SB82: Bill Text

SB82,305,25 972.005 (1) Waiver. Except as otherwise provided in this chapter, criminal Criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a his or her right to trial by jury in writing or by statement in open court or under s. 967.08 (2) (b), on the record, with the approval of the court and the consent of the state. Before approving a waiver of the right to trial by jury, the court shall address the defendant personally to assure that the defendant understands his or her right to trial by jury and that the defendant voluntarily waives that right.

SB82,986 Section 986. 972.02 (2) of the statutes is renumbered 972.025 (2) and amended to read:

SB82,306,8 972.025 (2) Jury of less than 12. At any time before the verdict is returned, the parties may stipulate in writing or by statement in open court, on the record agree, with the approval of the court, that the jury shall consist of any number less than 12. If the parties agree to a number of jurors that is less than 12, the court shall address the defendant personally to ensure that the defendant understands his or her right to a jury of 12 and that the defendant voluntarily waives that right.

SB82,987 Section 987. 972.02 (3) of the statutes is renumbered 972.27 and amended to read:

SB82,306,14 972.27 Findings in a trial to the court. In a case tried without a jury, the court shall make a general finding and may in addition find the facts specially. If the charge includes a provision that increases the maximum penalty for the charged crime, the court shall make a specific finding as to the proof of that provision.

SB82,988 Section 988. 972.02 (4) of the statutes is renumbered 972.04 (5) and amended to read:

SB82,306,19 972.04 (5) No A member of the a grand jury which found the indictment shall that indicted a defendant may not be a juror for the defendant's trial of the indictment.

SB82,989 Section 989. 972.025 (title) and (1) of the statutes are created to read:

SB82,306,23 972.025 (title) Jury size. (1) Twelve-person jury. A jury in a criminal case shall consist of 12 persons unless the parties agree to a lesser number as provided in sub. (2).

SB82,990 Section 990. 972.03 (title) of the statutes is amended to read:

SB82,306,25 972.03 (title) Peremptory Number of peremptory challenges.

SB82,991 Section 991. 972.03 of the statutes is renumbered 972.03 (1) and amended to read:

SB82,307,5 972.03 (1) Generally. Each Except as provided in subs. (2), (3), (4), and (5), in a criminal case, each side is entitled to only 4 peremptory challenges except as otherwise provided in this section. When.

SB82,307,11 (4) Life imprisonment. If the crime charged in a case is punishable by life imprisonment, the state is each side shall be entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges. If there is , except, if the case involves 2 defendants, the defense shall be entitled to 12 peremptory challenges, and if the case involves more than 2 defendants, the defense shall be entitled to 18 peremptory challenges.

SB82,307,21 (3) Dividing challenges among defendants. In a criminal case involving more than one defendant, the court shall divide the peremptory challenges for the defense as equally as practicable among them the defendants; and if their defenses are adverse and the court is satisfied that the protection of their rights so requires, the court may allow the defendants additional peremptory challenges. If the crime is punishable by life imprisonment, the total peremptory challenges allowed the defense shall not exceed 12 if there are only 2 defendants and 18 if there are more than 2 defendants; in other felony cases the defendants are allowed additional peremptory challenges under this subsection, the courts may, if the interest of justice requires, allow the state additional peremptory challenges.

SB82,308,5 (2) More than one defendant. Except as provided in subs. (3) and (4), in a criminal case involving 2 defendants, the defense shall be entitled to 6 peremptory challenges if there are only, and in a criminal case involving more than 2 defendants and, the defense shall be entitled to 9 peremptory challenges if there are more than 2. In misdemeanor cases, the state is entitled to 3 peremptory challenges and the defendant is entitled to 3 peremptory challenges, except that if there are 2 defendants, the court shall allow the defense 4 peremptory challenges, and if there are more than 2 defendants, the court shall allow the defense 6 peremptory challenges.

SB82,308,8 (5) Additional challenges. Each side shall be allowed at least one additional peremptory challenge if the court orders that additional jurors are to be selected under s. 972.04 (1).

SB82,992 Section 992. 972.04 (title) of the statutes is repealed and recreated to read:

SB82,308,10 972.04 (title) Jury selection.

SB82,993 Section 993. 972.04 (1) of the statutes is amended to read:

SB82,308,19 972.04 (1) The number of jurors selected in a criminal case shall be prescribed in s. 756.06 (2) (a), 12 unless a lesser number has been stipulated agreed to and approved under s. 972.02 972.025 (2) or the. The court orders may order that additional jurors be selected. That number, plus the number of peremptory challenges available to all 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 to assure that the required number of jurors will be available for deliberation.

SB82,308,24 (6) After the jurors have been examined and the court has determined whether to excuse any juror for cause, the parties shall thereupon exercise in their order their peremptory challenges alternately, the state beginning, the peremptory challenges available to them, and if. If any party declines to exercise a peremptory challenge, the challenge shall be made by the clerk shall make the challenge by lot.

SB82,994 Section 994. 972.04 (2) of the statutes is repealed.

SB82,995 Section 995. 972.04 (3) of the statutes is created to read:

SB82,309,4 972.04 (3) The court shall call and maintain the number of jurors provided in sub. (1), plus the number of peremptory challenges available to the parties. If a juror is excused for cause, the court shall replace that juror with another.

SB82,996 Section 996. 972.06 of the statutes is amended to read:

SB82,309,9 972.06 View Jury view. The court may order a view by the jury to view a location or object whenever the court concludes that viewing the location or object would assist the jury in understanding the evidence introduced in court or assist the jury in weighing and applying that evidence.

SB82,997 Section 997. 972.07 of the statutes is renumbered 967.12 and amended to read:

SB82,309,12 967.12 Jeopardy. Jeopardy attaches when one of the following occurs:

SB82,309,15 (1) In a trial to the court without a jury, when a witness is sworn; the first witness assents to the oath or affirmation or answers the first question if no oath or affirmation is administered.

SB82,309,17 (2) In a jury trial, when the selection of the jury has been completed and the jury sworn.

SB82,998 Section 998. 972.075 of the statutes is created to read:

SB82,309,20 972.075 Questioning of witnesses by jurors. (1) After the selection of a jury, the court may authorize the jurors to ask questions of witnesses.

SB82,309,23 (2) If the court authorizes juror questions, the court shall instruct the jury to propose only questions that tend to clarify information already presented and shall instruct the jury of the following procedure that shall be used for juror questions:

SB82,309,25 (a) After the parties have questioned a witness and before the witness leaves the stand, the court shall ask the jurors if they have any questions for the witness.

SB82,310,2 (b) If a juror has a question, he or she shall submit the question in writing to the judge.

SB82,310,4 (c) The judge shall show the question to the parties and allow the parties to object to the question without the knowledge of the jury.

SB82,310,6 (d) The judge shall review the question and any objections made by the parties and determine if the question is legally proper.

SB82,310,7 (e) If the question is legally proper, the judge may ask it of the witness.

SB82,310,9 (f) The court shall allow the parties to ask follow-up questions to any juror questions that are posed to a witness.

SB82,999 Section 999. 972.08 of the statutes is renumbered 967.17, and 967.17 (1) and (2), as renumbered, are amended to read:

SB82,310,22 967.17 (1) (a) Whenever any person refuses to testify or to produce books, papers, or documents when required to do so before any grand jury, in a John Doe proceeding under s. 968.26 968.105, at an inquest under s. 968.015, or at a preliminary examination, criminal hearing, or trial for the reason that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a forfeiture or penalty, the person may nevertheless be compelled to testify or produce the evidence by order of the court on motion of the district attorney. No person who testifies or produces evidence in obedience to the command of the court in that case may be liable to any forfeiture or penalty for or on account of testifying or producing evidence, but no person may be exempted from prosecution and punishment for perjury or false swearing committed in so testifying.

SB82,310,24 (b) The immunity provided under par. (a) is subject to the restrictions under s. 972.085 967.18.

SB82,311,11 (2) Whenever a witness attending in any court trial or appearing before any grand jury or, John Doe investigation proceeding under s. 968.26 968.105, or inquest under s. 968.015 fails or refuses without just cause to comply with an order of the court under this section to give testimony in response to a question or with respect to any matter, the court, upon such failure or refusal, or when such failure or refusal is duly brought to its attention, may summarily order the witness's confinement at a suitable place until such time as the witness is willing to give such testimony or until such the trial, grand jury term, or John Doe investigation under s. 968.26 proceeding, or inquest is concluded but in no case exceeding one year. No person confined under this section shall be admitted to bail released on conditions pending the determination of an appeal taken by the person from the order of confinement.

SB82,1000 Section 1000. 972.085 of the statutes is renumbered 967.18 and amended to read:

SB82,311,20 967.18 Immunity; use standard. Immunity from criminal or forfeiture prosecution under ss. 13.35, 17.16 (7), 77.61 (12), 93.17, 111.07 (2) (b), 128.16, 133.15, 139.20, 139.39 (5), 195.048, 196.48, 551.602 (5), 553.55 (3), 601.62 (5), 767.87 (4), 885.15, 885.24, 885.25 (2), 891.39 (2), 968.26, 972.08 (1) 967.17 (1), and 979.07 (1) 968.105 and ch. 769, provides immunity only from the use of the compelled testimony or evidence in subsequent criminal or forfeiture proceedings, as well as immunity from the use of evidence derived from that compelled testimony or evidence.

SB82,1001 Section 1001. 972.09 of the statutes is repealed.

SB82,1002 Section 1002. 972.10 (title) of the statutes is renumbered 972.16 (title).

SB82,1003 Section 1003. 972.10 (1) (a) (intro.) of the statutes is repealed.

SB82,1004 Section 1004. 972.10 (1) (a) 1. of the statutes is renumbered 972.065 and amended to read:

SB82,312,10 972.065 Note-taking by jurors. The court may authorize note-taking by jurors. If the court authorizes note-taking, the court shall instruct the jurors that they may make written notes of any portion of the proceedings, except the opening statements and closing arguments, if they so desire and that the court will provide materials for that purpose if they so request note-taking. The court shall stress the confidentiality of the notes to inform the jurors that the notes are confidential. The jurors may refer to their notes during the proceedings and deliberation their deliberations. The notes may not be the basis for or the object of any motion by any party. After the jury has rendered returned its verdict, the court shall ensure that the notes are promptly collected and destroyed.

SB82,1005 Section 1005. 972.10 (1) (a) 2. of the statutes is repealed.

SB82,1006 Section 1006. 972.10 (1) (b) of the statutes is renumbered 972.095 and amended to read:

SB82,312,25 972.095 Preliminary jury instructions. The court may give additional preliminary instructions to assist the jury in understanding its duty and the evidence it will hear. The preliminary instructions may include, without limitation, the elements of any offense charged, what constitutes evidence and what does not, guidance regarding the burden of proof and the credibility of witnesses, and directions not to discuss the case until deliberations begin. The additional instructions shall be disclosed to the parties before they are given and either party may object to any specific instruction or propose instructions of its own to be given prior to trial The court shall advise the parties of the content of the instructions to be given. The parties may propose instructions of their own. All objections shall be on the record and shall specify with particularity how the instruction is insufficient or does not correctly state the law.

SB82,1007 Section 1007. 972.10 (2) of the statutes is repealed.

SB82,1008 Section 1008. 972.10 (3) of the statutes is repealed.

SB82,1009 Section 1009. 972.10 (4) of the statutes is repealed.

SB82,1010 Section 1010. 972.10 (5) of the statutes is renumbered 972.22 (1) and amended to read:

SB82,313,13 972.22 (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.

SB82,313,25 (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.

SB82,314,3 (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.

SB82,1011 Section 1011. 972.10 (6) of the statutes is repealed.

SB82,1012 Section 1012. 972.10 (7) of the statutes is renumbered 972.23 (1) and amended to read:

SB82,314,13 972.23 (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. For good cause, the court may discharge additional jurors other than by lot.

SB82,1013 Section 1013. 972.11 (title) of the statutes is renumbered 967.24 (title).

SB82,1014 Section 1014. 972.11 (1) of the statutes is renumbered 967.24 and amended to read:

SB82,314,22 967.24 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.

SB82,1015 Section 1015. 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:

SB82,315,4 904.045 (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.

SB82,315,12 (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):

SB82,315,16 (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).

SB82,315,18 (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.

SB82,1016 Section 1016. 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:

SB82,315,23 972.20 (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.

SB82,1017 Section 1017. 972.11 (2m) (a) 2. (intro.), a. and b. of the statutes are consolidated, renumbered 972.20 (1) (b) and amended to read:

SB82,316,6 972.20 (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.

SB82,1018 Section 1018. 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:

SB82,316,11 972.20 (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:

SB82,316,14 (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.

SB82,316,19 (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.

SB82,316,22 (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.

SB82,316,24 (e) The child's familial or emotional relationship to those involved in the underlying proceeding trial.

SB82,317,2 (f) The child's behavior at or reaction to previous interviews concerning the events involved about which the child will testify.

SB82,317,8 (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.

SB82,1019 Section 1019. 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:

SB82,317,12 972.20 (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:

SB82,317,15 (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.

SB82,317,20 (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.

SB82,1020 Section 1020. 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: