SB404: Bill Text

SB404,26,17 980.015 (2) (b) The anticipated 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 if the person was placed in the facility for being adjudicated delinquent under s. 938.183 or 938.34 on the basis of a sexually violent offense.

SB404, s. 59 Section 59. 980.015 (2) (c) of the statutes is amended to read:

SB404,26,22 980.015 (2) (c) The anticipated release on conditional release under s. 971.17 or the anticipated termination of or discharge of a from a commitment order under s. 971.17, if the person who has been found not guilty of a sexually violent offense by reason of mental disease or defect under s. 971.17.

SB404, s. 60 Section 60. 980.015 (2) (d) of the statutes is created to read:

SB404,26,25 980.015 (2) (d) The anticipated release on parole or discharge of a person committed under ch. 975 for a sexually violent offense.

SB404, s. 61 Section 61. 980.015 (4) of the statutes is renumbered 980.14 (2) and amended to read:

SB404,27,5 980.14 (2) Any agency or officer, employe or agent of an agency 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.

SB404, s. 62 Section 62. 980.02 (1) (a) of the statutes is amended to read:

SB404,27,10 980.02 (1) (a) The department of justice at the request of the agency with jurisdiction, as defined in s. 980.015 (1), over the person. 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.

SB404, s. 63 Section 63. 980.02 (1) (b) 3. of the statutes is created to read:

SB404,27,15 980.02 (1) (b) 3. The county in which the person is in custody under a sentence, a placement to a secured correctional facility, as defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.02 (15g), or a secured group home, as defined in s. 938.02 (15p), or a commitment order.

SB404, s. 64 Section 64. 980.02 (1m) of the statutes is created to read:

SB404,27,18 980.02 (1m) A petition filed under this section shall be filed before the person is released or discharged.

SB404, s. 65 Section 65. 980.02 (2) (ag) of the statutes, as affected by 1999 Wisconsin Act 9, is repealed.

SB404, s. 66 Section 66. 980.02 (4) (intro.) of the statutes is amended to read:

SB404,27,23 980.02 (4) (intro.)  A petition under this section shall be filed in any one of the following:

SB404, s. 67 Section 67. 980.02 (6) of the statutes is created to read:

SB404,28,3 980.02 (6) A court assigned to exercise jurisdiction under chs. 48 and 938 does not have jurisdiction over a petition filed under this section alleging that a child is a sexually violent person.

SB404, s. 68 Section 68. 980.03 (2) (intro.) of the statutes is amended to read:

SB404,28,7 980.03 (2) (intro.)  Except as provided in ss. 980.038 (2), 980.09 (2) (a) and 980.10 and without limitation by enumeration, at any hearing under this chapter, the person who is the subject of the petition has the right to:

SB404, s. 69 Section 69. 980.03 (3) of the statutes is amended to read:

SB404,28,16 980.03 (3) The person who is the subject of the petition, the person's attorney, the department of justice or the district attorney may request that a trial under s. 980.05 be to a jury of 12. A request for a jury trial shall be made as provided under s. 980.05 (2). Notwithstanding s. 980.05 (2), if the person, the person's attorney, the department of justice or the district attorney does not request a jury trial, the court may on its own motion require that the trial be to a jury of 12. The jury shall be selected as provided under s. 980.05 (2m). A verdict of a jury under this chapter is not valid unless it is unanimous.

SB404, s. 70 Section 70. 980.03 (4) of the statutes, as affected by 1999 Wisconsin Act 9, is renumbered 980.031 (3) and amended to read:

SB404,29,6 980.031 (3) 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 of his or her mental condition under this chapter, he or she may retain experts or a licensed physician, licensed psychologist or other mental health professional persons to perform an examination. If the person is indigent, the court shall, upon the person's request, appoint a qualified and available licensed physician, licensed psychologist or other mental health professional to perform an examination of the person's mental condition and participate on the person's behalf in a trial or other proceeding under this chapter at which testimony is authorized. Upon the order of the circuit court, the county shall pay, as part of the costs of the action, the costs of a licensed physician, licensed psychologist or other mental health professional appointed by a court under this subsection to perform an examination and participate in the trial or other proceeding on behalf of an indigent person.

SB404,29,22 (4) If the person a party retains a qualified expert or the court appoints a licensed physician, licensed psychologist or other mental health professional person of his or her own choice to conduct an examination under this chapter of the person's mental condition, the examiner shall have reasonable access to the person for the purpose of the examination, as well as 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). 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. 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 to perform an examination and participate in the trial or other proceeding on behalf of an indigent person. An expert (cm), past and present juvenile records, as provided under ss. 48.396 (6), 48.78 (2) (e), 938.396 (10) and 938.78 (2) (e), and the person's past and present correctional records, including presentence investigation reports under s. 972.15 (6).

SB404,30,6 (5) A licensed physician, licensed psychologist or other mental health professional person appointed to assist an indigent person who is subject to a petition who is expected to be called as a witness by one of the parties or by the court may not be subject to any order by the court for the sequestration of witnesses at any proceeding under this chapter. No licensed physician, licensed psychologist or other mental health professional who is expected to be called as a witness by one of the parties or by the court may be permitted to testify at any proceeding under this chapter unless a written report of his or her examination has been submitted to the court and to both parties at least 10 days before the proceeding.

SB404, s. 71 Section 71. 980.03 (5) of the statutes is renumbered 980.038 (3) (a) and amended to read:

SB404,30,12 980.038 (3) (a) Upon Except as provided in par. (b), 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.

SB404, s. 72 Section 72. 980.031 (title) of the statutes is created to read:

SB404,30,14 980.031 (title) Examinations.

SB404, s. 73 Section 73. 980.031 (1) and (2) of the statutes are created to read:

SB404,30,19 980.031 (1) If a person who is the subject of a petition filed under s. 980.02 denies the facts alleged in the petition, the court may appoint at least one qualified licensed physician, licensed psychologist or other mental health professional to conduct an examination of the person's mental condition and testify at trial.

SB404,30,24 (2) The state may retain a licensed physician, licensed psychologist or other mental health professional to examine the mental condition of 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 at which testimony is authorized.

SB404, s. 74 Section 74. 980.034 of the statutes is created to read:

SB404,31,7 980.034 Change of place of trial or jury from another county. (1) The person who is the subject of a petition filed under s. 980.02 or who has been committed under this chapter may move for a change of the place of a jury trial under s. 980.05 on the ground that an impartial trial cannot be had in the county in which the trial is set to be held. The motion shall be made within 20 days after the completion or waiver of the probable cause hearing under s. 980.04 (2), whichever is applicable, except that it may be made after that time for cause.

SB404,31,11 (2) The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The department of justice or the district attorney, whichever filed the petition under s. 980.02, may file counter affidavits.

SB404,31,17 (3) 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, except as provided in sub. (4), 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.

SB404,31,19 (4) (a) In lieu of changing the place of trial under sub. (3), the court may require the selection of a jury under par. (b) if all of the following apply:

SB404,31,21 1. The court has decided to sequester the jurors after the commencement of the trial.

SB404,31,22 2. There are grounds for changing the place of trial under sub. (1).

SB404,31,24 3. The estimated costs to the county appear to be less using the procedure under this subsection than using the procedure for holding the trial in another county.

SB404,32,5 (b) If the court decides to proceed under this subsection it shall follow the procedure under sub. (3) 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.

SB404, s. 75 Section 75. 980.035 of the statutes is created to read:

SB404,32,11 980.035 Substitution of judge. (1) One substitution. Any party to a proceeding under this chapter may file a written request with the clerk of courts for a substitution of a new judge for the judge assigned to the case. Except as provided in sub. (5), no party may file more than one such written request in any one action, nor may any single such request name more than one judge.

SB404,32,15 (2) Substitution of judge assigned to probable cause hearing. A written request for the substitution of a different judge for the judge assigned to preside at the probable cause hearing under s. 980.04 (2) may be filed a reasonable time before the date of the probable cause hearing.

SB404,32,19 (3) Substitution of trial judge originally assigned. A written request for the substitution of a different judge for the judge originally assigned to the trial under s. 980.05 may be filed with the clerk within 10 days of the clerk's giving actual notice or sending notice of the assignment to the parties.

SB404,33,4 (4) Substitution of trial judge subsequently assigned. If a new judge is assigned to the trial under s. 980.05 and the party 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 10 days of the clerk's giving actual notice or sending notice of the assignment to the parties. 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 party may make an oral or written request for substitution prior to the commencement of the proceedings.

SB404,33,9 (5) Substitution of judge following appeal. If an appellate court orders a new trial, a new commitment hearing or a new hearing on a petition for supervised release or discharge, 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 that the appeal was taken.

SB404,33,16 (6) 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.

SB404,33,20 (8) Return of action to substituted judge. Upon the filing of an agreement signed by the person and the person's attorney and by the prosecuting attorney, the substituted judge and the substituting judge, the action and all pertinent records shall be transferred back to the substituted judge.

SB404, s. 76 Section 76. 980.036 of the statutes is created to read:

SB404,33,22 980.036 Discovery and inspection. (1) Definitions. In this section:

SB404,33,24 (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.

SB404,34,2 (b) "Prosecuting attorney" means an attorney representing the state in a proceeding under this chapter.

SB404,34,9 (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 s. 980.05, 980.08 or 980.09, 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:

SB404,34,13 (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 trial or proceeding and the names of witnesses to the person's written statements.

SB404,34,16 (b) A written summary of all oral statements of the person which the prosecuting attorney plans to use in the course of the trial or proceeding and the names of witnesses to the person's oral statements.

SB404,34,18 (c) Evidence obtained in the manner described under s. 968.31 (2) (b), if the prosecuting attorney intends to use the evidence at the trial or proceeding.

SB404,34,19 (d) A copy of the person's criminal record.

SB404,34,22 (e) A list of all witnesses, and their addresses, whom the prosecuting attorney intends to call at the trial or proceeding. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

SB404,34,24 (f) Any relevant written or recorded statements of a witness named on a list under par. (e), including all of the following:

SB404,34,25 1. Any videotaped oral statement of a child under s. 908.08.

SB404,35,1 2. Any reports prepared in accordance with s. 980.031 (5).

SB404,35,6 (g) The results of any physical or mental examination or any scientific or psychological test, experiment or comparison that the prosecuting attorney intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used or considered in any manner as part of the examination, test, experiment or comparison.

SB404,35,8 (h) The criminal record of a witness for the state which is known to the prosecuting attorney.

SB404,35,10 (i) Any physical or documentary evidence that the prosecuting attorney intends to offer in evidence at a trial or proceeding.

SB404,35,11 (j) Any exculpatory evidence.

SB404,35,18 (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 a trial or other proceeding under s. 980.05, 980.08 or 980.09, 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:

SB404,35,21 (a) A list of all witnesses, other than the person, whom the person intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

SB404,35,23 (b) Any relevant written or recorded statements of a witness named on a list under par. (a), including any reports prepared in accordance with s. 980.031 (5).

SB404,36,3 (c) The results of any physical or mental examination or any scientific or psychological test, experiment or comparison that the person intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used or considered in any manner as part of the examination, test, experiment or comparison.

SB404,36,5 (d) The criminal record of a witness named on a list under par. (a) which is known to the person's attorney.

SB404,36,7 (e) Any physical or documentary evidence that the person intends to offer in evidence at the trial or proceeding.

SB404,36,11 (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 that the name of the witness appears upon a list furnished pursuant to this section.

SB404,36,15 (5) Testing or analysis of evidence. On motion of a party, the court may order the production of any item of evidence or raw data which is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.

SB404,36,24 (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.

SB404,37,4 (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 which is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

SB404,37,9 (8) Continuing duty to disclose. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which 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.

SB404,37,13 (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.

SB404,37,17 (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).

SB404,37,24 (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.

SB404,38,3 (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.

SB404, s. 77 Section 77. 980.038 of the statutes is created to read:

SB404,38,11 980.038 Miscellaneous procedural provisions. (1) Motions challenging jurisdiction of court or timeliness of petition; grounds for challenging jurisdiction. (a) A motion challenging the jurisdiction of the court or the timeliness of a petition filed under s. 980.02 shall be filed within 10 days after the court holds the probable cause hearing under s. 980.04 (2). Failure to file a motion within the time specified in this paragraph waives the right to challenge the jurisdiction of the court or the timeliness of a petition.

SB404,38,16 (b) Notwithstanding s. 801.11, a court may exercise personal jurisdiction over a person who is the subject of a petition filed under s. 980.02 even though the person is not served as provided under s. 801.11 (1) or (2) with a verified petition and summons or with an order for detention under s. 980.04 (1) and probable cause hearing under s. 980.04 (2).

SB404,38,23 (2) Evidence of refusal to participate in examination. (a) At any hearing under this chapter, the state may present evidence or comment on evidence that a person who is the subject of a petition filed under s. 980.02 or a person who has been committed under this chapter refused to participate in an examination of his or her mental condition that was being conducted under this chapter or that was conducted before the petition under s. 980.02 was filed for the purpose of evaluating whether to file a petition.

SB404,39,2 (b) A licensed physician, licensed psychologist or other mental health professional may indicate in any written report that he or she prepares in connection with a proceeding under this chapter that the person whom he or she examined refused to participate in the examination.

SB404,39,3 (3) Testimony by telephone or live audiovisual means.

SB404,39,5 (b) Testimony may not be received by telephone or live audiovisual means at a trial under s. 980.05 or a hearing under s. 980.09 (1) (b) or (2) (b).