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972.11(4) (4) Upon the motion of any party or its own motion, a court may order that any exhibit or evidence be delivered to the party or the owner prior to the final determination of the action or proceeding if all of the following requirements are met:
972.11(4)(a) (a) There is a written stipulation by all the parties agreeing to the order.
972.11(4)(b) (b) No party will be prejudiced by the order.
972.11(4)(c) (c) A complete photographic or other record is made of any exhibits or evidence so released.
972.11(5) (5)
972.11(5)(a)(a) In this subsection, "deoxyribonucleic acid profile" means an analysis that uses the restriction fragment length polymorphism analysis of deoxyribonucleic acid resulting in the identification of an individual's patterned chemical structure of genetic information.
972.11(5)(b) (b) In any criminal action or proceeding, the evidence of a deoxyribonucleic acid profile is admissible to prove or disprove the identity of any person if the party seeking to introduce evidence of the profile complies with all of the following:
972.11(5)(b)1. 1. Notifies the other party in writing by mail at least 45 days before the date set for trial, or at any time if a date has not been set for trial, of the intent to introduce the evidence.
972.11(5)(b)2. 2. If the other party so requests at least 30 days before the date set for trial, or at any time if a date has not been set for trial, provides the other party within 15 days after receiving the request with all of the following:
972.11(5)(b)2.a. a. Duplicates of actual autoradiographs generated.
972.11(5)(b)2.b. b. The laboratory protocols and procedures followed.
972.11(5)(b)2.c. c. The identification of each probe used.
972.11(5)(b)2.d. d. A statement describing the methodology of measuring fragment size and match criteria.
972.11(5)(b)2.e. e. A statement setting forth the allele frequency and genotype data for the appropriate data base used.
972.11(5)(c) (c) Notwithstanding par. (b), the court may grant a continuance regarding the time limit under par. (b) 2. to allow a party to provide the required information.
972.11 History History: Sup. Ct. Order, 59 W (2d) R1, R7 (1973); Sup. Ct. Order, 67 W (2d) 585, 784 (1975); 1975 c. 184, 422; 1979 c. 89; 1981 c. 147 ss. 1, 2; 1983 a. 165, 449; 1985 a. 275; 1987 a. 332 s. 64; 1993 a. 16, 97, 227, 359; 1995 a. 456; 1997 a. 319.
972.11 Annotation Testimony of an officer that a piece of cloth found at the burglary scene where forcible entry was effected was similar to a coat worn by one of the defendants at the time of his apprehension was admissible and not objectionable because the coat and piece of material were not produced. York v. State, 45 W (2d) 550, 173 NW (2d) 693.
972.11 Annotation Contradictory testimony of different witnesses for the state does not necessarily cancel the testimony and render it unfit as a basis for conviction, for determination of credibility and the weight to be accorded conflicting testimony is properly a function of the jury in the exercise of which the jury may accept or reject the inconsistent testimony even under the beyond-a-reasonable-doubt burden of proof. Embry v. State, 46 W (2d) 151, 174 NW (2d) 521.
972.11 Annotation An offer of proof must be made as a necessary condition precedent to review by the supreme court of any alleged error in the exclusion of evidence (because without such an offer there is no way to determine whether the exclusion was prejudicial). State v. Moffett, 46 W (2d) 164, 174 NW (2d) 263.
972.11 Annotation Defendant's conviction could not be impugned because the trial court permitted the state in rebuttal to adduce testimony of witnesses as to prior threats of the defendant to shoot the victims, injuries inflicted upon the daughter as disclosed in medical records, and the number of shots fired; such testimony clearly rebutting defendant's disclaimer of intent and version of the incident, i.e., the accidental discharge of the weapon. State v. Watson, 46 W (2d) 492, 175 NW (2d) 244.
972.11 Annotation A question is not leading if it merely suggests a subject rather than a specific answer which may not be a true one. Evidence is relevant if it tends to prove a material fact by connection with other facts. Hicks v. State, 47 W (2d) 38, 176 NW (2d) 386.
972.11 Annotation Challenge to the admissibility of items taken from defendant's motel room, on the ground that the chain of custody was not properly established because a police department laboratory chemist who examined the same was not present to testify, could not be sustained under uncontroverted proof that the condition of the exhibits had not been altered by the chemist's examination, there was no unexplained or missing link as to who had had custody, and they were in substantially the same condition at the time of the chemist's examination as when taken from defendant's room. State v. McCarty, 47 W (2d) 781, 177 NW (2d) 819.
972.11 Annotation In a criminal trial it is not error to admit into evidence 2 guns carried by one coconspirator even though that man was convicted of an offense not involving the guns and defendant was not connected with the guns. State v. Hancock, 48 W (2d) 687, 180 NW (2d) 517.
972.11 Annotation In a prosecution of codefendants for armed robbery of a narcotic addict, where the victim admitted injecting heroin into his arm about 72 hours before he testified, the trial court properly denied defendants' request that the witness display his arm in the presence of the jury in an attempt to prove that the injection was more recent, and correctly ruled that the jury was unqualified to so determine but that the discovery sought might be required outside the presence of the jury before an expert competent to pass judgment upon the freshness of the needle marks made by the injection. Edwards v. State, 49 W (2d) 105, 181 NW (2d) 383.
972.11 Annotation A detective's opinion of a drug addict's reputation for truth and veracity did not qualify to prove such reputation in the community because it was based on 12 varying opinions of persons who knew the addict, from which a community reputation could not be ascertained. Edwards v. State, 49 W (2d) 105, 181 NW (2d) 383.
972.11 Annotation While witnesses may be questioned regarding their mental or physical condition where such matters have bearing on their credibility, evidence that a witness was subject to epilepsy does not warrant disregarding his testimony in the absence of showing what effect the epilepsy had on his memory. Sturdevant v. State, 49 W (2d) 142, 181 NW (2d) 523.
972.11 Annotation Evidence of defendant's expenditure of money shortly after a burglary is properly admitted. State v. Heidelbach, 49 W (2d) 350, 182 NW (2d) 497.
972.11 Annotation It is not error to give an instruction as to prior convictions as affecting credibility where the prior case was a misdemeanor. McKissick v. State, 49 W (2d) 537, 182 NW (2d) 282.
972.11 Annotation An exception to the res gestae rule will admit statements by a child victim of a sexual assault to a parent 2 days later. Bertrang v. State, 50 W (2d) 702, 184 NW (2d) 867.
972.11 Annotation Challenge to the admissibility of boots on the ground that the victim did not properly identify the same was devoid of merit, where it was stipulated that the child said they "could be" the ones she saw, for her lack of certitude did not preclude admissibility, but went to the weight the jury should give to her testimony. Howland v. State, 51 W (2d) 162, 186 NW (2d) 319.
972.11 Annotation The state need not introduce evidence of a confession until after defendant testifies and gives contradictory testimony. Ameen v. State, 51 W (2d) 175, 186 NW (2d) 206.
972.11 Annotation Testimony of an accomplice who waived her privilege is admissible even though she had not been tried or granted immunity. State v. Wells, 51 W (2d) 477, 187 NW (2d) 328.
972.11 Annotation Where counsel fails to state the purpose of a question to which objection is sustained on grounds of immateriality, the court may exclude the evidence. State v. Becker, 51 W (2d) 659, 188 NW (2d) 449.
972.11 Annotation Where the evidence was in conflict as to whether a substance found in defendant's possession was heroin, the judge cannot take judicial notice of other sources without proper notice to the parties. State v. Barnes, 52 W (2d) 82, 187 NW (2d) 845.
972.11 Annotation The rule that the asking of an improper question which is not answered is not ground for reversal is especially true when the trial court instructs the jury to disregard such questions and to draw no inferences from them, for an instruction is presumed to efface any possible prejudice which may have resulted from the asking of the question. Taylor v. State, 52 W (2d) 453, 190 NW (2d) 208.
972.11 Annotation A witness for the defense could be impeached by prior inconsistent statements to the district attorney even though made in the course of plea bargaining as to a related offense. Taylor v. State, 52 W (2d) 453, 190 NW (2d) 208.
972.11 Annotation The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper allegedly because he expressed his opinion as to defendant's guilt, where it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee, 52 W (2d) 736, 190 NW (2d) 893.
972.11 Annotation It is error for a trial court to restrict cross-examination of an accomplice who was granted immunity, but the conviction will not be reversed if the error was harmless. State v. Schenk, 53 W (2d) 327, 193 NW (2d) 26.
972.11 Annotation Generally, a witness may not be impeached on collateral matters, and what constitutes a collateral matter depends on the issues of the particular case and the substance, rather than the form, of the questions asked on direct examination. Miller v. State, 53 W (2d) 358, 192 NW (2d) 921.
972.11 Annotation A defendant who testifies in his own behalf may be recalled for the purpose of laying a foundation for impeachment. Evidence that on a prior occasion defendant did not wear glasses and that he had a gun similar to that described by the complainant was admissible where it contradicted testimony of the defendant. Parham v. State, 53 W (2d) 458, 192 NW (2d) 838.
972.11 Annotation Where the prosecutor stated in his opening remarks that defendant refused to be fingerprinted but forgot to introduce testimony to this effect, the error is cured by proper instructions. State v. Tew, 54 W (2d) 361, 195 NW (2d) 615.
972.11 Annotation A deliberate failure to object to prejudicial evidence at trial constitutes a binding waiver. Murray v. State, 83 W (2d) 621, 266 NW (2d) 288 (1978).
972.11 Annotation Guidelines set for admission of testimony of hypnotized witness. State v. Armstrong, 110 W (2d) 555, 329 NW (2d) 386 (1983).
972.11 Annotation Act of writing about sexual desires or activities was not itself prior "sexual conduct". Victim's notes expressing sexual desires and fantasies were, therefore, admissible. State v. Vonesh, 135 W (2d) 477, 401 NW (2d) 170 (Ct. App. 1986).
972.11 Annotation Erroneously admitted and false testimony of victim that she was virgin at time of disputed assault so pervasively affected trial that issue of consent wasn't fully tried. State v. Penigar, 139 W (2d) 569, 408 NW (2d) 28 (1987).
972.11 Annotation Sub. (2) (b) (rape shield law) bars, with 2 narrow exceptions, evidence of all sexual activity by complainant not incident to alleged rape. State v. Gulrud, 140 W (2d) 721, 412 NW (2d) 139 (Ct. App. 1987).
972.11 Annotation This section doesn't violate separation of powers doctrine. State v. Mitchell, 144 W (2d) 596, 424 NW (2d) 698 (1988).
972.11 Annotation This section does not on its face violate constitutional right to present evidence, but may, in particular circumstances violate right; to establish constitutional right to present otherwise excluded evidence, defendant must make offer of proof establishing 5 factors and court must perform balancing test. State v. Pulizzano, 155 W (2d) 633, 456 NW (2d) 325 (1990).
972.11 Annotation To admit evidence of prior untruthful allegations of sexual assault under (2) (b) 3. court must be able to conclude from offer of proof that reasonable person could infer that complainant made prior untruthful allegation; "allegation" is not restricted to allegations reported to police. State v. DeSantis, 155 W (2d) 774, 456 NW (2d) 600 (1990).
972.11 Annotation Summary judgment does not apply to cases brought under the criminal code. State v. Hyndman, 170 W (2d) 198, 488 NW (2d) 111 (Ct. App. 1992).
972.11 Annotation Section 805.03 authorizing sanctions for failure to comply with court orders is applicable to criminal actions. State v. Heyer, 174 W (2d) 164, 496 NW (2d) 779 (Ct. App. 1993).
972.11 Annotation Sub. (2) requires exclusion of testimony of a victim's possible prior sexual conduct although where the alleged victim is an eight year old child physical evidence of sexual contact may create an unjust inference that the sexual contact was by sexual assault. In Interest of Michael R.B. 175 W (2d) 713, 499 NW (2d) 641 (1993).
972.11 Annotation That the complaining witness in a sexual assault case had previously consented to sexual intercourse has virtually no probative value regarding whether she consented to sexual intercourse under use or threat of violence. State v. Neumann, 179 W (2d) 687, 508 NW (2d) 54 (Ct. App. 1993).
972.11 Annotation When the state questioned an alleged rapist about the victim's motive to lie it did not open the door for admission of evidence of prior acts of consensual sex. State v. Jackson, 216 W (2d) 646, 575 NW (2d) 475 (1998).
972.11 Annotation Evidence regarding prior sexual assault by a 3rd party does not fall within one of the statutory exceptions. Pulizzano test applied. State v. Dodson, 219 W (2d) 65, 580 NW (2d) 181 (1998).
972.12 972.12 Sequestration of jurors. The court may direct that the jurors sworn be kept together or be permitted to separate. The court may appoint an officer of the court to keep the jurors together and to prevent communication between the jurors and others.
972.12 History History: 1987 a. 73; 1991 a. 39.
972.12 Annotation Allowing jury to separate during its deliberations created rebuttable presumption of prejudice. State v. Halmo, 125 W (2d) 369, 371 NW (2d) 424 (Ct. App. 1985).
972.13 972.13 Judgment.
972.13(1)(1) A judgment of conviction shall be entered upon a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest.
972.13(2) (2) Except in cases where ch. 975 is applicable, upon a judgment of conviction the court shall proceed under ch. 973. The court may adjourn the case from time to time for the purpose of pronouncing sentence.
972.13(3) (3) A judgment of conviction shall set forth the plea, the verdict or finding, the adjudication and sentence, and a finding as to the specific number of days for which sentence credit is to be granted under s. 973.155. If the defendant is acquitted, judgment shall be entered accordingly.
972.13(4) (4) Judgments shall be in writing and signed by the judge or clerk.
972.13(5) (5) A copy of the judgment shall constitute authority for the sheriff to execute the sentence.
972.13(6) (6) The following forms may be used for judgments:
STATE OF WISCONSIN
.... County
In.... Court
The State of Wisconsin
vs.
....(Name of defendant)
UPON ALL THE FILES, RECORDS AND PROCEEDINGS,
IT IS ADJUDGED That the defendant has been convicted upon the defendant's plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty) (no contest) on the.... day of...., .... (year), of the crime of.... in violation of s.....; and the court having asked the defendant whether the defendant has anything to state why sentence should not be pronounced, and no sufficient grounds to the contrary being shown or appearing to the court.
*IT IS ADJUDGED That the defendant is guilty as convicted.
*IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin state prisons (county jail of.... county) for an indeterminate term of not more than.....
*IT IS ADJUDGED That the defendant is ordered to serve a bifurcated sentence consisting of .... year(s) of confinement in prison and .... months/years of extended supervision.
*IT IS ADJUDGED That the defendant is placed in the intensive sanctions program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes and the following conditions:....
*IT IS ADJUDGED That the defendant is hereby committed to detention in (the defendant's place of residence or place designated by judge) for a term of not more than....
*IT IS ADJUDGED That the defendant is placed on lifetime supervision by the department of corrections under section 939.615 of the Wisconsin Statutes.
*IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).
*IT IS ADJUDGED That the defendant pay restitution to....
*IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows:....
*The.... at.... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.
*IT IS ORDERED That the clerk deliver a duplicate original of this judgment to the sheriff who shall forthwith execute the same and deliver it to the warden.
Dated this.... day of...., .... (year)
BY THE COURT....
Date of Offense....,
District Attorney....,
Defense Attorney....
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