LRB-2467/1
JEO:jlg:km
1999 - 2000 LEGISLATURE
April 22, 1999 - Introduced by Representative Williams. Referred to Committee
on Urban and Local Affairs.
AB302,1,5 1An Act to renumber 979.04 (2); to amend 758.19 (5) (a) 5., 978.045 (1g), 978.045
2(1r) (intro.), 979.04 (1), 979.05 (1), 979.05 (2), 979.05 (6), 979.06 (1), 979.06 (2),
3979.07 (1) (a), 979.09 and 979.10 (2); and to create 978.045 (1r) (i), 979.04 (1m),
4979.04 (2) (b), 979.05 (1m) and 979.05 (1r) of the statutes; relating to: inquests
5into deaths caused by law enforcement officers.
Analysis by the Legislative Reference Bureau
This bill makes changes in the ordering and conducting of inquests into deaths
caused by law enforcement officers. Current law governing inquests and the changes
made by this bill are as follows:
Current law
Current law provides for inquests into the cause of death of a person if there is
reason to believe from the circumstances surrounding the death that a homicide may
have been committed or that the death may have been due to suicide or unexplained
or suspicious circumstances. A district attorney may order an inquest if he or she
has been given notice of the death of a person under any of these circumstances. The
district attorney is not required to order an inquest, but uses his or her discretion in
deciding whether to do so. In addition, a coroner or medical examiner who knows of
the death of a person under any of these circumstances may request the district
attorney to order an inquest. If the district attorney refuses to order the inquest, the
coroner or medical examiner may petition the circuit court to order an inquest, and

the court may order an inquest if it finds that the district attorney has abused his
or her discretion in not ordering an inquest.
An inquest is held before a jury of six persons unless the district attorney,
coroner or medical examiner requests that the inquest be conducted before the court
without a jury. The judge or court commissioner conducting the inquest may order
that proceedings be secret if the district attorney so requests or concurs. The district
attorney appears for the state and presents all evidence which may be relevant or
material to the inquiry of the inquest. However, the court may appoint a special
prosecutor under certain circumstances, such as when the district attorney has a
conflict of interest or when the district attorney is physically unable to attend to his
or her duties and there are no other prosecutors employed by the state who can assist
in handling the district attorney's duties.
At the request of the coroner or medical examiner, the court may subpoena
witnesses to appear at the inquest. The court must issue subpoenas for witnesses
requested by the district attorney. In addition, the court and the district attorney
may subpoena expert witnesses, including physicians, surgeons and pathologists, for
the purposes of examining the body, performing scientific and medical tests
connected with the examination and testifying as to the results of the examination
and tests. Any witness examined at an inquest may have an attorney present during
the examination of that witness, but the attorney may not examine or cross-examine
his or her client, cross-examine or call other witnesses or argue before the court
holding the inquest. If a person refuses to testify or provide evidence before an
inquest on the ground that the testimony or evidence may tend to incriminate him
or her, the court may at the request of the district attorney compel the person to
testify or produce evidence. A person who testifies or produces evidence in obedience
to the court's order is not subject to any forfeiture or penalty for or on account of
testifying or producing evidence, except for perjury or false swearing committed
when testifying.
When all of the evidence has been received, the court instructs the jury on its
duties and on the law regarding the issues in the inquest, including the law
regarding any criminal offense if a reasonable jury might find probable cause to
believe the offense had been committed. The jury then reaches a verdict on whether
the deceased died by natural causes, accident, suicide or an act privileged by law or
whether the deceased died as the result of the commission of a crime and, if so, the
specific crimes committed and the name of the person or persons, if known, having
committed the crimes. The verdict delivered by an inquest jury is advisory and does
not preclude or require the issuance of any criminal charges by the district attorney.
Changes made by this bill
This bill changes current law governing inquests in cases where a person has
died as the result of an act of a law enforcement officer. Specifically, the bill
eliminates the district attorney's discretion to call an inquest in cases where a person
has died as the result of an act of a law enforcement officer and instead requires a
district attorney to order an inquest whenever the district attorney has notice of the
death of a person and there is any evidence that the person's death was caused by
an act of a law enforcement officer.

The bill also provides that an inquest into a death caused by a law enforcement
officer may not be held before the court alone but must be held before a jury of six
persons. In addition, the bill prohibits an inquest into a death caused by an act of
a law enforcement officer from being conducted in secret.
In addition, while the district attorney is generally required to represent the
state at an inquest into a death caused by an act of a law enforcement officer, the bill
allows a court to appoint a special prosecutor if the court determines that, for any
reason, the district attorney cannot, or it appears he or she cannot, discharge his or
her responsibility to present all relevant evidence or act in an impartial manner in
conducting the inquest. The bill also allows certain relatives of the person who died
to be represented at the inquest by an attorney. An attorney representing a relative
may request the court to subpoena witnesses, including expert witnesses, and upon
the attorney's request the court must subpoena the witnesses. The attorney may also
examine or cross-examine any witness at the inquest, argue before the court and ask
the court to appoint a special prosecutor.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB302, s. 1 1Section 1. 758.19 (5) (a) 5. of the statutes is amended to read:
AB302,3,42 758.19 (5) (a) 5. Fees for witnesses or expert witnesses subpoenaed by the court
3at the request of the district attorney, coroner or medical examiner or an attorney for
4a relative of the decedent
under s. 979.06 (1) and (2).
AB302, s. 2 5Section 2. 978.045 (1g) of the statutes is amended to read:
AB302,4,56 978.045 (1g) A court on its own motion or on a motion under s. 979.05 (1m) (c)
7may appoint a special prosecutor under sub. (1r) or a district attorney may request
8a court to appoint a special prosecutor under that subsection. Before a court appoints
9a special prosecutor on its own motion, on a motion under s. 979.05 (1m) (c) or at the
10request of a district attorney for an appointment that exceeds 6 hours per case, the
11court or district attorney shall request assistance from a district attorney, deputy
12district attorney or assistant district attorney from other prosecutorial units or an
13assistant attorney general. A district attorney requesting the appointment of a

1special prosecutor, or a court if the court is appointing a special prosecutor on its own
2motion or on a motion under s. 979.05 (1m) (c), shall notify the department of
3administration, on a form provided by that department, of the district attorney's or
4the court's inability to obtain assistance from another prosecutorial unit or from an
5assistant attorney general.
AB302, s. 3 6Section 3. 978.045 (1r) (intro.) of the statutes is amended to read:
AB302,4,157 978.045 (1r) (intro.) Any judge of a court of record, by an order entered in the
8record stating the cause therefor, may appoint an attorney as a special prosecutor to
9perform, for the time being, for an inquest under s. 979.04 (1m) or for the trial of the
10accused person, the duties of the district attorney. An attorney appointed under this
11subsection shall have all of the powers of the district attorney. The judge may appoint
12an attorney as a special prosecutor at the request of a district attorney to assist the
13district attorney in the prosecution of persons charged with a crime, in grand jury
14or John Doe proceedings or in investigations. The judge may appoint an attorney as
15a special prosecutor if any of the following conditions exists:
AB302, s. 4 16Section 4. 978.045 (1r) (i) of the statutes is created to read:
AB302,4,2017 978.045 (1r) (i) The district attorney cannot, or it appears that he or she cannot,
18discharge his or her responsibilities relating to an inquest required under s. 979.04
19(1m) or act in an impartial manner in conducting an inquest required under s. 979.04
20(1m).
AB302, s. 5 21Section 5. 979.04 (1) of the statutes is amended to read:
AB302,5,1022 979.04 (1) If Except as provided in sub. (1m), if the district attorney has notice
23of the death of any person and there is reason to believe from the circumstances
24surrounding the death that felony murder, first-degree or 2nd-degree intentional
25homicide, first-degree or 2nd-degree reckless homicide, homicide by negligent

1handling of dangerous weapon, explosives or fire, homicide by negligent operation
2of vehicle, homicide resulting from negligent control of a vicious animal or homicide
3by intoxicated user use of a vehicle or firearm may have been committed, or that
4death may have been due to suicide or unexplained or suspicious circumstances, the
5district attorney may order that an inquest be conducted for the purpose of inquiring
6how the person died. The district attorney shall appear in any such inquest
7representing the state in presenting all evidence which may be relevant or material
8to the inquiry of the inquest. The inquest may be held in any county in this state in
9which venue would lie for the trial of any offense charged as the result of or involving
10the death.
AB302,5,12 11(4) An inquest may only be ordered by the district attorney under this
12subsection
sub. (1) or (1m) or by the circuit judge under sub. (2) (a).
AB302, s. 6 13Section 6. 979.04 (1m) of the statutes is created to read:
AB302,5,1714 979.04 (1m) If the district attorney has notice of the death of any person and
15there is any evidence that the person's death was caused by an act of a law
16enforcement officer, the district attorney shall order that an inquest be conducted for
17the purpose of inquiring how the person died.
AB302, s. 7 18Section 7. 979.04 (2) of the statutes is renumbered 979.04 (2) (a).
AB302, s. 8 19Section 8. 979.04 (2) (b) of the statutes is created to read:
AB302,5,2520 979.04 (2) (b) If the coroner or medical examiner has knowledge of the death
21of any person under the circumstances described under sub. (1m), he or she shall
22immediately notify the district attorney. The notification shall include information
23concerning the circumstances surrounding the death. Upon receiving notification
24from a coroner or medical examiner under this paragraph, the district attorney shall
25order an inquest under sub. (1m).
AB302, s. 9
1Section 9. 979.05 (1) of the statutes is amended to read:
AB302,6,42 979.05 (1) An inquest shall be conducted by a circuit judge or a court
3commissioner. The inquest may be held in any county in this state in which venue
4would lie for the trial of any offense charged as the result of or involving the death.
AB302, s. 10 5Section 10. 979.05 (1m) of the statutes is created to read:
AB302,6,86 979.05 (1m) (a) Except as provided in par. (b), the district attorney shall appear
7in an inquest under s. 979.04 (1) or (1m) and shall represent the state in presenting
8all evidence which may be relevant or material to the inquiry of the inquest.
AB302,6,139 (b) A circuit court may appoint a special prosecutor under s. 978.045 to order
10or appear and represent the state in an inquest required under s. 979.04 (1m) if the
11court determines that, for any reason, the district attorney cannot, or it appears he
12or she cannot, discharge his or her responsibilities under par. (a) or act in an
13impartial manner in conducting the inquest.
AB302,6,1614 (c) An attorney for a relative of a decedent who is authorized to appear under
15sub. (1r) may make a motion in the circuit court for appointment of a special
16prosecutor under par. (b).
AB302, s. 11 17Section 11. 979.05 (1r) of the statutes is created to read:
AB302,6,1918 979.05 (1r) (a) In this subsection, "relative" means a spouse, child, stepchild,
19parent, grandparent, stepparent, brother, stepbrother, sister or stepsister.
AB302,6,2520 (b) A relative of a decedent whose death is being investigated at an inquest
21under s. 979.04 (1m) may be represented by an attorney of his or her own choosing
22at the inquest proceedings. The relative's attorney may request the court to
23subpoena witnesses under s. 979.06 (1) and (2), examine and cross-examine any
24witness presenting evidence at the inquest and argue before the judge or court
25commissioner holding the inquest.
AB302, s. 12
1Section 12. 979.05 (2) of the statutes is amended to read:
AB302,7,52 979.05 (2) The An inquest under s. 979.04 (1) shall be conducted before a jury
3unless the district attorney, coroner or medical examiner requests that the inquest
4be conducted before the judge or court commissioner only. An inquest under s. 979.04
5(1m) shall be conducted before a jury.
AB302,7,20 6(2m) If the inquest is to be conducted before a jury, a sufficient number of
7names of prospective jurors shall be selected from the prospective juror list for the
8county in which the inquest is to be held by the clerk of circuit court in the manner
9provided in s. 756.06. The judge or court commissioner conducting the inquest shall
10summon the prospective jurors to appear before the judge or court commissioner at
11the time fixed in the summons. The summons may be served by mail, or by personal
12service if the judge, court commissioner or district attorney determines personal
13service to be appropriate. The summons shall be in the form used to summon petit
14jurors in the circuit courts of the county. Any person who fails to appear when
15summoned as an inquest juror is subject to a forfeiture of not more than $40. The
16inquest jury shall consist of 6 jurors. If 6 jurors do not remain from the number
17originally summoned after establishment of qualifications, the judge or court
18commissioner conducting the inquest may require the clerk of the circuit court to
19select sufficient additional jurors' names. Those persons shall be summoned
20forthwith by the sheriff of the county.
AB302, s. 13 21Section 13. 979.05 (6) of the statutes is amended to read:
AB302,7,2522 979.05 (6) The judge or court commissioner conducting the an inquest under
23s. 979.04 (1)
may order that proceedings be secret if the district attorney so requests
24or concurs. Proceedings of an inquest under s. 979.04 (1m) may not be conducted in
25secret.
Loading...
Loading...