SB82: Bill Text

SB82,299,11 (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.

SB82,965 Section 965. 971.57 of the statutes is created to read:

SB82,299,19 971.57 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.

SB82,299,21 (2) A motion and order under sub. (1) shall specify with particularity the following information if appropriate:

SB82,299,22 (a) The authorized procedure.

SB82,299,23 (b) The scope of the 3rd party's participation.

SB82,299,25 (c) The time, duration, and place of the procedure and other conditions under which it is to be conducted.

SB82,300,1 (d) The name or job title of the person who is to conduct the procedure.

SB82,300,6 (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.

SB82,966 Section 966. 971.58 (title) of the statutes is created to read:

SB82,300,8 971.58 (title) Compelling certain examinations prohibited.

SB82,967 Section 967. Subchapter V (title) of chapter 971 [precedes 971.65] of the statutes is created to read:

SB82,300,11 chapter 971

SB82,300,12 Subchapter V

SB82,300,13 motions

SB82,968 Section 968. 971.65 (title) of the statutes is created to read:

SB82,300,15 971.65 (title) Pretrial motions.

SB82,969 Section 969. 971.65 (2) (title) and (a) of the statutes are created to read:

SB82,300,20 971.65 (2) (title) Time for filing. (a) 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.

SB82,970 Section 970. 971.66 of the statutes is created to read:

SB82,301,2 971.66 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.

SB82,971 Section 971. 971.68 (title), (1) and (3) of the statutes are created to read:

SB82,301,5 971.68 (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.

SB82,301,10 (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:

SB82,301,11 (a) A joint trial at which the statement is not received in evidence.

SB82,301,14 (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.

SB82,301,15 (c) A separate trial for the movant.

SB82,301,17 (d) With the approval of the court, a separate jury for each defendant sitting in a single trial.

SB82,972 Section 972. Subchapter VI (title) of chapter 971 [precedes 971.75] of the statutes is created to read:

SB82,301,20 chapter 971

SB82,301,21 Subchapter VI

SB82,301,22 juveniles in adult court

SB82,973 Section 973. 971.75 (title) of the statutes is created to read:

SB82,301,25 971.75 (title) Probable cause and retention hearings; juvenile under original adult court jurisdiction.

SB82,974 Section 974. 971.75 (2) of the statutes is created to read:

SB82,302,5 971.75 (2) Time for probable cause hearing. The court shall conduct a probable cause hearing that is required under sub. (1) within 10 days after the initial appearance. On stipulation of the parties, or upon motion and for cause, the court may extend that time.

SB82,975 Section 975. 971.75 (4) of the statutes is created to read:

SB82,302,10 971.75 (4) Time for retention hearing. The court shall conduct any hearing on retention of jurisdiction that is required under sub. (3) (b) within 20 days of the probable cause finding under sub. (3) (b). On stipulation of the parties, or upon motion and for cause, the court may extend that time.

SB82,976 Section 976. 971.75 (6) of the statutes is created to read:

SB82,302,15 971.75 (6) Witnesses at probable cause and retention hearings. (a) Both the district attorney and the juvenile may call and cross-examine witnesses at any hearing under this section. All witnesses shall be sworn and their testimony reported by a court reporter.

SB82,302,19 (b) During any hearing under this section, the court may exclude witnesses until they are called to testify, may direct that persons who are expected to be called as witnesses be kept separate until called, and may prevent them from communicating with one another until they have been examined.

SB82,977 Section 977. 971.75 (7) of the statutes is created to read:

SB82,302,21 971.75 (7) Admissibility of reports. (a) In this subsection:

SB82,302,22 1. "Hospital" has the meaning given in s. 50.33 (2).

SB82,302,23 2. "Local health department" has the meaning given in s. 250.01 (4).

SB82,303,7 (b) At any hearing under this section, a report of one of the crime laboratory's, the state laboratory of hygiene's, a federal bureau of investigation laboratory's, a hospital laboratory's, or a local health department's findings with reference to all or any part of the evidence submitted, certified as correct by the attorney general, the director of the state laboratory of hygiene, the director of the federal bureau of investigation, the chief hospital administrator, the local health officer, as defined in s. 250.01 (5), or a person designated by any of them, shall, when offered by the state or the accused, be received as evidence of the facts and findings stated, if relevant. The expert who made the findings need not be called as a witness.

SB82,303,13 (c) At any hearing under this section in Milwaukee County, a latent fingerprint report of the city of Milwaukee police department bureau of identification division's latent fingerprint identification unit, certified as correct by the police chief or a person designated by the police chief, shall, when offered by the state or the accused, be received as evidence of the facts and findings stated, if relevant. The expert who made the findings need not be called as a witness.

SB82,978 Section 978. 971.75 (9) of the statutes is created to read:

SB82,303,25 971.75 (9) Closure orders. (a) If the juvenile is accused of a crime under s. 940.225, 948.02, 948.025, 948.05, 948.051, 948.06, 948.085, or 948.095, or under s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5), the court may exclude from any hearing under this section all persons who are not officers of the court, members of the complainant's or juvenile's families, or others considered by the court to be supportive of the complainant or juvenile, the service representative, as defined in s. 895.45 (1) (c), or other persons required to attend, if the court finds that the state or the juvenile has established a compelling interest that would likely be prejudiced if the persons were not excluded. The court may consider as a compelling interest, among others, the need to protect a complainant from undue embarrassment and emotional trauma.

SB82,304,6 (b) In making its order under this subsection, the court shall set forth specific findings sufficient to support the order. In making these findings, the court shall consider, and give substantial weight to, the desires, if any, of the complainant. Additional factors that the court may consider in making these findings include, but are not limited to, the complainant's age, psychological maturity, and understanding; the nature of the crime; and the desires of the complainant's family.

SB82,304,9 (c) The court shall make its order under this subsection no broader than is necessary to protect the compelling interest under par. (a) and shall consider any reasonable alternatives to full closure of the entire hearing.

SB82,979 Section 979. 971.76 of the statutes is created to read:

SB82,304,17 971.76 Pretrial dismissal of complaint against juvenile. (1) Waiver cases. If the court has jurisdiction over a juvenile as a result of a waiver under s. 938.18 (1) (a) or (b), the juvenile may move the court to dismiss the complaint on the ground that the state cannot prove that he or she committed any of the offenses listed in s. 938.18 (1) (a) or (b) on which the waiver was based. If the court grants a motion to dismiss under this subsection, the court shall order that the juvenile be discharged, but proceedings may be brought regarding the juvenile under ch. 938.

SB82,304,24 (2) Cases involving original adult court jurisdiction. A juvenile subject to the court's original jurisdiction under s. 938.183 (1) may move the court to dismiss the complaint on the ground that the state cannot prove that he or she committed any of the offenses charged under s. 938.183 (1) (a), (am), (b), or (c) under the circumstances described in those provisions. If the court grants a motion to dismiss under this subsection, the court shall order that the juvenile be discharged, but proceedings may be brought regarding the juvenile under ch. 938.

SB82,980 Section 980. 971.77 (title) of the statutes is created to read:

SB82,305,1 971.77 (title) Motion to transfer jurisdiction in misdemeanors.

SB82,981 Section 981. 972.005 (title) of the statutes is created to read:

SB82,305,3 972.005 (title) Right to jury; waiver.

SB82,982 Section 982. 972.005 (2) of the statutes is created to read:

SB82,305,9 972.005 (2) Partial jury trial waiver. The parties may agree, with the approval of the court, that the jury be instructed that an element of the crime is established. The court shall address the defendant personally to assure that the defendant understands his or her right to trial by jury as to that element and voluntarily waives that right.

SB82,983 Section 983. 972.01 of the statutes is amended to read:

SB82,305,15 972.01 Jury; civil rules applicable. The Except as otherwise provided in this chapter, the summoning of jurors, the, selection, and qualifications of the jury jurors, the challenge of jurors for cause, and the duty of the court in charging the jury and, giving instructions, and discharging the jury when it is unable to agree shall be the same in criminal as in civil actions, except that s. 805.08 (3) shall not apply.

SB82,984 Section 984. 972.02 (title) of the statutes is repealed.

SB82,985 Section 985. 972.02 (1) of the statutes is renumbered 972.005 (1) and amended to read:

SB82,305,25 972.005 (1) Waiver. Except as otherwise provided in this chapter, criminal Criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a his or her right to trial by jury in writing or by statement in open court or under s. 967.08 (2) (b), on the record, with the approval of the court and the consent of the state. Before approving a waiver of the right to trial by jury, the court shall address the defendant personally to assure that the defendant understands his or her right to trial by jury and that the defendant voluntarily waives that right.

SB82,986 Section 986. 972.02 (2) of the statutes is renumbered 972.025 (2) and amended to read:

SB82,306,8 972.025 (2) Jury of less than 12. At any time before the verdict is returned, the parties may stipulate in writing or by statement in open court, on the record agree, with the approval of the court, that the jury shall consist of any number less than 12. If the parties agree to a number of jurors that is less than 12, the court shall address the defendant personally to ensure that the defendant understands his or her right to a jury of 12 and that the defendant voluntarily waives that right.

SB82,987 Section 987. 972.02 (3) of the statutes is renumbered 972.27 and amended to read:

SB82,306,14 972.27 Findings in a trial to the court. In a case tried without a jury, the court shall make a general finding and may in addition find the facts specially. If the charge includes a provision that increases the maximum penalty for the charged crime, the court shall make a specific finding as to the proof of that provision.

SB82,988 Section 988. 972.02 (4) of the statutes is renumbered 972.04 (5) and amended to read:

SB82,306,19 972.04 (5) No A member of the a grand jury which found the indictment shall that indicted a defendant may not be a juror for the defendant's trial of the indictment.

SB82,989 Section 989. 972.025 (title) and (1) of the statutes are created to read:

SB82,306,23 972.025 (title) Jury size. (1) Twelve-person jury. A jury in a criminal case shall consist of 12 persons unless the parties agree to a lesser number as provided in sub. (2).

SB82,990 Section 990. 972.03 (title) of the statutes is amended to read:

SB82,306,25 972.03 (title) Peremptory Number of peremptory challenges.

SB82,991 Section 991. 972.03 of the statutes is renumbered 972.03 (1) and amended to read:

SB82,307,5 972.03 (1) Generally. Each Except as provided in subs. (2), (3), (4), and (5), in a criminal case, each side is entitled to only 4 peremptory challenges except as otherwise provided in this section. When.

SB82,307,11 (4) Life imprisonment. If the crime charged in a case is punishable by life imprisonment, the state is each side shall be entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges. If there is , except, if the case involves 2 defendants, the defense shall be entitled to 12 peremptory challenges, and if the case involves more than 2 defendants, the defense shall be entitled to 18 peremptory challenges.

SB82,307,21 (3) Dividing challenges among defendants. In a criminal case involving more than one defendant, the court shall divide the peremptory challenges for the defense as equally as practicable among them the defendants; and if their defenses are adverse and the court is satisfied that the protection of their rights so requires, the court may allow the defendants additional peremptory challenges. If the crime is punishable by life imprisonment, the total peremptory challenges allowed the defense shall not exceed 12 if there are only 2 defendants and 18 if there are more than 2 defendants; in other felony cases the defendants are allowed additional peremptory challenges under this subsection, the courts may, if the interest of justice requires, allow the state additional peremptory challenges.

SB82,308,5 (2) More than one defendant. Except as provided in subs. (3) and (4), in a criminal case involving 2 defendants, the defense shall be entitled to 6 peremptory challenges if there are only, and in a criminal case involving more than 2 defendants and, the defense shall be entitled to 9 peremptory challenges if there are more than 2. In misdemeanor cases, the state is entitled to 3 peremptory challenges and the defendant is entitled to 3 peremptory challenges, except that if there are 2 defendants, the court shall allow the defense 4 peremptory challenges, and if there are more than 2 defendants, the court shall allow the defense 6 peremptory challenges.

SB82,308,8 (5) Additional challenges. Each side shall be allowed at least one additional peremptory challenge if the court orders that additional jurors are to be selected under s. 972.04 (1).

SB82,992 Section 992. 972.04 (title) of the statutes is repealed and recreated to read:

SB82,308,10 972.04 (title) Jury selection.

SB82,993 Section 993. 972.04 (1) of the statutes is amended to read:

SB82,308,19 972.04 (1) The number of jurors selected in a criminal case shall be prescribed in s. 756.06 (2) (a), 12 unless a lesser number has been stipulated agreed to and approved under s. 972.02 972.025 (2) or the. The court orders may order that additional jurors be selected. That number, plus the number of peremptory challenges available to all the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The to assure that the required number of jurors will be available for deliberation.

SB82,308,24 (6) After the jurors have been examined and the court has determined whether to excuse any juror for cause, the parties shall thereupon exercise in their order their peremptory challenges alternately, the state beginning, the peremptory challenges available to them, and if. If any party declines to exercise a peremptory challenge, the challenge shall be made by the clerk shall make the challenge by lot.

SB82,994 Section 994. 972.04 (2) of the statutes is repealed.

SB82,995 Section 995. 972.04 (3) of the statutes is created to read:

SB82,309,4 972.04 (3) The court shall call and maintain the number of jurors provided in sub. (1), plus the number of peremptory challenges available to the parties. If a juror is excused for cause, the court shall replace that juror with another.