LRB-0670/1
RLR&MGD:cjs:jf
2001 - 2002 LEGISLATURE
April 3, 2001 - Introduced by Representatives Walker, Wasserman, Bies, Berceau,
Freese, Gunderson, Gundrum, Hahn, Hundertmark, Kestell, Ladwig, La
Fave, F. Lasee, Kreuser, McCormick, Musser, Nass, Owens, Plouff,
Reynolds, Starzyk, Turner, Wade, Stone, Miller, Kedzie, Sykora, Olsen,
Vrakas and Balow, cosponsored by Senators Burke, Erpenbach, Huelsman,
Rosenzweig and Darling. Referred to Committee on Corrections and the
Courts.
AB291,1,10
1An Act to repeal 972.11 (5);
to renumber and amend 757.54;
to amend 165.77
2(2) (a) 2., 165.77 (3), 165.81 (1), 801.02 (7) (a) 2. c., 805.15 (3) (intro.), 808.075
3(4) (h), 809.30 (1) (a), 809.30 (2) (L), 938.293 (2), 938.299 (4) (a), 938.46, 939.74
4(1), 939.74 (2) (c), 950.04 (1v) (s), 968.20 (1) (intro.), 968.20 (2), 968.20 (4), 971.04
5(3), 971.23 (1) (e), 971.23 (2m) (am), 972.11 (1), 974.02 (1), 974.05 (1) (b), 977.07
6(1) (b) and 977.07 (1) (c); and
to create 20.410 (1) (be), 165.77 (2m), 165.81 (3),
7757.54 (2), 805.16 (5), 939.74 (2d), 950.04 (1v) (yd), 968.205, 971.23 (9), 974.07,
8978.08 and 980.101 of the statutes;
relating to: time limits for prosecution of
9certain sexual assault crimes, preservation of certain evidence, and
10postconviction and post commitment deoxyribonucleic acid testing of evidence.
Analysis by the Legislative Reference Bureau
Time limits for prosecuting sexual assault
Current law provides time limits for commencing the prosecution of most
crimes, including sexual assault. The state must initiate prosecution within the time
limit or is barred from prosecuting the offense. A prosecution is commenced when
a court issues a summons or a warrant for arrest, when a grand jury issues an
indictment, or when a district attorney files an information alleging that a person
committed a specific crime. Time during which a defendant is either a nonresident
of the state or is secretly a resident in concealment is not calculated as part of the time
limit.
Under current law, the state must prosecute first and second degree sexual
assault within six years of the date of the crime. The state must prosecute first and
second degree sexual assault of a child, as well as repeated sexual assault of the same
child, before the victim reaches the age of 31.
This bill creates an exception to the time limits for prosecuting the crimes of
sexual assault, sexual assault of a child, and repeated sexual assault of the same
child in certain circumstances if the state has deoxyribonucleic acid (DNA) evidence
related to the crime. If the state collects and analyzes DNA evidence related to the
crime before the time limit for prosecution expires and does not link the DNA
evidence to an identified person until after the time limit expires, the state may
initiate prosecution for the crime within one year of matching the DNA evidence to
a known person.
Postconviction deoxyribonucleic acid testing
Current law provides several options for a person who is convicted of a crime,
found not guilty by reason of mental disease or defect, or adjudicated delinquent to
challenge his or her conviction, finding of not guilty by reason of mental disease or
defect, or delinquency adjudication:
1. The person may file a motion for relief with the trial court, and upon losing
the postconviction motion in the trial court may appeal to the appellate court. In
some cases the person may bypass the trial court and proceed directly to the
appellate court. To initiate either a request for relief from the trial court or to initiate
an appeal the person must serve notice of intent to pursue postconviction relief
within 20 days of sentencing.
2. The person may file a motion for a new trial on the basis of newly discovered
evidence up to one year after a verdict is entered. In order to obtain a new trial the
person must show that the new evidence came to the person's attention after the
trial, the failure to discover the evidence was not due to lack of diligence, the evidence
is material and not cumulative, and the new evidence would probably change the
outcome.
3. At any time, a person serving time in prison under a sentence imposed by
a state circuit court, or a person serving time under the volunteer probation program
for a misdemeanor, who has exhausted direct appeal rights, may file a motion for
release from custody under the state postconviction relief law if the person alleges
that the sentence was imposed in violation of the U.S. or Wisconsin constitution, or
in violation of other state law. In order to prevail on a motion for postconviction relief
the person must have raised the issues contained in the motion for postconviction
relief at trial or on appeal. A person may not make successive motions for
postconviction relief.
4. At any time, a person whose liberty is restrained may seek state habeas
corpus relief if the restraint of liberty is imposed in violation of the U.S. or Wisconsin
constitution or in violation of the sentencing court's jurisdiction, and if no other
adequate legal remedy is available to the person.
This bill provides an additional avenue to challenge a conviction, finding of not
guilty by reason of mental disease or defect, or delinquency adjudication. The bill
authorizes a person who was convicted of a crime, found not guilty by reason of
mental disease or defect, or adjudicated delinquent to file a motion for testing of DNA
evidence if 1) the evidence is relevant to the conviction, finding of not guilty by reason
of mental disease or defect, or delinquency adjudication, 2) the evidence is in the
possession of a government agency or court, and 3) the evidence was not previously
subjected to DNA testing or was tested with a less advanced method than is currently
available. An indigent person making a motion for postconviction DNA testing may
be represented by a public defender.
The bill also establishes standards for courts to apply in determining whether
to order testing of DNA evidence. A court must order testing if all of the following
conditions exist: 1) it is reasonably probable that the person seeking testing would
not have been convicted, found not guilty by reason of mental disease or defect, or
adjudicated delinquent, if exculpatory DNA testing results had been available; 2) the
evidence is in the actual or constructive possession of a government agency; 3) the
chain of custody of the evidence establishes that it has not been tampered with, or
testing can establish the integrity of the evidence; and 4) the evidence has not
previously been tested, or was tested with a less advanced method of analysis.
Whether to order testing is left to the discretion of the court if conditions 2), 3), and
4) are met and if the court finds that the outcome of a criminal or delinquency
proceeding, including the sentence or other disposition, would have been more
favorable to the person seeking testing of evidence, if DNA analysis had been
available in the criminal or delinquency proceeding. If the person seeking testing is
indigent or if the court determines that the person does not have the financial
resources to pay for testing, the state is required to pay for testing.
Upon receiving test results that support the person's claim of innocence, the
court is required to vacate the conviction, judgment of not guilty by reason of mental
disease or defect, or delinquency adjudication, release the person from custody, grant
a new trial, or grant a new sentencing hearing. If the person is committed to an
institution as a sexually violent person, the court may vacate the commitment order,
reverse the finding that the person is sexually violent, or grant the person a new trial
to determine whether the person is a sexually violent person.
The bill directs courts, law enforcement agencies, district attorneys, and the
state crime laboratories to preserve biological specimen evidence if a person in
custody could potentially be exonerated as a result of DNA testing of the evidence
and if the person in custody has not waived his or her right to preserve the evidence.
Use of deoxyribonucleic acid testing evidence at trial
Current law provides separate discovery rules for use of DNA evidence in a
criminal or delinquency proceeding. The rules include a definition for DNA evidence
that applies only to evidence obtained by using the restriction fragment length
polymorphism (RFLP) technique of DNA analysis. More recently adopted DNA
testing techniques such as polymerase chain reaction and mitochondrial DNA
testing are not covered by the current rules.
The discovery rules for DNA evidence specify what test results a party that
intends to use DNA evidence must provide to the opposing party. The specified
results are only created when the RFLP testing technique is used. The DNA evidence
discovery rules also set specific time frames for providing notice of intent to use DNA
evidence at trial and for producing test results.
The bill modifies the definition for DNA evidence so that it covers all methods
of analysis that result in identification of an individual's patterned chemical
structure of genetic information. The bill eliminates the list of specific forms of test
results that a party who intends to introduce DNA evidence must provide to the
opposing party, and instead relies on general discovery rules for production of
scientific test results. The bill does, however, retain the time frames for providing
notice of intent to use DNA evidence at trial and for providing test results to the
opposing party.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB291, s. 1
1Section
1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert
2the following amounts for the purposes indicated:
-
See PDF for table ![PDF](https://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
AB291, s. 2
3Section
2. 20.410 (1) (be) of the statutes is created to read:
AB291,4,74
20.410
(1) (be)
Postconviction evidence testing costs. The amounts in the
5schedule for the costs of performing forensic deoxyribonucleic acid testing for
6indigent persons under s. 974.07, pursuant to a court order issued under s. 974.07
7(12).
AB291, s. 3
1Section
3. 165.77 (2) (a) 2. of the statutes is amended to read:
AB291,5,122
165.77
(2) (a) 2. The laboratories may compare the data obtained from the
3specimen with data obtained from other specimens. The laboratories may make data
4obtained from any analysis and comparison available to law enforcement agencies
5in connection with criminal or delinquency investigations and, upon request, to any
6prosecutor, defense attorney or subject of the data. The data may be used in criminal
7and delinquency actions and proceedings.
In this state, the use is subject to s. 972.11
8(5). The laboratories shall not include data obtained from deoxyribonucleic acid
9analysis of those specimens received under this paragraph in the data bank under
10sub. (3). The laboratories shall destroy specimens obtained under this paragraph
11after analysis has been completed and the applicable court proceedings have
12concluded.
AB291, s. 4
13Section
4. 165.77 (2m) of the statutes is created to read:
AB291,5,1714
165.77
(2m) (a) If the laboratories receive biological material under a court
15order issued under s. 974.07 (8), the laboratories shall analyze the deoxyribonucleic
16acid in the material and submit the results of the analysis to the court that ordered
17the analysis.
AB291,5,2518
(b) The laboratories may compare the data obtained from material received
19under par. (a) with data obtained from other specimens. The laboratories may make
20data obtained from any analysis and comparison available to law enforcement
21agencies in connection with criminal or delinquency investigations and, upon
22request, to any prosecutor, defense attorney, or subject of the data. The data may be
23used in criminal and delinquency actions and proceedings. The laboratories shall not
24include data obtained from deoxyribonucleic acid analysis of material received under
25par. (a) in the data bank under sub. (3).
AB291,6,2
1(c) Paragraph (b) does not apply to specimens received under s. 51.20 (13) (cr),
2165.76, 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063.
AB291, s. 5
3Section
5. 165.77 (3) of the statutes is amended to read:
AB291,6,164
165.77
(3) If the laboratories receive a human biological specimen under s.
551.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047 or 980.063, the
6laboratories shall analyze the deoxyribonucleic acid in the specimen. The
7laboratories shall maintain a data bank based on data obtained from
8deoxyribonucleic acid analysis of those specimens. The laboratories may compare
9the data obtained from one specimen with the data obtained from other specimens.
10The laboratories may make data obtained from any analysis and comparison
11available to law enforcement agencies in connection with criminal or delinquency
12investigations and, upon request, to any prosecutor, defense attorney or subject of
13the data. The data may be used in criminal and delinquency actions and proceedings.
14In this state, the use is subject to s. 972.11 (5). The laboratories shall destroy
15specimens obtained under this subsection after analysis has been completed and the
16applicable court proceedings have concluded.
AB291, s. 6
17Section
6. 165.81 (1) of the statutes is amended to read:
AB291,7,318
165.81
(1) Whenever the department is informed by the submitting officer or
19agency that physical evidence in the possession of the laboratories is no longer
20needed the department may,
except as provided in sub. (3) or unless otherwise
21provided by law, either destroy the same, retain it in the laboratories or turn it over
22to the University of Wisconsin upon the request of the head of any department.
23Whenever Except as provided in sub. (3), whenever the department receives
24information from which it appears probable that the evidence is no longer needed,
25the department may give written notice to the submitting agency and the
1appropriate district attorney, by registered mail, of the intention to dispose of the
2evidence. If no objection is received within 20 days after the notice was mailed, it may
3dispose of the evidence.
AB291, s. 7
4Section
7. 165.81 (3) of the statutes is created to read:
AB291,7,55
165.81
(3) (a) In this subsection:
AB291,7,66
1. "Custody" has the meaning given in s. 968.205 (1) (a).
AB291,7,77
2. "Discharge date" has the meaning given in s. 968.205 (1) (b).
AB291,7,138
(b) Except as provided in par. (c), if physical evidence that is in the possession
9of the laboratories includes any biological material that was collected in connection
10with a criminal investigation that resulted in a criminal conviction, a delinquency
11adjudication, or commitment under s. 971.17 or s. 980.06, the laboratories shall
12preserve the physical evidence until every person in custody as a result of the
13conviction, adjudication, or commitment has reached his or her discharge date.
AB291,7,1514
(c) Subject to par. (e), the department may destroy biological material before
15the expiration of the time period specified in par. (b) if all of the following apply:
AB291,7,1916
1. The department sends a notice of its intent to destroy the biological material
17to all persons who remain in custody as a result of the criminal conviction,
18delinquency adjudication, or commitment, and to either the attorney of record for
19each person in custody or the state public defender.
AB291,7,2120
2. No person who is notified under subd. 1. does either of the following within
2190 days after the date on which the person received the notice:
AB291,7,2222
a. Files a motion for testing of the biological material under s. 974.07 (2).
AB291,7,2423
b. Submits a written request to preserve the biological material to the
24department.
AB291,8,2
13. No other provision of federal or state law requires the department to preserve
2the biological material.
AB291,8,73
(d)
A notice provided under par. (c) 1. shall clearly inform the recipient that the
4biological material will be destroyed unless, within 90 days after the date on which
5the person receives the notice, either a motion for testing of the material is filed
6under s. 974.07 (2) or a written request to preserve the material is submitted to the
7department.
AB291,8,138
(e) If, after providing notice under par. (c) 1. of its intent to destroy biological
9material, the department receives a written request to preserve the material, the
10department shall preserve the material until the discharge date of the person who
11made the request or on whose behalf the request was made, subject to a court order
12issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court authorizes
13destruction of the biological material under s. 974.07 (9) (b) or (10) (a) 5.
AB291, s. 8
14Section
8. 757.54 of the statutes is renumbered 757.54 (1) and amended to
15read:
AB291,8,1916
757.54
(1) The Except as provided in sub. (2), the retention and disposal of all
17court records and exhibits in any civil or criminal action or proceeding or probate
18proceeding of any nature in a court of record shall be determined by the supreme
19court by rule.
AB291, s. 9
20Section
9. 757.54 (2) of the statutes is created to read:
AB291,8,2121
757.54
(2) (a) In this subsection:
AB291,8,2222
1. "Custody" has the meaning given in s. 968.205 (1) (a).
AB291,8,2323
2. "Discharge date" has the meaning given in s. 968.205 (1) (b).
AB291,9,524
(b) Except as provided in par. (c), if an exhibit in a criminal action or a
25delinquency proceeding under ch. 938 includes any biological material that was
1collected in connection with the action or proceeding, the court presiding over the
2action or proceeding shall ensure that the exhibit is preserved until every person in
3custody as a result of the action or proceeding, or as a result of commitment under
4s. 980.06 that is based on a judgment
of guilty or not guilty by reason of mental
5disease or defect in the action or proceeding, has reached his or her discharge date.
AB291,9,76
(c) Subject to par. (e), the court may destroy biological material before the
7expiration of the time period specified in par. (b) if all of the following apply:
AB291,9,118
1. The court sends a notice of its intent to destroy the biological material to all
9persons who remain in custody as a result of the criminal action, delinquency
10proceeding, or commitment under s. 980.06 and to either the attorney of record for
11each person in custody or the state public defender.
AB291,9,1312
2. No person who is notified under subd. 1. does either of the following within
1390 days after the date on which the person received the notice:
AB291,9,1414
a. Files a motion for testing of the biological material under s. 974.07 (2).
AB291,9,1515
b. Submits a written request to preserve the biological material to the court.
AB291,9,1716
3. No other provision of federal or state law requires the court to preserve the
17biological material.
AB291,9,2218
(d)
A notice provided under par. (c) 1. shall clearly inform the recipient that the
19biological material will be destroyed unless, within 90 days after the date on which
20the person receives the notice, either a motion for testing of the material is filed
21under s. 974.07 (2) or a written request to preserve the material is submitted to the
22court.
AB291,9,2523
(e) If, after providing notice under par. (c) 1. of its intent to destroy biological
24material, a court receives a written request to preserve the material, the court shall
25preserve the material until the discharge date of the person who made the request
1or on whose behalf the request was made, subject to a court order issued under s.
2974.07 (7), (9) (a), or (10) (a) 5., unless the court authorizes destruction of the
3biological material under s. 974.07 (9) (b) or (10) (a) 5.
AB291, s. 10
4Section
10. 801.02 (7) (a) 2. c. of the statutes is amended to read:
AB291,10,85
801.02
(7) (a) 2. c. A person bringing an action seeking relief from a judgment
6of conviction or a sentence of a court, including an action for an extraordinary writ
7or a supervisory writ seeking relief from a judgment of conviction or a sentence of a
8court or an action under s. 809.30, 809.40, 973.19
or
, 974.06
or 974.07.
AB291, s. 11
9Section
11. 805.15 (3) (intro.) of the statutes is amended to read:
AB291,10,1210
805.15
(3) (intro.)
A Except as provided in ss. 974.07 (10) (b) and 980.101 (2)
11(b), a new trial shall be ordered on the grounds of newly-discovered evidence if the
12court finds that:
AB291, s. 12
13Section
12. 805.16 (5) of the statutes is created to read:
AB291,10,1514
805.16
(5) The time limits in this section for filing motions do not apply to
15motions made under s. 974.07 (2) or 980.101.
AB291, s. 13
16Section
13. 808.075 (4) (h) of the statutes is amended to read:
AB291,10,1917
808.075
(4) (h) Commitment, supervised release, recommitment
and, 18discharge
, and postcommitment relief under ss. 980.06, 980.08, 980.09
and, 980.10
,
19and 980.101 of a person found to be a sexually violent person under ch. 980.
AB291, s. 14
20Section
14. 809.30 (1) (a) of the statutes is amended to read: