Amendment SSA1-SB82

SB82-SSA1,796 Section 796. 972.10 (5) of the statutes is renumbered 972.22 (1) and amended to read:

SB82-SSA1,240,2 972.22 (1) When the evidence is concluded and the testimony closed, if either party desires special instructions to be given to the jury, the instructions shall be reduced to writing, signed by the party or his or her attorney and filed with the clerk, unless the court otherwise directs. Counsel for the parties, or the defendant if he or she is without counsel, shall be allowed The court shall allow the parties reasonable opportunity to request final jury instructions, to examine the any instructions requested by any other party, and to present and argue to the court objections to the adoption or rejection of any instructions requested by counsel the parties.

SB82-SSA1,240,14 (2) The court shall advise the parties of the content of the instructions to be given. No instruction regarding the failure to call a witness at the trial shall be made or given if the sole basis for such instruction is the fact the name of the witness appears upon a list furnished pursuant to s. 971.23. Counsel, or the defendant if he or she is not represented by counsel, shall specify and state the particular ground on which the instruction is objected to, and it shall not be sufficient to object generally that the instruction does not state the law, or is against the law, but the objection shall specify with particularity how the instruction is insufficient or does not state the law or to what particular language there is an objection. All objections before giving the instructions to the jury. If a party objects to the adoption or rejection of an instruction, the objection shall be made with particularity and shall be on the record.

SB82-SSA1,240,17 (3) The court shall provide the jury with one or more complete set sets of written instructions providing defining the burden of proof and the substantive law to be applied to the case to be decided.

SB82-SSA1,797 Section 797. 972.10 (6) of the statutes is repealed.

SB82-SSA1,798 Section 798. 972.10 (7) of the statutes is renumbered 972.23 (1) and amended to read:

SB82-SSA1,241,2 972.23 (1) If the court required selection of additional jurors have been selected under s. 972.04 (1) so that alternates may be available, and, at the time the case is submitted to the jury for deliberation, the number of jurors remains more greater than the number of jurors required at final submission of the cause for deliberation, the court shall determine by lot which jurors shall not participate in deliberations and discharge them except that the court may, for good cause, discharge additional jurors other than by lot.

SB82-SSA1,799 Section 799. 972.11 (title) of the statutes is renumbered 967.24 (title).

SB82-SSA1,800 Section 800. 972.11 (1) of the statutes is renumbered 967.24 and amended to read:

SB82-SSA1,241,11 967.24 Except as provided in subs. (2) to (4), the The rules of evidence and practice in civil actions, except the rules under ss. 804.02 to 804.07, shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction. No guardian ad litem need be appointed for a defendant in a criminal action. Chapters 885 to 895 and 995, except ss. 804.02 to 804.07 and 887.23 to 887.26, shall apply in all criminal proceedings.

SB82-SSA1,801 Section 801. 972.11 (2) of the statutes is renumbered 904.045, and 904.045 (1), (2) (intro.), (3) and (4) (b), as renumbered, are amended to read:

SB82-SSA1,241,17 904.045 (1) In this subsection section, "sexual conduct" means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.

SB82-SSA1,241,25 (2) (intro.) If the defendant is accused of a crime under s. 940.225, 948.02, 948.025, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, 948.09, 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), any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31 (11) 971.65 (6):

SB82-SSA1,242,4 (3) Notwithstanding s. 901.06, the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in par. (b) sub. (2) applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under par. (b) 1., 2. or 3 sub. (2) (a), (b), or (c).

SB82-SSA1,242,6 (4) (b) The court shall determine the admissibility of evidence under subd. 1. par. (a) upon pretrial motion before it may be introduced at trial.

SB82-SSA1,802 Section 802. 972.11 (2m) (a) (intro.) and 1. of the statutes are renumbered 972.20 (1) (intro.) and (a), and 972.20 (1) (a) 1., as renumbered, is amended to read:

SB82-SSA1,242,11 972.20 (1) (a) 1. That the presence of the defendant during the taking of the child's testimony will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.

SB82-SSA1,803 Section 803. 972.11 (2m) (a) 2. (intro.), a. and b. of the statutes are consolidated, renumbered 972.20 (1) (b) and amended to read:

SB82-SSA1,242,19 972.20 (1) (b) The trial in which the child may be called as a witness will commence: a. Prior to before the child's 12th birthday; or b. Prior to the child's 16th birthday and, in addition to its finding under subd. 1.,, if the court finds that the interests of justice warrant that the child's testimony be taken in a room other than the courtroom and simultaneously televised in the courtroom by means of closed-circuit audiovisual equipment, before the child's 16th birthday.

SB82-SSA1,804 Section 804. 972.11 (2m) (b) of the statutes is renumbered 972.20 (2), and 972.20 (2) (intro.), (a), (c), (d), (e), (f) and (g), as renumbered, are amended to read:

SB82-SSA1,242,24 972.20 (2) (intro.) Among the factors which Factors that the court may consider in determining the interests of justice under par. (a) 2. b. are any of sub. (1) (b) include the following:

SB82-SSA1,243,3 (a) The child's chronological age, level of development , and capacity to comprehend the significance of the events about which the child will testify and to verbalize about them.

SB82-SSA1,243,8 (c) Whether the events about which the child will testify constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused by the battery or sexual assault.

SB82-SSA1,243,11 (d) The child's custodial situation and the attitude of other household members to the events about which the child will testify and to the underlying proceeding towards the trial.

SB82-SSA1,243,13 (e) The child's familial or emotional relationship to those involved in the underlying proceeding trial.

SB82-SSA1,243,15 (f) The child's behavior at or reaction to previous interviews concerning the events involved about which the child will testify.

SB82-SSA1,243,21 (g) Whether the child blames himself or herself for the events involved about which the child will testify or has ever been told by any person not to disclose them; whether the child's prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child's subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.

SB82-SSA1,805 Section 805. 972.11 (2m) (bm) of the statutes is renumbered 972.20 (3), and 972.20 (3) (intro.), (a) and (d), as renumbered, are amended to read:

SB82-SSA1,243,25 972.20 (3) (intro.) If a court orders the testimony of a child to be taken under par. (a) sub. (1), the court shall do all of the following:

SB82-SSA1,244,3 (a) To the extent it is practical and subject to s. 972.10 (3) 972.16 (1), schedule the testimony on a date when the child's recollection is likely to be fresh and at a time of day when the child's energy and attention span are likely to be greatest.

SB82-SSA1,244,8 (d) Determine that the child understands that it is wrong to tell a lie and will testify truthfully if If the child's developmental level or verbal skills are such that administration of an oath or affirmation in the usual form would be inappropriate, determine that the child understands that it is wrong to tell a lie and will testify truthfully.

SB82-SSA1,806 Section 806. 972.11 (2m) (c) (intro.), 1m., 2m. and 3m. of the statutes are renumbered 972.20 (4) (intro.), (a), (b) and (c), and 972.20 (4) (intro.), as renumbered, is amended to read:

SB82-SSA1,244,13 972.20 (4) (intro.) Only the following persons may be present in the room in which the child is giving testimony under par. (a) sub. (1):

SB82-SSA1,807 Section 807. 972.11 (3) of the statutes is renumbered 940.22 (6), and 940.22 (6) (a) (intro.) and 1., as renumbered, are amended to read:

SB82-SSA1,244,19 940.22 (6) (a) (intro.) In a prosecution under s. 940.22 involving a therapist and a patient or client for a violation of sub. (2), (3) (d), or (4) (d), evidence of the patient's or client's personal or medical history is not admissible except if all of the following apply:

SB82-SSA1,244,21 1. The defendant requests a hearing prior to trial and makes an offer of proof of the relevancy of the evidence; and.

SB82-SSA1,808 Section 808. 972.11 (3m) of the statutes is renumbered 346.63 (8) and amended to read:

SB82-SSA1,245,2 346.63 (8) A court may not exclude evidence in any criminal action or traffic forfeiture action for violation of s. 346.63 sub. (1) or (5), or a local ordinance in conformity with s. 346.63 sub. (1) or (5), on the ground that the evidence existed or was obtained outside of this state.

SB82-SSA1,809 Section 809. 972.11 (4) of the statutes is renumbered 972.29.

SB82-SSA1,810 Section 810. 972.115 (title) of the statutes is repealed.

SB82-SSA1,811 Section 811. 972.115 (1) of the statutes is renumbered 972.18 (1), and 972.18 (1) (a), as renumbered, is amended to read:

SB82-SSA1,245,8 972.18 (1) (a) "Custodial interrogation" has the meaning given in s. 968.073 969.165 (1) (a).

SB82-SSA1,812 Section 812. 972.115 (2) of the statutes is renumbered 972.18 (3), and 972.18 (3) (a) (intro.), 1., 3. and 5. and (b), as renumbered, are amended to read:

SB82-SSA1,245,21 972.18 (3) (a) (intro.) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual a recording of the interrogation is not available, upon a request made by the defendant as provided in s. 972.10 (5) and unless the state asserts and the court finds that one of the following conditions applies or that good cause exists for not providing an instruction, the court shall instruct the jury that it is the policy of this state to make an audio or audio and visual a recording of a custodial interrogation of a person suspected of committing a felony and that the jury may consider the absence of an audio or audio and visual a recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case:

SB82-SSA1,245,25 1. The person refused to respond or cooperate in the interrogation if an audio or audio and visual a recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the subject's refusal.

SB82-SSA1,246,5 3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual a recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating.

SB82-SSA1,246,8 5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual a recording or rendered the making of such a recording infeasible.

SB82-SSA1,246,15 (b) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a proceeding heard by the court without a jury in a felony case and if an audio or audio and visual a recording of the interrogation is not available, the court may consider the absence of an audio or audio and visual a recording of the interrogation in evaluating the evidence relating to the interrogation and the statement unless the court determines that one of the conditions under par. (a) 1. to 6. applies.

SB82-SSA1,813 Section 813. 972.115 (4) and (5) of the statutes are renumbered 972.18 (3) (c) and (d), and 972.18 (3) (c) and (d) (intro.), as renumbered, are amended to read:

SB82-SSA1,246,22 972.18 (3) (c) Notwithstanding ss. 968.28 968.315 to 968.37 968.405, a defendant's lack of consent to having an audio or audio and visual a recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual a recording of a statement made by the defendant during the interrogation.

SB82-SSA1,246,25 (d) (intro.) An audio or audio and visual A recording of a custodial interrogation shall not be open to public inspection under ss. 19.31 to 19.39 before one of the following occurs:

SB82-SSA1,814 Section 814. 972.12 of the statutes is renumbered 972.05 and amended to read:

SB82-SSA1,247,8 972.05 Sequestration of jurors. The At any stage of the proceedings, the court may direct that the jurors who have been sworn be kept together or be permitted to separate. The court may appoint an officer of the court to keep the jurors together and to prevent communication between the jurors and others. After the case has been submitted to the jurors, the court may permit them to separate, but shall instruct the jurors to suspend deliberations while separated.

SB82-SSA1,815 Section 815. 972.13 (title) of the statutes is repealed.

SB82-SSA1,816 Section 816. 972.13 (1) of the statutes is renumbered 972.28 (1) and amended to read:

SB82-SSA1,247,15 972.28 (1) A The court shall grant a judgment of conviction shall be entered upon accepting a jury verdict of guilty by the jury, a , upon finding of the defendant guilty by the court in cases in a case where a jury is waived, or upon finding the defendant guilty after accepting a plea of guilty or no contest.

SB82-SSA1,817 Section 817. 972.13 (2) of the statutes is renumbered 972.28 (2) and amended to read:

SB82-SSA1,247,20 972.28 (2) Except in cases where ch. 975 is applicable, upon a judgment of conviction, the court shall proceed under ch. 973. The court may adjourn the case from time to time for the purpose of before pronouncing sentence.

SB82-SSA1,818 Section 818. 972.13 (3) of the statutes is renumbered 972.28 (3) and amended to read:

SB82-SSA1,247,25 972.28 (3) A When a judgment of conviction is entered, it shall set forth the plea, the verdict or finding, the adjudication and sentence, and a finding as to the specific number of days for which sentence credit is to be granted under s. 973.155.

SB82-SSA1,248,2 (5) If the defendant is acquitted, the court shall grant a judgment shall be entered accordingly of acquittal.

SB82-SSA1,819 Section 819. 972.13 (4) of the statutes is renumbered 972.28 (6).

SB82-SSA1,820 Section 820. 972.13 (5) of the statutes is renumbered 972.28 (4) and amended to read:

SB82-SSA1,248,7 972.28 (4) A copy of the judgment of conviction shall constitute authority for the sheriff to execute the sentence.

SB82-SSA1,821 Section 821. 972.13 (6) of the statutes is repealed.

SB82-SSA1,822 Section 822. 972.13 (7) of the statutes is renumbered 972.28 (7).

SB82-SSA1,823 Section 823. 972.14 (title), (2), (2m) and (3) of the statutes are renumbered 973.003 (title), (2), (2m) and (3), and 973.003 (2), as renumbered, is amended to read:

SB82-SSA1,248,20 973.003 (2) Before pronouncing sentence, the court shall ask the defendant why sentence should not be pronounced upon him or her and allow the district attorney, defense counsel, and defendant an opportunity to make a statement with respect to any matter relevant to the sentence. In addition, if the defendant is under 21 years of age and if the court has not ordered a presentence investigation under s. 972.15 973.004, the court shall ask the defendant if he or she has been adjudged delinquent under ch. 48, 1993 stats., or ch. 938, or has had a similar adjudication in any other state in the 4 years immediately preceding the date the criminal complaint relating to the present offense was issued.

SB82-SSA1,824 Section 824. 972.14 (1) (intro.) and (b) of the statutes are consolidated, renumbered 973.003 (1) and amended to read:

SB82-SSA1,248,24 973.003 (1) (intro.) In this section: (b) "Victim", "victim" has the meaning specified in s. 950.02 (4).

SB82-SSA1,825 Section 825. 972.14 (1) (ag) of the statutes is repealed.

SB82-SSA1,826 Section 826. 972.15 of the statutes is renumbered 973.004.

SB82-SSA1,827 Section 827. 972.16 (1) and (2) of the statutes are created to read:

SB82-SSA1,249,4 972.16 (1) Unless the court for cause otherwise permits, the parties shall proceed with statements and presentation of evidence in the following order:

SB82-SSA1,249,5 (a) The state may make an opening statement.

SB82-SSA1,249,7 (b) The defense may make an opening statement or reserve the right to make an opening statement until after the state rests its case in chief.

SB82-SSA1,249,8 (c) The state shall present its case in chief.

SB82-SSA1,249,13 (d) At the close of the state's case in chief, the defense may move to dismiss. The court shall grant the motion to dismiss if it appears that, viewing the evidence in the light most favorable to the state and drawing all reasonable inferences therefrom, a reasonable jury could not find the defendant guilty beyond a reasonable doubt. The court shall decide the motion before the defense presents its case in chief.

SB82-SSA1,249,16 (e) The defense may present a case in chief. If a defendant presents evidence, the defendant waives the right to appeal the denial of a motion for dismissal made under par. (d).

SB82-SSA1,249,17 (f) The state and the defense may present rebuttal evidence.

SB82-SSA1,249,21 (g) The court for cause may permit a party to present further evidence in chief. If the court permits the state to present further evidence in chief, the defense may also present further evidence in chief. If either party is permitted to present further evidence in chief, the other party may present evidence in response.

SB82-SSA1,250,4 (h) After the state and the defense have rested, the defense may move to dismiss. The court shall grant the motion to dismiss if it appears that, viewing all of the evidence, including evidence presented by the defense, in the light most favorable to the state and drawing all reasonable inferences therefrom, a reasonable jury could not find the defendant guilty beyond a reasonable doubt of the charged crime or an included crime under s. 939.66. If the jury could find the defendant guilty beyond a reasonable doubt of an included crime but not the charged crime, the court shall order the complaint or information amended accordingly.

SB82-SSA1,250,5 (i) The state may make a closing argument.

SB82-SSA1,250,6 (j) The defense may make a closing argument.

SB82-SSA1,250,7 (k) The state may make a rebuttal argument.

SB82-SSA1,250,10 (2) If there are 2 or more defendants and they do not agree on the order in which the defendants will proceed under sub. (1), the court shall determine the order in which the defendants will proceed.

SB82-SSA1,828 Section 828. 972.18 (title) of the statutes is created to read:

SB82-SSA1,250,12 972.18 (title) Admissibility of a defendant's statement.

SB82-SSA1,829 Section 829. 972.18 (1) (cm) of the statutes is created to read: