AB291: Bill Text

2001 Assembly BILL 291

April 3, 2001 - Introduced by Representatives Walker, Wasserman, Bies, Berceau, Freese, Gunderson, Gundrum, Hahn, Hundertmark, Kestell, Ladwig, La Fave, F. Lasee, Kreuser, McCormick, Musser, Nass, Owens, Plouff, Reynolds, Starzyk, Turner, Wade, Stone, Miller, Kedzie, Sykora, Olsen, Vrakas and Balow, cosponsored by Senators Burke, Erpenbach, Huelsman, Rosenzweig and Darling. Referred to Committee on Corrections and the Courts.

AB291,1,10 An Act to repeal 972.11 (5); to renumber and amend 757.54; to amend 165.77 (2) (a) 2., 165.77 (3), 165.81 (1), 801.02 (7) (a) 2. c., 805.15 (3) (intro.), 808.075 (4) (h), 809.30 (1) (a), 809.30 (2) (L), 938.293 (2), 938.299 (4) (a), 938.46, 939.74 (1), 939.74 (2) (c), 950.04 (1v) (s), 968.20 (1) (intro.), 968.20 (2), 968.20 (4), 971.04 (3), 971.23 (1) (e), 971.23 (2m) (am), 972.11 (1), 974.02 (1), 974.05 (1) (b), 977.07 (1) (b) and 977.07 (1) (c); and to create 20.410 (1) (be), 165.77 (2m), 165.81 (3), 757.54 (2), 805.16 (5), 939.74 (2d), 950.04 (1v) (yd), 968.205, 971.23 (9), 974.07, 978.08 and 980.101 of the statutes; relating to: time limits for prosecution of certain sexual assault crimes, preservation of certain evidence, and postconviction and post commitment deoxyribonucleic acid testing of evidence.

Analysis by the Legislative Reference Bureau

Time limits for prosecuting sexual assault

Current law provides time limits for commencing the prosecution of most crimes, including sexual assault. The state must initiate prosecution within the time limit or is barred from prosecuting the offense. A prosecution is commenced when a court issues a summons or a warrant for arrest, when a grand jury issues an indictment, or when a district attorney files an information alleging that a person committed a specific crime. Time during which a defendant is either a nonresident of the state or is secretly a resident in concealment is not calculated as part of the time limit.

Under current law, the state must prosecute first and second degree sexual assault within six years of the date of the crime. The state must prosecute first and second degree sexual assault of a child, as well as repeated sexual assault of the same child, before the victim reaches the age of 31.

This bill creates an exception to the time limits for prosecuting the crimes of sexual assault, sexual assault of a child, and repeated sexual assault of the same child in certain circumstances if the state has deoxyribonucleic acid (DNA) evidence related to the crime. If the state collects and analyzes DNA evidence related to the crime before the time limit for prosecution expires and does not link the DNA evidence to an identified person until after the time limit expires, the state may initiate prosecution for the crime within one year of matching the DNA evidence to a known person.

Postconviction deoxyribonucleic acid testing

Current law provides several options for a person who is convicted of a crime, found not guilty by reason of mental disease or defect, or adjudicated delinquent to challenge his or her conviction, finding of not guilty by reason of mental disease or defect, or delinquency adjudication:

1. The person may file a motion for relief with the trial court, and upon losing the postconviction motion in the trial court may appeal to the appellate court. In some cases the person may bypass the trial court and proceed directly to the appellate court. To initiate either a request for relief from the trial court or to initiate an appeal the person must serve notice of intent to pursue postconviction relief within 20 days of sentencing.

2. The person may file a motion for a new trial on the basis of newly discovered evidence up to one year after a verdict is entered. In order to obtain a new trial the person must show that the new evidence came to the person's attention after the trial, the failure to discover the evidence was not due to lack of diligence, the evidence is material and not cumulative, and the new evidence would probably change the outcome.

3. At any time, a person serving time in prison under a sentence imposed by a state circuit court, or a person serving time under the volunteer probation program for a misdemeanor, who has exhausted direct appeal rights, may file a motion for release from custody under the state postconviction relief law if the person alleges that the sentence was imposed in violation of the U.S. or Wisconsin constitution, or in violation of other state law. In order to prevail on a motion for postconviction relief the person must have raised the issues contained in the motion for postconviction relief at trial or on appeal. A person may not make successive motions for postconviction relief.

4. At any time, a person whose liberty is restrained may seek state habeas corpus relief if the restraint of liberty is imposed in violation of the U.S. or Wisconsin constitution or in violation of the sentencing court's jurisdiction, and if no other adequate legal remedy is available to the person.

This bill provides an additional avenue to challenge a conviction, finding of not guilty by reason of mental disease or defect, or delinquency adjudication. The bill authorizes a person who was convicted of a crime, found not guilty by reason of mental disease or defect, or adjudicated delinquent to file a motion for testing of DNA evidence if 1) the evidence is relevant to the conviction, finding of not guilty by reason of mental disease or defect, or delinquency adjudication, 2) the evidence is in the possession of a government agency or court, and 3) the evidence was not previously subjected to DNA testing or was tested with a less advanced method than is currently available. An indigent person making a motion for postconviction DNA testing may be represented by a public defender.

The bill also establishes standards for courts to apply in determining whether to order testing of DNA evidence. A court must order testing if all of the following conditions exist: 1) it is reasonably probable that the person seeking testing would not have been convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent, if exculpatory DNA testing results had been available; 2) the evidence is in the actual or constructive possession of a government agency; 3) the chain of custody of the evidence establishes that it has not been tampered with, or testing can establish the integrity of the evidence; and 4) the evidence has not previously been tested, or was tested with a less advanced method of analysis. Whether to order testing is left to the discretion of the court if conditions 2), 3), and 4) are met and if the court finds that the outcome of a criminal or delinquency proceeding, including the sentence or other disposition, would have been more favorable to the person seeking testing of evidence, if DNA analysis had been available in the criminal or delinquency proceeding. If the person seeking testing is indigent or if the court determines that the person does not have the financial resources to pay for testing, the state is required to pay for testing.

Upon receiving test results that support the person's claim of innocence, the court is required to vacate the conviction, judgment of not guilty by reason of mental disease or defect, or delinquency adjudication, release the person from custody, grant a new trial, or grant a new sentencing hearing. If the person is committed to an institution as a sexually violent person, the court may vacate the commitment order, reverse the finding that the person is sexually violent, or grant the person a new trial to determine whether the person is a sexually violent person.

The bill directs courts, law enforcement agencies, district attorneys, and the state crime laboratories to preserve biological specimen evidence if a person in custody could potentially be exonerated as a result of DNA testing of the evidence and if the person in custody has not waived his or her right to preserve the evidence.

Use of deoxyribonucleic acid testing evidence at trial

Current law provides separate discovery rules for use of DNA evidence in a criminal or delinquency proceeding. The rules include a definition for DNA evidence that applies only to evidence obtained by using the restriction fragment length polymorphism (RFLP) technique of DNA analysis. More recently adopted DNA testing techniques such as polymerase chain reaction and mitochondrial DNA testing are not covered by the current rules.

The discovery rules for DNA evidence specify what test results a party that intends to use DNA evidence must provide to the opposing party. The specified results are only created when the RFLP testing technique is used. The DNA evidence discovery rules also set specific time frames for providing notice of intent to use DNA evidence at trial and for producing test results.

The bill modifies the definition for DNA evidence so that it covers all methods of analysis that result in identification of an individual's patterned chemical structure of genetic information. The bill eliminates the list of specific forms of test results that a party who intends to introduce DNA evidence must provide to the opposing party, and instead relies on general discovery rules for production of scientific test results. The bill does, however, retain the time frames for providing notice of intent to use DNA evidence at trial and for providing test results to the opposing party.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB291, s. 1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

AB291, s. 2 Section 2. 20.410 (1) (be) of the statutes is created to read:

AB291,4,7 20.410 (1) (be) Postconviction evidence testing costs. The amounts in the schedule for the costs of performing forensic deoxyribonucleic acid testing for indigent persons under s. 974.07, pursuant to a court order issued under s. 974.07 (12).

AB291, s. 3 Section 3. 165.77 (2) (a) 2. of the statutes is amended to read:

AB291,5,12 165.77 (2) (a) 2. The laboratories may compare the data obtained from the specimen with data obtained from other specimens. The laboratories may make data obtained from any analysis and comparison available to law enforcement agencies in connection with criminal or delinquency investigations and, upon request, to any prosecutor, defense attorney or subject of the data. The data may be used in criminal and delinquency actions and proceedings. In this state, the use is subject to s. 972.11 (5). The laboratories shall not include data obtained from deoxyribonucleic acid analysis of those specimens received under this paragraph in the data bank under sub. (3). The laboratories shall destroy specimens obtained under this paragraph after analysis has been completed and the applicable court proceedings have concluded.

AB291, s. 4 Section 4. 165.77 (2m) of the statutes is created to read:

AB291,5,17 165.77 (2m) (a) If the laboratories receive biological material under a court order issued under s. 974.07 (8), the laboratories shall analyze the deoxyribonucleic acid in the material and submit the results of the analysis to the court that ordered the analysis.

AB291,5,25 (b) The laboratories may compare the data obtained from material received under par. (a) with data obtained from other specimens. The laboratories may make data obtained from any analysis and comparison available to law enforcement agencies in connection with criminal or delinquency investigations and, upon request, to any prosecutor, defense attorney, or subject of the data. The data may be used in criminal and delinquency actions and proceedings. The laboratories shall not include data obtained from deoxyribonucleic acid analysis of material received under par. (a) in the data bank under sub. (3).

AB291,6,2 (c) Paragraph (b) does not apply to specimens received under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063.

AB291, s. 5 Section 5. 165.77 (3) of the statutes is amended to read:

AB291,6,16 165.77 (3) If the laboratories receive a human biological specimen under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047 or 980.063, the laboratories shall analyze the deoxyribonucleic acid in the specimen. The laboratories shall maintain a data bank based on data obtained from deoxyribonucleic acid analysis of those specimens. The laboratories may compare the data obtained from one specimen with the data obtained from other specimens. The laboratories may make data obtained from any analysis and comparison available to law enforcement agencies in connection with criminal or delinquency investigations and, upon request, to any prosecutor, defense attorney or subject of the data. The data may be used in criminal and delinquency actions and proceedings. In this state, the use is subject to s. 972.11 (5). The laboratories shall destroy specimens obtained under this subsection after analysis has been completed and the applicable court proceedings have concluded.

AB291, s. 6 Section 6. 165.81 (1) of the statutes is amended to read:

AB291,7,3 165.81 (1) Whenever the department is informed by the submitting officer or agency that physical evidence in the possession of the laboratories is no longer needed the department may, except as provided in sub. (3) or unless otherwise provided by law, either destroy the same, retain it in the laboratories or turn it over to the University of Wisconsin upon the request of the head of any department. Whenever Except as provided in sub. (3), whenever the department receives information from which it appears probable that the evidence is no longer needed, the department may give written notice to the submitting agency and the appropriate district attorney, by registered mail, of the intention to dispose of the evidence. If no objection is received within 20 days after the notice was mailed, it may dispose of the evidence.

AB291, s. 7 Section 7. 165.81 (3) of the statutes is created to read:

AB291,7,5 165.81 (3) (a) In this subsection:

AB291,7,6 1. "Custody" has the meaning given in s. 968.205 (1) (a).

AB291,7,7 2. "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB291,7,13 (b) Except as provided in par. (c), if physical evidence that is in the possession of the laboratories includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, a delinquency adjudication, or commitment under s. 971.17 or s. 980.06, the laboratories shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

AB291,7,15 (c) Subject to par. (e), the department may destroy biological material before the expiration of the time period specified in par. (b) if all of the following apply:

AB291,7,19 1. The department sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.

AB291,7,21 2. No person who is notified under subd. 1. does either of the following within 90 days after the date on which the person received the notice:

AB291,7,22 a. Files a motion for testing of the biological material under s. 974.07 (2).

AB291,7,24 b. Submits a written request to preserve the biological material to the department.

AB291,8,2 3. No other provision of federal or state law requires the department to preserve the biological material.

AB291,8,7 (d) A notice provided under par. (c) 1. shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under s. 974.07 (2) or a written request to preserve the material is submitted to the department.

AB291,8,13 (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material, the department receives a written request to preserve the material, the department shall preserve the material until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court authorizes destruction of the biological material under s. 974.07 (9) (b) or (10) (a) 5.

AB291, s. 8 Section 8. 757.54 of the statutes is renumbered 757.54 (1) and amended to read:

AB291,8,19 757.54 (1) The Except as provided in sub. (2), the retention and disposal of all court records and exhibits in any civil or criminal action or proceeding or probate proceeding of any nature in a court of record shall be determined by the supreme court by rule.

AB291, s. 9 Section 9. 757.54 (2) of the statutes is created to read:

AB291,8,21 757.54 (2) (a) In this subsection:

AB291,8,22 1. "Custody" has the meaning given in s. 968.205 (1) (a).

AB291,8,23 2. "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB291,9,5 (b) Except as provided in par. (c), if an exhibit in a criminal action or a delinquency proceeding under ch. 938 includes any biological material that was collected in connection with the action or proceeding, the court presiding over the action or proceeding shall ensure that the exhibit is preserved until every person in custody as a result of the action or proceeding, or as a result of commitment under s. 980.06 that is based on a judgment of guilty or not guilty by reason of mental disease or defect in the action or proceeding, has reached his or her discharge date.

AB291,9,7 (c) Subject to par. (e), the court may destroy biological material before the expiration of the time period specified in par. (b) if all of the following apply:

AB291,9,11 1. The court sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal action, delinquency proceeding, or commitment under s. 980.06 and to either the attorney of record for each person in custody or the state public defender.

AB291,9,13 2. No person who is notified under subd. 1. does either of the following within 90 days after the date on which the person received the notice:

AB291,9,14 a. Files a motion for testing of the biological material under s. 974.07 (2).

AB291,9,15 b. Submits a written request to preserve the biological material to the court.

AB291,9,17 3. No other provision of federal or state law requires the court to preserve the biological material.

AB291,9,22 (d) A notice provided under par. (c) 1. shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under s. 974.07 (2) or a written request to preserve the material is submitted to the court.

AB291,9,25 (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material, a court receives a written request to preserve the material, the court shall preserve the material until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court authorizes destruction of the biological material under s. 974.07 (9) (b) or (10) (a) 5.

AB291, s. 10 Section 10. 801.02 (7) (a) 2. c. of the statutes is amended to read:

AB291,10,8 801.02 (7) (a) 2. c. A person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ seeking relief from a judgment of conviction or a sentence of a court or an action under s. 809.30, 809.40, 973.19 or , 974.06 or 974.07.

AB291, s. 11 Section 11. 805.15 (3) (intro.) of the statutes is amended to read:

AB291,10,12 805.15 (3) (intro.) A Except as provided in ss. 974.07 (10) (b) and 980.101 (2) (b), a new trial shall be ordered on the grounds of newly-discovered evidence if the court finds that:

AB291, s. 12 Section 12. 805.16 (5) of the statutes is created to read:

AB291,10,15 805.16 (5) The time limits in this section for filing motions do not apply to motions made under s. 974.07 (2) or 980.101.

AB291, s. 13 Section 13. 808.075 (4) (h) of the statutes is amended to read:

AB291,10,19 808.075 (4) (h) Commitment, supervised release, recommitment and, discharge, and postcommitment relief under ss. 980.06, 980.08, 980.09 and, 980.10, and 980.101 of a person found to be a sexually violent person under ch. 980.

AB291, s. 14 Section 14. 809.30 (1) (a) of the statutes is amended to read:

AB291,11,2 809.30 (1) (a) "Postconviction relief" means, in a felony or misdemeanor case, an appeal or a motion for postconviction relief other than a motion under s. 973.19 or, 974.06 or 974.07 (2). In a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43, it means an appeal or a motion for reconsideration by the trial court of its final judgment or order; in such cases a notice of intent to pursue such relief or a motion for such relief need not be styled as seeking "postconviction" relief.

AB291, s. 15 Section 15. 809.30 (2) (L) of the statutes is amended to read:

AB291,11,5 809.30 (2) (L) An appeal under s. 974.06 or 974.07 is governed by the procedures for civil appeals.

AB291, s. 16 Section 16. 938.293 (2) of the statutes is amended to read:

AB291,11,17 938.293 (2) All records relating to a juvenile which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party, upon demand and upon presentation of releases where necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with the permission of the court. The court may instruct counsel not to disclose specified items in the materials to the juvenile or the parent if the court reasonably believes that the disclosure would be harmful to the interests of the juvenile. Sections Section 971.23 and 972.11 (5) shall be applicable in all delinquency proceedings under this chapter, except that the court shall establish the timetable for the disclosures required under ss. s. 971.23 (1), (2m) and, (8), and 972.11 (5) (9).

AB291, s. 17 Section 17. 938.299 (4) (a) of the statutes is amended to read:

AB291,11,21 938.299 (4) (a) Chapters 901 to 911 govern the presentation of evidence at the fact-finding hearing under s. 938.31. Section 972.11 (5) applies at fact-finding proceedings in all delinquency proceedings under this chapter.

AB291, s. 18 Section 18. 938.46 of the statutes is amended to read:

AB291,12,4 938.46 New evidence. A juvenile whose status is adjudicated by the court under this chapter, or the juvenile's parent, guardian or legal custodian, may at any time within one year after the entering of the court's order petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's original adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing. This section does not apply to motions made under s. 974.07 (2).

AB291, s. 19 Section 19. 939.74 (1) of the statutes is amended to read:

AB291,12,10 939.74 (1) Except as provided in sub. subs. (2), and (2d) and s. 946.88 (1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.

AB291, s. 20 Section 20. 939.74 (2) (c) of the statutes is amended to read: