CIRCUIT COURT
.... County
State of Wisconsin
vs.
....(Defendant)
Pursuant to
s. 971.20 the defendant (or defendants) request (s) a substitution for the Hon. .... as judge in the above entitled action.
Dated ...., .... (year)
....(Signature of defendant or defendant's attorney)
971.20(11)
(11) Return of action to substituted judge. Upon the filing of an agreement signed by the defendant or defendant's attorney and by the prosecuting attorney, the substituted judge and the substituting judge, the criminal action and all pertinent records shall be transferred back to the substituted judge.
971.20 Note
NOTE: See the 1979-80 Statutes for notes and annotations relating to 971.20 prior to its repeal and recreation by ch. 137, laws of 1981.
971.20 Note
Judicial Council Note, 1981: Section 971.20 has been revised to clarify its objective of allowing defendants in criminal trials one substitution of the assigned judge upon making a timely request. The statute is not to be used for delay nor for "judge shopping," but is to ensure a fair and impartial trial for the defendants. The statute does not govern removal for cause of the assigned judge through an affidavit of prejudice.
971.20 Annotation
Sub. (2) clarifies that the defendant has a right to only one substitution of judge in a criminal action, unless an appellate court orders a new trial. Prior sub. (2) so provided, but the effect of this provision was unclear in light of the introductory phrase of prior sub. (3).
971.20 Annotation
Sub. (3) allows the defendant's right of substitution to be used against the judge assigned to the preliminary examination and specifies the timing of these requests.
971.20 Annotation
Sub. (4) allows the defendant's right of substitution to be used against the judge originally assigned to preside at trial, specifying the timing of these requests.
971.20 Annotation
Sub. (5) allows the defendant's right of substitution to be used against a judge assigned to preside at trial in place of the judge originally assigned, specifying the timing of these requests.
971.20 Annotation
Sub. (6) clarifies that all defendants in a single action must join in a substitution request.
971.20 Annotation
Sub. (7) allows a substitution request to be made upon appellate remand for a new trial, irrespective of whether a substitution of judge was requested prior to the appeal. It is the only exception to the rule of one substitution per action. The time limit for the request is tied to filing of the remittitur, in accordance with Rohl v. State,
97 Wis. 2d 514 (1980). [LRB NOTE: Senate Amendment 1 revised this subsection to also allow the substitution request to be made upon appellate remand for new sentencing proceedings.]
971.20 Annotation
Sub. (8) provides for the determination of the timeliness and propriety of the substitution request to be made by the chief judge if the trial judge fails to do so within 7 days.
971.20 Annotation
Sub. (9) is prior sub. (2), amended to allow the judge whose substitution has been requested to accept any plea. The prior statute allowed the judge to accept only pleas of not guilty. This revision promotes judicial economy by allowing the judge whose substitution has been requested to accept a guilty or no contest plea tendered by the defendant before the action is reassigned. Defendants preferring to have guilty or no contest pleas accepted by the substituting judge may obtain that result by standing mute or pleading not guilty until after the action has been reassigned.
971.20 Annotation
Sub. (10) is prior sub. (5).
971.20 Annotation
Sub. (11) is prior sub. (6). [Bill 163-S]
971.20 Annotation
Peremptory substitution of judge under s. 971.20, 1979 stats., was not unconstitutional. State v. Holmes, 106 W (2d) 31, 315 NW (2d) 703 (1982).
971.20 Annotation
Where appellate court remands for exercise of discretion in ordering restitution, it has not remanded for a sentencing proceeding, and defendant is not entitled to substitution under (7). State v. Foley, 153 W (2d) 748, 451 NW (2d) 796 (Ct. App. 1989).
971.20 Annotation
Where initial appearance is conducted before judge assigned to hear matter, strict application of filing deadline is appropriate; where intake system does not provide adequate notice of assigned judge prior to arraignment, deadlines are relaxed to allow defendant to intelligently exercise right. Tinti v. Waukesha County Circuit Ct. 159 W (2d) 783, 464 NW (2d) 853 (Ct. App. 1990).
971.20 Annotation
Once a judge is substituted for, the judge may only act in the case as specified in sub. (9); understandable inadvertent appearance before the substituted judge is not a waiver of the substitution. State v. Austin, 171 W (2d) 251, 490 NW (2d) 780 (Ct. App. 1992).
971.20 Annotation
Where a case is assigned to a newly appointed judge prior to the appointee's taking the judicial oath, the time limit to request a substitution commences on the date the appointee becomes a judge. Strong v. Dane County Circuit Court, 184 W (2d) 223, 416 NW (2d) 451 (Ct. App. 1994).
971.20 Annotation
There is no "trial court" under sub. (4) until after a bindover. A motion to reduce bail prior to the bindover was not a motion to the trial court which prevented filing a request for substitution. Mace v. Green Lake Co. Circuit Court, 193 W (2d) 208, 532 NW (2d) 720 (1995).
971.22
971.22
Change of place of trial. 971.22(1)
(1) The defendant may move for a change of the place of trial on the ground that an impartial trial cannot be had in the county. The motion shall be made at arraignment, but it may be made thereafter for cause.
971.22(2)
(2) The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The district attorney may file counter affidavits.
971.22(3)
(3) If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it shall order that the trial be held in any county where an impartial trial can be had. Only one change may be granted under this subsection. The judge who orders the change in the place of trial shall preside at the trial. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the defendant, if he or she is in custody, shall be held and where the record shall be kept. If the criteria under
s. 971.225 (1) (a) to
(c) exist, the court may proceed under
s. 971.225 (2).
971.22 History
History: 1981 c. 115.
971.22 Annotation
Relevant factors as to necessity of a change of venue discussed. State v. Hebard, 50 W (2d) 408, 184 NW (2d) 156; Tucker v. State, 56 W (2d) 728, 202 NW (2d) 897.
971.22 Annotation
Rules for determining whether community prejudice exists discussed. Thomas v. State, 53 W (2d) 483, 192 NW (2d) 864.
971.22 Annotation
While actual prejudice need not be shown, there must be a showing of a reasonable probability of prejudice inherent in the situation. Gibson v. State, 55 W (2d) 110, 197 NW (2d) 813.
971.22 Annotation
The timing, specificity, inflammatory nature and degree of permeation of publicity is extremely important in determining the likelihood of prejudice in the community. State ex rel. Hussong v. Froelich, 62 W (2d) 577, 215 NW (2d) 390.
971.22 Annotation
Where news stories concerning the crime were accurate, informational articles of a nature which would not cause prejudice and where 4 months elapsed between publication of the news stories and trial, it tended to indicate little or no prejudice against defendant. Jones v. State, 66 W (2d) 105, 223 NW (2d) 889.
971.22 Annotation
There was no abuse of discretion in this prosecution for 1st-degree murder in not changing the venue where the transcript of the hearing on the issuance of arrest warrant, the preliminary examination, and other hearings were closed to public and press; the police and prosecutor refused to divulge any facts to public and press; and press reports were generally free from the details of incriminating evidence, straightforward and not incendiary. State v. Dean, 67 W (2d) 513, 227 NW (2d) 712.
971.22 Annotation
Only defendant may waive right to venue where the crime was committed. State v. Mendoza, 80 W (2d) 122, 258 NW (2d) 260.
971.225
971.225
Jury from another county. 971.225(1)
(1) In lieu of changing the place of trial under
s. 971.22 (3), the court may require the selection of a jury under
sub. (2) if:
971.225(1)(a)
(a) The court has decided to sequester the jurors after the commencement of the trial, as provided in
s. 972.12;
971.225(1)(c)
(c) The estimated costs to the county appear to be less using the procedure under this section than using the procedure for holding the trial in another county.
971.225(2)
(2) If the court decides to proceed under this section it shall follow the procedure under
s. 971.22 until the jury is chosen in the 2nd county. At that time, the proceedings shall return to the original county using the jurors selected in the 2nd county. The original county shall reimburse the 2nd county for all applicable costs under
s. 814.22.
971.225 History
History: 1981 c. 115;
1991 a. 39.
971.23
971.23
Discovery and inspection. 971.23(1)
(1)
What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
971.23(1)(a)
(a) Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under
s. 968.26 or before a grand jury, and the names of witnesses to the defendant's written statements.
971.23(1)(b)
(b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements.
971.23(1)(bm)
(bm) Evidence obtained in the manner described under
s. 968.31 (2) (b), if the district attorney intends to use the evidence at trial.
971.23(1)(d)
(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
971.23(1)(e)
(e) Any relevant written or recorded statements of a witness named on a list under
par. (d), including any videotaped oral statement of a child under
s. 908.08, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial. This paragraph does not apply to reports subject to disclosure under
s. 972.11 (5).
971.23(1)(f)
(f) The criminal record of a prosecution witness which is known to the district attorney.
971.23(1)(g)
(g) Any physical evidence that the district attorney intends to offer in evidence at the trial.
971.23(2m)
(2m) What a defendant must disclose to the district attorney. Upon demand, the defendant or his or her attorney shall, within a reasonable time before trial, disclose to the district attorney and permit the district attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the defendant:
971.23(2m)(a)
(a) A list of all witnesses, other than the defendant, whom the defendant intends to call at trial, together with their addresses. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
971.23(2m)(am)
(am) Any relevant written or recorded statements of a witness named on a list under
par. (a), including any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and including the results of any physical or mental examination, scientific test, experiment or comparison that the defendant intends to offer in evidence at trial. This paragraph does not apply to reports subject to disclosure under
s. 972.11 (5).
971.23(2m)(b)
(b) The criminal record of a defense witness, other than the defendant, which is known to the defense attorney.
971.23(2m)(c)
(c) Any physical evidence that the defendant intends to offer in evidence at the trial.
971.23(3)
(3) Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial shall be made or given if the sole basis for such comment or instruction is the fact the name of the witness appears upon a list furnished pursuant to this section.
971.23(5)
(5) Scientific testing. On motion of a party subject to
s. 971.31 (5), the court may order the production of any item of physical evidence which is intended to be introduced at the trial for scientific analysis under such terms and conditions as the court prescribes.
971.23(6)
(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 district attorney or defense counsel certifies that to list a witness 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 pursuant to
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.
971.23(6m)
(6m) In camera proceedings. Either party may move for an in camera inspection by the court of any document required to be disclosed under
sub. (1) or
(2m) for the purpose of masking or deleting any material which is not relevant to the case being tried. The court shall mask or delete any irrelevant material.
971.23(7)
(7) Continuing duty to disclose. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which 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.
971.23(7m)(a)(a) The court shall exclude any witness not listed or evidence not presented for inspection or copying 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.
971.23(7m)(b)
(b) In addition to or in lieu of any sanction specified in
par. (a), a court may, subject to
sub. (3), advise the jury of any failure or refusal to disclose material or information required to be disclosed under
sub. (1) or
(2m), or of any untimely disclosure of material or information required to be disclosed under
sub. (1) or
(2m).
971.23(8)(a)(a) If the defendant intends to rely upon an alibi as a defense, the defendant shall give notice to the district attorney at the arraignment or at least 15 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known. If at the close of the state's case the defendant withdraws the alibi or if at the close of the defendant's case the defendant does not call some or any of the alibi witnesses, the state shall not comment on the defendant's withdrawal or on the failure to call some or any of the alibi witnesses. The state shall not call any alibi witnesses not called by the defendant for the purpose of impeaching the defendant's credibility with regard to the alibi notice. Nothing in this section may prohibit the state from calling said alibi witnesses for any other purpose.
971.23(8)(b)
(b) In default of such notice, no evidence of the alibi shall be received unless the court, for cause, orders otherwise.
971.23(8)(c)
(c) The court may enlarge the time for filing a notice of alibi as provided in
par. (a) for cause.
971.23(8)(d)
(d) Within 10 days after receipt of the notice of alibi, or such other time as the court orders, the district attorney shall furnish the defendant notice in writing of the names and addresses, if known, of any witnesses whom the state proposes to offer in rebuttal to discredit the defendant's alibi. In default of such notice, no rebuttal evidence on the alibi issue shall be received unless the court, for cause, orders otherwise.
971.23(8)(e)
(e) A witness list required under
par. (a) or
(d) shall be provided in addition to a witness list required under
sub. (1) (d) or
(2m) (a), and a witness disclosed on a list under
sub. (1) (d) or
(2m) (a) shall be included on a list under
par. (a) or
(d) if the witness is required to be disclosed under
par. (a) or
(d).
971.23(10)
(10) Payment of photocopy costs in cases involving indigent defendants. 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.
971.23 Annotation
Inadequate preparation for trial which resulted in a district attorney's failure to disclose all scientific reports does not constitute good cause for the failure if the defense is misled, but this is subject to the harmless error rule. Wold v. State, 57 W (2d) 344, 204 NW (2d) 482.
971.23 Annotation
When a prosecutor submitted a list of 97 witnesses he intended to call the court should have required him to be more specific as to those he really intended to call. Irby v. State, 60 W (2d) 311, 210 NW (2d) 755.
971.23 Annotation
The last sentence of (3) (a) providing "This section shall not apply to rebuttal witnesses or those called for impeachment only." is stricken as unconstitutional. Sub. (8), stats. 1973, is constitutional because after notice of alibi is given the state would have a duty to submit a list of rebuttal witnesses under (3) (a). This satisfies the due process requirement of reciprocity. Allison v. State, 62 W (2d) 14, 214 NW (2d) 437. [But see Tucker v. State, 84 W (2d) 630 (1978), for discussion of reciprocity provision in (8) (d) added to this section by ch. 196, laws of 1973.]
971.23 Annotation
When a party successfully moves under former s. 971.24 (2) to have material masked or deleted from a discovery document, the proper procedure to be pursued is to place it in a sealed envelope or container, if necessary, so that it may be preserved for the aid of the supreme court upon appellate review. State v. Van Ark, 62 W (2d) 155, 215 NW (2d) 41.
971.23 Annotation
Retroactive effect of ruling in Allison as to (3) (a) denied where defendant not prejudiced by operation of alibi statute. Rohl v. State, 65 W (2d) 683, 223 NW (2d) 567.
971.23 Annotation
Under both the statutory discovery provisions of this section and the constitutional duty of the state to disclose to a criminal defendant evidence exculpatory in nature, there is no requirement to provide exculpatory evidence which is not within the exclusive possession of the state and does not surprise or prejudice the defendant. State v. Calhoun, 67 W (2d) 204, 226 NW (2d) 504.
971.23 Annotation
The calling of a rebuttal witness not included in the state's witness list, as allowed by (3) (a), was not unconstitutional. Although substantial evidence indicates that the state had subpoenaed its "rebuttal" witness at least 2 weeks before he was called to testify and deliberately held him back for "dramatic" effect, no objection or motion to suppress was made on the proper ground that the witness was not a bona fide rebuttal witness hence objection to the witness' testimony was waived. Caccitolo v. State, 69 W (2d) 102, 230 NW (2d) 139.
971.23 Annotation
The prosecutor's duty under former s. 971.25 (1) does not ordinarily extend to discovery of criminal records from other jurisdictions. The prosecutor must make good-faith efforts to obtain such records from other jurisdictions specifically requested by the defense. Jones v. State, 69 W (2d) 337, 230 NW (2d) 677.
971.23 Annotation
Police officers' "memo books" and reports were within the rule requiring production of witness statements, since the books and reports were written by the officers, the reports signed by them, and both officers testified as to the incident preceding defendant's arrest. State v. Groh, 69 W (2d) 481, 230 NW (2d) 745.
971.23 Annotation
Where the state calls a witness not included in its list of witnesses exchanged under (3), the preferable procedure is not to strike the witness but to allow a defendant, who makes a timely showing of surprise and prejudice, a continuance sufficient to interview the witness. Kutchera v. State, 69 W (2d) 534, 230 NW (2d) 750.
