SB315: Bill Text

The bill provides that a statement made by a juvenile during a custodial interrogation that was not recorded is not admissible in evidence in a delinquency proceeding unless one of several exceptions apply. The exceptions to inadmissibility of unrecorded statements and to the requirement that custodial interrogations of juveniles be recorded are: that the juvenile refused to cooperate if the interrogation was recorded; the statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody; the interrogator in good faith failed to make a recording due to equipment malfunction or improper operation of the recording equipment; the statement was made spontaneously and not in response to a question by the interrogator; or exigent public safety circumstances prevented recording.

The bill further provides that it is the policy of the state to make a recording of a custodial interrogation of an adult suspected of committing a felony (a crime punishable by confinement for one year or more in a state prison), unless good cause is shown for not making a recording, or unless certain exceptions apply. The exceptions are those applicable to a juvenile delinquency case plus that the interrogator was not aware at the time of the interrogation that his or her investigation concerned a felony offense.

The bill provides that if a statement made by an adult during a custodial interrogation that was not recorded is admitted into evidence at a felony trial before a jury, the judge shall instruct the jury that it is the policy of the state to record custodial interrogations related to felonies and that the jury may consider the absence of a recording in weighing the evidence unless the judge finds that one of the above listed exception applies or there is other good cause for not giving such an instruction. In a felony proceeding heard by a judge without a jury, the judge may consider the absence of a recording of a custodial interrogation in weighing the evidence unless one of the exceptions apply.

The provisions relating to recording custodial interrogations of juveniles and admissibility in evidence of statements made by juveniles during custodial interrogations first apply to custodial interrogations conducted on the day after this bill is enacted as an act. The provisions relating to recording custodial interrogations of adults and admissibility in evidence of statements made by an adult during a custodial interrogation first apply to custodial interrogations conducted on January 1, 2007.

The bill creates a grant program administered by the Office of Justice Assistance to provide law enforcement agencies funding for the purchase, installation, or maintenance of equipment for making digital recordings of custodial interrogations and for training personnel to use such equipment. The grant program is funded by increasing the penalty surcharge amount from 25 percent to 26 percent of the amount of fines or forfeitures assessed by a court.

Retention of evidence containing DNA

Under current law, law enforcement agencies, district attorneys (DAs), courts, and the state crime laboratories are required to preserve evidence that includes biological material and was collected in connection with a criminal investigation, which resulted in a conviction, delinquency adjudication, or commitment order, for as long as any person remains in custody under the conviction, delinquency adjudication, or commitment order. However, if a law enforcement agency, DA, court, or crime laboratory informs every person in custody in connection with a piece of evidence of its intent to destroy the evidence and none of the people either requests preservation of the evidence or files a motion for deoxyribonucleic acid (DNA) testing of the biological material contained in or included on the evidence, the law enforcement agency, DA, court, or crime laboratory may destroy the evidence.

This bill provides that a law enforcement agency, DA, court, or crime laboratory must retain evidence that includes biological material and was collected in connection with a criminal investigation that resulted in a conviction, delinquency adjudication, or commitment order only if the biological material is either from the victim of the offense for which the conviction, adjudication, or commitment order was imposed or the biological material may reasonably be used to incriminate or exculpate any person for the offense. Also, a law enforcement agency, DA, court, or crime laboratory need retain the evidence only in an amount and manner sufficient to develop a DNA profile from the evidence.

Testing of DNA evidence

Under current law, a person who has been convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for committing a crime may petition a court to order DNA testing of evidence that was relevant to the investigation or prosecution of the crime (postconviction DNA testing). If a court grants the person's petition, the court may order the state crime laboratories to perform the DNA testing as long as the petitioner and the DA agree that the laboratories should conduct the testing. The court may order the petitioner to pay for testing if the petitioner is not indigent.

This bill provides that if a court grants a petition for postconviction DNA testing, the court may, after consulting with the petitioner and the DA, order the state crime laboratories to conduct the testing, regardless of whether the petitioner or DA consents to selection of the laboratories. Even if ordered to conduct postconviction DNA testing, the state crime laboratories may arrange for another facility to conduct the testing. If the laboratories arrange for another facility to conduct the testing and the court has not ordered the petitioner to pay for testing, the laboratories must pay for it. The bill further requires that the state crime laboratories prioritize postconviction DNA testing ordered by a court over other work of the laboratories.

