SB82-SSA1,235,1412
972.04
(3) The court shall call and maintain the number of jurors provided in
13sub. (1), plus the number of peremptory challenges available to the parties. If a juror
14is excused for cause, the court shall replace that juror with another.
SB82-SSA1,781
15Section
781. 972.06 of the statutes is amended to read:
SB82-SSA1,235,19
16972.06 View Jury view. The court may order
a view by the jury
to view a
17location or object whenever the court concludes that viewing the location or object
18would assist the jury in understanding the evidence introduced in court or assist the
19jury in weighing and applying that evidence.
SB82-SSA1,782
20Section
782. 972.065 (title) of the statutes is created to read:
SB82-SSA1,235,21
21972.065 (title)
Note-taking by jurors.
SB82-SSA1,783
22Section
783. 972.07 of the statutes is renumbered 967.12 and amended to
23read:
SB82-SSA1,235,24
24967.12 Jeopardy. Jeopardy attaches
when one of the following occurs:
SB82-SSA1,236,3
1(1) In a trial to the court without a jury
, when
a witness is sworn;
the first
2witness assents to the oath or affirmation or answers the first question if no oath or
3affirmation is administered.
SB82-SSA1,236,5
4(2) In a jury trial
, when the selection of the jury has been completed and the
5jury sworn.
SB82-SSA1,784
6Section
784. 972.075 of the statutes is created to read:
SB82-SSA1,236,8
7972.075 Questioning of witnesses by jurors. (1) After the selection of a
8jury, the court may authorize the jurors to ask questions of witnesses.
SB82-SSA1,236,11
9(2) If the court authorizes juror questions, the court shall instruct the jury to
10propose only questions that tend to clarify information already presented and shall
11instruct the jury of the following procedure that shall be used for juror questions:
SB82-SSA1,236,1312
(a) After the parties have questioned a witness and before the witness leaves
13the stand, the court shall ask the jurors if they have any questions for the witness.
SB82-SSA1,236,1514
(b) If a juror has a question, he or she shall submit the question in writing to
15the judge.
SB82-SSA1,236,1716
(c) The judge shall show the question to the parties and allow the parties to
17object to the question without the knowledge of the jury.
SB82-SSA1,236,1918
(d) The judge shall review the question and any objections made by the parties
19and determine if the question is legally proper.
SB82-SSA1,236,2020
(e) If the question is legally proper, the judge may ask it of the witness.
SB82-SSA1,236,2221
(f) The court shall allow the parties to ask follow-up questions to any juror
22questions that are posed to a witness.
SB82-SSA1,785
23Section
785. 972.08 of the statutes is renumbered 967.17, and 967.17 (1) and
24(2), as renumbered, are amended to read:
SB82-SSA1,237,11
1967.17
(1) (a) Whenever any person refuses to testify or to produce books,
2papers
, or documents when required to do so before any grand jury, in a
John Doe 3proceeding under s.
968.26 968.105, at an inquest under s. 968.015, or at a
4preliminary examination, criminal hearing
, or trial for the reason that the testimony
5or evidence required of him or her may tend to incriminate him or her or subject him
6or her to a forfeiture or penalty, the person may nevertheless be compelled to testify
7or produce the evidence by order of the court on motion of the district attorney. No
8person who testifies or produces evidence in obedience to the command of the court
9in that case may be liable to any forfeiture or penalty for or on account of testifying
10or producing evidence, but no person may be exempted from prosecution and
11punishment for perjury or false swearing committed in so testifying.
SB82-SSA1,237,1312
(b) The immunity provided under par. (a) is subject to the restrictions under
13s.
972.085 967.18.
SB82-SSA1,237,24
14(2) Whenever a witness attending in any court trial or appearing before any
15grand jury
or, John Doe
investigation proceeding under s.
968.26 968.105, or inquest
16under s. 968.015 fails or refuses without just cause to comply with an order of the
17court under this section to give testimony in response to a question or with respect
18to any matter, the court, upon such failure or refusal, or when such failure or refusal
19is duly brought to its attention, may summarily order the witness's confinement at
20a suitable place until such time as the witness is willing to give such testimony or
21until
such the trial, grand jury term,
or John Doe
investigation under s. 968.26 22proceeding, or inquest is concluded but in no case exceeding one year. No person
23confined under this section shall be
admitted to bail released on conditions pending
24the determination of an appeal taken by the person from the order of confinement.
SB82-SSA1,786
1Section
786. 972.085 of the statutes is renumbered 967.18 and amended to
2read:
SB82-SSA1,238,9
3967.18 Immunity; use standard. Immunity from criminal or forfeiture
4prosecution under ss. 13.35, 17.16 (7), 77.61 (12), 93.17, 111.07 (2) (b), 128.16, 133.15,
5139.20, 139.39 (5), 195.048, 196.48, 551.602 (5), 553.55 (3), 601.62 (5), 767.87 (4),
6885.15, 885.24, 885.25 (2), 891.39 (2),
968.26, 972.08 (1) 967.17 (1), and
979.07 (1) 7968.105 and ch. 769, provides immunity only from the use of the compelled testimony
8or evidence in subsequent criminal or forfeiture proceedings, as well as immunity
9from the use of evidence derived from that compelled testimony or evidence.
SB82-SSA1,787
10Section
787. 972.09 of the statutes is renumbered 906.11 (4).
SB82-SSA1,788
11Section
788. 972.10 (title) of the statutes is renumbered 972.16 (title).
SB82-SSA1,789
12Section
789. 972.10 (1) (a) (intro.) of the statutes is repealed.
SB82-SSA1,790
13Section
790. 972.10 (1) (a) 1. of the statutes is renumbered 972.065 (1) and
14amended to read:
SB82-SSA1,238,2415
972.065
(1) The court may authorize note-taking by jurors. If the court
16authorizes note-taking, the court shall instruct the jurors that they may make
17written notes of
any portion of the proceedings
, except the opening statements and
18closing arguments,
if they so desire and that the court will provide materials for
that
19purpose if they so request note-taking. The court shall
stress the confidentiality of
20the notes to inform the jurors
that the notes are confidential. The jurors may refer
21to their notes during the proceedings and
deliberation their deliberations with the
22other jurors. The notes may not be the basis for or the object of any motion by any
23party. After the jury has
rendered returned its verdict, the court shall ensure that
24the notes are promptly collected and destroyed.
SB82-SSA1,791
25Section
791. 972.10 (1) (a) 2. of the statutes is renumbered 972.065 (2).
SB82-SSA1,792
1Section
792. 972.10 (1) (b) of the statutes is renumbered 972.095 and amended
2to read:
SB82-SSA1,239,14
3972.095 Preliminary jury instructions. The court may give
additional 4preliminary instructions to assist the jury in understanding its duty and the
5evidence it will hear. The preliminary instructions may include, without limitation,
6the elements of any offense charged, what constitutes evidence and what does not,
7guidance regarding the burden of proof and the credibility of witnesses, and
8directions not to discuss the case until deliberations begin.
The additional
9instructions shall be disclosed to the parties before they are given and either party
10may object to any specific instruction or propose instructions of its own to be given
11prior to trial The court shall advise the parties of the content of the instructions to
12be given. The parties may propose instructions of their own. All objections shall be
13on the record and shall specify with particularity how the instruction is insufficient
14or does not correctly state the law.
SB82-SSA1,793
15Section
793. 972.10 (2) of the statutes is repealed.
SB82-SSA1,794
16Section
794. 972.10 (3) of the statutes is repealed.
SB82-SSA1,795
17Section
795. 972.10 (4) of the statutes is repealed.
SB82-SSA1,796
18Section
796. 972.10 (5) of the statutes is renumbered 972.22 (1) and amended
19to read:
SB82-SSA1,240,220
972.22
(1) When the evidence is concluded and the testimony closed, if either
21party desires special instructions to be given to the jury, the instructions shall be
22reduced to writing, signed by the party or his or her attorney and filed with the clerk,
23unless the court otherwise directs. Counsel for the parties, or the defendant if he or
24she is without counsel, shall be allowed The court shall allow the parties reasonable
25opportunity to
request final jury instructions, to examine
the any instructions
1requested
by any other party, and to present and argue to the court objections to the
2adoption or rejection of any instructions requested by
counsel the parties.
SB82-SSA1,240,14
3(2) The court shall advise the parties of the
content of the instructions
to be
4given. No instruction regarding the failure to call a witness at the trial shall be made
5or given if the sole basis for such instruction is the fact the name of the witness
6appears upon a list furnished pursuant to s. 971.23. Counsel, or the defendant if he
7or she is not represented by counsel, shall specify and state the particular ground on
8which the instruction is objected to, and it shall not be sufficient to object generally
9that the instruction does not state the law, or is against the law, but the objection
10shall specify with particularity how the instruction is insufficient or does not state
11the law or to what particular language there is an objection. All objections before
12giving the instructions to the jury. If a party objects to the adoption or rejection of
13an instruction, the objection shall be made with particularity and shall be on the
14record.
SB82-SSA1,240,17
15(3) The court shall provide the jury with one
or more complete
set sets of written
16instructions
providing defining the burden of proof and the substantive law
to be
17applied to the case to be decided.
SB82-SSA1,797
18Section
797. 972.10 (6) of the statutes is repealed.
SB82-SSA1,798
19Section
798. 972.10 (7) of the statutes is renumbered 972.23 (1) and amended
20to read:
SB82-SSA1,241,221
972.23
(1) If
the court required selection of additional jurors
have been selected 22under s. 972.04 (1)
so that alternates may be available, and
, at the time the case is
23submitted to the jury for deliberation, the number
of jurors remains
more greater 24than
the number of jurors required
at final submission of the cause for deliberation,
25the court shall determine by lot which jurors shall not participate in deliberations
1and discharge them except that the court may, for good cause, discharge additional
2jurors other than by lot.
SB82-SSA1,799
3Section
799. 972.11 (title) of the statutes is renumbered 967.24 (title).
SB82-SSA1,800
4Section
800. 972.11 (1) of the statutes is renumbered 967.24 and amended to
5read:
SB82-SSA1,241,11
6967.24 Except as provided in subs. (2) to (4), the The rules of evidence and
7practice in civil actions
, except the rules under ss. 804.02 to 804.07, shall be
8applicable in all criminal proceedings unless the context of a section or rule
9manifestly requires a different construction. No guardian ad litem need be
10appointed for a defendant in a criminal action. Chapters 885 to 895 and 995, except
11ss.
804.02 to 804.07 and 887.23 to 887.26, shall apply in all criminal proceedings.
SB82-SSA1,801
12Section
801. 972.11 (2) of the statutes is renumbered 904.045, and 904.045 (1),
13(2) (intro.), (3) and (4) (b), as renumbered, are amended to read:
SB82-SSA1,241,1714
904.045
(1) In this
subsection
section, "sexual conduct" means any conduct or
15behavior relating to sexual activities of the complaining witness, including but not
16limited to prior experience of sexual intercourse or sexual contact, use of
17contraceptives, living arrangement and life-style.
SB82-SSA1,241,25
18(2) (intro.) If the defendant is accused of a crime under s. 940.225, 948.02,
19948.025, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, 948.09, or 948.095, or
20under s. 940.302 (2), if the court finds that the crime was sexually motivated, as
21defined in s. 980.01 (5), any evidence concerning the complaining witness's prior
22sexual conduct or opinions of the witness's prior sexual conduct and reputation as to
23prior sexual conduct shall not be admitted into evidence during the course of the
24hearing or trial, nor shall any reference to such conduct be made in the presence of
25the jury, except the following, subject to s.
971.31 (11) 971.65 (6):
SB82-SSA1,242,4
1(3) Notwithstanding s. 901.06, the limitation on the admission of evidence of
2or reference to the prior sexual conduct of the complaining witness in
par. (b) sub. (2) 3applies regardless of the purpose of the admission or reference unless the admission
4is expressly permitted under
par. (b) 1., 2. or 3
sub. (2) (a), (b), or (c).
SB82-SSA1,242,6
5(4) (b) The court shall determine the admissibility of evidence under
subd. 1. 6par. (a) upon pretrial motion before it may be introduced at trial.
SB82-SSA1,802
7Section
802. 972.11 (2m) (a) (intro.) and 1. of the statutes are renumbered
8972.20 (1) (intro.) and (a), and 972.20 (1) (a) 1., as renumbered, is amended to read:
SB82-SSA1,242,119
972.20
(1) (a) 1. That the presence of the defendant during the
taking of the 10child's testimony will result in the child suffering serious emotional distress such
11that the child cannot reasonably communicate.
SB82-SSA1,803
12Section
803. 972.11 (2m) (a) 2. (intro.), a. and b. of the statutes are
13consolidated, renumbered 972.20 (1) (b) and amended to read:
SB82-SSA1,242,1914
972.20
(1) (b) The trial in which the child may be called as a witness will
15commence
: a. Prior to before the child's 12th birthday
; or
b. Prior to the child's 16th
16birthday and, in addition to its finding under subd. 1.,, if the court finds that the
17interests of justice warrant that the child's testimony be taken in a room other than
18the courtroom and simultaneously televised in the courtroom by means of
19closed-circuit audiovisual equipment
, before the child's 16th birthday.
SB82-SSA1,804
20Section
804. 972.11 (2m) (b) of the statutes is renumbered 972.20 (2), and
21972.20 (2) (intro.), (a), (c), (d), (e), (f) and (g), as renumbered, are amended to read:
SB82-SSA1,242,2422
972.20
(2) (intro.)
Among the factors which Factors that the court may consider
23in determining the interests of justice under
par. (a) 2. b. are any of sub. (1) (b) include 24the following:
SB82-SSA1,243,3
1(a) The child's chronological age, level of development
, and capacity to
2comprehend the significance of the events
about which the child will testify and to
3verbalize about them.
SB82-SSA1,243,84
(c) Whether the events about which the child will testify constituted criminal
5or antisocial conduct against the child or a person with whom the child had a close
6emotional relationship and, if the conduct constituted a battery or a sexual assault,
7its duration and the extent of physical or emotional injury
thereby caused
by the
8battery or sexual assault.
SB82-SSA1,243,119
(d) The child's custodial situation and the attitude of other household members
10to the events about which the child will testify and
to the underlying proceeding 11towards the trial.
SB82-SSA1,243,1312
(e) The child's familial or emotional relationship to those involved in the
13underlying proceeding trial.
SB82-SSA1,243,1514
(f) The child's behavior at or reaction to previous interviews concerning the
15events
involved about which the child will testify.
SB82-SSA1,243,2116
(g) Whether the child blames himself or herself for the events
involved about
17which the child will testify or has ever been told by any person not to disclose them;
18whether the child's prior reports to associates or authorities of the events have been
19disbelieved or not acted upon; and the child's
subjective belief regarding what
20consequences to himself or herself, or persons with whom the child has a close
21emotional relationship, will ensue from providing testimony.
SB82-SSA1,805
22Section
805. 972.11 (2m) (bm) of the statutes is renumbered 972.20 (3), and
23972.20 (3) (intro.), (a) and (d), as renumbered, are amended to read:
SB82-SSA1,243,2524
972.20
(3) (intro.) If a court orders the testimony of a child to be taken under
25par. (a) sub. (1), the court shall do all of the following:
SB82-SSA1,244,3
1(a) To the extent it is practical and subject to s.
972.10 (3) 972.16 (1), schedule
2the testimony on a date when the child's recollection is likely to be fresh and at a time
3of day when the child's energy and attention span are likely to be greatest.
SB82-SSA1,244,84
(d)
Determine that the child understands that it is wrong to tell a lie and will
5testify truthfully if If the child's developmental level or verbal skills are such that
6administration of an oath or affirmation in the usual form would be inappropriate
,
7determine that the child understands that it is wrong to tell a lie and will testify
8truthfully.
SB82-SSA1,806
9Section
806. 972.11 (2m) (c) (intro.), 1m., 2m. and 3m. of the statutes are
10renumbered 972.20 (4) (intro.), (a), (b) and (c), and 972.20 (4) (intro.), as renumbered,
11is amended to read:
SB82-SSA1,244,1312
972.20
(4) (intro.) Only the following persons may be present in the room in
13which the child is giving testimony under
par. (a)
sub. (1):
SB82-SSA1,807
14Section
807. 972.11 (3) of the statutes is renumbered 940.22 (6), and 940.22
15(6) (a) (intro.) and 1., as renumbered, are amended to read:
SB82-SSA1,244,1916
940.22
(6) (a) (intro.) In a prosecution
under s. 940.22 involving a therapist and
17a patient or client for a violation of sub. (2), (3) (d), or (4) (d), evidence of the patient's
18or client's personal or medical history is not admissible except if
all of the following
19apply:
SB82-SSA1,244,2120
1. The defendant requests a hearing prior to trial and makes an offer of proof
21of the relevancy of the evidence
; and.
SB82-SSA1,808
22Section
808. 972.11 (3m) of the statutes is renumbered 346.63 (8) and
23amended to read:
SB82-SSA1,245,224
346.63
(8) A court may not exclude evidence in any criminal action or traffic
25forfeiture action for violation of
s. 346.63
sub. (1) or (5), or a local ordinance in
1conformity with
s. 346.63 sub. (1) or (5), on the ground that the evidence existed or
2was obtained outside of this state.
SB82-SSA1,809
3Section
809. 972.11 (4) of the statutes is renumbered 972.29.
SB82-SSA1,810
4Section
810. 972.115 (title) of the statutes is repealed.
SB82-SSA1,811
5Section
811. 972.115 (1) of the statutes is renumbered 972.18 (1), and 972.18
6(1) (a), as renumbered, is amended to read:
SB82-SSA1,245,87
972.18
(1) (a) "Custodial interrogation" has the meaning given in s.
968.073 8969.165 (1) (a).
SB82-SSA1,812
9Section
812. 972.115 (2) of the statutes is renumbered 972.18 (3), and 972.18
10(3) (a) (intro.), 1., 3. and 5. and (b), as renumbered, are amended to read:
SB82-SSA1,245,2111
972.18
(3) (a) (intro.) If a statement made by a defendant during a custodial
12interrogation is admitted into evidence in a trial for a felony before a jury and if
an
13audio or audio and visual a recording of the interrogation is not available, upon a
14request made by the defendant
as provided in s. 972.10 (5) and unless the state
15asserts and the court finds that one of the following conditions applies or that good
16cause exists for not providing an instruction, the court shall instruct the jury that it
17is the policy of this state to make
an audio or audio and visual a recording of a
18custodial interrogation of a person suspected of committing a felony and that the jury
19may consider the absence of
an audio or audio and visual a recording of the
20interrogation in evaluating the evidence relating to the interrogation and the
21statement in the case:
SB82-SSA1,245,2522
1. The person refused to respond or cooperate in the interrogation if
an audio
23or audio and visual a recording was made of the interrogation so long as a law
24enforcement officer or agent of a law enforcement agency made a contemporaneous
25audio or audio and visual recording or written record of the subject's refusal.
SB82-SSA1,246,5
13. The law enforcement officer or agent of a law enforcement agency conducting
2the interrogation in good faith failed to make
an audio or audio and visual a recording
3of the interrogation because the recording equipment did not function, the officer or
4agent inadvertently failed to operate the equipment properly, or, without the officer's
5or agent's knowledge, the equipment malfunctioned or stopped operating.
SB82-SSA1,246,86
5. Exigent public safety circumstances existed that prevented the making of
7an audio or audio and visual a recording or rendered the making of
such a recording
8infeasible.
SB82-SSA1,246,159
(b) If a statement made by a defendant during a custodial interrogation is
10admitted into evidence in a proceeding heard by the court without a jury in a felony
11case and if
an audio or audio and visual a recording of the interrogation is not
12available, the court may consider the absence of
an audio or audio and visual a 13recording of the interrogation in evaluating the evidence relating to the
14interrogation and the statement unless the court determines that one of the
15conditions under par. (a) 1. to 6. applies.
SB82-SSA1,813
16Section
813. 972.115 (4) and (5) of the statutes are renumbered 972.18 (3) (c)
17and (d), and 972.18 (3) (c) and (d) (intro.), as renumbered, are amended to read:
SB82-SSA1,246,2218
972.18
(3) (c) Notwithstanding ss.
968.28 968.315 to
968.37 968.405, a
19defendant's lack of consent to having
an audio or audio and visual a recording made
20of a custodial interrogation does not affect the admissibility in evidence of
an audio
21or audio and visual a recording of a statement made by the defendant during the
22interrogation.
SB82-SSA1,246,2523
(d) (intro.)
An audio or audio and visual A recording of a custodial interrogation
24shall not be open to public inspection under ss. 19.31 to 19.39 before one of the
25following occurs:
SB82-SSA1,814
1Section
814. 972.12 of the statutes is renumbered 972.05 and amended to
2read:
SB82-SSA1,247,8
3972.05 Sequestration of jurors.
The At any stage of the proceedings, the 4court may direct that
the jurors
who have been sworn be kept together or be
5permitted to separate. The court may appoint an officer of the court to keep the jurors
6together and to prevent communication between the jurors and others.
After the case
7has been submitted to the jurors, the court may permit them to separate, but shall
8instruct the jurors to suspend deliberations while separated.
SB82-SSA1,815
9Section
815. 972.13 (title) of the statutes is repealed.