SB315: Bill Text

LRB-3495/1

RLR&GMM:wlj&lmk:ch

2005 - 2006 LEGISLATURE

2005 Senate BILL 315

September 2, 2005 - Introduced by Senators Zien, Coggs, Miller, Harsdorf, Risser, Darling, Hansen, Roessler, Kapanke, S. Fitzgerald and Lazich, cosponsored by Representatives Gundrum, Bies, Staskunas, Colon, Ziegelbauer, Krawczyk, Van Roy, Sheridan, McCormick, Van Akkeren, F. Lasee, Nelson, Hundertmark, Turner, Nischke, Fields, Musser, Molepske, Pettis, Gronemus, Ott, Cullen, Lothian, Kestell, Stone, Albers, Hahn, LeMahieu, Hines, Jensen, M. Williams, Townsend and Kleefisch. Referred to Committee on Judiciary, Corrections and Privacy.

SB315,2,4 An Act to repeal 165.77 (2m) (a); to amend 165.77 (2m) (b), 165.81 (3) (b), 165.81 (3) (c) (intro.), 165.81 (3) (c) 1., 165.81 (3) (c) 2. a. and b., 165.81 (3) (c) 3., 165.81 (3) (d), 165.81 (3) (e), 165.85 (3) (d), 757.05 (1) (a), 757.54 (2) (b), 757.54 (2) (c) (intro.), 757.54 (2) (c) 1., 757.54 (2) (c) 2. a. and b., 757.54 (2) (c) 3., 757.54 (2) (d), 757.54 (2) (e), 939.74 (2d) (b) and (c), 968.205 (2), 968.205 (3) (intro.), 968.205 (3) (a), 968.205 (3) (b) 1. and 2., 968.205 (3) (c), 968.205 (4), 968.205 (5), 974.07 (8), 978.08 (2), 978.08 (3) (intro.), 978.08 (3) (a), 978.08 (3) (b) 1. and 2., 978.08 (3) (c), 978.08 (4) and 978.08 (5); and to create 16.964 (10), 20.455 (2) (i) 16., 20.505 (6) (kc), 165.75 (3) (g), 165.81 (3) (bm), 175.50, 757.54 (2) (bm), 938.195, 938.31 (3), 939.74 (2d) (am), 968.073, 968.205 (2m), 972.115, 974.07 (12) (c) and 978.08 (2m) of the statutes; relating to: retention and testing of evidence that includes biological material, time limits for prosecuting a crime that is related to a sexual assault, law enforcement procedures for using an eyewitness to identify a person suspected of committing a crime, making audio or audio and visual recordings of custodial interrogations, limitations on admitting unrecorded statements into evidence in juvenile delinquency and criminal proceedings, and creating a grant program for digital recording equipment and training for digital recording of custodial interrogations.

Analysis by the Legislative Reference Bureau

Recording custodial interrogations

The Wisconsin Supreme Court, on July 7, 2005, exercised its supervisory authority over the court system to require that law enforcement agencies electronically record custodial interrogations of juveniles if they are conducted at a place of detention and to require that, if feasible, law enforcement agencies also electronically record custodial interrogations of juveniles that are conducted at a place other than a place of detention. (See State v. Jerrell, 2005 WI 105.)

This bill codifies the Jerrell recording requirement. The bill requires that law enforcement agencies make an audio or audio and visual recording (recording) of a custodial interrogation of a juvenile who is suspected of committing a crime if the interrogation is conducted at a place of detention. The bill also requires law enforcement agencies to make a recording, if feasible, of a custodial interrogation of a juvenile suspected of committing a crime if the interrogation is conducted at a place other than a place of detention. The bill allows several exceptions (listed below) to the recording requirements.

The bill defines "custodial interrogation" as "an interrogation by a law enforcement officer or an agent of a law enforcement agency of a person suspected of committing a crime from the time the suspect is informed of his or her rights to counsel and to remain silent until the questioning ends, during which the officer or agent asks a question that is reasonably likely to elicit an incriminating response and during which a reasonable person in the suspect's position would believe that he or she is in custody or otherwise deprived of his or her freedom of action in any significant way."

The bill defines "place of detention" as "a secure detention facility, jail, municipal lockup facility, or secured correctional facility, or a police or sheriff's office or other building under the control of a law enforcement agency, at which juveniles are held in custody in connection with an investigation of a delinquent act."

The bill provides that a statement made by a juvenile during a custodial interrogation that was not recorded is not admissible in evidence in a delinquency proceeding unless one of several exceptions apply. The exceptions to inadmissibility of unrecorded statements and to the requirement that custodial interrogations of juveniles be recorded are: that the juvenile refused to cooperate if the interrogation was recorded; the statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody; the interrogator in good faith failed to make a recording due to equipment malfunction or improper operation of the recording equipment; the statement was made spontaneously and not in response to a question by the interrogator; or exigent public safety circumstances prevented recording.

The bill further provides that it is the policy of the state to make a recording of a custodial interrogation of an adult suspected of committing a felony (a crime punishable by confinement for one year or more in a state prison), unless good cause is shown for not making a recording, or unless certain exceptions apply. The exceptions are those applicable to a juvenile delinquency case plus that the interrogator was not aware at the time of the interrogation that his or her investigation concerned a felony offense.

The bill provides that if a statement made by an adult during a custodial interrogation that was not recorded is admitted into evidence at a felony trial before a jury, the judge shall instruct the jury that it is the policy of the state to record custodial interrogations related to felonies and that the jury may consider the absence of a recording in weighing the evidence unless the judge finds that one of the above listed exception applies or there is other good cause for not giving such an instruction. In a felony proceeding heard by a judge without a jury, the judge may consider the absence of a recording of a custodial interrogation in weighing the evidence unless one of the exceptions apply.

The provisions relating to recording custodial interrogations of juveniles and admissibility in evidence of statements made by juveniles during custodial interrogations first apply to custodial interrogations conducted on the day after this bill is enacted as an act. The provisions relating to recording custodial interrogations of adults and admissibility in evidence of statements made by an adult during a custodial interrogation first apply to custodial interrogations conducted on January 1, 2007.

The bill creates a grant program administered by the Office of Justice Assistance to provide law enforcement agencies funding for the purchase, installation, or maintenance of equipment for making digital recordings of custodial interrogations and for training personnel to use such equipment. The grant program is funded by increasing the penalty surcharge amount from 25 percent to 26 percent of the amount of fines or forfeitures assessed by a court.

Retention of evidence containing DNA

Under current law, law enforcement agencies, district attorneys (DAs), courts, and the state crime laboratories are required to preserve evidence that includes biological material and was collected in connection with a criminal investigation, which resulted in a conviction, delinquency adjudication, or commitment order, for as long as any person remains in custody under the conviction, delinquency adjudication, or commitment order. However, if a law enforcement agency, DA, court, or crime laboratory informs every person in custody in connection with a piece of evidence of its intent to destroy the evidence and none of the people either requests preservation of the evidence or files a motion for deoxyribonucleic acid (DNA) testing of the biological material contained in or included on the evidence, the law enforcement agency, DA, court, or crime laboratory may destroy the evidence.

This bill provides that a law enforcement agency, DA, court, or crime laboratory must retain evidence that includes biological material and was collected in connection with a criminal investigation that resulted in a conviction, delinquency adjudication, or commitment order only if the biological material is either from the victim of the offense for which the conviction, adjudication, or commitment order was imposed or the biological material may reasonably be used to incriminate or exculpate any person for the offense. Also, a law enforcement agency, DA, court, or crime laboratory need retain the evidence only in an amount and manner sufficient to develop a DNA profile from the evidence.

Testing of DNA evidence

Under current law, a person who has been convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for committing a crime may petition a court to order DNA testing of evidence that was relevant to the investigation or prosecution of the crime (postconviction DNA testing). If a court grants the person's petition, the court may order the state crime laboratories to perform the DNA testing as long as the petitioner and the DA agree that the laboratories should conduct the testing. The court may order the petitioner to pay for testing if the petitioner is not indigent.

This bill provides that if a court grants a petition for postconviction DNA testing, the court may, after consulting with the petitioner and the DA, order the state crime laboratories to conduct the testing, regardless of whether the petitioner or DA consents to selection of the laboratories. Even if ordered to conduct postconviction DNA testing, the state crime laboratories may arrange for another facility to conduct the testing. If the laboratories arrange for another facility to conduct the testing and the court has not ordered the petitioner to pay for testing, the laboratories must pay for it. The bill further requires that the state crime laboratories prioritize postconviction DNA testing ordered by a court over other work of the laboratories.

Time limits for prosecuting a crime related to a felony sexual assault

Current law imposes time limits for commencing prosecution of most crimes. Prosecution of a felony sexual assault must be commenced within six years after the assault, except that prosecution of sexual assault of a child may be commenced at any time before the victim reaches the age of 45. However, if the state collects DNA evidence in connection with a first- or second-degree sexual assault or a sexual assault of a child before the time for prosecution expires and does not match the DNA evidence with an identified person until after that time expires, the state may initiate prosecution for the assault within one year after making the match.

This bill applies the time limits for prosecuting felony sexual assaults as well as the DNA exception from those time limits to crimes that are related to a felony sexual assault. Under the bill, crimes are related if they are committed against the same victim, are proximate in time, and are committed with the same intent, purpose, or opportunity so as to be part of the same course of conduct.

Eyewitness identification of a suspect

This bill requires law enforcement agencies to adopt written policies governing the use of an eyewitness to identify a person suspected of committing a crime. The policies must apply to practices under which an eyewitness identifies a suspect upon viewing him or her in person, such as in a lineup, and to practices under which an eyewitness identifies a suspect upon viewing a representation of the suspect, as by viewing a photograph array. The policies must be designed to reduce the potential of erroneous identifications by eyewitnesses.

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:

SB315, s. 1 Section 1. 16.964 (10) of the statutes is created to read:

SB315,5,2 16.964 (10) (a) In this subsection:

SB315,5,3 1. "Custodial interrogation" has the meaning given in s. 968.073 (1) (a).

SB315,5,4 2. "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

SB315,5,15 (b) The office shall provide grants from the appropriation under s. 20.505 (6) (kc) to law enforcement agencies to fund or reimburse expenses incurred on or after July 7, 2005, for the purchase, installation, or maintenance of digital recording equipment for making audio or audio and visual recordings of custodial interrogations or for training personnel to use such equipment. Grants awarded under this subsection may be used to support recording of custodial interrogations of either juveniles or adults and of interrogations related to either misdemeanor or felony offenses. The office may award more than one grant under this subsection to a law enforcement agency. The office shall develop criteria and procedures to administer this subsection. Notwithstanding s. 227.10 (1), the criteria and procedures need not be promulgated as rules under ch. 227.

SB315,5,17 (c) A law enforcement agency shall include the following information in an application for a grant under this subsection:

SB315,5,18 1. How the agency proposes to use the grant funds.

SB315,6,3 2. Procedures to be followed when recording equipment fails to operate correctly, including procedures for reporting failures, using alternative recording equipment, and repairing or replacing the equipment.

SB315,6,5 3. Procedures for storing recordings of custodial interrogations, including storage format, storage location, and indexing of recordings for retrieval.

SB315,6,7 4. Measures to prevent or detect tampering with recordings of custodial interrogations.

SB315,6,8 5. Any other information required by the office.

SB315, s. 2 Section 2. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

SB315, s. 3 Section 3. 20.455 (2) (i) 16. of the statutes is created to read:

SB315,6,13 20.455 (2) (i) 16. The amount transferred to s. 20.505 (6) (kc) shall be the amount in the schedule under s. 20.505 (6) (kc).

SB315, s. 4 Section 4. 20.505 (6) (kc) of the statutes is created to read:

SB315,6,19 20.505 (6) (kc) Grants for digital recording of custodial interrogations. The amounts in the schedule for grants to law enforcement agencies under s. 16.964 (10) for equipment or training used to digitally record custodial interrogations. All moneys transferred from the appropriation account under s. 20.455 (2) (i) 16. shall be credited to this appropriation account.

SB315, s. 5 Section 5. 165.75 (3) (g) of the statutes is created to read:

SB315,7,3 165.75 (3) (g) Deoxyribonucleic acid testing ordered under s. 974.07 shall have priority over other work of the laboratories.