Amendment SSA1-SB82

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SB82-SSA1,810 Section 810. 972.115 (title) of the statutes is repealed.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

SB82-SSA1,250,14 972.18 (1) (cm) "Recording" means an audio or audio and visual recording.

SB82-SSA1,830 Section 830. 972.19 of the statutes is created to read:

SB82-SSA1,250,18 972.19 Stipulations. (1) In this section, "stipulation" means an agreement between the parties that a specified fact is or shall be taken as established without need for proof.

SB82-SSA1,250,20 (2) A stipulation shall be set forth on the record at the time the court accepts it.

SB82-SSA1,250,24 (3) In a trial before a jury, the court shall instruct the jury that it is to take stipulated facts as conclusively proved. A stipulation to a fact that establishes an element of the crime is not a waiver of the right to a jury trial if the court provides to the jury instruction on the established element.

SB82-SSA1,831 Section 831. 972.20 (title) of the statutes is created to read:

SB82-SSA1,251,1 972.20 (title) Child testimony by closed-circuit audiovisual means.

SB82-SSA1,832 Section 832. 972.22 (title) of the statutes is created to read:

SB82-SSA1,251,3 972.22 (title) Final jury instructions.

SB82-SSA1,833 Section 833. 972.23 (title) of the statutes is created to read:

SB82-SSA1,251,5 972.23 (title) Dismissal of alternate jurors.

SB82-SSA1,834 Section 834. 972.23 (2) and (3) of the statutes are created to read:

SB82-SSA1,251,13 972.23 (2) The court may retain alternate jurors after the jury retires to deliberate. The court shall ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If a juror who is participating in deliberations becomes unavailable due to severe illness or extraordinary circumstances, the judge may, after a hearing, replace that juror with a retained alternate juror. If more than one alternate juror is available, the replacement shall be chosen by lot.

SB82-SSA1,251,15 (3) If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.

SB82-SSA1,835 Section 835. 972.24 of the statutes is created to read:

SB82-SSA1,251,18 972.24 Return of verdict. A verdict must be unanimous and returned in open court.

SB82-SSA1,836 Section 836. 972.25 of the statutes is created to read:

SB82-SSA1,251,23 972.25 Polling the jury. (1) The court shall poll the jury when a verdict, proper in form, is returned. The court or the clerk may conduct the poll by asking each juror individually whether the verdict, as returned, was and is the juror's verdict.

SB82-SSA1,252,3 (2) In multiple count cases, the court shall poll the jury when verdicts, proper in form, are returned. The court or the clerk may conduct the poll by asking each juror individually whether the verdicts, as returned, are the juror's verdicts.

SB82-SSA1,252,7 (3) If a poll does not result in unanimity, the court shall instruct the jury that a verdict must be reached unanimously before it can be accepted. The court may order the jury to continue deliberations without any further questioning as to any juror's response to the poll.

SB82-SSA1,837 Section 837. 972.26 of the statutes is created to read:

SB82-SSA1,252,11 972.26 Accepting the verdict. (1) The court shall accept the verdict if it is proper in form and confirmed by the jury poll. When the verdict is accepted, the jury shall be discharged.

SB82-SSA1,252,14 (2) After the verdict is accepted, the complaint or information shall be deemed amended as to technical variances to conform to the proof if no objection to the relevance of the evidence was timely raised.

SB82-SSA1,838 Section 838. 972.28 (title) of the statutes is created to read:

SB82-SSA1,252,16 972.28 (title) Granting judgment.

SB82-SSA1,839 Section 839. 972.29 (title) of the statutes is created to read:

SB82-SSA1,252,18 972.29 (title) Return of evidence.

SB82-SSA1,840 Section 840. 973.013 (4) of the statutes is amended to read:

SB82-SSA1,252,22 973.013 (4) If information under s. 972.15 973.004 (2m) has been provided in a presentence investigation report, the court shall consider that information when sentencing the defendant.

SB82-SSA1,841 Section 841. 973.015 (2m) (c) (intro.) of the statutes is amended to read: