(2) One substitution.
In any criminal action, the defendant has a right to only one substitution of a judge, except under sub. (7)
. The right of substitution shall be exercised as provided in this section.
(3) Substitution of judge assigned to preliminary examination. 971.20(3)(a)(a)
In this subsection, “judge" includes a circuit court commissioner who is assigned to conduct the preliminary examination.
A written request for the substitution of a different judge for the judge assigned to preside at the preliminary examination may be filed with the clerk, or with the court at the initial appearance. If filed with the clerk, the request must be filed at least 5 days before the preliminary examination unless the court otherwise permits. Substitution of a judge assigned to a preliminary examination under this subsection exhausts the right to substitution for the duration of the action, except under sub. (7)
(4) Substitution of trial judge originally assigned.
A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.
(5) Substitution of trial judge subsequently assigned.
If a new judge is assigned to the trial of an action and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed with the clerk within 15 days of the clerk's giving actual notice or sending notice of the assignment to the defendant or the defendant's attorney. If the notification occurs within 20 days of the date set for trial, the request shall be filed within 48 hours of the clerk's giving actual notice or sending notice of the assignment. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings.
(6) Substitution of judge in multiple defendant actions.
In actions involving more than one defendant, the request for substitution shall be made jointly by all defendants. If severance has been granted and the right to substitute has not been exercised prior to the granting of severance, the defendant or defendants in each action may request a substitution under this section.
(7) Substitution of judge following appeal.
If an appellate court orders a new trial or sentencing proceeding, a request under this section may be filed within 20 days after the filing of the remittitur by the appellate court, whether or not a request for substitution was made prior to the time the appeal was taken.
(8) Procedures for clerk.
Upon receiving a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge for the determination and reassignment of the action as necessary. If the request is determined to be proper, the clerk shall request the assignment of another judge under s. 751.03
(9) Judge's authority to act.
Upon the filing of a request for substitution in proper form and within the proper time, the judge whose substitution has been requested has no authority to act further in the action except to conduct the initial appearance, accept pleas and set bail.
(10) Form of request.
A request for substitution of a judge may be made in the following form:
STATE OF WISCONSIN
State of Wisconsin
Pursuant to s. 971.20
the defendant (or defendants) request (s) a substitution for the Hon. .... as judge in the above entitled action.
Dated ...., .... (year)
....(Signature of defendant or defendant's attorney)
(11) Return of action to substituted judge.
Upon the filing of an agreement signed by the defendant or defendant's attorney and by the prosecuting attorney, the substituted judge and the substituting judge, the criminal action and all pertinent records shall be transferred back to the substituted judge.
NOTE: See the 1979-80 Statutes for notes and annotations relating to 971.20 prior to its repeal and recreation by ch. 137, laws of 1981.
Judicial Council Note, 1981: Section 971.20 has been revised to clarify its objective of allowing defendants in criminal trials one substitution of the assigned judge upon making a timely request. The statute is not to be used for delay nor for “judge shopping," but is to ensure a fair and impartial trial for the defendants. The statute does not govern removal for cause of the assigned judge through an affidavit of prejudice.
Sub. (2) clarifies that the defendant has a right to only one substitution of judge in a criminal action, unless an appellate court orders a new trial. Prior sub. (2) so provided, but the effect of this provision was unclear in light of the introductory phrase of prior sub. (3).
Sub. (3) allows the defendant's right of substitution to be used against the judge assigned to the preliminary examination and specifies the timing of these requests.
Sub. (4) allows the defendant's right of substitution to be used against the judge originally assigned to preside at trial, specifying the timing of these requests.
Sub. (5) allows the defendant's right of substitution to be used against a judge assigned to preside at trial in place of the judge originally assigned, specifying the timing of these requests.
Sub. (6) clarifies that all defendants in a single action must join in a substitution request.
Sub. (7) allows a substitution request to be made upon appellate remand for a new trial, irrespective of whether a substitution of judge was requested prior to the appeal. It is the only exception to the rule of one substitution per action. The time limit for the request is tied to filing of the remittitur, in accordance with Rohl v. State, 97 Wis. 2d 514
(1980). [LRB NOTE: Senate Amendment 1 revised this subsection to also allow the substitution request to be made upon appellate remand for new sentencing proceedings.]
Sub. (8) provides for the determination of the timeliness and propriety of the substitution request to be made by the chief judge if the trial judge fails to do so within 7 days.
Sub. (9) is prior sub. (2), amended to allow the judge whose substitution has been requested to accept any plea. The prior statute allowed the judge to accept only pleas of not guilty. This revision promotes judicial economy by allowing the judge whose substitution has been requested to accept a guilty or no contest plea tendered by the defendant before the action is reassigned. Defendants preferring to have guilty or no contest pleas accepted by the substituting judge may obtain that result by standing mute or pleading not guilty until after the action has been reassigned.
Sub. (10) is prior sub. (5).
Sub. (11) is prior sub. (6). [Bill 163-S]
When an appellate court remands for the exercise of discretion in ordering restitution, it has not remanded for a sentencing proceeding, and the defendant is not entitled to substitution under sub. (7). State v. Foley, 153 Wis. 2d 748
, 451 N.W.2d 796
(Ct. App. 1989).
When an initial appearance is conducted before the judge assigned to hear the matter, strict application of the filing deadline is appropriate. When the intake system does not provide adequate notice of the assigned judge prior to arraignment, deadlines are relaxed to allow the defendant to intelligently exercise the right. Tinti v. Waukesha County Circuit Court, 159 Wis. 2d 783
, 464 N.W.2d 853
(Ct. App. 1990).
Once a judge is substituted, that judge may only act in the case as specified in sub. (9). Understandable inadvertent appearance before the substituted judge is not a waiver of the substitution. State v. Austin, 171 Wis. 2d 251
, 490 N.W.2d 780
(Ct. App. 1992).
When a case is assigned to a newly appointed judge prior to the appointee's taking the judicial oath, the time limit to request a substitution commences on the date the appointee becomes a judge. Strong v. Dane County Circuit Court, 184 Wis. 2d 223
, 416 N.W.2d 451
(Ct. App. 1994).
There is no “trial court" under sub. (4) until after a bindover. A motion to reduce bail prior to the bindover was not a motion to the trial court that prevented filing a request for substitution. Mace v. Green Lake Co. Circuit Court, 193 Wis. 2d 208
, 532 N.W.2d 720
A defendant who is charged jointly with another defendant may not obtain substitution of a judge under sub. (6) when the codefendant is not yet before the court. Sub. (6) applies in all multiple defendant actions when a codefendant is unavailable to join or refuses to join a substitution request. Garibay v. Circuit Court for Kenosha County, 2002 WI App 164
, 256 Wis. 2d 438
, 647 N.W.2d 455
There is no requirement under this section that a judge inform a defendant of the right to substitute a judge or that a judge provide facts bearing on a defendant's exercise of the right. State v. Tappa, 2002 WI App 303
, 259 Wis. 2d 402
, 655 N.W.2d 223
When the original judge assigned to a case is later reassigned back to the case, the original judge is not a “new judge" under sub. (5), but remains the judge “originally assigned" under sub. (4). The reassignment does not create a second opportunity to substitute the original judge. State v. Bohannon, 2013 WI App 87
, 349 Wis. 2d 368
, 835 N.W.2d 262
When the defendant persisted with his substitution request throughout the proceedings and did not follow the procedure under sub. (11) for abandoning his substitution request, the circuit court erred in presiding over the defendant's trial, sentencing, and postconviction motions. Harmless error analysis did not apply. State v. Harrison, 2015 WI 5
, 360 Wis. 2d 246
, 858 N.W.2d 372
Change of place of trial. 971.22(1)
The defendant may move for a change of the place of trial on the ground that an impartial trial cannot be had in the county. The motion shall be made at arraignment, but it may be made thereafter for cause.
The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The district attorney may file counter affidavits.
If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it shall order that the trial be held in any county where an impartial trial can be had. Only one change may be granted under this subsection. The judge who orders the change in the place of trial shall preside at the trial. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the defendant, if he or she is in custody, shall be held and where the record shall be kept. If the criteria under s. 971.225 (1) (a)
exist, the court may proceed under s. 971.225 (2)
History: 1981 c. 115
Relevant factors as to whether a change of venue should have been granted include: 1) the inflammatory nature of publicity concerning the crime; 2) the degree to which adverse publicity permeated the area from which the jury would be drawn; 3) the timing and specificity of the publicity; 4) the degree of care exercised; 5) the amount of difficulty encountered in selecting the jury panel; 6) the extent to which the jurors were familiar with the publicity; 7) the defendants use of challenges available in voir dire 8) the state's participation in adverse publicity; 9) the severity of the offense charged; and 10) the verdict returned. State v. Hebard, 50 Wis. 2d 408
, 184 N.W.2d 156
While actual prejudice need not be shown, there must be a showing of a reasonable probability of prejudice inherent in the situation. Gibson v. State, 55 Wis. 2d 110
, 197 N.W.2d 813
The timing, specificity, inflammatory nature, and degree of permeation of publicity is extremely important in determining the likelihood of prejudice in the community. State ex rel. Hussong v. Froelich, 62 Wis. 2d 577
, 215 N.W.2d 390
When news stories concerning the crime were accurate informational articles of a nature that would not cause prejudice and 4 months had elapsed between the publication of the news stories and the trial, it tended to indicate little or no prejudice against the defendant. Jones v. State, 66 Wis. 2d 105
, 223 N.W.2d 889
There was no abuse of discretion in not changing the venue of a prosecution for 1st-degree murder when the transcript of the hearing on the issuance of the arrest warrant was sealed, the preliminary examination and other hearings were closed to the public and press, the police and prosecutor refused to divulge any facts to the public and press, and press reports were generally free from the details of incriminating evidence, straightforward, and not incendiary. State v. Dean, 67 Wis. 2d 513
, 227 N.W.2d 712
Only the defendant may waive the right to venue where the crime was committed. State v. Mendoza, 80 Wis. 2d 122
, 258 N.W.2d 260
The right to venue where the crime occurred is not a fundamental right of a criminal defendant. The decision to move for a change of venue is a tactical judgment delegated to counsel that does not require the defendant's personal concurrence. State v. Hereford, 224 Wis. 2d 605
, 592 N.W.2d 247
(Ct. App. 1999), 98-1270
Change of place of trial for certain violations. 971.223(1)(1)
In an action for a violation of chs. 5
, subch. III of ch. 13
, or subch. III of ch. 19
, or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5
, subch. III of ch. 13
, or subch. III of ch. 19
, a defendant who is a resident of this state may move to change the place of trial to the county where the offense was committed. The motion shall be in writing.
The court shall grant a motion under this section if the court determines that the county where the offense was committed is different than the county where the defendant resides. If there is more than one county where the offense was committed, the court shall determine which of the counties where the offense was committed will be the place of trial. The judge who orders the change in the place of trial shall preside at the trial and the jury shall be chosen from the county where the trial will be held. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the record shall be kept and, if the defendant is in custody, where the defendant shall be held.
This section does not affect which prosecutor has responsibility under s. 978.05 (1)
to prosecute criminal actions arising from violations under sub. (1)
This section does not affect the application of s. 971.22
. In actions under sub. (1)
, the court may enter an order under s. 971.225
only if the order is agreed to by the defendant.
History: 2007 a. 1
Jury from another county. 971.225(1)
In lieu of changing the place of trial under s. 971.22 (3)
, the court may require the selection of a jury under sub. (2)
The court has decided to sequester the jurors after the commencement of the trial, as provided in s. 972.12
The estimated costs to the county appear to be less using the procedure under this section than using the procedure for holding the trial in another county.
If the court decides to proceed under this section it shall follow the procedure under s. 971.22
until the jury is chosen in the 2nd county. At that time, the proceedings shall return to the original county using the jurors selected in the 2nd county. The original county shall reimburse the 2nd county for all applicable costs under s. 814.22
History: 1981 c. 115
; 1991 a. 39
; 2007 a. 1
Discovery and inspection. 971.23(1)
What a district attorney must disclose to a defendant.
Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under s. 968.26
or before a grand jury, and the names of witnesses to the defendant's written statements.
A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements.
Evidence obtained in the manner described under s. 968.31 (2) (b)
, if the district attorney intends to use the evidence at trial.
A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
Any relevant written or recorded statements of a witness named on a list under par. (d)
, including any audiovisual recording of an oral statement of a child under s. 908.08
, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.
The criminal record of a prosecution witness which is known to the district attorney.
Any physical evidence that the district attorney intends to offer in evidence at the trial.
(2m) What a defendant must disclose to the district attorney.
Upon demand, the defendant or his or her attorney shall, within a reasonable time before trial, disclose to the district attorney and permit the district attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the defendant:
A list of all witnesses, other than the defendant, whom the defendant intends to call at trial, together with their addresses. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
Any relevant written or recorded statements of a witness named on a list under par. (a)
, including any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and including the results of any physical or mental examination, scientific test, experiment or comparison that the defendant intends to offer in evidence at trial.
The criminal record of a defense witness, other than the defendant, which is known to the defense attorney.
Any physical evidence that the defendant intends to offer in evidence at the trial.
(3) Comment or instruction on failure to call witness.
No comment or instruction regarding the failure to call a witness at the trial shall be made or given if the sole basis for such comment or instruction is the fact the name of the witness appears upon a list furnished pursuant to this section.
(5) Scientific testing.
On motion of a party subject to s. 971.31 (5)
, the court may order the production of any item of physical evidence which is intended to be introduced at the trial for scientific analysis under such terms and conditions as the court prescribes.
(5c) Psychiatric testing of victims or witnesses.
In a prosecution of s. 940.225
, or 948.025
or of any other crime if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5)
, the court may not order any witness or victim, as a condition of allowing testimony, to submit to a psychiatric or psychological examination to assess his or her credibility.
(6) Protective order.
Upon motion of a party, the court may at any time order that discovery, inspection or the listing of witnesses required under this section be denied, restricted or deferred, or make other appropriate orders. If the district attorney or defense counsel certifies that to list a witness may subject the witness or others to physical or economic harm or coercion, the court may order that the deposition of the witness be taken pursuant to s. 967.04 (2)
. The name of the witness need not be divulged prior to the taking of such deposition. If the witness becomes unavailable or changes his or her testimony, the deposition shall be admissible at trial as substantive evidence.