LRB-3495/1
RLR&GMM:wlj&lmk:ch
2005 - 2006 LEGISLATURE
September 2, 2005 - Introduced by Senators Zien, Coggs, Miller, Harsdorf,
Risser, Darling, Hansen, Roessler, Kapanke, S. Fitzgerald and Lazich,
cosponsored by Representatives
Gundrum, Bies, Staskunas, Colon,
Ziegelbauer, Krawczyk, Van Roy, Sheridan, McCormick, Van Akkeren, F.
Lasee, Nelson, Hundertmark, Turner, Nischke, Fields, Musser, Molepske,
Pettis, Gronemus, Ott, Cullen, Lothian, Kestell, Stone, Albers, Hahn,
LeMahieu, Hines, Jensen, M. Williams, Townsend and Kleefisch. Referred
to Committee on Judiciary, Corrections and Privacy.
SB315,2,4
1An Act to repeal 165.77 (2m) (a);
to amend 165.77 (2m) (b), 165.81 (3) (b), 165.81
2(3) (c) (intro.), 165.81 (3) (c) 1., 165.81 (3) (c) 2. a. and b., 165.81 (3) (c) 3., 165.81
3(3) (d), 165.81 (3) (e), 165.85 (3) (d), 757.05 (1) (a), 757.54 (2) (b), 757.54 (2) (c)
4(intro.), 757.54 (2) (c) 1., 757.54 (2) (c) 2. a. and b., 757.54 (2) (c) 3., 757.54 (2)
5(d), 757.54 (2) (e), 939.74 (2d) (b) and (c), 968.205 (2), 968.205 (3) (intro.),
6968.205 (3) (a), 968.205 (3) (b) 1. and 2., 968.205 (3) (c), 968.205 (4), 968.205 (5),
7974.07 (8), 978.08 (2), 978.08 (3) (intro.), 978.08 (3) (a), 978.08 (3) (b) 1. and 2.,
8978.08 (3) (c), 978.08 (4) and 978.08 (5); and
to create 16.964 (10), 20.455 (2)
9(i) 16., 20.505 (6) (kc), 165.75 (3) (g), 165.81 (3) (bm), 175.50, 757.54 (2) (bm),
10938.195, 938.31 (3), 939.74 (2d) (am), 968.073, 968.205 (2m), 972.115, 974.07
11(12) (c) and 978.08 (2m) of the statutes;
relating to: retention and testing of
12evidence that includes biological material, time limits for prosecuting a crime
13that is related to a sexual assault, law enforcement procedures for using an
14eyewitness to identify a person suspected of committing a crime, making audio
1or audio and visual recordings of custodial interrogations, limitations on
2admitting unrecorded statements into evidence in juvenile delinquency and
3criminal proceedings, and creating a grant program for digital recording
4equipment and training for digital recording of custodial interrogations.
Analysis by the Legislative Reference Bureau
Recording custodial interrogations
The Wisconsin Supreme Court, on July 7, 2005, exercised its supervisory
authority over the court system to require that law enforcement agencies
electronically record custodial interrogations of juveniles if they are conducted at a
place of detention and to require that, if feasible, law enforcement agencies also
electronically record custodial interrogations of juveniles that are conducted at a
place other than a place of detention. (See State v. Jerrell, 2005 WI 105.)
This bill codifies the Jerrell recording requirement. The bill requires that law
enforcement agencies make an audio or audio and visual recording (recording) of a
custodial interrogation of a juvenile who is suspected of committing a crime if the
interrogation is conducted at a place of detention. The bill also requires law
enforcement agencies to make a recording, if feasible, of a custodial interrogation of
a juvenile suspected of committing a crime if the interrogation is conducted at a place
other than a place of detention. The bill allows several exceptions (listed below) to
the recording requirements.
The bill defines "custodial interrogation" as "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 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."
The bill defines "place of detention" as "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."
The bill provides that a statement made by a juvenile during a custodial
interrogation that was not recorded is not admissible in evidence in a delinquency
proceeding unless one of several exceptions apply. The exceptions to inadmissibility
of unrecorded statements and to the requirement that custodial interrogations of
juveniles be recorded are: that the juvenile refused to cooperate if the interrogation
was recorded; the statement was made in response to a question asked as part of the
routine processing after the juvenile was taken into custody; the interrogator in good
faith failed to make a recording due to equipment malfunction or improper operation
of the recording equipment; the statement was made spontaneously and not in
response to a question by the interrogator; or exigent public safety circumstances
prevented recording.
The bill further provides that it is the policy of the state to make a recording of
a custodial interrogation of an adult suspected of committing a felony (a crime
punishable by confinement for one year or more in a state prison), unless good cause
is shown for not making a recording, or unless certain exceptions apply. The
exceptions are those applicable to a juvenile delinquency case plus that the
interrogator was not aware at the time of the interrogation that his or her
investigation concerned a felony offense.
The bill provides that if a statement made by an adult during a custodial
interrogation that was not recorded is admitted into evidence at a felony trial before
a jury, the judge shall instruct the jury that it is the policy of the state to record
custodial interrogations related to felonies and that the jury may consider the
absence of a recording in weighing the evidence unless the judge finds that one of the
above listed exception applies or there is other good cause for not giving such an
instruction. In a felony proceeding heard by a judge without a jury, the judge may
consider the absence of a recording of a custodial interrogation in weighing the
evidence unless one of the exceptions apply.
The provisions relating to recording custodial interrogations of juveniles and
admissibility in evidence of statements made by juveniles during custodial
interrogations first apply to custodial interrogations conducted on the day after this
bill is enacted as an act. The provisions relating to recording custodial interrogations
of adults and admissibility in evidence of statements made by an adult during a
custodial interrogation first apply to custodial interrogations conducted on January
1, 2007.
The bill creates a grant program administered by the Office of Justice
Assistance to provide law enforcement agencies funding for the purchase,
installation, or maintenance of equipment for making digital recordings of custodial
interrogations and for training personnel to use such equipment. The grant program
is funded by increasing the penalty surcharge amount from 25 percent to 26 percent
of the amount of fines or forfeitures assessed by a court.
Retention of evidence containing DNA
Under current law, law enforcement agencies, district attorneys (DAs), courts,
and the state crime laboratories are required to preserve evidence that includes
biological material and was collected in connection with a criminal investigation,
which resulted in a conviction, delinquency adjudication, or commitment order, for
as long as any person remains in custody under the conviction, delinquency
adjudication, or commitment order. However, if a law enforcement agency, DA, court,
or crime laboratory informs every person in custody in connection with a piece of
evidence of its intent to destroy the evidence and none of the people either requests
preservation of the evidence or files a motion for deoxyribonucleic acid (DNA) testing
of the biological material contained in or included on the evidence, the law
enforcement agency, DA, court, or crime laboratory may destroy the evidence.
This bill provides that a law enforcement agency, DA, court, or crime laboratory
must retain evidence that includes biological material and was collected in
connection with a criminal investigation that resulted in a conviction, delinquency
adjudication, or commitment order only if the biological material is either from the
victim of the offense for which the conviction, adjudication, or commitment order was
imposed or the biological material may reasonably be used to incriminate or
exculpate any person for the offense. Also, a law enforcement agency, DA, court, or
crime laboratory need retain the evidence only in an amount and manner sufficient
to develop a DNA profile from the evidence.
Testing of DNA evidence
Under current law, a person who has been convicted, adjudicated delinquent,
or found not guilty by reason of mental disease or defect for committing a crime may
petition a court to order DNA testing of evidence that was relevant to the
investigation or prosecution of the crime (postconviction DNA testing). If a court
grants the person's petition, the court may order the state crime laboratories to
perform the DNA testing as long as the petitioner and the DA agree that the
laboratories should conduct the testing. The court may order the petitioner to pay
for testing if the petitioner is not indigent.
This bill provides that if a court grants a petition for postconviction DNA
testing, the court may, after consulting with the petitioner and the DA, order the
state crime laboratories to conduct the testing, regardless of whether the petitioner
or DA consents to selection of the laboratories. Even if ordered to conduct
postconviction DNA testing, the state crime laboratories may arrange for another
facility to conduct the testing. If the laboratories arrange for another facility to
conduct the testing and the court has not ordered the petitioner to pay for testing,
the laboratories must pay for it. The bill further requires that the state crime
laboratories prioritize postconviction DNA testing ordered by a court over other work
of the laboratories.
Time limits for prosecuting a crime related to a felony sexual assault
Current law imposes time limits for commencing prosecution of most crimes.
Prosecution of a felony sexual assault must be commenced within six years after the
assault, except that prosecution of sexual assault of a child may be commenced at any
time before the victim reaches the age of 45. However, if the state collects DNA
evidence in connection with a first- or second-degree sexual assault or a sexual
assault of a child before the time for prosecution expires and does not match the DNA
evidence with an identified person until after that time expires, the state may
initiate prosecution for the assault within one year after making the match.
This bill applies the time limits for prosecuting felony sexual assaults as well
as the DNA exception from those time limits to crimes that are related to a felony
sexual assault. Under the bill, 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.
Eyewitness identification of a suspect
This bill requires law enforcement agencies to adopt written policies governing
the use of an eyewitness to identify a person suspected of committing a crime. The
policies must apply to practices under which an eyewitness identifies a suspect upon
viewing him or her in person, such as in a lineup, and to practices under which an
eyewitness identifies a suspect upon viewing a representation of the suspect, as by
viewing a photograph array. The policies must be designed to reduce the potential
of erroneous identifications by eyewitnesses.
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:
SB315, s. 1
1Section
1. 16.964 (10) of the statutes is created to read:
SB315,5,22
16.964
(10) (a) In this subsection:
SB315,5,33
1. "Custodial interrogation" has the meaning given in s. 968.073 (1) (a).
SB315,5,44
2. "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).
SB315,5,155
(b) The office shall provide grants from the appropriation under s. 20.505 (6)
6(kc) to law enforcement agencies to fund or reimburse expenses incurred on or after
7July 7, 2005, for the purchase, installation, or maintenance of digital recording
8equipment for making audio or audio and visual recordings of custodial
9interrogations or for training personnel to use such equipment. Grants awarded
10under this subsection may be used to support recording of custodial interrogations
11of either juveniles or adults and of interrogations related to either misdemeanor or
12felony offenses. The office may award more than one grant under this subsection to
13a law enforcement agency. The office shall develop criteria and procedures to
14administer this subsection. Notwithstanding s. 227.10 (1), the criteria and
15procedures need not be promulgated as rules under ch. 227.
SB315,5,1716
(c) A law enforcement agency shall include the following information in an
17application for a grant under this subsection:
SB315,5,1818
1. How the agency proposes to use the grant funds.
SB315,6,3
12. Procedures to be followed when recording equipment fails to operate
2correctly, including procedures for reporting failures, using alternative recording
3equipment, and repairing or replacing the equipment.
SB315,6,54
3. Procedures for storing recordings of custodial interrogations, including
5storage format, storage location, and indexing of recordings for retrieval.
SB315,6,76
4. Measures to prevent or detect tampering with recordings of custodial
7interrogations.
SB315,6,88
5. Any other information required by the office.
SB315, s. 2
9Section
2. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert
10the following amounts for the purposes indicated:
-
See PDF for table ![PDF](https://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
SB315, s. 3
11Section
3. 20.455 (2) (i) 16. of the statutes is created to read:
SB315,6,1312
20.455
(2) (i) 16. The amount transferred to s. 20.505 (6) (kc) shall be the
13amount in the schedule under s. 20.505 (6) (kc).
SB315, s. 4
14Section
4. 20.505 (6) (kc) of the statutes is created to read:
SB315,6,1915
20.505
(6) (kc)
Grants for digital recording of custodial interrogations. The
16amounts in the schedule for grants to law enforcement agencies under s. 16.964 (10)
17for equipment or training used to digitally record custodial interrogations. All
18moneys transferred from the appropriation account under s. 20.455 (2) (i) 16. shall
19be credited to this appropriation account.
SB315, s. 5
1Section
5. 165.75 (3) (g) of the statutes is created to read:
SB315,7,32
165.75
(3) (g) Deoxyribonucleic acid testing ordered under s. 974.07 shall have
3priority over other work of the laboratories.
SB315, s. 6
4Section
6. 165.77 (2m) (a) of the statutes is repealed.