SB388: Bill Text

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:

SB388,26,22 980.038 (3) Proceedings relating to the commitment of juveniles. (a) If a person is subject to a petition that, with respect to the criteria under s. 980.02 (2) (a), alleges only that the person has been found delinquent for a sexually violent offense, the general public shall be excluded from any trial or or other hearing under this chapter unless any of the following applies:

SB388,26,24 1. There was one or more public hearings under s. 938.299 (1) in the proceeding in which the person was found delinquent.

SB388,27,4 2. The person, through his or her counsel, requests a public trial or hearing, except that the court shall refuse to grant the request for a public hearing if the victim of any of the person's sexually violent offenses objects or, in the case of a person who has not attained the age of 17, if a parent or guardian objects.

SB388,27,6 (b) If a public hearing is not held in a trial or other hearing under this chapter, only the following persons may be present:

SB388,27,7 1. The person and his or her attorney.

SB388,27,9 2. In the case of a person who has not attained the age of 17, a parent or guardian.

SB388,27,10 3. The attorney representing the state in the proceeding.

SB388,27,13 4. A victim of any of the person's sexually violent offenses, a member of the victim's family and, at the request of the victim, a representative of an organization providing support services to the victim.

SB388,27,15 5. Witnesses who are testifying or expected to testify at the trial or other hearing.

SB388,27,18 6. A representative of the news media who wishes to attend the trial or other hearing for the purpose of reporting news without revealing the identity of the person involved.

SB388,27,19 7. Other persons requested by a party and approved by the court.

SB388,27,21 8. Any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar.

SB388,28,4 (c) Notwithstanding par. (b), if a public hearing is not held the court may exclude any person specified in par. (b) 5. to 8. from any portion of the hearing if that portion of the hearing deals with sensitive personal information of the person or the person's family or if the court determines that excluding the person would be in the best interests of the person. In addition, a judge may exclude any person specified in par. (b) 4. from any portion of a hearing that deals with sensitive personal matters of the person or the person's family and that does not directly relate to the act or alleged act committed against the victim.

SB388,28,11 (d) If a public hearing is held, the court may, in its discretion, exclude the general public from any portion of a trial or hearing that deals with sensitive personal matters of the person or the person's family and that does not relate to the acts of sexual violence committed by the person. If the court excludes the general public from a trial or hearing under this subsection, only those persons who are permitted under par. (b) to attend a hearing from which the general public is excluded may attend.

SB388,28,14 (e) If a public hearing is not held under par. (a) or (d), any person who divulges any information that would identify the person or the family involved in any proceeding under this chapter is subject to ch. 785.

SB388, s. 52 Section 52. 980.07 (1) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB388,28,23 980.07 (1) If Except as provided in sub. (1g), if a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition the person within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged.

SB388,29,2 (1m) At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner expert or professional person to conduct an examination as provided under s. 980.03 (4) 980.031 (1).

SB388, s. 53 Section 53. 980.07 (1g) of the statutes is created to read:

SB388,29,14 980.07 (1g) If a person who has been committed under s. 980.06 has not been discharged under s. 980.09 and the person is incarcerated in a county jail or a state correctional institution or is placed in a treatment facility or a secured correctional facility, as defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.01 (15g), or a secured group home, as defined in s. 938.02 (15p), for an offense that the person committed or is alleged to have committed since being committed under s. 980.06, the department need not conduct an examination of the person as provided under sub. (1) but shall conduct an examination of the person upon the person's release from the county jail, state correctional institution, treatment facility, secured correctional facility, secured child caring institution or secured group home.

SB388, s. 54 Section 54. 980.07 (2) of the statutes is amended to read:

SB388,29,21 980.07 (2) Any examiner expert or professional person conducting an examination under this section shall prepare a written report of the examination no later than 30 days after the date of the examination. The examiner expert or professional person shall place a copy of the report in the person's medical records and shall provide a copy of the report to the court that committed the person under s. 980.06.

SB388, s. 55 Section 55. 980.07 (3) of the statutes is amended to read:

SB388,29,25 980.07 (3) Notwithstanding sub. subs. (1) and (1g), the court that committed a person under s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order.

SB388, s. 56 Section 56. 980.08 (3) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB388,30,20 980.08 (3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners qualified experts or professional persons having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners experts or professional persons shall have reasonable access to the person for purposes of examination and. The experts or professional persons shall also have access to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c), and 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). If any such examiner expert or professional person believes that the person is appropriate for supervised release under the criterion specified in sub. (4), the examiner expert or professional person shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner expert or professional person appointed under this subsection as provided under s. 51.20 (18) (a).

SB388, s. 57 Section 57. 980.08 (4) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB388,31,18 980.08 (4) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner expert or professional person is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c) and (d). The court shall grant the petition unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care. In making a decision under this subsection, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a), the person's mental history and present mental condition, where the person will live, how the person will support himself or herself and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender. A decision under this subsection on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.

SB388, s. 58 Section 58. 980.09 (1) (b) of the statutes is amended to read: