2005 Wisconsin Act 60

b. Submits a written request to preserve the biological material for retention of the exhibit to the court.

60,24 Section 24. 757.54 (2) (c) 3. of the statutes is amended to read:

757.54 (2) (c) 3. No other provision of federal or state law requires the court to preserve retention of the biological material exhibit.

60,25 Section 25. 757.54 (2) (d) of the statutes is amended to read:

757.54 (2) (d) A notice provided under par. (c) 1. shall clearly inform the recipient that the biological material exhibit will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material exhibit is filed under s. 974.07 (2) or a written request to preserve for retention of the material exhibit is submitted to the court.

60,26 Section 26. 757.54 (2) (e) of the statutes is amended to read:

757.54 (2) (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material an exhibit, a court receives a written request to preserve for retention of the material exhibit, the court shall preserve the material ensure that the exhibit is retained until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court orders destruction or transfer of the biological material exhibit under s. 974.07 (9) (b) or (10) (a) 5.

60,27 Section 27. 938.195 of the statutes is created to read:

938.195 Recording custodial interrogations. (1) In this section:

(a) "Custodial interrogation" has the meaning give in s. 968.073 (1) (a).

(b) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

(c) "Place of detention" means a secure detention facility, jail, municipal lockup facility, or secured correctional facility, or a police or sheriff's office or other building under the control of a law enforcement agency, at which juveniles are held in custody in connection with an investigation of a delinquent act.

(2) (a) A law enforcement agency shall make an audio or audio and visual recording of any custodial interrogation of a juvenile that is conducted at a place of detention unless a condition under s. 938.31 (3) (c) 1. to 5. applies.

(b) If feasible, a law enforcement agency shall make an audio or audio and visual recording of any custodial interrogation of a juvenile that is conducted at a place other than a place of detention unless a condition under s. 938.31 (3) (c) 1. to 5. applies.

(3) A law enforcement officer or agent of a law enforcement agency conducting a custodial interrogation is not required to inform the subject of the interrogation that the officer or agent is making an audio or audio and visual recording of the interrogation.

60,28 Section 28. 938.31 (3) of the statutes is created to read:

938.31 (3) (a) In this subsection:

1. "Custodial interrogation" has the meaning given in 968.073 (1) (a).

2. "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

3. "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).

4. "Statement" has the meaning given in s. 972.115 (1) (d).

(b) Except as provided under par. (c), a statement made by the juvenile during a custodial interrogation is not admissible in evidence against the juvenile in any court proceeding alleging the juvenile to be delinquent unless an audio or audio and visual recording of the interrogation was made as required under s. 938.195 (2) and is available.

(c) A juvenile's statement is not inadmissible in evidence under par. (b) if any of the following applies or if other good cause exists for not suppressing a juvenile's statement under par. (b):

1. The juvenile refused to respond or cooperate in the custodial interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the juvenile's refusal.

2. The statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody.

3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating.

4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.

5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.

(d) Notwithstanding ss. 968.28 to 968.37, a juvenile's lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the juvenile during the interrogation.

60,29 Section 29. 939.74 (2d) (am) of the statutes is created to read:

939.74 (2d) (am) For purposes of this subsection, crimes are related if they are committed against the same victim, are proximate in time, and are committed with the same intent, purpose, or opportunity so as to be part of the same course of conduct.

60,30 Section 30. 939.74 (2d) (b) and (c) of the statutes are amended to read:

939.74 (2d) (b) If before the time limitation under sub. (1) expired, the state collected biological material that is evidence of the identity of the person who committed a violation of s. 940.225 (1) or (2), the state identified a deoxyribonucleic acid profile from the biological material, and comparisons of that deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for the violation of s. 940.225 (1) or (2) or a crime that is related to the violation or both within 12 months after comparison of the deoxyribonucleic acid profile relating to the violation results in a probable identification of the person.

(c) If before the time limitation under sub. (2) (c) expired, the state collected biological material that is evidence of the identity of the person who committed a violation of s. 948.02 (1) or (2) or 948.025, the state identified a deoxyribonucleic acid profile from the biological material, and comparisons of that deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for the violation of s. 948.02 (1) or (2) or 948.025 or a crime that is related to the violation or both within 12 months after comparison of the deoxyribonucleic acid profile relating to the violation results in a probable identification of the person.

60,31 Section 31. 968.073 of the statutes is created to read:

968.073 Recording custodial interrogations. (1) In this section:

(a) "Custodial interrogation" means an interrogation by a law enforcement officer or an agent of a law enforcement agency of a person suspected of committing a crime from the time the suspect is or should be informed of his or her rights to counsel and to remain silent until the questioning ends, during which the officer or agent asks a question that is reasonably likely to elicit an incriminating response and during which a reasonable person in the suspect's position would believe that he or she is in custody or otherwise deprived of his or her freedom of action in any significant way.

(b) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

(c) "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).

(2) It is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony unless a condition under s. 972.115 (2) (a) 1. to 6. applies or good cause is shown for not making an audio or audio and visual recording of the interrogation.

(3) A law enforcement officer or agent of a law enforcement agency conducting a custodial interrogation is not required to inform the subject of the interrogation that the officer or agent is making an audio or audio and visual recording of the interrogation.

60,32 Section 32. 968.205 (2) of the statutes is amended to read:

968.205 (2) Except as provided in sub. (3), if physical evidence that is in the possession of a law enforcement agency includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17 or 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the law enforcement agency shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

60,33 Section 33. 968.205 (2m) of the statutes is created to read:

968.205 (2m) A law enforcement agency shall retain evidence to which sub. (2) applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a), from the biological material contained in or included on the evidence.

60,34 Section 34. 968.205 (3) (intro.) of the statutes is amended to read:

968.205 (3) (intro.) Subject to sub. (5), a law enforcement agency may destroy evidence that includes biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

60,35 Section 35. 968.205 (3) (a) of the statutes is amended to read:

968.205 (3) (a) The law enforcement agency sends a notice of its intent to destroy the biological material evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.

60,36 Section 36. 968.205 (3) (b) 1. and 2. of the statutes are amended to read:

968.205 (3) (b) 1. Files a motion for testing of the biological material evidence under s. 974.07 (2).

2. Submits a written request to preserve the biological material for retention of the evidence to the law enforcement agency or district attorney.

60,37 Section 37. 968.205 (3) (c) of the statutes is amended to read:

968.205 (3) (c) No other provision of federal or state law requires the law enforcement agency to preserve retain the biological material evidence.

60,38 Section 38. 968.205 (4) of the statutes is amended to read:

968.205 (4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the biological material evidence will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material evidence is filed under s. 974.07 (2) or a written request to preserve for retention of the material evidence is submitted to the law enforcement agency.

60,39 Section 39. 968.205 (5) of the statutes is amended to read:

968.205 (5) If, after providing notice under sub. (3) (a) of its intent to destroy biological material evidence, a law enforcement agency receives a written request to preserve for retention of the material evidence, the law enforcement agency shall preserve retain the material evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court orders destruction or transfer of the biological material evidence under s. 974.07 (9) (b) or (10) (a) 5.

60,40 Section 40. 972.115 of the statutes is created to read:

972.115 Admissibility of defendant's statement. (1) In this section:

(a) "Custodial interrogation" has the meaning given in s. 968.073 (1) (a).

(b) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

(c) "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).

(d) "Statement" means an oral, written, sign language, or nonverbal communication.

(2) (a) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is not available, upon a request made by the defendant as provided in s. 972.10 (5) and unless the state asserts and the court finds that one of the following conditions applies or that good cause exists for not providing an instruction, the court shall instruct the jury that it is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony and that the jury may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case:

1. The person refused to respond or cooperate in the interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the subject's refusal.

2. The statement was made in response to a question asked as part of the routine processing of the person.

3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating.

4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.

5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.

6. The law enforcement officer conducting the interrogation or the law enforcement officer responsible for observing an interrogation conducted by an agent of a law enforcement agency reasonably believed at the commencement of the interrogation that the offense for which the person was taken into custody or for which the person was being investigated, was not a felony.

(b) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a proceeding heard by the court without a jury in a felony case and if an audio or audio and visual recording of the interrogation is not available, the court may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement unless the court determines that one of the conditions under par. (a) 1. to 6 applies.

(4) Notwithstanding ss. 968.28 to 968.37, a defendant's lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the defendant during the interrogation.

(5) An audio or audio and visual recording of a custodial interrogation shall not be open to public inspection under ss. 19.31 to 19.39 before one of the following occurs:

(a) The person interrogated is convicted or acquitted of an offense that is a subject of the interrogation.

(b) All criminal investigations and prosecutions to which the interrogation relates are concluded.

60,41 Section 41. 974.07 (8) of the statutes is amended to read:

974.07 (8) The court may impose reasonable conditions on any testing ordered under this section in order to protect the integrity of the evidence and the testing process. If appropriate and if stipulated to by the movant and the district attorney, the court may order the state crime laboratories to perform the testing as provided under s. 165.77 (2m) or, after consulting with the movant and the district attorney, may order that the material be sent to a facility other than the state crime laboratories for testing. If ordered to perform testing under this section, the crime laboratories may, subject to the approval of the movant and the district attorney, arrange for another facility to perform the testing.

60,42 Section 42. 974.07 (12) (c) of the statutes is created to read:

974.07 (12) (c) The state crime laboratories shall pay for testing ordered under this section and performed by a facility other than the state crime laboratories if the court does not order the movant to pay for the testing.

60,43 Section 43. 978.08 (2) of the statutes is amended to read:

978.08 (2) Except as provided in sub. (3), if physical evidence that is in the possession of a district attorney includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17 or 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the district attorney shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

60,44 Section 44. 978.08 (2m) of the statutes is created to read:

978.08 (2m) A district attorney shall retain evidence to which sub. (2) applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a), from the biological material contained in or included on the evidence.

60,45 Section 45. 978.08 (3) (intro.) of the statutes is amended to read:

978.08 (3) (intro.) Subject to sub. (5), a district attorney may destroy evidence that includes biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

60,46 Section 46. 978.08 (3) (a) of the statutes is amended to read:

978.08 (3) (a) The district attorney sends a notice of its intent to destroy the biological material evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment and to either the attorney of record for each person in custody or the state public defender.

60,47 Section 47. 978.08 (3) (b) 1. and 2. of the statutes are amended to read: