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968.33 History History: 1973 c. 12 s. 37; 1977 c. 187 s. 135; Sup. Ct. Order, 88 W (2d) xiii (1979).
968.34 968.34 Use of pen register or trap and trace device restricted.
968.34(1)(1) Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under s. 968.36 or 18 USC 3123 or 50 USC 1801 to 1811.
968.34(2) (2) The prohibition of sub. (1) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service:
968.34(2)(a) (a) Relating to the operation, maintenance and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service;
968.34(2)(b) (b) To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or
968.34(2)(c) (c) Where the consent of the user of that service has been obtained.
968.34(2m) (2m) The prohibition of sub. (1) does not apply to a telephone caller identification service authorized under s. 196.207 (2).
968.34(3) (3) Whoever knowingly violates sub. (1) shall be fined not more than $10,000 or imprisoned not more than one year or both.
Effective date note NOTE: Sub. (3) is amended eff. 12-31-99 by 1997 Wis. Act 283 to read:
Effective date text (3) Whoever knowingly violates sub. (1) shall be fined not more than $10,000 or imprisoned for not more than 2 years or both.
968.34 History History: 1987 a. 399; 1991 a. 268, 269; 1997 a. 283.
968.35 968.35 Application for an order for a pen register or a trap and trace device.
968.35(1) (1) The attorney general or a district attorney may make application for an order or an extension of an order under s. 968.36 authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or equivalent affirmation, to a circuit court for the county where the device is to be located.
968.35(2) (2) An application under sub. (1) shall include all of the following:
968.35(2)(a) (a) The identity of the person making the application and the identity of the law enforcement agency conducting the investigation.
968.35(2)(b) (b) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.
968.35 History History: 1987 a. 399.
968.36 968.36 Issuance of an order for a pen register or a trap and trace device.
968.36(1)(1) Upon an application made under s. 968.35, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the applicant has certified to the court that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.
968.36(2) (2) An order issued under this section shall do all of the following:
968.36(2)(a) (a) Specify the identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
968.36(2)(b) (b) Specify the identity, if known, of the person who is the subject of the criminal investigation.
968.36(2)(c) (c) Specify the number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
968.36(2)(d) (d) Provide a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
968.36(2)(e) (e) Direct, upon the request of the applicant, the furnishing of information, facilities and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under s. 968.37.
968.36(3) (3) An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed 60 days.
968.36(4) (4) Extensions of the order may be granted, but only upon an application for an order under s. 968.35 and upon the judicial finding required by sub. (1). The period of extension shall be for a period not to exceed 60 days.
968.36(5) (5) An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:
968.36(5)(a) (a) The order be sealed until otherwise ordered by the court; and
968.36(5)(b) (b) The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.
968.36 History History: 1987 a. 399.
968.37 968.37 Assistance in the installation and use of a pen register or trap and trace device.
968.37(1) (1) Upon the request of the attorney general, a district attorney or an officer of a law enforcement agency authorized to install and use a pen register under ss. 968.28 to 968.37, a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the investigative or law enforcement officer forthwith all information, facilities and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the assistance is directed by a court order under s. 968.36 (5) (b).
968.37(2) (2) Upon the request of the attorney general, a district attorney or an officer of a law enforcement agency authorized to receive the results of a trap and trace device under ss. 968.28 to 968.37, a provider of a wire or electronic communication service, landlord, custodian or other person shall install the device forthwith on the appropriate line and shall furnish the investigative or law enforcement officer all additional information, facilities and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by a court order under s. 968.36 (5) (b). Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the officer of a law enforcement agency, designated by the court, at reasonable intervals during regular business hours for the duration of the order.
968.37(3) (3) A provider of a wire or electronic communication service, landlord, custodian or other person who furnishes facilities or technical assistance under this section shall be reasonably compensated for the reasonable expenses incurred in providing the facilities and assistance.
968.37(4) (4) No cause of action may lie in any court against any provider of a wire or electronic communication service, its officers, employes or agents or other specified persons for providing information, facilities or assistance in accordance with the terms of a court order under s. 968.36.
968.37(5) (5) A good faith reliance on a court order, a legislative authorization or a statutory authorization is a complete defense against any civil or criminal action brought under ss. 968.28 to 968.37.
968.37 History History: 1987 a. 399.
968.38 968.38 Testing for HIV infection and certain diseases.
968.38(1)(1) In this section:
968.38(1)(a) (a) "Health care professional" means a physician or a registered nurse or licensed practical nurse who is licensed under ch. 441.
968.38(1)(b) (b) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
968.38(1)(bm) (bm) "Physician" has the meaning given in s. 448.01 (5).
968.38(1)(c) (c) "Sexually transmitted disease" has the meaning given in s. 252.11 (1).
968.38(1)(d) (d) "Significantly exposed" has the meaning given in s. 252.15 (1) (em).
968.38(2) (2) In a criminal action under s. 940.225, 948.02, 948.025, 948.05, 948.06 or 948.095, if all of the following apply, the district attorney shall apply to the circuit court for his or her county to order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease and to disclose the results of the test or tests as specified in sub. (4) (a) to (c):
968.38(2)(a) (a) The district attorney has probable cause to believe that the defendant has significantly exposed the alleged victim or victim. If the defendant is convicted or found not guilty by reason of mental disease or defect, this paragraph does not apply.
968.38(2)(b) (b) The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to so apply for an order.
968.38(3) (3) The district attorney may apply under sub. (2) for an order at any of the following times, and, within those times, shall do so as soon as possible so as to enable the court to provide timely notice:
968.38(3)(a) (a) At or after the initial appearance and prior to the preliminary examination.
968.38(3)(b) (b) If the defendant waives the preliminary examination, at any time after the court binds the defendant over for trial and before a verdict is rendered.
968.38(3)(c) (c) At any time after the defendant is convicted or is found not guilty by reason of mental disease or defect.
968.38(3)(d) (d) If the court has determined that the defendant is not competent to proceed under s. 971.14 (4) and suspended the criminal proceedings, at any time after the determination that the defendant is not competent to proceed.
968.38(4) (4) The court shall set a time for a hearing on the matter under sub. (2) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the defendant has significantly exposed the victim or alleged victim, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain, notwithstanding s. 252.15 (4) (c), from making the test results part of the defendant's permanent medical record and to disclose the results of the test to any of the following:
968.38(4)(a) (a) The alleged victim or victim, if the alleged victim or victim is not a minor.
968.38(4)(b) (b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.
968.38(4)(c) (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim.
968.38 History History: 1991 a. 269; 1993 a. 27, 32, 183, 227, 495; 1995 a. 456; 1997 a. 182.
968.38 Annotation Acquittal on a charge of sexual intercourse with a minor did not prevent an order for HIV testing following a conviction for sexual assault; the test is probable cause and is not governed by the outcome of the trial. State v. Parr, 182 W (2d) 349, 513 NW (2d) 647 (Ct. App. 1994).
968.40 968.40 Grand jury.
968.40(1)(1)Selection of grand jury list. Any judge may, in writing, order the clerk of circuit court to select a grand jury list within a specified reasonable time. The clerk shall select from the prospective juror list for the county the names of not fewer than 75 nor more than 150 persons to constitute the prospective grand juror list. The list shall be kept secret.
968.40(3) (3)Examination of prospective jurors. At the time set for the prospective grand jurors to appear, the judge shall and the district attorney or other prosecuting officer may examine the prospective jurors under oath or affirmation relative to their qualifications to serve as grand jurors and the judge shall excuse those who are disqualified, and may excuse others for any reason which seems proper to the judge.
968.40(4) (4)Additional grand jurors. If after such examination fewer than 17 grand jurors remain, additional prospective jurors shall be selected, summoned and examined until there are at least 17 qualified jurors on the grand jury.
968.40(6) (6)Time grand jurors to serve. Grand jurors shall serve for a period of 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time.
968.40(7) (7)Orders filed with clerk. All orders mentioned in this section shall be filed with the clerk of court.
968.40(8) (8)Intercounty racketeering and crime. When a grand jury is convened pursuant to this section to investigate unlawful activity under s. 165.70, and such activity involves more than one county, including the county where the petition for such grand jury is filed, then if the attorney general approves, all expenses of such proceeding shall be charged to the appropriation under s. 20.455 (1) (d).
968.40 History History: 1971 c. 125 s. 522 (1); 1977 c. 29 s. 1656 (27); 1977 c. 187 ss. 95, 135; 1977 c. 318; 1977 c. 447 s. 210; 1977 c. 449; Stats. 1977 s. 756.10; 1991 a. 39; Sup. Ct. Order No. 96-08, 207 W (2d) xv (1997); Stats. 1997 s. 968.40.
968.40 Annotation Claim of grand jury discrimination necessitates federal habeas corpus review. Rose v. Mitchell, 443 US 545 (1979).
968.40 Annotation The grand jury in Wisconsin. Coffey, Richards, 58 MLR 518.
968.41 968.41 Oath or affirmation of grand jurors. Grand jurors shall, before they begin performance of their duties, solemnly swear or affirm that they will diligently inquire as to all matters and things which come before the grand jury; that they will keep all matters which come before the grand jury secret; that they will indict no person for envy, hatred or malice; that they will not leave any person unindicted for love, fear, favor, affection or hope of reward; and that they will indict truly, according to the best of their understanding.
968.41 History History: 1975 c. 94 s. 91 (12); 1977 c. 187 s. 95; Stats. 1977 s. 756.11; Sup. Ct. Order No. 96-08,207 W (2d) xv (1997); Stats. 1997 s. 968.41.
968.42 968.42 Presiding juror and clerk. The grand jury shall select from their number a presiding juror and a clerk. The clerk shall preserve the minutes of the proceedings before them and all exhibits.
968.42 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.12; Sup. Ct. Order No. 96-08, 207 W (2d) xv (1997); Stats. 1997 s. 968.42.
968.43 968.43 Reporter; salary; assistant.
968.43(1) (1) Every grand jury shall when ordered by the judge ordering such grand jury, employ one or more reporters to attend their sessions and to make and transcribe a verbatim record of all proceedings had before them.
968.43(2) (2) Before assuming the duties under this section, each reporter shall make and file an oath or affirmation faithfully to record and transcribe all of the proceedings before the grand jury and to keep secret the matters relative to the proceedings. Each reporter shall be paid out of the county treasury of the county in which the service is rendered such sum for compensation and expenses as shall be audited and allowed as reasonable by the court ordering the grand jury. Each reporter may employ on his or her own account a person to transcribe the testimony and proceedings of the grand jury, but before entering upon the duties under this subsection, the person shall be required to make and file an oath or affirmation similar to that required of each reporter.
968.43(3) (3) Any person who violates an oath or affirmation required by sub. (2) may be imprisoned for not more than 5 years.
Effective date note NOTE: Sub. (3) is repealed and recreated eff. 12-31-99 by 1997 Wis. Act 283 to read:
Effective date text (3) Any person who violates an oath or affirmation required by sub. (2) may be imprisoned for not more than 7 years and 6 months.
968.43 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.13; Sup. Ct. Order No. 96-08, 207 W (2d) xv (1997); Stats. 1997 s. 968.43.; 1997 a. 283
968.44 968.44 Witnesses. The presiding juror of every grand jury and the district attorney or other prosecuting officer who is before the grand jury may administer all oaths and affirmations in the manner prescribed by law to witnesses who appear before the jury for the purpose of testifying in any matter of which the witnesses have cognizance. At the request of the court, the presiding juror shall return to the court a list, under his or her hand, of all witnesses who are sworn before the grand jury. That list shall be filed by the clerk of circuit court.
968.44 History History: 1977 c. 187 s. 95; 1977 c. 449; Stats. 1977 s. 756.14; Sup. Ct. Order No. 96-08, 207 W (2d) xv (1997); Stats. 1997 s. 968.44.
968.45 968.45 Witness rights; transcripts.
968.45(1) (1) Any witness appearing before a grand jury may have counsel present, but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses or argue before the judge. Counsel may consult with his or her client while before a grand jury. If the prosecuting officer, attorney for a witness or a grand juror believes that a conflict of interest exists for an attorney or attorneys to represent more than one witness before a grand jury, the person so believing may make a motion before the presiding judge to disqualify the attorney from representing more than one witness before the grand jury. A hearing shall be held upon notice with the burden upon the moving party to establish the conflict.
968.45(2) (2) No grand jury transcript may be made public until the trial of anyone indicted by the grand jury and then only that portion of the transcript that is relevant and material to the case at hand. This subsection does not limit the defendant's rights to discovery under s. 971.23.
968.45 History History: 1979 c. 291; Sup. Ct. Order No. 96-08, 207 W (2d) xv (1997); Stats. 1997 s. 968.45.
968.46 968.46 Secrecy. Notwithstanding s. 757.14, all motions, including but not limited to those for immunity or a privilege, brought by a prosecuting officer or witness appearing before a grand jury shall be made, heard and decided in complete secrecy and not in open court if the prosecuting officer or witness bringing the motion or exercising the immunity or privilege so requests.
968.46 History History: 1979 c. 291; Sup. Ct. Order No. 96-08, 207 W (2d) xv (1997); Stats. 1997 s. 968.46.
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This is an archival version of the Wis. Stats. database for 1997. See Are the Statutes on this Website Official?