980.05(1)(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 90 days after the date of the probable cause hearing under
s. 980.04 (2) (a). The court may grant 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.
980.05(2)
(2) The person who is the subject of the petition, the person's attorney, or the 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 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.
980.05(2m)(a)(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.
980.05(2m)(b)
(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.
980.05(2m)(c)
(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).
980.05(3)(a)(a) At a trial on a petition under this chapter, the petitioner has the burden of proving beyond a reasonable doubt that the person who is the subject of the petition is a sexually violent person.
980.05(3)(b)
(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.
980.05(4)
(4) Evidence that the person who is the subject of a petition under
s. 980.02 was convicted for or committed sexually violent offenses before committing the offense or act on which the petition is based is not sufficient to establish beyond a reasonable doubt that the person has a mental disorder.
980.05(5)
(5) If the court or jury determines that the person who is the subject of a petition under
s. 980.02 is a sexually violent person, the court shall enter a judgment on that finding and shall commit the person as provided under
s. 980.06. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent person, the court shall dismiss the petition and direct that the person be released unless he or she is under some other lawful restriction.
980.05 Annotation
This section does not confine expert testimony to any specific standard nor mandate the type or character of relevant evidence that the state may choose to meet its burden of proof. State v. Zanelli,
223 Wis. 2d 545,
589 N.W.2d 687 (Ct. App. 1998),
98-0733.
980.05 Annotation
The standard of review for commitments under ch. 980 is the standard applicable to the review of criminal cases — whether the evidence could have led the trier of fact to find beyond a reasonable doubt that the person subject to commitment is a sexually violent person. State v. Curiel,
227 Wis. 2d 389,
597 N.W.2d 697 (1999),
97-1337.
980.05 Annotation
The right to a jury trial under ch. 980 is governed by sub. (2) rather than case law governing the right to a jury trial in criminal proceedings. State v. Bernstein,
231 Wis. 2d 392,
605 N.W.2d 555 (1999),
98-2259.
980.05 Annotation
The sub. (2) requirement that the 2 persons who did not request the withdrawal of a request for a jury trial consent to the withdrawal does not require a personal statement from the person subject to the commitment proceeding. Consent may be granted by defense counsel. State v. Bernstein,
231 Wis. 2d 392,
605 N.W.2d 555 (1999),
98-2259.
980.05 Annotation
To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B.
231 Wis. 2d 688,
605 N.W.2d 598 (Ct. App. 1999),
98-0229.
980.05 Annotation
Sub. (2) does not require that a respondent be advised by the court that a jury verdict must be unanimous in order for the withdrawal of a request for a jury trial to be valid. State v. Denman, 2001 WI App 96,
243 Wis. 2d 14,
626 N.W.2d 296,
99-1829.
980.05 Annotation
Chapter 980 respondents are afforded the same constitutional protections as criminal defendants. Although the doctrine of issue preclusion may generally apply in ch. 980 cases, application of the doctrine may be fundamentally unfair. When new evidence of victim recantation was offered at the ch. 980 trial, the defendant had a due process interest in gaining admission of the evidence to ensure accurate expert opinions on his mental disorder and future dangerousness when the experts' opinions presented were based heavily on the fact that the defendants committed the underlying crime. State v. Sorenson, 2002 WI 78,
254 Wis. 2d 54,
646 N.W.2d 354,
98-3107.
980.05 Annotation
A sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within 20 days of the commitment order. State v. Treadway, 2002 WI App 195, 257 Wis. 2d. 467,
651 N.W.2d 334,
00-2957.
980.05 Annotation
A parole and probation agent who had been employed full-time in a specialized sex-offender unit for 3 years during which he had supervised hundreds of sex offenders was prepared by both training and experience to assess a sex offender, and was qualified to render an opinion on whether he would reoffend. That the agent did not provide the nexus to any mental disorder did not render his testimony inadmissible. State v. Treadway, 2002 WI App 195, 257 Wis. 2d. 467,
651 N.W.2d 334,
00-2957.
980.05 Annotation
Neither ch. 980 nor ch. 51 grants persons being committed under ch. 980 the right to request confidential proceedings. That ch. 51 hearings are closed while ch. 980 hearings are not does not violate equal protection. State v. Burgess, 2002 WI App 264,
258 Wis. 2d 548,
654 N.W.2d 81,
00-3074. Affirmed. 2003 WI 71, 262 WI 2d 354, 665 NW2d 124. See also Burgess v. Watters,
467 F. 3d 676 (2007).
980.05 Annotation
Article I, section 7 does not prohibit the legislature from enacting statutes requiring that trials be held in certain counties. The legislature could properly provide in sub. (2) that ch. 980 proceedings be held in a county other than the one in which the predicate offense was committed. State v. Tainter, 2002 WI App 296,
259 Wis. 2d 387,
655 N.W.2d 538,
01-2644.
980.05 Annotation
During a commitment proceeding under ch. 980, s. 904.04 (2), relating to other crimes evidence, does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future. State v. Franklin, 2004 WI 38,
270 Wis. 2d 271,
677 N.W.2d 276,
00-2426.
980.05 Annotation
No error was found in giving a jury a general verdict form in a ch. 980 hearing when the defendant failed to establish that ch. 980 respondents are routinely deprived of special verdicts and that general verdicts are more likely to result in commitments. State v. Madison, 2004 WI App 46,
271 Wis. 2d 218,
678 N.W.2d 607,
02-3099.
980.05 Annotation
When a defendant seeks to exclude prior statements based upon his or her 5th Amendment privilege, he or she must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. The mere fact that a statement is compelled does not require it to be excluded from a ch. 980 commitment trial. While an individual has a pre-petition or pre-arrest right against self-incrimination, that right is ordinarily not self-executing and must be invoked. State v. Mark, 2006 WI 78,
292 Wis. 2d 1,
718 N.W.2d 90,
03-2068.
980.05 Annotation
Under Mark, 2006 WI 78, the respondent has the same 5th amendment privilege against self-incrimination as does a defendant at a criminal trial.
Kastigar,
406 U.S. 441, articulates the scope of the privilege in terms of the protection at trial when a criminal defendant has given an immunized statement, providing that immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords the protection of the 5th amendment privilege. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness. State v. Harrell, 2008 WI App 37,
308 Wis. 2d 166,
747 N.W.2d 770,
05-2393.
980.05 Annotation
Testimony referring to incidents revealed by the defendants compelled testimony and two experts' opinions that the defendant was much more likely than not to reoffend should have been excluded because that evidence was derived from compelled statements that were testimonial and incriminating. State v. Mark, 2008 WI App 44,
308 Wis. 2d 191,
747 N.W.2d 727,
07-0522.
980.05 Annotation
A person against whom a ch. 980 petition has been filed is not entitled to a competency evaluation under s. 971.14. Although the result of a successful ch. 980 petition is confinement, the confinement is for treatment not punishment and there is no criminal-law-based due-process right to a competency hearing in a ch. 980 proceeding. State v. Luttrell, 2008 WI App 93, ___ Wis. 2d ___,
754 N.W.2d 249,
07-1840.
980.06
980.06
Commitment. If a court or jury determines that the person who is the subject of a petition under
s. 980.02 is a sexually violent person, the court shall order the person to be committed to the custody of the department for control, care and treatment until such time as the person is no longer a sexually violent person. A commitment order under this section shall specify that the person be placed in institutional care.
980.06 Annotation
In the event that there is a failure to develop an appropriate treatment program, the remedy is to obtain appropriate treatment and not supervised release. State v. Seibert,
220 Wis. 2d 308,
582 N.W.2d 745 (Ct. App. 1998),
97-2554.
980.06 Annotation
Chapter 980 and s. 51.61 provide the statutory basis for a court to issue an involuntary medication order for individuals who suffer from a chronic mental illness and are committed under ch. 980. State v. Anthony D.B. 2000 WI 94,
237 Wis. 2d 1,
614 N.W.2d 435,
98-0576.
980.06 Annotation
The incremental infringement by s. 980.06 on the liberty interests of those who have a sexually-violent, predatory past and are currently suffering from a mental disorder that makes them dangerous sexual predators does not violate constitutional guarantees of due process. State v. Ransdell, 2001 WI App 202,
247 Wis. 2d 613,
634 N.W.2d 871,
00-2224.
980.06 Annotation
Although ch. 51 is more "lenient" with those who are subject to its provisions than is ch. 980, the significant differences between the degree of danger posed by each of the two classes of persons subject to commitment under the two chapters, as well as the differences in what must be proven in order to commit under each, does not result in a violation of equal protection. State v. Williams, 2001 WI App 263,
249 Wis. 2d 1,
637 N.W.2d 791,
00-2899.
980.06 Annotation
Chapter 980, as amended, is not a punitive criminal statute. Because whether a statute is punitive is a threshold question for both double jeopardy and ex post facto analysis, neither of those clauses is violated by ch. 980. State v. Rachel, 2002 WI 81,
254 Wis. 2d 215,
646 N.W.2d 375,
00-0467.
980.06 Annotation
The mere limitation of a committed person's access to supervised release does not impose a restraint to the point that it violates due process. As amended, ch. 980 serves the legitimate and compelling state interests of providing treatment to, and protecting the public from, the dangerously mentally ill. The statute is narrowly tailored to meet those interests, and, as such, it does not violate substantive due process. State v. Rachel, 2002 WI 81,
254 Wis. 2d 215,
646 N.W.2d 375,
00-0467.
980.06 Annotation
Commitment under ch. 980 does not require a separate factual finding that an individual's mental disorder involves serious difficulty for the person in controlling his or her behavior. Proof that the person's mental disorder predisposes the individual to engage in acts of sexual violence and establishes a substantial probability that the person will again commit those acts necessarily and implicitly includes proof that the person's mental disorder involves serious difficulty in controlling his or her behavior. State v. Laxton, 2002 WI 82,
254 Wis. 2d 185,
647 N.W.2d 784,
99-3164.
980.06 Annotation
Chapter 980 does not preclude finding that a person with a sexually-related mental disorder has difficulty in controlling his or her behavior even if that person is able to conform his conduct to the requirements of the law. State v. Burgess, 2002 WI App 264,
258 Wis. 2d 548,
654 N.W.2d 81,
00-3074. Affirmed. 2003 WI 71, 262 WI 2d 354, 665 NW2d 354.
980.06 Annotation
The use of polygraph tests as part of a sex offender treatment program does not violate due process. Wilson v. Watters,
348 F. Supp. 2d 1031 (2004).
980.06 Annotation
To the extent that plaintiffs are uncontrollably violent and pose a danger to others, the state is entitled to hold them in segregation for that reason alone. Preserving the safety of the staff and other detainees takes precedence over medical goals. West v. Schwebke,
333 F.3d 745 (2003).
980.063
980.063
Deoxyribonucleic acid analysis requirements. 980.063(1)(a)(a) If a person is found to be a sexually violent person under this chapter, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
980.063(1)(b)
(b) The results from deoxyribonucleic acid analysis of a specimen under
par. (a) may be used only as authorized under
s. 165.77 (3). The state crime laboratories shall destroy any such specimen in accordance with
s. 165.77 (3).
980.063(2)
(2) The department of justice shall promulgate rules providing for procedures for defendants to provide specimens under
sub. (1) and for the transportation of those specimens to the state crime laboratories for analysis under
s. 165.77.
980.063 History
History: 1995 a. 440.
980.065
980.065
Institutional care for sexually violent persons. 980.065(1m)(1m) The department shall place a person committed under
s. 980.06 at the secure mental health facility established under
s. 46.055, the Wisconsin resource center established under
s. 46.056 or a secure mental health unit or facility provided by the department of corrections under
sub. (2).
980.065(1r)
(1r) Notwithstanding
sub. (1m), the department may place a female person committed under
s. 980.06 at Mendota Mental Health Institute, Winnebago Mental Health Institute, or a privately operated residential facility under contract with the department of health services.
980.065(2)
(2) The department may contract with the department of corrections for the provision of a secure mental health unit or facility for persons committed under
s. 980.06. The department shall operate a secure mental health unit or facility provided by the department of corrections under this subsection and shall promulgate rules governing the custody and discipline of persons placed by the department in the secure mental health unit or facility provided by the department of corrections under this subsection.
980.065 Annotation
Nothing in the U.S. Constitution prevents state officials from temporarily detaining a civil committee in conditions normally reserved for inmates so that he or she may attend court proceedings concerning his commitment. Thiel v. State,
399 F. Supp. 929 (2005).
980.067
980.067
Activities off grounds. The superintendent of the facility at which a person is placed under
s. 980.065 may allow the person to leave the grounds of the facility under escort. The department of health services shall promulgate rules for the administration of this section.
980.067 History
History: 2001 a. 16;
2007 a. 20 s.
9121 (6) (a).
980.067 Cross-reference
Cross Reference: See also s.
DHS 95.10, Wis. adm. code.
980.07
980.07
Periodic reexamination and treatment progress; report from the department. 980.07(1)
(1) If a person is committed under
s. 980.06 and has not been discharged under
s. 980.09 (4), the department shall appoint an examiner to conduct a reexamination of the person's mental condition within 12 months after the date of the initial commitment order under
s. 980.06 and again thereafter at least once each 12 months 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. The examiner shall apply the criteria under
s. 980.08 (4) (cg) when considering if the person should be placed on supervised release and shall apply the criteria under
s. 980.09 (3) when considering if the person should be discharged. At the time of a reexamination under this section, the person who has been committed may retain or have the court appoint an examiner as provided under
s. 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 examiner appointed by the department. The county shall pay the costs of an examiner appointed by the court as provided under
s. 51.20 (18) (a).
980.07(2)
(2) Any examiner conducting a reexamination under
sub. (1) shall prepare a written report of the reexamination no later than 30 days after the date of the reexamination. The examiner shall provide a copy of the report to the department.
980.07(3)
(3) Notwithstanding
sub. (1), the court that committed a person under
s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order. Any reexamination ordered under this subsection shall conform to
sub. (1).
980.07(4)
(4) At any reexamination under
sub. (1), the treating professional shall prepare a treatment progress report. The treating professional shall provide a copy of the treatment progress report to the department. The treatment progress report shall consider all of the following:
980.07(4)(a)
(a) The specific factors associated with the person's risk for committing another sexually violent offense.
980.07(4)(b)
(b) Whether the person has made significant progress in treatment or has refused treatment.
980.07(4)(d)
(d) Any specialized needs or conditions associated with the person that must be considered in future treatment planning.
980.07(5)
(5) Any examiners under
sub. (1) and treating professionals under
sub. (4) shall have reasonable access to the person for purposes of reexamination, to the person's past and present treatment records, as defined in
s. 51.30 (1) (b), and to the person's patient health care records, as provided under
s. 146.82 (2) (c).
980.07(6)
(6) The department shall submit an annual report comprised of the reexamination report under
sub. (1) and the treatment progress report under
sub. (4) to the court that committed the person under
s. 980.06. A copy of the annual report shall be placed in the person's treatment records. The department shall provide a copy of the annual report to the person committed under
s. 980.06, the department of justice, and the district attorney, if applicable. The court shall provide a copy of the annual report to the person's attorney as soon as he or she is retained or appointed.
980.07(6m)
(6m) If a person committed under
s. 980.06 is incarcerated at a county jail, state correctional institution, or federal correction institution for a new criminal charge or conviction or because his or her parole was revoked, any reporting requirement under
sub. (1),
(4), or
(6) does not apply during the incarceration period. A court may order a reexamination of the person under
sub. (3) if the courts finds reexamination to be necessary. The schedule for reporting established under
sub. (1) shall resume upon the release of the person.
980.07 Annotation
The 6-month period under sub. (1) for the 1st reexamination does not begin to run until the court conducts the dispositional hearing and issues an initial commitment order under s. 980.06 (2). State v. Marberry,
231 Wis. 2d 581,
605 N.W.2d 612 (Ct. App. 1999),
98-2883.
980.07 Annotation
As part of an annual review, an involuntary medication order must be reviewed following the same procedure used to obtain the initial order. State v. Anthony D.B. 2000 WI 94,
237 Wis. 2d 1,
614 N.W.2d 435,
98-0576.
980.07 Annotation
It is within the committed person's discretion to ask for an independent examination. The trial court does not have discretion to refuse the request. State v. Thiel, 2001 WI App 32,
241 Wis. 2d 465,
626 N.W.2d 26,
00-0142.
980.07 Annotation
The 6-month time period in sub. (1) for an initial reexamination is mandatory. State ex rel. Marberry v. Macht, 2003 WI 79,
262 Wis. 2d 720,
665 N.W.2d 155,
99-2446.
980.07 Annotation
The Supreme Court's decision to uphold the commitment in Laxton in light of the jury instructions in the case was not diametrically different or opposite in character or nature from any clearly established federal law. Laxton v. Bartow,
421 F.3d 565 (2005).
980.07 Annotation
The 14th amendment due process guarantee was violated by a delay of over 22 months between the first annual periodic examination report was provided to the circuit court under s. 980.07 and the circuit court's probable cause hearing under s. 980.09 (2) (a) to determine if facts warranted a hearing on whether the committee was still a sexually violent person. Discharge is not an appropriate remedy for a sexually violent person who is dangerous because he or she suffers from a mental disorder that makes it likely that he or she will engage in acts of sexual violence. Appropriate remedies are motions for mandamus or equitable relief, but because a ch. 980 committee may encounter considerable obstacles to pursuing these remedies, DHFS, the Department of Justice, the bar, and the circuit courts must bear substantial responsibility for ensuring prompt judicial review of annual periodic examination reports. State v. Beyer, 2006 WI 2,
287 Wis. 2d 1,
707 N.W.2d 509,
04-1208.
980.075
980.075
Patient petition process. 980.075(1)
(1) When the department submits its report to the court under
s. 980.07 (6), the person who has been committed under
s. 980.06 may retain or have the court appoint an attorney as provided in
s. 980.03 (2) (a).
980.075(1m)(a)(a) When the department provides a copy of the report under
s. 980.07 (6) to the person who has been committed under
s. 980.06, the department shall provide to the person a standardized petition form for supervised release under
s. 980.08 and a standardized petition form for discharge under
s. 980.09.
980.075(1m)(b)
(b) The department shall, after consulting with the department of justice and the state public defender, develop the standardized petition forms required under
par. (a).
980.075(2)(a)(a) Within 30 days after the department submits its report to the court under
s. 980.07 (6), the person who has been committed under
s. 980.06 or his or her attorney may submit one of the completed forms provided under
sub. (1m) to the court to initiate either a petition for supervised release or a petition for discharge.
980.075(2)(b)
(b) If no completed petition is filed in a timely manner under
par. (a), the person who has been committed under
s. 980.06 will remain committed and the person's placement at a facility described under
s. 980.065 or the person's supervised release status under
s. 980.08 remains in effect without review by the court.
980.075(3)
(3) If the person files a petition for discharge under
s. 980.09 without counsel, the court shall serve a copy of the petition and any supporting documents on the district attorney or department of justice, whichever is applicable. If the person petitions for discharge under
s. 980.09 through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.
980.075(4)(a)(a) The petitioner may use experts or professional persons to support his or her petition.
980.075(4)(b)
(b) The district attorney or the department of justice may use experts or professional persons to support or oppose any petition.
980.075(5)
(5) Subject to
s. 980.03 (2) (a), before proceeding under
s. 980.08 or
980.09 but as soon as circumstances permit, the court shall refer the matter to the authority for indigency determinations under
s. 977.07 (1) and appointment of counsel under
s. 977.05 (4) (j) if the person is not represented by counsel.
980.075(6)
(6) At any time before a hearing under
s. 980.08 or
980.09, the department may file a supplemental report if the department determines that court should have additional information.
