980.038(2)
(2) Evidence of refusal to participate in examination. 980.038(2)(a)(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.
980.038(2)(b)
(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.
980.038(3)
(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 (7) (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.
980.038(4)
(4) Motions for postcommitment relief; appeal. 980.038(4)(a)(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 to
809.32. 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) and
809.30 to
809.32. 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.
980.038(4)(b)
(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.
980.038(5)
(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.
980.038(6)
(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.
980.04
980.04
Detention; probable cause hearing; transfer for examination. 980.04(1)(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 juvenile correctional facility, as defined in
s. 938.02 (10p), or a secured residential care center for children and youth, as defined in
s. 938.02 (15g), 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 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.
980.04(2)(a)(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.
980.04(2)(b)1.1. Except as provided in
subd. 2., the court shall 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 upon its own motion, the motion of any party, or the stipulation of the parties.
980.04(2)(b)2.
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.
980.04(3)
(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.
980.04(4)
(4) The department shall promulgate rules that provide the qualifications for persons conducting evaluations under
sub. (3).
980.04(5)
(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.
980.04 Cross-reference
Cross-reference: See also ch.
DHS 99, Wis. adm. code.
980.04 Annotation
The rules of evidence apply to probable cause hearings under ch. 980. The exceptions to the rules for preliminary examinations also apply. Although s. 907.03 allows an expert to base an opinion on hearsay, an expert's opinion based solely on hearsay cannot constitute probable cause. State v. Watson,
227 Wis. 2d 167,
595 N.W.2d 403 (1999),
95-1067.
980.04 Annotation
In sub. (2), "in custody" means in custody pursuant to ch. 980 and does not apply to custody under a previously imposed sentence. State v. Brissette,
230 Wis. 2d 82,
601 N.W.2d 678 (Ct. App. 1999),
98-2152.
980.04 Annotation
The 72-hour time limit in sub. (2) is directory rather than mandatory. However, the individual's due process rights prevent the state from indefinitely delaying the probable cause hearing when the subject of the petition is in custody awaiting the hearing and has made a request for judicial substitution. State v. Beyer,
2001 WI App 167,
247 Wis. 2d 13,
633 N.W.2d 627,
00-0036.
980.04 Annotation
Sub. (3) is not a rule regarding the admissibility of expert testimony. It provides the procedure for determining probable cause to believe a person is a sexually violent offender. The general rule for determining the qualification of an expert applies. State v. Sprosty,
2001 WI App 231,
248 Wis. 2d 480,
636 N.W.2d 213,
00-2404.
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,
312 Wis. 2d 695,
754 N.W.2d 249,
07-1840.
980.05 Annotation
Section 904.04 (2) does not apply in ch. 980 commitment proceedings. The Franklin court discerned an unambiguous legislative intent to restrict the application of s. 904.04 (2) to analyzing evidence used to prove past acts. The substantial probability of future conduct is the relevant question in ch. 980 proceedings. The nature of ch. 980 hearings demands the jury consider evidence that would normally be barred in a traditional criminal trial. Although Franklin did not discuss the due process implications of its decision, the inapplicability of s. 904.04 (2) is consistent with the demands of due process under both the United States and Wisconsin constitutions. State v. Kaminski,
2009 WI App 175,
322 Wis. 2d 653,
777 N.W.2d 654,
08-2439.
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
Chapter 980 does not require the dismissal of a pending commitment petition when the individual subject to the petition is incarcerated because of the revocation of either parole or extended supervision. This section requires the circuit court to order the person to be committed to the custody of DHS for control, care, and treatment, but ch. 980 does not specify when that commitment must commence. While this section sets forth the requirements for a proper commitment order, neither that section nor any other section of ch. 980 contains language stating when the individual requirements of that order must be satisfied. State v. Gilbert,
2012 WI 72,
342 Wis. 2d 82,
816 N.W.2d 215,
10-0594.
980.06 Annotation
Chapter 980 does not require dismissal of a pending commitment petition when the person who is the subject of the petition is incarcerated because of a new sentence or a parole/extended supervision revocation. The wide discretion given to the trial court regarding the timing of the probable cause hearing together with the evident recognition that the subject of the petition might be incarcerated during the commitment proceedings compels the conclusion that the legislature did not intend for commitment proceedings to stop because the person subject to the petition is returned to department of corrections custody. State v. Gilbert,
2011 WI App 61,
333 Wis. 2d 157,
798 N.W.2d 889,
10-0594.
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
Chapter 980 does not require dismissal of a pending commitment petition when the person who is the subject of the petition is incarcerated because of a new sentence or a parole/extended supervision revocation. The wide discretion given to the trial court regarding the timing of the probable cause hearing together with the evident recognition that the subject of the petition might be incarcerated during the commitment proceedings compels the conclusion that the legislature did not intend for commitment proceedings to stop because the person subject to the petition is returned to department of corrections custody. State v. Gilbert,
2011 WI App 61,
333 Wis. 2d 157,
798 N.W.2d 889,
10-0594.
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.
