AB383: Bill Text

AB383,293,15 971.43 (2) (f) Any audiovisual recording of an oral statement of a child under s. 908.08.

AB383,951 Section 951. 971.43 (2) (h) of the statutes is created to read:

AB383,293,18 971.43 (2) (h) After the defendant has obtained or waived legal representation, copies of all law enforcement investigative reports relating to the case.

AB383,952 Section 952. 971.43 (3) of the statutes is created to read:

AB383,293,23 971.43 (3) Character, reputation, or other acts evidence. If the district attorney intends to use evidence of character or reputation or evidence of other crimes or acts under s. 904.04 (2), he or she shall notify the defense of that intention and of the substance of the evidence to be used.

AB383,953 Section 953. 971.43 (4) of the statutes is created to read:

AB383,294,4 971.43 (4) Electronic surveillance. If the defendant's conversations or premises have been subjected to electronic surveillance, including wiretapping, in connection with the investigation or prosecution of the case, the district attorney shall inform the defense of that fact.

AB383,954 Section 954. 971.43 (6) of the statutes is created to read:

AB383,294,9 971.43 (6) Material possessed by investigative personnel. The district attorney shall make reasonable efforts to ensure that investigative personnel provide material and information relevant to the crime charged to the district attorney's office.

AB383,955 Section 955. 971.43 (7) of the statutes is created to read:

AB383,294,15 971.43 (7) Material possessed by other agencies. If the district attorney knows that material and information that would be discoverable if in his or her possession is in the possession or control of a government agency not reporting directly to the district attorney, the district attorney shall disclose the fact of the existence of such material or information to the defense.

AB383,956 Section 956. 971.43 (8) of the statutes is created to read:

AB383,294,19 971.43 (8) Notice of intent to use codefendant's statement. If the district attorney intends to use the statement of a codefendant to implicate the defendant in the crime charged, he or she shall inform the defendant before trial.

AB383,957 Section 957. 971.44 (title) and (1) of the statutes are created to read:

AB383,294,23 971.44 (title) Defense disclosure. (1) Time of disclosure. The defense shall make all disclosures under this section within a reasonable time before the pretrial conference or at a time set in the scheduling order.

AB383,958 Section 958. 971.44 (2) (a) of the statutes is created to read:

AB383,295,5 971.44 (2) (a) Any written or recorded statement of a person whom the defense intends to call as a trial witness that concerns the subject matter of the witness's intended testimony, that has been electronically recorded or reduced to writing and signed or otherwise approved or adopted by the witness, and that is within the possession or control of the defense.

AB383,959 Section 959. 971.44 (3) of the statutes is created to read:

AB383,295,10 971.44 (3) Character, reputation, or other acts evidence. If the defense intends to use evidence of character or reputation or evidence of other crimes or acts under s. 904.04 (2) not relating to the defendant, the defense shall notify the district attorney of that intention and of the substance of the evidence to be used.

AB383,960 Section 960. 971.46 (intro.) and (1) of the statutes are created to read:

AB383,295,14 971.46 Expert witnesses. (intro.) Any party who intends to call an expert witness at trial shall, not less than 15 days before the trial or at another time set by the court, do all of the following:

AB383,295,16 (1) Notify the other party in writing of the expert witness's name, address, and qualifications.

AB383,961 Section 961. 971.48 (title) of the statutes is created to read:

AB383,295,18 971.48 (title) Scientific testing; preservation of evidence.

AB383,962 Section 962. 971.48 (2) of the statutes is created to read:

AB383,295,23 971.48 (2) If before trial either party intends to destroy or permanently transfer out of its possession any material discoverable under this subchapter, the party shall give the other party advance notice sufficient to afford that party an opportunity to object or take other appropriate action.

AB383,963 Section 963. 971.49 of the statutes is created to read:

AB383,296,4 971.49 Motion to obtain evidence before trial. (1) Notwithstanding s. 908.03 (6m) (c), before trial and upon motion by either party, the court may issue a subpoena to require the production of documents and other tangible objects if it finds that the evidence sought may be material to the determination of issues in the case.

AB383,296,7 (2) A motion and subpoena under sub. (1) shall specify who shall produce the material, whether certified copies of documents may be submitted in lieu of appearance, and other conditions under which the evidence shall be produced.

AB383,296,12 (3) Any party, or any person subpoenaed under this section, may move to quash the subpoena if the movant under sub. (1) has not shown grounds for the subpoena or if compliance would subject the person subpoenaed to an undue burden, require the disclosure of information that is privileged or otherwise protected from disclosure, or otherwise be unreasonable.

AB383,964 Section 964. 971.51 (title) and (1) of the statutes are created to read:

AB383,296,16 971.51 (title) Manner of performing disclosure. (1) Disclosure may be accomplished in any manner mutually agreeable to the parties. Absent agreement, the party having the duty to disclose shall do one of the following:

AB383,296,17 (a) Provide a copy of the material to be disclosed.

AB383,296,21 (b) Notify the other party that the material may be inspected, copied, or photographed during specified reasonable times and make the material available to the other party at the time specified. The party having the duty to disclose shall, unless it provides copies, make available suitable machinery for making copies.

AB383,965 Section 965. 971.52 (3) of the statutes is created to read:

AB383,297,4 971.52 (3) If anything is deleted from discoverable material under a claim of privilege or other exemption, the party to whom the discovery is made shall be notified and may move the court for an order requiring its disclosure. The court may require the deleted information to be furnished to the court under seal for determination of its discoverability. If the court determines that the material is exempt from disclosure, an appropriate sealed copy of the material shall be kept in the court record.

AB383,966 Section 966. 971.56 of the statutes is created to read:

AB383,297,12 971.56 Obtaining nontestimonial information from defendant. (1) In general. Upon motion by the district attorney, the court may order a defendant charged with a crime to participate in a procedure to obtain nontestimonial evidence relevant to whether the defendant committed the crime if the procedure is reasonable and does not involve an unreasonable intrusion into the body or an unreasonable detention of the defendant. An order under this subsection may direct the defendant to do any of the following:

AB383,297,14 (a) Appear, move, or speak for identification in a lineup or, if a lineup is not practicable, through some other reasonable procedure.

AB383,297,15 (b) Try on clothing and other articles.

AB383,297,16 (c) Provide handwriting and voice exemplars.

AB383,297,17 (d) Permit the taking of his or her photograph.

AB383,297,19 (e) Permit the taking of fingerprints, palm prints, footprints, and other body impression.

AB383,297,21 (f) Permit the taking of samples of blood, urine, saliva, semen, skin, breath, hair, or nails or materials under the nails.

AB383,297,23 (g) Submit to body measurements and other reasonable body surface examinations.

AB383,297,25 (h) Submit to reasonable physical and medical inspection, including X-rays, of the body.

AB383,298,2 (i) Participate in other procedures that comply with the requirements of sub. (1) (intro.).

AB383,298,12 (2) Contents of order. An order under this section shall specify with particularity the authorized procedure; the scope of the defendant's participation in the procedure; the time, duration, and place of the procedure and other conditions under which it is to be conducted; and who may conduct the procedure. It may also direct the defendant not to alter substantially any identifying physical characteristics to be examined or destroy any evidence sought. The order shall specify that the defendant may not be subjected to investigative interrogation while participating in or present for the procedure and that the defendant may be held in contempt of court if he or she fails to appear and participate in the procedure as directed.

AB383,298,14 (3) Service. The order shall be served by mailing or delivering a copy to the defendant's counsel and by delivering a copy of the order to the defendant personally.

AB383,298,16 (4) Implementation. (a) Counsel may accompany the defendant at a procedure ordered under this section, but the court may bar other individuals from attending.

AB383,298,20 (b) If the procedure involves an intrusion into the body, it shall be conducted by a qualified health care professional. Upon timely request by the defendant and approval by the court, a qualified health care professional designated by the defendant may observe any procedure involving intrusion of the body.

AB383,298,23 (c) The defendant may not be subjected to investigative interrogation at the procedure. No statement of the defendant made at the procedure is admissible against the defendant if made in the absence of the defendant's counsel.

AB383,967 Section 967. 971.57 of the statutes is created to read:

AB383,299,7 971.57 Nontestimonial discovery from 3rd parties. (1) Upon motion of a defendant, the court may issue a subpoena requiring an individual to participate in a procedure to obtain nontestimonial evidence under s. 971.56 (1) if an affidavit or testimony shows probable cause to believe that the individual to be subpoenaed committed the crime with which the defendant is charged and that the evidence sought is necessary to an adequate defense and cannot practicably be obtained from other sources.

AB383,299,9 (2) A motion and order under sub. (1) shall specify with particularity the following information if appropriate:

AB383,299,10 (a) The authorized procedure.

AB383,299,11 (b) The scope of the 3rd party's participation.

AB383,299,13 (c) The time, duration, and place of the procedure and other conditions under which it is to be conducted.

AB383,299,14 (d) The name or job title of the person who is to conduct the procedure.

AB383,299,19 (3) Any party or any person subpoenaed under this section may move to quash the subpoena if the defendant has not shown grounds for the subpoena or if compliance would subject the person subpoenaed to an undue burden, require the disclosure of information that is privileged or otherwise protected from disclosure, or otherwise be unreasonable.

AB383,968 Section 968. 971.58 (title) of the statutes is created to read:

AB383,299,21 971.58 (title) Compelling certain examinations prohibited.

AB383,969 Section 969. Subchapter V (title) of chapter 971 [precedes 971.65] of the statutes is created to read:

AB383,299,24 chapter 971

AB383,299,25 Subchapter V

AB383,300,1 motions

AB383,970 Section 970. 971.65 (title) of the statutes is created to read:

AB383,300,3 971.65 (title) Pretrial motions.

AB383,971 Section 971. 971.65 (2) of the statutes is created to read:

AB383,300,7 971.65 (2) Time for filing. A motion under this section shall be filed within the time set in the scheduling order. If there is no scheduling order, the motion shall be filed not later than 15 days before trial, unless otherwise permitted by the court.

AB383,972 Section 972. 971.66 of the statutes is created to read:

AB383,300,13 971.66 Motions to dismiss asserting that a statute is unconstitutional. If a defendant moves to dismiss a criminal prosecution by asserting that the statute under which he or she is charged violates the United States or Wisconsin Constitution, the defendant must serve a copy of the motion on the attorney general under s. 806.04 (11) as well as on the district attorney.

AB383,973 Section 973. 971.68 (title), (1) and (3) of the statutes are created to read:

AB383,300,16 971.68 (title) Joinder and severance motions. (1) In general. Either party may move for joinder or relief from misjoinder or prejudicial joinder under s. 970.13.

AB383,300,21 (3) Codefendant's statements. If a defendant moves for severance because a codefendant's out-of-court statement refers to, but is not admissible against, the movant, the court shall determine whether the state intends to offer the statement in evidence as part of its case in chief. If so, the court shall require the district attorney to elect one of the following:

AB383,300,22 (a) A joint trial at which the statement is not received in evidence.

AB383,300,25 (b) A joint trial at which the statement is received in evidence only after all references to the movant have been deleted, if admission of the statement with the deletions made will not prejudice the movant.

AB383,301,1 (c) A separate trial for the movant.

AB383,301,3 (d) With the approval of the court, a separate jury for each defendant sitting in a single trial.

AB383,974 Section 974. 971.69 of the statutes is created to read:

AB383,301,9 971.69 Pretrial dismissal of complaint. (1) A defendant may move for pretrial dismissal of the complaint or of any count in the complaint. The defendant may provide one or more affidavits in support of the motion. The motion shall state with particularity the grounds upon which it is based and shall specify all of the following:

AB383,301,12 (a) The elements of the crime charged or other facts the state is required to prove at trial that the defendant believes the state cannot prove because there is no genuine issue as to any material fact.

AB383,301,15 (b) The evidence or absence of evidence, including any statement of a witness, that the defendant believes is uncontroverted and that establishes the grounds stated in the motion.

AB383,301,18 (c) If applicable, any crime included within the crime charged, as provided in s. 939.66, that the defendant also believes, for the grounds specified, the state cannot prove at trial because there is no genuine issue as to any material fact.

AB383,301,21 (2) If the grounds stated in the motion, if true, would not justify granting the dismissal motion, or if the allegations in the complaint demonstrate that there is a genuine issue of material fact as to those grounds, the court shall deny the motion.

AB383,302,4 (3) If the grounds stated in the motion, if true, would justify granting the dismissal motion and the allegations in the complaint do not demonstrate that there is a genuine issue of material fact as to those grounds, the court shall allow the district attorney to file a written response presenting any facts or expert opinions that the district attorney believes establish the elements or other facts that the state is required to prove at trial. The court may request that the district attorney and defense counsel present arguments and may allow testimony where it would resolve the questions whether a genuine issue of material fact exists.

AB383,302,11 (4) Unless the court denies the motion under sub. (2), the court shall rule on the motion based on the complaint, the material submitted by the defendant in support of the motion, and material, testimony, or argument presented under sub. (3). The court shall rule on the motion as to the crime charged and any included crime specified in the motion. If the court concludes, for the reasons specified in the motion, that there is no genuine issue as to any material fact, the court shall do one of the following:

AB383,302,12 (a) Grant the motion.

AB383,302,13 (b) Allow the district attorney to amend the complaint.