SB318: Bill Text

SB318,50,11 (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.

SB318,50,20 (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 listing a witness under sub. (2) (e) or (3) (a) 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 under 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.

SB318,50,24 (7) In camera proceedings. Either party may move for an in camera inspection 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.

SB318,51,5 (8) Continuing duty to disclose. If, after complying with a requirement of this section, and before 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.

SB318,51,9 (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.

SB318,51,13 (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).

SB318,51,20 (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.

SB318,51,23 (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.

Note: Creates, in new s. 980.036, provisions that are specific to discovery in proceedings relating to SVPs and specifically provides that the general discovery process in civil actions does not apply in ch. 980, stats., proceedings. Under the bill:

1. Upon demand, a PA must disclose and permit the person or the person's attorney to inspect and copy or photograph all of the following if it is in the possession, custody, or control of the state:

a. Any written or recorded statement made by the person concerning the allegations in a petition to commit the person as an SVP or concerning other matters at issue in the trial or proceeding.

b. A written summary of all oral statements of the person that the PA plans to use in the course of the trial or proceeding.

c. Evidence obtained by intercepting any oral communication that the PA intends to use as evidence.

d. A copy of the person's criminal record.

e. A list of all witnesses whom the PA intends to call, except rebuttal or impeachment witnesses.

f. Any relevant written or recorded statements of a witness.

g. The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the PA intends to offer in evidence and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

h. The criminal record of a witness for the state that is known to the PA.

i. Any physical or documentary evidence that the PA intends to offer as evidence.

j. Any exculpatory evidence.

2. Upon demand, the person who is subject to SVP proceedings must disclose all of the following:

a. A list of all witnesses whom the person intends to call.

b. Any relevant written or recorded statements of a witness, except rebuttal or impeachment witnesses.

c. The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the person intends to offer as evidence and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

d. The criminal record of a witness for the person that is known to the person's attorney.

e. Any physical or documentary evidence that the person intends to offer as evidence.

3. If, subsequent to compliance with these requirements, and prior to or during trial, a party discovers additional material or the names of additional witnesses, the party must promptly notify the other party of the existence of the additional materials or names.

4. The court must exclude any witness not listed or evidence not presented for inspection unless good cause is shown for failure to comply. The court may advise the jury of the nonresponsiveness of a party.

SB318, s. 92 Section 92 . 980.038 of the statutes is created to read:

SB318,53,2 980.038 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.

SB318,53,7 (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).

SB318,53,14 (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 for the purpose of evaluating whether to file a petition before the petition under s. 980.02 was filed.

SB318,53,18 (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.

SB318,54,4 (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 has the same effect as if made in open court. A proceeding under this subsection shall be conducted in a courtroom or other place reasonably accessible to the public. Simultaneous access to the proceeding shall be provided to a person entitled to attend by means of a loudspeaker or, upon request to the court, by making the person party to the telephone call without charge.

SB318,54,14 (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.

SB318,54,17 (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.

SB318,54,24 (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.

SB318,55,3 (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.

Note: Creates s. 980.038, providing that:

1. Notwithstanding the normal process for gaining personal jurisdiction in a judicial proceeding, a court may exercise personal jurisdiction over the subject of an SVP petition even though the person is not served under the normal process with a verified petition and summons or served with an order for detention and the person has not had a probable cause hearing.

2. A motion for post-commitment relief by an SVP or an appeal from a final order or from an order denying a motion for post-commitment relief must follow criminal appellate procedure.

3. An appeal by the state from a final judgment or order must follow the procedure for civil appeals.

4. The state is permitted to present evidence or comment on evidence that a person who is the subject of an SVP commitment petition, or that a person who has been committed, refused to participate in an examination of his or her mental condition that was being conducted as part of an SVP proceeding or that was conducted before the commitment petition was filed for the purpose of evaluating whether to file a petition. The bill does not affect the general right to remain silent at any hearing relating to an SVP commitment.

The bill also creates new provisions relating to failure to comply with time limits, specifying that:

1. Failure to comply with any time limit specified in ch. 980, stats., does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction.

2. Failure to comply with any time limit is not grounds for an appeal or grounds to vacate any order, judgment, or commitment issued or entered.

3. 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.

SB318, s. 93 Section 93. 980.04 (1) of the statutes is amended to read:

SB318,56,6 980.04 (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.

SB318, s. 94 Section 94. 980.04 (2) of the statutes is renumbered 980.04 (2) (a) and amended to read:

SB318,56,14 980.04 (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

SB318,56,19 (b) 1. Except as provided in subd. 2., 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.

SB318, s. 95 Section 95 . 980.04 (2) (b) 2. of the statutes is created to read:

SB318,57,3 980.04 (2) (b) 2. 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.

Note: Revises current law [s. 980.04 (2)] which specifies that: (1) whenever an SVP commitment petition is filed, the court must hold a hearing to determine whether there is probable cause to believe that the person named in the petition is an SVP; (2) if the person is in custody, the court must hold the probable cause hearing within 72 hours after the petition is filed, excluding Saturdays, Sundays, and legal holidays; and (3) if the person is not in custody, the court must hold the hearing within a reasonable time after the filing of the petition.

The bill:

1. Requires the court, in general, to hold the probable cause hearing within 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.

2. If the person named in the petition is in custody and the probable cause hearing will be held after the date on which the person is scheduled to be released or discharged, requires the hearing to 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. See, also, Section 96.

SB318, s. 96 Section 96 . 980.04 (3) of the statutes is amended to read:

SB318,57,12 980.04 (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.

SB318, s. 97 Section 97. 980.04 (5) of the statutes is amended to read:

SB318,57,17 980.04 (5) If the person named in the petition claims or appears to be indigent, the court shall, prior to the probable cause hearing under sub. (2) (a), refer the person to the authority for indigency determinations under s. 977.07 (1) and, if applicable, the appointment of counsel.

SB318, s. 98 Section 98 . 980.05 (1) of the statutes is amended to read:

SB318,58,6 980.05 (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 (2) (a). 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.

Note: Revises s. 980.05 (1), stats., to require the trial to commence no later than 90 days after the probable cause hearing (45 days under current law) and permits the court to grant one or more continuances of the trial date for good cause (current law permits granting "a continuance").

SB318, s. 99 Section 99 . 980.05 (1m) of the statutes is repealed.

Note: Specifies, by repealing s. 980.05 (1m), that constitutional rights available to a defendant in a criminal proceeding are not necessarily available to the person who is the subject to an SVP commitment petition. Current s. 980.05 (1m), stats., specifies that: (1) at the trial to determine whether the person is a "sexually violent person," all rules of evidence in criminal actions apply; and (2) all constitutional rights available to a defendant in a criminal proceeding are available to the person.

SB318, s. 100 Section 100. 980.05 (2) of the statutes is amended to read:

SB318,58,16 980.05 (2) The person who is the subject of the petition, the person's attorney, or the department of justice or the district attorney petitioner may request that a trial under this section be to a jury of 12. A request for a jury trial under this subsection shall be made within 10 days after the probable cause hearing under s. 980.04 (2) (a). If no request is made, the trial shall be to the court. The person, the person's attorney, or the district attorney or department of justice, whichever is applicable, petitioner may withdraw his, her, or its request for a jury trial if the 2 persons who did not make the request consent to the withdrawal.

SB318, s. 101 Section 101 . 980.05 (2m) of the statutes is created to read:

SB318,59,4 980.05 (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.

SB318,59,12 (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 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.

SB318,59,16 (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).

Note: Revises current law specifying that: (1) the person who is the subject of an SVP commitment petition, the person's attorney, DOJ, or the DA may request that the trial be to a jury of 12 in order to determine whether the person who is the subject of a commitment petition is an SVP; (2) the court may also, on its own motion, require that the trial be to a jury of 12; and (3) a verdict of a jury is not valid unless it is unanimous.

The bill creates s. 980.05 (2m) to provide:

1. For a jury of 12, but the parties may stipulate to a smaller number of jurors.

2. That juries must be selected and treated in the same manner as they are selected and treated in civil actions in circuit court, except that each party is entitled to 4 peremptory challenges (instead of 3, as for other civil actions), unless fewer jurors are to serve on the jury.

SB318, s. 102 Section 102 . 980.05 (3) (a) of the statutes is amended to read:

SB318,60,3 980.05 (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.

Note: Revises s. 980.05 (3) (a) to clarify that in a trial under ch. 980, the petitioner's burden is to prove beyond a reasonable doubt that the person is an SVP (and not the general "allegations in the petition" under current law).

SB318, s. 103 Section 103. 980.05 (3) (b) of the statutes is amended to read:

SB318,60,8 980.05 (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.

SB318, s. 104 Section 104 . 980.07 (1) of the statutes is renumbered 980.07 (1) (intro.) and amended to read:

SB318,60,19 980.07 (1) (intro.) If a person has been is committed under s. 980.06 and has not been discharged under s. 980.09 (3) 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:

SB318,61,2 (a) An examiner as provided under s. 980.03 (4) 980.031 (3), except that the court is not required to appoint an examiner if supervised release or discharge is supported by the examination conducted by the department. The county shall pay the costs of an examiner appointed under this paragraph as provided under s. 51.20 (18) (a).

Note: Provides that a court is not required to appoint an examiner at the request of a petitioner for supervised release when supervised release or discharge is supported by the examination conducted by DHFS. See, also, Note to Section 108 .

SB318, s. 105 Section 105. 980.07 (1) (b) of the statutes is created to read:

SB318,61,4 980.07 (1) (b) An attorney as provided under s. 980.03 (2) (a).

SB318, s. 106 Section 106. 980.07 (1g) of the statutes is created to read: