Amendment ASA1-SB441

SB441-ASA1,27,20 980.031 (title) Examinations.

SB441-ASA1, s. 84 Section 84. 980.031 (1) and (2) of the statutes are created to read:

SB441-ASA1,27,25 980.031 (1) If a person who is the subject of a petition filed under s. 980.02 denies the facts alleged in the petition, the court may appoint at least one qualified licensed physician, licensed psychologist, or other mental health professional to conduct an examination of the person's mental condition and testify at trial.

SB441-ASA1,28,5 (2) The state may retain a licensed physician, licensed psychologist, or other mental health professional to examine the mental condition of a person who is the subject of a petition under s. 980.02 or who has been committed under s. 980.06 and to testify at trial or at any other proceeding under this chapter at which testimony is authorized.

SB441-ASA1, s. 85 Section 85. 980.034 of the statutes is created to read:

SB441-ASA1,28,13 980.034 Change of place of trial or jury from another county. (1) The person who is the subject of a petition filed under s. 980.02 or who has been committed under this chapter may move for a change of the place of a jury trial under s. 980.05 on the ground that an impartial trial cannot be had in the county in which the trial is set to be held. The motion shall be made within 20 days after the completion or waiver of the probable cause hearing under s. 980.04 (2), whichever is applicable, except that it may be made after that time for cause.

SB441-ASA1,28,17 (2) The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The department of justice or the district attorney, whichever filed the petition under s. 980.02, may file counter-affidavits.

SB441-ASA1,28,23 (3) If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it shall, except as provided in sub. (4), order that the trial be held in any county where an impartial trial can be had. Only one change may be granted under this subsection. The judge who orders the change in the place of trial shall preside at the trial. Preliminary matters prior to trial may be conducted in either county at the discretion of the court.

SB441-ASA1,28,25 (4) (a) Instead of changing the place of trial under sub. (3), the court may require the selection of a jury under par. (b) if all of the following apply:

SB441-ASA1,29,2 1. The court has decided to sequester the jurors after the commencement of the trial.

SB441-ASA1,29,3 2. There are grounds for changing the place of trial under sub. (1).

SB441-ASA1,29,5 3. The estimated costs to the county appear to be less using the procedure under this subsection than using the procedure for holding the trial in another county.

SB441-ASA1,29,10 (b) If the court decides to proceed under this subsection it shall follow the procedure under sub. (3) until the jury is chosen in the 2nd county. At that time, the proceedings shall return to the original county using the jurors selected in the 2nd county. The original county shall reimburse the 2nd county for all applicable costs under s. 814.22.

SB441-ASA1, s. 86 Section 86. 980.036 of the statutes is created to read:

SB441-ASA1,29,12 980.036 Discovery and inspection. (1) Definitions. In this section:

SB441-ASA1,29,14 (a) "Person subject to this chapter" means a person who is subject to a petition filed under s. 980.02 or a person who has been committed under s. 980.06.

SB441-ASA1,29,16 (b) "Prosecuting attorney" means an attorney representing the state in a proceeding under this chapter.

SB441-ASA1,29,23 (2) What a prosecuting attorney must disclose to a person subject to this chapter. Upon demand, a prosecuting attorney shall, within a reasonable time after the probable cause hearing and before a trial under s. 980.05 or other proceeding under s. 980.07 (7), 980.09 (2m), or 980.093 (3), disclose to a person subject to this chapter or the person's attorney, and permit the person or the person's attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the state:

SB441-ASA1,30,2 (a) Any written or recorded statement made by the person concerning the allegations in the petition filed under s. 980.02 or concerning other matters at issue in the trial or proceeding and the names of witnesses to the person's written statements.

SB441-ASA1,30,5 (b) A written summary of all oral statements of the person that the prosecuting attorney plans to use in the course of the trial or proceeding and the names of witnesses to the person's oral statements.

SB441-ASA1,30,7 (c) Evidence obtained in the manner described under s. 968.31 (2) (b), if the prosecuting attorney intends to use the evidence at the trial or proceeding.

SB441-ASA1,30,8 (d) A copy of the person's criminal record.

SB441-ASA1,30,11 (e) A list of all witnesses, and their addresses, whom the prosecuting attorney intends to call at the trial or proceeding. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

SB441-ASA1,30,13 (f) Any relevant written or recorded statements of a witness named on a list under par. (e), including all of the following:

SB441-ASA1,30,14 1. Any videotaped oral statement of a child under s. 908.08.

SB441-ASA1,30,15 2. Any reports prepared in accordance with s. 980.031 (5).

SB441-ASA1,30,20 (g) The results of any physical or mental examination or any scientific or psychological test or instrument, experiment, or comparison that the prosecuting attorney intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, experiment, or comparison.

SB441-ASA1,30,22 (h) The criminal record of a witness for the state that is known to the prosecuting attorney.

SB441-ASA1,30,24 (i) Any physical or documentary evidence that the prosecuting attorney intends to offer in evidence at a trial or proceeding.

SB441-ASA1,30,25 (j) Any exculpatory evidence.

SB441-ASA1,31,8 (3) What a person subject to this chapter must disclose to the prosecuting attorney. Upon demand, a person who is subject to this chapter or the person's attorney shall, within a reasonable time after the probable cause hearing and before a trial under s. 980.05 or other proceeding under s. 980.07 (7), 980.09 (2m), or 980.093 (3), disclose to the prosecuting attorney, and permit the prosecuting attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the person or the person's attorney:

SB441-ASA1,31,11 (a) A list of all witnesses, other than the person, whom the person intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

SB441-ASA1,31,13 (b) Any relevant written or recorded statements of a witness named on a list under par. (a), including any reports prepared in accordance with s. 980.031 (5).

SB441-ASA1,31,18 (c) The results of any physical or mental examination or any scientific or psychological test or instrument, experiment, or comparison that the person intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, experiment, or comparison.

SB441-ASA1,31,20 (d) The criminal record of a witness named on a list under par. (a) if the criminal record is known to the person's attorney.

SB441-ASA1,31,22 (e) Any physical or documentary evidence that the person intends to offer in evidence at the trial or proceeding.

SB441-ASA1,32,2 (4) Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial may be made or given if the sole basis for the comment or instruction is the fact that the name of the witness appears upon a list furnished under this section.

SB441-ASA1,32,6 (5) Testing or analysis of evidence. On motion of a party, the court may order the production of any item of evidence or raw data that is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.

SB441-ASA1,32,15 (6) Protective order. Upon motion of a party, the court may at any time order that discovery, inspection, or the listing of witnesses required under this section be denied, restricted, or deferred, or make other appropriate orders. If the prosecuting attorney or the attorney for a person subject to this chapter certifies that to list a witness may subject the witness or others to physical or economic harm or coercion, the court may order that the deposition of the witness be taken pursuant to s. 967.04 (2) to (6). The name of the witness need not be divulged prior to the taking of such deposition. If the witness becomes unavailable or changes his or her testimony, the deposition shall be admissible at trial as substantive evidence.

SB441-ASA1,32,19 (7) In camera proceedings. Either party may move for an in camera inspection by the court of any document required to be disclosed under sub. (2) or (3) for the purpose of masking or deleting any material that is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

SB441-ASA1,32,24 (8) Continuing duty to disclose. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested that are subject to discovery, inspection, or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.

SB441-ASA1,33,4 (9) Sanctions for failure to comply. (a) The court shall exclude any witness not listed or evidence not presented for inspection, copying, or photographing required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.

SB441-ASA1,33,8 (b) In addition to or in place of any sanction specified in par. (a), a court may, subject to sub. (4), advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (2) or (3), or of any untimely disclosure of material or information required to be disclosed under sub. (2) or (3).

SB441-ASA1,33,15 (10) Payment of photocopy costs in cases involving indigent respondents. When the state public defender or a private attorney appointed under s. 977.08 requests photocopies of any item that is discoverable under this section, the state public defender shall pay any fee charged for the photocopies from the appropriation under s. 20.550 (1) (a). If the person providing photocopies under this section charges the state public defender a fee for the photocopies, the fee may not exceed the actual, necessary, and direct cost of photocopying.

SB441-ASA1,33,18 (11) Exclusive method of discovery. Chapter 804 does not apply to proceedings under this chapter. This section provides the only methods of obtaining discovery and inspection in proceedings under this chapter.

SB441-ASA1, s. 87 Section 87. 980.038 of the statutes is created to read:

SB441-ASA1,34,2 980.038 Miscellaneous procedural provisions. (1) Motions challenging jurisdiction or competency of court or timeliness of petition. (a) A motion challenging the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02 shall be filed within 10 days after the court holds the probable cause hearing under s. 980.04 (2). Failure to file a motion within the time specified in this paragraph waives the right to challenge the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02.

SB441-ASA1,34,7 (b) Notwithstanding s. 801.11, a court may exercise personal jurisdiction over a person who is the subject of a petition filed under s. 980.02 even though the person is not served as provided under s. 801.11 (1) or (2) with a verified petition and summons or with an order for detention under s. 980.04 (1) and the person has not had a probable cause hearing under s. 980.04 (2).

SB441-ASA1,34,14 (2) Evidence of refusal to participate in examination. (a) At any hearing under this chapter, the state may present evidence or comment on evidence that a person who is the subject of a petition filed under s. 980.02 or a person who has been committed under this chapter refused to participate in an examination of his or her mental condition that was being conducted under this chapter or that was conducted before the petition under s. 980.02 was filed for the purpose of evaluating whether to file a petition.

SB441-ASA1,34,18 (b) A licensed physician, licensed psychologist, or other mental health professional may indicate in any written report that he or she prepares in connection with a proceeding under this chapter that the person whom he or she examined refused to participate in the examination.

SB441-ASA1,35,4 (3) Testimony by telephone or live audiovisual means. Unless good cause to the contrary is shown, proceedings under ss. 980.04 (2) (a) and 980.08 (5) (d) may be conducted by telephone or audiovisual means, if available. If the proceedings are required to be reported under SCR 71.02 (2), the proceedings shall be reported by a court reporter who is in simultaneous voice communication with all parties to the proceeding. Regardless of the physical location of any party to the telephone call, any action taken by the court or any party shall have the same effect as if made in open court. The proceedings shall be conducted in a courtroom or other place reasonably accessible to the public. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker or, upon request to the court, by making a person party to the telephone call without charge.

SB441-ASA1,35,14 (4) Motions for postcommitment relief; appeal. (a) A motion for postcommitment relief by a person committed under s. 980.06 shall be made in the time and manner provided in ss. 809.30 and 809.40. An appeal by a person who has been committed under s. 980.06 from a final order under s. 980.06, 980.08, or 980.09 or from an order denying a motion for postcommitment relief or from both shall be taken in the time and manner provided in ss. 808.04 (3), 809.30, and 809.40. If a person is seeking relief from an order of commitment under s. 980.06, the person shall file a motion for postcommitment relief in the trial court prior to an appeal unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.

SB441-ASA1,35,17 (b) An appeal by the state from a final judgment or order under this chapter may be taken to the court of appeals within the time specified in s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809.

SB441-ASA1,35,24 (5) Failure to comply with time limits; effect. Failure to comply with any time limit specified in this chapter does not deprive the circuit court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to comply with any time limit specified in this chapter is not grounds for an appeal or grounds to vacate any order, judgment, or commitment issued or entered under this chapter. Failure to object to a period of delay or a continuance waives the time limit that is the subject of the period of delay or continuance.

SB441-ASA1,36,3 (6) Errors and defects not affecting substantial rights. The court shall, in every stage of a proceeding under this chapter, disregard any error or defect in the pleadings or proceedings that does not affect the substantial rights of either party.

SB441-ASA1, s. 88 Section 88. 980.04 (1) of the statutes is amended to read:

SB441-ASA1,36,18 980.04 (1) Upon the filing of a petition under s. 980.02, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition. The person shall be detained only if there is probable cause to believe that the person is eligible for commitment under s. 980.05 (5). A person detained under this subsection shall be held in a facility approved by the department. If the person is serving a sentence of imprisonment, is in a secured correctional facility, as defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.02 (15g), or a secured group home, as defined in s. 938.02 (15p), or is committed to institutional care, and the court orders detention under this subsection, the court shall order that the person be transferred to a detention facility approved by the department. A detention order under this subsection remains in effect until the person is discharged petition is dismissed after a hearing under sub. (3) or after a trial under s. 980.05 (5) or until the effective date of a commitment order under s. 980.06, whichever is applicable.

SB441-ASA1, s. 89 Section 89. 980.04 (2) of the statutes is renumbered 980.04 (2) (a) and amended to read:

SB441-ASA1,37,5 980.04 (2) (a) Whenever a petition is filed under s. 980.02, the court shall hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person. If the person named in the petition is in custody, the court shall hold the probable cause hearing within 72 hours after the petition is filed, excluding Saturdays, Sundays and legal holidays. If the person named in the petition is not in custody, the Except as provided in par. (b), the court shall hold the probable cause hearing within a reasonable time 30 days, excluding Saturdays, Sundays, and legal holidays, after the filing of the petition, unless that time is extended by the court for good cause shown upon its own motion, the motion of any party, or the stipulation of the parties.

SB441-ASA1, s. 90 Section 90. 980.04 (2) (b) of the statutes is created to read:

SB441-ASA1,37,14 980.04 (2) (b) If the person named in the petition is in custody under a sentence, dispositional order, or commitment and the probable cause hearing will be held after the date on which the person is scheduled to be released or discharged from the sentence, dispositional order, or commitment, the probable cause hearing under par. (a) shall be held no later than 10 days after the person's scheduled release or discharge date, excluding Saturdays, Sundays, and legal holidays, unless that time is extended by the court for good cause shown upon its own motion, the motion of any party, or the stipulation of the parties.

SB441-ASA1, s. 91 Section 91. 980.04 (3) of the statutes is amended to read:

SB441-ASA1,37,23 980.04 (3) If the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility specified by the department for an evaluation by the department as to whether the person is a sexually violent person. If the court determines that probable cause does not exist to believe that the person is a sexually violent person, the court shall dismiss the petition.

SB441-ASA1, s. 92 Section 92. 980.05 (1) of the statutes is amended to read:

SB441-ASA1,38,5 980.05 (1) A trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person shall commence no later than 45 90 days after the date of the probable cause hearing under s. 980.04. The court may grant a continuance one or more continuances of the trial date for good cause upon its own motion, the motion of any party or the stipulation of the parties.

SB441-ASA1, s. 93 Section 93. 980.05 (1m) of the statutes is repealed.

SB441-ASA1, s. 94 Section 94. 980.05 (2m) of the statutes is created to read:

SB441-ASA1,38,14 980.05 (2m) (a) At a jury trial under this section, juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court, except that, notwithstanding s. 805.08 (3), each party shall be entitled to 4 peremptory challenges or, if the court orders additional jurors to be selected under s. 805.08 (2), to 5 peremptory challenges. A party may waive in advance any or all of its peremptory challenges and the number of jurors called under par. (b) shall be reduced by this number.

SB441-ASA1,38,22 (b) The number of jurors selected shall be the number prescribed in sub. (2), unless a lesser number has been stipulated to and approved under par. (c) or the court orders that additional jurors be selected. That number of jurors, plus the number of peremptory challenges available to all of 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 parties shall thereupon exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

SB441-ASA1,39,2 (c) At any time before the verdict in a jury trial under this section, the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than the number prescribed in sub. (2).

SB441-ASA1, s. 95 Section 95. 980.05 (3) (a) of the statutes is amended to read:

SB441-ASA1,39,6 980.05 (3) (a) At a trial on a petition under this chapter, the petitioner has the burden of proving the allegations in the petition beyond a reasonable doubt that the person who is the subject of the petition is a sexually violent person.

SB441-ASA1, s. 96 Section 96. 980.05 (3) (b) of the statutes is amended to read:

SB441-ASA1,39,11 980.05 (3) (b) If the state alleges that the sexually violent offense or act that forms the basis for the petition was an act that was sexually motivated as provided in s. 980.01 (6) (b) or (bm), the state is required to prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.

SB441-ASA1, s. 97 Section 97. 980.07 (1) of the statutes is renumbered 980.07 (1) (intro.) and amended to read:

SB441-ASA1,39,22 980.07 (1) (intro.) If a person has been is committed under s. 980.06 and has not been discharged under s. 980.09 or 980.093, the department shall conduct an examination of his or her mental condition within 6 12 months after an the date of the initial commitment order under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining to determine whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an any of the following:

SB441-ASA1,39,25 (a) An examiner as provided under s. 980.03 (4) 980.031 (3). The county shall pay the costs of an examiner appointed under this paragraph as provided under s. 51.20 (18) (a).

SB441-ASA1, s. 98 Section 98. 980.07 (1) (b) of the statutes is created to read:

SB441-ASA1,40,2 980.07 (1) (b) An attorney as provided under s. 980.03 (2) (a).

SB441-ASA1, s. 99 Section 99. 980.07 (1g) of the statutes is created to read:

SB441-ASA1,40,7 980.07 (1g) Any examiners under this section shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c).

SB441-ASA1, s. 100 Section 100. 980.07 (1m) of the statutes is created to read:

SB441-ASA1,40,14 980.07 (1m) At the time for any examination under sub. (1), the department shall prepare a treatment report based on its treating professionals' evaluation of the person's progress in treatment and of whether that progress has been sufficient and their description of the type of treatment that the person would need in the community if supervised release were ordered. The department shall provide a copy of this report to any examiner conducting an examination under sub. (1).

SB441-ASA1, s. 101 Section 101. 980.07 (2) of the statutes is amended to read:

SB441-ASA1,41,6 980.07 (2) Any examiner conducting an examination under this section sub. (1) shall prepare a written report of the examination no later than 30 days after the date of the examination. The examiner shall place a copy of the report in the person's medical records and shall provide a copy of the report to the department. The report shall include an assessment of the risk that the person will reoffend, whether the risk can be safely managed in the community if reasonable conditions of supervision and security are imposed, and whether the treatment that the person needs is available in the community. The department shall then send the treatment report, the written examination report, and a written statement from the department recommending continued institutional care, supervised release, or discharge to the court that committed the person under s. 980.06. A copy of each report and the department's recommendation shall be provided also to the district attorney or department of justice, whichever is applicable, and to the person's attorney as soon as he or she is retained or appointed. If the department concludes that the person does not meet the criteria for commitment as a sexually violent person, the department shall petition for discharge in accordance with the provisions of s. 980.09 (1).

SB441-ASA1, s. 102 Section 102. 980.07 (3) of the statutes is amended to read:

SB441-ASA1,41,11 980.07 (3) Notwithstanding sub. (1), the court that committed a person under s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order. Any report ordered under this subsection shall conform to subs. (1m) and (2).

SB441-ASA1, s. 103 Section 103. 980.07 (4) to (7) of the statutes are created to read:

SB441-ASA1,41,17 980.07 (4) (a) Within 30 days after the filing of the reexamination report, treatment report, and recommendation under this section, the person subject to the commitment, the district attorney, or the department of justice, whichever is applicable, may object to the department's recommendation under sub. (2) by filing a written objection with the court.