Time limits for prosecuting a crime related to a felony sexual assault

Current law imposes time limits for commencing prosecution of most crimes. Prosecution of a felony sexual assault must be commenced within six years after the assault, except that prosecution of sexual assault of a child may be commenced at any time before the victim reaches the age of 45. However, if the state collects DNA evidence in connection with a first- or second-degree sexual assault or a sexual assault of a child before the time for prosecution expires and does not match the DNA evidence with an identified person until after that time expires, the state may initiate prosecution for the assault within one year after making the match.

This bill applies the time limits for prosecuting felony sexual assaults as well as the DNA exception from those time limits to crimes that are related to a felony sexual assault. Under the bill, crimes are related if they are committed against the same victim, are proximate in time, and are committed with the same intent, purpose, or opportunity so as to be part of the same course of conduct.

Eyewitness identification of a suspect

This bill requires law enforcement agencies to adopt written policies governing the use of an eyewitness to identify a person suspected of committing a crime. The policies must apply to practices under which an eyewitness identifies a suspect upon viewing him or her in person, such as in a lineup, and to practices under which an eyewitness identifies a suspect upon viewing a representation of the suspect, as by viewing a photograph array. The policies must be designed to reduce the potential of erroneous identifications by eyewitnesses.

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:

SB315, s. 1 Section 1. 16.964 (10) of the statutes is created to read:

SB315,5,2 16.964 (10) (a) In this subsection:

SB315,5,3 1. "Custodial interrogation" has the meaning given in s. 968.073 (1) (a).

SB315,5,4 2. "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

SB315,5,15 (b) The office shall provide grants from the appropriation under s. 20.505 (6) (kc) to law enforcement agencies to fund or reimburse expenses incurred on or after July 7, 2005, for the purchase, installation, or maintenance of digital recording equipment for making audio or audio and visual recordings of custodial interrogations or for training personnel to use such equipment. Grants awarded under this subsection may be used to support recording of custodial interrogations of either juveniles or adults and of interrogations related to either misdemeanor or felony offenses. The office may award more than one grant under this subsection to a law enforcement agency. The office shall develop criteria and procedures to administer this subsection. Notwithstanding s. 227.10 (1), the criteria and procedures need not be promulgated as rules under ch. 227.

SB315,5,17 (c) A law enforcement agency shall include the following information in an application for a grant under this subsection:

SB315,5,18 1. How the agency proposes to use the grant funds.

SB315,6,3 2. Procedures to be followed when recording equipment fails to operate correctly, including procedures for reporting failures, using alternative recording equipment, and repairing or replacing the equipment.

SB315,6,5 3. Procedures for storing recordings of custodial interrogations, including storage format, storage location, and indexing of recordings for retrieval.

SB315,6,7 4. Measures to prevent or detect tampering with recordings of custodial interrogations.

SB315,6,8 5. Any other information required by the office.

SB315, s. 2 Section 2. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

SB315, s. 3 Section 3. 20.455 (2) (i) 16. of the statutes is created to read:

SB315,6,13 20.455 (2) (i) 16. The amount transferred to s. 20.505 (6) (kc) shall be the amount in the schedule under s. 20.505 (6) (kc).

SB315, s. 4 Section 4. 20.505 (6) (kc) of the statutes is created to read:

SB315,6,19 20.505 (6) (kc) Grants for digital recording of custodial interrogations. The amounts in the schedule for grants to law enforcement agencies under s. 16.964 (10) for equipment or training used to digitally record custodial interrogations. All moneys transferred from the appropriation account under s. 20.455 (2) (i) 16. shall be credited to this appropriation account.

SB315, s. 5 Section 5. 165.75 (3) (g) of the statutes is created to read:

SB315,7,3 165.75 (3) (g) Deoxyribonucleic acid testing ordered under s. 974.07 shall have priority over other work of the laboratories.

SB315, s. 6 Section 6. 165.77 (2m) (a) of the statutes is repealed.

SB315, s. 7 Section 7. 165.77 (2m) (b) of the statutes is amended to read:

SB315,7,15 165.77 (2m) (b) The If the laboratories analyze biological material pursuant to an order issued under s. 974.07 (8), the laboratories may compare the data obtained from the material received under par. (a) with data obtained from other specimens. The laboratories may make data obtained from any analysis and comparison available to law enforcement agencies in connection with criminal or delinquency investigations and, upon request, to any prosecutor, defense attorney, or subject of the data. The data may be used in criminal and delinquency actions and proceedings. The laboratories shall not include data obtained from deoxyribonucleic acid analysis of material received under par. (a) that is tested pursuant to an order under s. 974.07 (8) in the data bank under sub. (3).

SB315, s. 8 Section 8. 165.81 (3) (b) of the statutes is amended to read:

SB315,7,25 165.81 (3) (b) Except as provided in par. (c), if physical evidence that is in the possession of the laboratories includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, a delinquency adjudication, or commitment under s. 971.17 or 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the laboratories shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

SB315, s. 9 Section 9. 165.81 (3) (bm) of the statutes is created to read:

SB315,8,5 165.81 (3) (bm) The laboratories shall retain evidence to which par. (b) applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a), from the biological material contained in or included on the evidence.

SB315, s. 10 Section 10. 165.81 (3) (c) (intro.) of the statutes is amended to read:

SB315,8,9 165.81 (3) (c) (intro.) Subject to par. (e), the department may destroy evidence that includes biological material before the expiration of the time period specified in par. (b) if all of the following apply:

SB315, s. 11 Section 11. 165.81 (3) (c) 1. of the statutes is amended to read:

SB315,8,14 165.81 (3) (c) 1. The department sends a notice of its intent to destroy the biological material evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.

SB315, s. 12 Section 12. 165.81 (3) (c) 2. a. and b. of the statutes are amended to read:

SB315,8,17 165.81 (3) (c) 2. a. Files a motion for testing of the biological material evidence under s. 974.07 (2).

SB315,8,19 b. Submits a written request to preserve the biological material for retention of the evidence to the department.

SB315, s. 13 Section 13. 165.81 (3) (c) 3. of the statutes is amended to read:

SB315,8,22 165.81 (3) (c) 3. No other provision of federal or state law requires the department to preserve retain the biological material evidence.

SB315, s. 14 Section 14. 165.81 (3) (d) of the statutes is amended to read:

SB315,9,3 165.81 (3) (d) A notice provided under par. (c) 1. shall clearly inform the recipient that the biological material evidence will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material evidence is filed under s. 974.07 (2) or a written request to preserve for retention of the material evidence is submitted to the department.

SB315, s. 15 Section 15. 165.81 (3) (e) of the statutes is amended to read:

SB315,9,11 165.81 (3) (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material evidence, the department receives a written request to preserve for retention of the material evidence, the department shall preserve retain the material evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court orders destruction or transfer of the biological material evidence under s. 974.07 (9) (b) or (10) (a) 5.

SB315, s. 16 Section 16. 165.85 (3) (d) of the statutes is amended to read:

SB315,9,25 165.85 (3) (d) Establish minimum curriculum requirements for preparatory courses and programs, and recommend minimum curriculum requirements for recertification and advanced courses and programs, in schools operated by or for this state or any political subdivision of the state for the specific purpose of training law enforcement recruits, law enforcement officers, tribal law enforcement recruits, tribal law enforcement officers, jail officer recruits, jail officers, secure detention officer recruits, or secure detention officers in areas of knowledge and ability necessary to the attainment of effective performance as an officer, and ranging from traditional subjects such as first aid, patrolling, statutory authority, techniques of arrest and, firearms, and recording custodial interrogations to subjects designed to provide a better understanding of ever-increasing complex problems in law enforcement such as human relations, civil rights, constitutional law, and supervision, control, and maintenance of a jail or secure detention facility. The board shall appoint a 13-member advisory curriculum committee consisting of 6 chiefs of police and 6 sheriffs to be appointed on a geographic basis of not more than one chief of police and one sheriff from any one of the 8 state administrative districts together with the director of training of the Wisconsin state patrol. This committee shall advise the board in the establishment of the curriculum requirements.

SB315, s. 17 Section 17. 175.50 of the statutes is created to read:

SB315,10,7 175.50 Eyewitness identification procedures. (1) In this section:

SB315,10,8 (a) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

SB315,10,9 (b) "Suspect" means a person suspected of committing a crime.

SB315,10,13 (2) Each law enforcement agency shall adopt written policies for using an eyewitness to identify a suspect upon viewing the suspect in person or upon viewing a representation of the suspect. The policies shall be designed to reduce the potential for erroneous identifications by eyewitnesses in criminal cases.

SB315,10,15 (3) A law enforcement agency shall biennially review policies adopted under this section.

SB315,10,17 (4) In developing and revising policies under this section, a law enforcement agency shall consider model policies and policies adopted by other jurisdictions.

SB315,10,21 (5) A law enforcement agency shall consider including in policies adopted under this section practices to enhance the objectivity and reliability of eyewitness identifications and to minimize the possibility of mistaken identifications, including the following:

SB315,10,23 (a) To the extent feasible, having a person who does not know the identity of the suspect administer the eyewitness' viewing of individuals or representations.

SB315,10,25 (b) To the extent feasible, showing individuals or representations sequentially rather than simultaneously to an eyewitness.

SB315,11,4 (c) Minimizing factors that influence an eyewitness to identify a suspect or overstate his or her confidence level in identifying a suspect, including verbal or nonverbal reactions of the person administering the eyewitness' viewing of individuals or representations.

SB315,11,7 (d) Documenting the procedure by which the eyewitness views the suspect or a representation of the suspect and documenting the results or outcome of the procedure.

SB315, s. 18 Section 18. 757.05 (1) (a) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB315,11,21 757.05 (1) (a) Whenever a court imposes a fine or forfeiture for a violation of state law or for a violation of a municipal or county ordinance except for a violation of s. 101.123 (2) (a), (am) 1., (ar), (bm), (br), or (bv) or (5), or for a first violation of s. 23.33 (4c) (a) 2., 30.681 (1) (b) 1., 346.63 (1) (b), or 350.101 (1) (b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, or for a violation of state laws or municipal or county ordinances involving nonmoving traffic violations or safety belt use violations under s. 347.48 (2m), there shall be imposed in addition a penalty surcharge under ch. 814 in an amount of 25% 26 percent of the fine or forfeiture imposed. If multiple offenses are involved, the penalty surcharge shall be based upon the total fine or forfeiture for all offenses. When a fine or forfeiture is suspended in whole or in part, the penalty surcharge shall be reduced in proportion to the suspension.

SB315, s. 19 Section 19. 757.54 (2) (b) of the statutes is amended to read:

SB315,12,7 757.54 (2) (b) Except as provided in par. (c), if an exhibit in a criminal action or a delinquency proceeding under ch. 938 includes any biological material that was collected in connection with the action or proceeding and that is either from a victim of the offense that was the subject of the action or proceeding or may reasonably be used to incriminate or exculpate any person for the offense, the court presiding over the action or proceeding shall ensure that the exhibit is preserved retained until every person in custody as a result of the action or proceeding, or as a result of commitment under s. 980.06 that is based on a judgment of guilty or not guilty by reason of mental disease or defect in the action or proceeding, has reached his or her discharge date.

SB315, s. 20 Section 20. 757.54 (2) (bm) of the statutes is created to read:

SB315,12,12 757.54 (2) (bm) The court shall ensure that an exhibit to which par. (b) applies is retained in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a), from the biological material contained in or included on the exhibit.

SB315, s. 21 Section 21. 757.54 (2) (c) (intro.) of the statutes is amended to read:

SB315,12,16 757.54 (2) (c) (intro.) Subject to par. (e), the court may destroy an exhibit that includes biological material before the expiration of the time period specified in par. (b) if all of the following apply:

SB315, s. 22 Section 22. 757.54 (2) (c) 1. of the statutes is amended to read:

SB315,12,21 757.54 (2) (c) 1. The court sends a notice of its intent to destroy the biological material exhibit to all persons who remain in custody as a result of the criminal action, delinquency proceeding, or commitment under s. 980.06 and to either the attorney of record for each person in custody or the state public defender.

SB315, s. 23 Section 23. 757.54 (2) (c) 2. a. and b. of the statutes are amended to read:

SB315,12,24 757.54 (2) (c) 2. a. Files a motion for testing of the biological material exhibit under s. 974.07 (2).

SB315,13,2 b. Submits a written request to preserve the biological material for retention of the exhibit to the court.

SB315, s. 24 Section 24. 757.54 (2) (c) 3. of the statutes is amended to read:

SB315,13,5 757.54 (2) (c) 3. No other provision of federal or state law requires the court to preserve retention of the biological material exhibit.

SB315, s. 25 Section 25. 757.54 (2) (d) of the statutes is amended to read:

SB315,13,11 757.54 (2) (d) A notice provided under par. (c) 1. shall clearly inform the recipient that the biological material exhibit will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material exhibit is filed under s. 974.07 (2) or a written request to preserve for retention of the material exhibit is submitted to the court.