SB388: Bill Text

SB388,14,6 980.015 (1) (intro.) In this section, "agency and s. 980.02:

SB388,14,8 (a) "Agency with jurisdiction" means the agency with the authority or duty to release or discharge the person.

SB388, s. 28 Section 28. 980.015 (1) (b) (intro.) of the statutes is created to read:

SB388,14,11 980.015 (1) (b) (intro.) "Anticipated release date" means whichever of the following is applicable:

SB388, s. 29 Section 29. 980.015 (2) (intro.) of the statutes is renumbered 980.015 (2) (am) and amended to read:

SB388,14,25 980.015 (2) (am) If an agency with jurisdiction has control or custody over a person who meets any of the criteria specified in s. 980.02 (2) (a), the agency with jurisdiction shall, no later than 180 days before the anticipated release date of the person, evaluate whether the person may meet the criteria for commitment as a sexually violent person or whether the person does not meet the criteria for commitment as a sexually violent person. No later than 15 days after the completion of its evaluation, the agency with jurisdiction shall inform each appropriate district attorney specified under s. 980.02 (1) (b) and the department of justice regarding the person as soon as possible beginning 3 months prior to the applicable date of the following: whether the agency with jurisdiction has determined whether the person may meet the criteria for commitment or whether the person does not meet the criteria for commitment.

SB388, s. 30 Section 30. 980.015 (2) (a) of the statutes is renumbered 980.015 (1) (b) 1. and amended to read:

SB388,15,5 980.015 (1) (b) 1. The anticipated date of discharge from a sentence, anticipated date of release on parole or extended supervision or anticipated date of release from imprisonment of a person who has been convicted of a sexually violent offense.

SB388, s. 31 Section 31. 980.015 (2) (b) of the statutes, as affected by 1999 Wisconsin Act 9, is renumbered 980.015 (1) (b) 2. and amended to read:

SB388,15,12 980.015 (1) (b) 2. The anticipated date of release from a secured correctional facility, as defined in s. 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), or a secured group home, as defined in s. 938.02 (15p), of a person adjudicated delinquent under s. 938.183 or 938.34 on the basis of a sexually violent offense.

SB388, s. 32 Section 32. 980.015 (2) (bm) of the statutes is created to read:

SB388,16,2 980.015 (2) (bm) If an agency with jurisdiction determines in an evaluation under par. (am) that the person may meet the criteria for commitment as a sexually violent person, the agency with jurisdiction shall obtain a special purpose evaluation of the person by a qualified expert or professional person, who shall make a recommendation as to whether a commitment proceeding under this chapter should be initiated. A qualified expert or professional person who conducts a special purpose evaluation under this paragraph shall make a written report of his or her evaluation to the agency with jurisdiction no later than 120 days before the anticipated release date of the person. The report shall specify the recommendation of the qualified expert or professional person and the bases for the recommendation. The agency with jurisdiction shall, no later than 5 days after it receives the report, provide each district attorney specified under s. 980.02 (1) (b) and the department of justice with a copy of the report of the qualified expert or professional person who conducted the special purpose evaluation.

SB388, s. 33 Section 33. 980.015 (2) (c) of the statutes is renumbered 980.015 (1) (b) 3. and amended to read:

SB388,16,7 980.015 (1) (b) 3. The anticipated date of termination or discharge of the commitment of a person who has been found not guilty of a sexually violent offense by reason of mental disease or defect under s. 971.17.

SB388, s. 34 Section 34. 980.015 (3) (intro.) of the statutes is amended to read:

SB388,16,13 980.015 (3) (intro.) The When informing a district attorney and the department of justice of its evaluation under sub. (2) (am) and, if applicable, when providing a copy of the report of a special purpose evaluation conducted under sub. (2) (bm), the agency with jurisdiction shall provide the district attorney and department of justice with all of the following:

SB388, s. 35 Section 35. 980.015 (3) (b) of the statutes is amended to read:

SB388,16,19 980.015 (3) (b) If applicable, Copies of or access to documentation of in the possession of the agency with jurisdiction relating to the person, including any treatment records, as defined in s. 51.30 (1) (b), health care records, as defined in s. 146.82 (2) (c), and records concerning the person's adjustment to and conduct in any institutional placement.

SB388, s. 36 Section 36. 980.015 (3m) of the statutes is created to read:

SB388,17,4 980.015 (3m) (a) A qualified expert or professional person who conducts a special purpose evaluation under sub. (2) (bm) shall have reasonable access to the person for the purpose of the evaluation. The expert or professional person shall also have access to the person's past and present treatment records, as defined in s. 51.30 (1) (b), past and present patient health care records, as provided under s. 146.82 (2) (c), and past and present correctional records, as provided under ss. 301.355 and 938.78 (2) (e), and to the records of a court assigned to exercise jurisdiction under ch. 938, as provided under s. 938.396 (2) (e), and presentence investigation reports, as provided under s. 972.15 (6).

SB388,17,12 (b) A qualified expert or professional person who conducts a special purpose evaluation under sub. (2) (bm) shall, when requested to do so, provide a district attorney who receives a copy of the report of the special purpose evaluation and the department of justice with copies of or access to any documentation used by the expert or professional person in preparing the report, including any treatment records, as defined in s. 51.30 (1) (b), health care records, as defined in s. 146.82 (2) (c), correctional records, records of a court assigned to exercise jurisdiction under ch. 938 and presentence investigation reports.

SB388, s. 37 Section 37. 980.015 (3r) of the statutes is created to read:

SB388,17,19 980.015 (3r) For purposes of evaluating a case to decide whether to initiate commitment proceedings under this chapter or for the purpose of conducting a commitment proceeding under this chapter, a district attorney specified under s. 980.02 (1) (b) or the department of justice may request copies of or access to all of the following concerning a person who is the subject of an evaluation by an agency with jurisdiction under sub. (2) (am):

SB388,17,21 (a) Files and records of court proceedings under ch. 51, as provided under s. 51.30 (3) (bm).

SB388,17,25 (b) If the person has been adjudicated delinquent for a sexually violent offense, law enforcement agency records, as provided under s. 938.396 (1k), records of a court assigned to exercise jurisdiction under ch. 938, as provided under s. 938.396 (2) (e), and records of the department of corrections, as provided under s. 938.78 (2) (e).

SB388,18,1 (c) Correctional records, as provided under s. 301.355.

SB388,18,2 (d) A presentence investigation report, as provided under s. 972.15 (6).

SB388, s. 38 Section 38. 980.015 (3x) of the statutes is created to read:

SB388,18,17 980.015 (3x) A district attorney specified under s. 980.02 (1) (b) or the department of justice may, at any time after it receives notification of the evaluation of an agency with jurisdiction under sub. (2) (am), retain a qualified expert or professional person to evaluate the person who is the subject of the agency's evaluation. If a district attorney or the department of justice retains a qualified expert or professional person to conduct an evaluation of a person under this subsection, the examiner shall have reasonable access to the person for the purpose of the evaluation. The expert or professional person shall also have access to the person's past and present treatment records, as defined in s. 51.30 (1) (b), past and present patient health care records, as provided under s. 146.82 (2) (c), and past and present correctional records, as provided under ss. 301.355 and 938.78 (2) (e), and to the records of a court assigned to exercise jurisdiction under ch. 938, as provided under s. 938.396 (2) (e), and presentence investigation reports, as provided under s. 972.15 (6).

SB388, s. 39 Section 39. 980.015 (4) of the statutes is renumbered 980.14 (2) and amended to read:

SB388,18,23 980.14 (2) Any agency or, officer, employe or agent of an agency or qualified expert or professional person retained or appointed to evaluate or examine a person under this chapter is immune from criminal or civil liability for any acts or omissions as the result of a good faith effort to comply with any provision of this section chapter.

SB388, s. 40 Section 40. 980.02 (1) (intro.) of the statutes is amended to read:

SB388,19,2 980.02 (1) (intro.) A petition alleging that a person is a sexually violent person may be filed by one of the following in accordance with the specified procedure:

SB388, s. 41 Section 41. 980.02 (1) (a) of the statutes is amended to read:

SB388,19,16 980.02 (1) (a) The department of justice at the request of. If the agency with jurisdiction, as defined in s. 980.015 (1), over the person determined in an evaluation under s. 980.015 (2) (am) that the person does not meet the criteria for commitment, the department of justice shall decide whether to file a petition under this paragraph, and shall inform the district attorneys specified under par. (b) of its decision, no later than 45 days after it receives notice of the agency's evaluation. If the agency with jurisdiction over the person obtained a special purpose evaluation of the person under s. 980.015 (2) (bm), the department of justice shall decide whether to file a petition under this paragraph, and shall inform the district attorneys specified under par. (b) of its decision, no later than 30 days after it receives a copy of the report of the special purpose evaluation. If the department of justice decides to file a petition under this paragraph, it shall file the petition before the date of the release or discharge of the person.

SB388, s. 42 Section 42. 980.02 (1) (b) (intro.) of the statutes is amended to read:

SB388,19,19 980.02 (1) (b) (intro.) If the department of justice does decides not to file a petition under par. (a), the district attorney for one of the following:

SB388, s. 43 Section 43. 980.03 (2) (intro.) of the statutes is amended to read:

SB388,19,23 980.03 (2) (intro.) Except as provided in ss. 980.09 (2) (a) and 980.10 and without Without limitation by enumeration, at any hearing under this chapter, the person who is the subject of the petition has the right to:

SB388, s. 44 Section 44. 980.03 (4) of the statutes, as affected by 1999 Wisconsin Act 9, is renumbered 980.031 (1) and amended to read:

SB388,20,7 980.031 (1) Whenever a person who is the subject of a petition filed under s. 980.02 or who has been committed under s. 980.06 is required to submit to an examination or reexamination under this chapter, he or she may retain experts or professional persons to perform an examination. If the person is indigent, the court shall, upon the person's request, appoint a qualified and available expert or professional person to perform an examination and participate on the person's behalf in a trial or other proceeding under this chapter.

SB388,20,21 (3) If the person a party retains or the court appoints a qualified expert or professional person of his or her own choice to conduct an examination of a person who is the subject of a petition filed under s. 980.02 or who has been committed under s. 980.06, the examiner expert or professional person shall have reasonable access to the person for the purpose of the examination, as well as. The expert or professional person shall also have access to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and past and present patient health care records as provided under s. 146.82 (2) (c). If the person is indigent, the court shall, upon the person's request, appoint a qualified and available expert or professional person to perform an examination and participate in the trial or other proceeding on the person's behalf., and past and present correctional records, as provided under ss. 301.355 and 938.78 (2) (e), and to the records of a court assigned to exercise jurisdiction under ch. 938, as provided under s. 938.396 (2) (e), and presentence investigation reports, as provided under s. 972.15 (6).

SB388,20,25 (4) Upon the order of the circuit court, the county shall pay, as part of the costs of the action, the costs of an expert or professional person appointed by a court under this subsection sub. (1) to perform an examination and participate in the trial or other proceeding on behalf of an indigent person.

SB388,21,4 (5) An expert or professional person retained by either party or appointed to assist an indigent person who is subject to a petition by the court under sub. (1) may not be subject to any order by the court for the sequestration of witnesses at any proceeding under this chapter.

SB388, s. 45 Section 45. 980.03 (5) of the statutes is renumbered 980.038 (1) and amended to read:

SB388,21,10 980.038 (1) Testimony by telephone or live audiovisual means. Upon a showing by the proponent of good cause under s. 807.13 (2) (c), testimony may be received into the record of a hearing under this section chapter by telephone or live audiovisual means.

SB388, s. 46 Section 46. 980.031 (title) of the statutes is created to read:

SB388,21,12 980.031 (title) Examinations.

SB388, s. 47 Section 47. 980.031 (2) of the statutes is created to read:

SB388,21,17 980.031 (2) The department of justice or a district attorney, whichever is applicable, may retain an expert or professional person to examine a person who is the subject of a petition under s. 980.02 or who has been committed under s. 980.06 and to testify at trial or at any other proceeding under this chapter.

SB388, s. 48 Section 48. 980.036 of the statutes is created to read:

SB388,21,19 980.036 Discovery and inspection. (1) Definitions. In this section:

SB388,21,21 (a) "Person subject to this chapter" means a person who is subject to a petition filed under s. 980.02 or a person who has been committed under s. 980.06.

SB388,21,23 (b) "Prosecuting attorney" means an attorney representing the state in a proceeding under this chapter.

SB388,22,4 (2) What a prosecuting attorney must disclose to a person subject to this chapter. Upon demand, a prosecuting attorney shall, within a reasonable time before a trial or other proceeding under this chapter, disclose to a person subject to this chapter or the person's attorney and permit the person or the person's attorney to inspect and copy or photograph all of the following materials and information, if the material or information is within the possession, custody or control of the state:

SB388,22,7 (a) Any written or recorded statement made by the person concerning the allegations in the petition filed under s. 980.02 or concerning other matters at issue in the proceeding and the names of witnesses to the person's written statements.

SB388,22,10 (b) A written summary of all oral statements of the person that the prosecuting attorney plans to use in the course of the trial or other proceeding and the names of witnesses to the person's oral statements.

SB388,22,12 (c) Any information obtained by the prosecutor under s. 980.015 (3) (b), (3m) (b), (3r) or (3x).

SB388,22,14 (d) Evidence obtained in the manner described under s. 968.31 (2) (b), if the prosecuting attorney intends to use the evidence at trial.

SB388,22,15 (e) A copy of the person's criminal record.

SB388,22,18 (f) A list of all witnesses, and their addresses, whom the prosecuting attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

SB388,22,20 (g) Any relevant written or recorded statements of a witness named on a list under par. (f), including all of the following:

SB388,22,21 1. Any videotaped oral statement of a child under s. 908.08.

SB388,22,23 2. Any reports or statements made in connection with the case by a person who conducts an evaluation or examination under this chapter.

SB388,23,3 3. If a person specified in subd. 2. does not prepare a report or statement, a written summary of the person's findings or the subject matter of his or her testimony.

SB388,23,8 (h) The results of any physical or mental examination, scientific test, experiment or comparison that the prosecuting attorney intends to offer in evidence at trial, and any test results, facts and data that were collected during and considered as part of any evaluation or examination under this chapter and that the prosecuting attorney intends to offer in evidence at a trial or other proceeding under this chapter.

SB388,23,10 (i) The criminal record of a witness for the state which is known to the prosecuting attorney.

SB388,23,12 (j) Any physical evidence that the prosecuting attorney intends to offer in evidence at a trial or other proceeding under this chapter.

SB388,23,13 (k) Any exculpatory evidence.

SB388,23,19 (3) What a person subject to this chapter must disclose to the prosecuting attorney. Upon demand, a person who is subject to this chapter or the person's attorney shall, within a reasonable time before trial or other proceeding under this chapter, disclose to the prosecuting attorney and permit the prosecuting attorney to inspect and copy or photograph all of the following materials and information, if the material or information is within the possession, custody or control of the person:

SB388,23,23 (a) A list of all witnesses, other than the person, whom the person intends to call at trial or other proceeding under this chapter, together with their addresses. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

SB388,24,3 (b) Any relevant written or recorded statements of a witness named on a list under par. (a), including any reports or statements made in connection with the case by a witness who conducted an examination under s. 980.031 or, if the witness does not prepare a report or statement, a written summary of the findings of the witness or the subject matter of his or her testimony.

SB388,24,9 (c) The results of any physical or mental examination, scientific test, experiment or comparison that the person intends to offer in evidence at trial or other proceeding under this chapter, and any test results, facts and data that were collected during and evaluated as part of an examination under s. 980.031 and that form the basis for an opinion contained in a report, statement or written summary disclosed under par. (b).

SB388,24,11 (d) The criminal record of a witness named on a list under par. (a) that is known to the person's attorney.

SB388,24,13 (e) Any physical evidence that the person intends to offer in evidence at the trial or other proceeding under this chapter.

SB388,24,17 (4) 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.

SB388,24,21 (5) Testing or analysis of evidence. On motion of a party, the court may order the production of any item of evidence or data that is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.

SB388,25,5 (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 prosecuting attorney or the attorney for a person subject to this chapter 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) to (6). 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.

SB388,25,9 (7) In camera proceedings. Either party may move for an in camera inspection by the court of any document required to be disclosed under sub. (2) or (3) for the purpose of masking or deleting any material that is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

SB388,25,15 (8) Continuing duty to disclose. If, subsequent to compliance with a requirement of this section, and prior to or during trial or other proceeding under this chapter, a party discovers additional material or the names of additional witnesses requested that are subject to discovery, inspection or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.

SB388,25,19 (9) Sanctions for failure to comply. (a) The court shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.

SB388,25,23 (b) In addition to or in lieu of any sanction specified in par. (a), a court may, subject to sub. (4), advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (2) or (3), or of any untimely disclosure of material or information required to be disclosed under sub. (2) or (3).

SB388,26,5 (10) Payment of photocopy costs in cases involving indigent respondents. When the state public defender or a private attorney appointed under s. 977.08 requests photocopies of any item that is discoverable under this section, the state public defender shall pay any fee charged for the photocopies from the appropriation under s. 20.550 (1) (a). If the person providing photocopies under this section charges the state public defender a fee for the photocopies, the fee may not exceed the actual, necessary and direct cost of photocopying.

SB388,26,8 (11) Exclusive method of discovery. Chapter 804 does not apply to proceedings under this chapter. This section provides the only methods of obtaining discovery and inspection in proceedings under this chapter.

SB388, s. 49 Section 49. 980.038 (title) of the statutes is created to read:

SB388,26,10 980.038 (title) Miscellaneous procedural provisions.

SB388, s. 50 Section 50. 980.038 (2) of the statutes is created to read:

SB388,26,16 980.038 (2) Protective orders. In addition to any protective order that may be issued under s. 980.036 (6), the court in which a proceeding under this chapter is pending may deny, defer or restrict, or issue any other appropriate protective order concerning, the disclosure or redisclosure of information obtained under s. 980.015 (3) (b), (3m), (3r) or (3x), 980.031 (3) or 980.08 (3).

SB388, s. 51 Section 51. 980.038 (3) of the statutes is created to read: