits to prosecutors, WJI told a Legislative committee last week.

The bill, Assembly Bill 43, would allow witnesses and alleged victims at least 60 years old to give their testimony in criminal court cases ahead of the trial and possibly over the phone. The measure already has been approved by the state Senate as Senate Bill 18.

"Although we very much sympathize with complainants in criminal cases who are older, this bill duplicates a process that already addresses many of the concerns that exist in these situations," WJI President Craig Johnson said in testimony to the Assembly Judiciary Committee.

State law allows a witnesses' testimony to be taken provided through deposition if it appears the person will not be able to appear at trial. The law gives judges the power to reject deposition requests.

The law also allows either side to request deposition testimony. AB43, however, would allow only the prosecution to request early testimony and does not require a reason for the request. The judge would be required to hold a hearing within 60 days to take the testimony.

Johnson said the bill would create a speedy trial right for alleged victims and witnesses. That, he said, "could adversely impact a defendant's ability to prepare a defense. In so doing, it can create grounds for costly appeals which would drag out cases longer than under current law. This is the exact opposite result from what appears to be intended."

The bill does not say what happens if the judge fails to meet the 60-day deadline, Johnson wrote.

"What if the defendant does not have a lawyer representing him or her?" he asked. "What happens if the defense lawyer has been on the case for just a few days or a week and has not been given adequate time to prepare? What if a defense investigator has not finished work on the case? Again, these are issues that can result in lengthy and costly appeals."

The bill also could violate a defendant's constitutional right to confrontation because it would allow alleged victims and witnesses to testify by phone or by audivisual means, rather than face-to-face, "live" in a courtroom, he said.

"Finally," Johnson said, "the bill says that the elder's testimony 'shall be admissible in evidence against the defendant in any court proceeding in the case.' It does not make mandatory admissibility of the testimony on behalf of the defendant if it is exculpatory."

Other groups offered testimony in favor of the bill. The Alzheimer's Association, for example, said it has "witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a 
victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify in the case." 

The Greater Wisconsin Agency on Aging Resources, Inc., the Elder Law and Special Needs Section of the State Bar of Wisconsin, and AARP Wisconsin also supported the bill.

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