Chapter 968

968.26(6) (6) Records reflecting the costs of an investigation and proceedings under sub. (3) are subject to the provisions of subch. II of ch. 19. If a request to inspect or copy a record is received, but no record exists, then, notwithstanding s. 19.35 (1) (L), the recipient of the request shall provide a summary amount of the costs.

968.26(7) (7) If property was seized during a proceeding under this section, the judge shall, at the close of the proceeding, order notice as he or she determines to be adequate to all persons who have or may have an interest in the property.

968.26 History History: 1989 a. 122; 1991 a. 88, 223, 315; 2009 a. 24; 2015 a. 64; 2021 a. 76, 209.

968.26 Annotation A defendant must be allowed to use testimony of witnesses at a secret John Doe proceeding to impeach the same witnesses at the trial, even if the prosecution does not use the John Doe testimony. Myers v. State, 60 Wis. 2d 248, 208 N.W.2d 311 (1973).

968.26 Annotation An immunity hearing must be in open court. State ex rel. Newspapers, Inc. v. Circuit Court, 65 Wis. 2d 66, 221 N.W.2d 894 (1974).

968.26 Annotation A person charged as a result of a John Doe proceeding has no recognized interest in the maintenance of secrecy in that proceeding. Discussing John Doe proceedings. State v. O’Connor, 77 Wis. 2d 261, 252 N.W.2d 671 (1977).

968.26 Annotation No restriction under the 4th or 5th amendment to the U.S. Constitution precludes the enforcement of an order for handwriting exemplars directed by a presiding judge in a John Doe proceeding. State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (1977).

968.26 Annotation Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target” of the investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977).

968.26 Annotation This section does not violate the constitutional separation of powers doctrine. It does not invest in the John Doe judge an investigatory power that properly can be exercised only by members of the executive branch of government. The judge considers the testimony presented, utilizes the judge’s training in constitutional and criminal law and in courtroom procedure in determining the need to subpoena witnesses requested by the district attorney, in presiding at the examination of witnesses, and in determining probable cause, and ensures procedural fairness. The John Doe judge must conduct himself or herself as a neutral and detached magistrate in determining probable cause, which is the basic function of the proceeding. State v. Washington, 83 Wis. 2d 808, 266 N.W.2d 597 (1978).

968.26 Annotation Discussing a balance between the public’s right to know and the need for secrecy in John Doe proceedings. In re Wisconsin Family Counseling Services, Inc. v. State, 95 Wis. 2d 670, 291 N.W.2d 631 (Ct. App. 1980).

968.26 Annotation A John Doe judge may not issue a material witness warrant under s. 969.01 (3). State v. Brady, 118 Wis. 2d 154, 345 N.W.2d 533 (Ct. App. 1984).

968.26 Annotation When a John Doe proceeding is not a joint executive and judicial undertaking, the procedure does not violate the separation of powers doctrine and is constitutional. State v. Unnamed Defendant, 150 Wis. 2d 352, 441 N.W.2d 696 (1989).

968.26 Annotation A John Doe judge may issue and seal a search warrant, and a district attorney may independently issue a criminal complaint, regardless of the existence of the John Doe. A John Doe cannot be used to obtain evidence against a defendant who has already been charged. State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), 93-2445.

968.26 Annotation To be entitled to a hearing, a John Doe complainant must do more than merely allege in conclusory terms that a crime has been committed. The complainant’s petition must allege facts that raise a reasonable belief that a crime has been committed. State ex rel. Reimann v. Circuit Court, 214 Wis. 2d 605, 571 N.W.2d 385 (1997), 96-2361.

968.26 Annotation A nonlawyer’s questioning of a witness on the state’s behalf at a John Doe hearing even if constituting the unauthorized practice of law did not require exclusion of the testimony at trial. State v. Noble, 2002 WI 64, 253 Wis. 2d 206, 646 N.W.2d 38, 99-3271.

968.26 Annotation Article VII, section 5 (3), of the Wisconsin Constitution read together with ss. 808.03 (2) and 809.51 (1) is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding. When rendering judicial decisions in the context of a John Doe proceeding, the judge must create a record for possible review. On review of a petition for a writ stemming from a secret John Doe proceeding, the court of appeals may seal parts of a record in order to comply with existing secrecy orders issued by the John Doe judge. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 260 Wis. 2d 653, 660 N.W.2d 260, 01-3220.

968.26 Annotation A John Doe judge must have the authority to disqualify counsel and may permit argument by counsel when necessary to ensure procedural fairness. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 260 Wis. 2d 653, 660 N.W.2d 260, 01-3220.

968.26 Annotation The John Doe judge erred as a matter of law by requiring an oath of secrecy from a witness’s counsel when a secrecy order was in effect. State ex rel. Individual Subpoenaed to Appear at Waukesha County John Doe Case No. 2003 JD 001 v. Davis, 2005 WI 70, 281 Wis. 2d 431, 697 N.W.2d 803, 04-1804.

968.26 Annotation The circuit judge erred when in reviewing a John Doe petition the judge reviewed police reports containing information casting doubt on assertions in the petition and explained that the judge’s review of the petition and the police reports led the judge to conclude that the petitioner failed to allege facts sufficient to raise a reasonable belief that a crime has been committed. This section does not permit this sort of analysis at the threshold stage of determining whether a petition contains reason to believe that a crime has been committed. State ex rel. Williams v. Fiedler, 2005 WI App 91, 282 Wis. 2d 486, 698 N.W.2d 294, 04-0175.

968.26 Annotation A John Doe judge has exclusive authority to subpoena witnesses in a John Doe proceeding based upon the language of this section. State ex rel. Hipp v. Murray, 2008 WI 67, 310 Wis. 2d 342, 750 N.W.2d 873, 07-0230.

968.26 Annotation The judge in a John Doe hearing is not required to examine all the witnesses a complainant produces and to issue subpoenas to all the witnesses a complainant wishes to produce. This section extends judicial discretion in a John Doe hearing not only to the scope of a witness’s examination, but also to whether a witness need testify at all. State ex rel. Robins v. Madden, 2009 WI 46, 317 Wis. 2d 364, 766 N.W.2d 542, 07-1526.

968.26 Annotation Under sub. (3), as revised by 2009 Wis. Act 24, a John Doe judge must potentially undertake four inquiries: 1) decide whether to refer the John Doe complaint to the district attorney in the first instance; 2) decide whether it is necessary to conduct any additional proceedings if the district attorney chooses not to issue charges; 3) determine what, if any, witnesses to subpoena and examine if additional proceedings are deemed necessary; and 4) decide whether to issue a criminal complaint if the judge finds that the additional proceedings have produced sufficient credible evidence to warrant prosecution. Naseer v. Miller, 2010 WI App 142, 329 Wis. 2d 724, 793 N.W.2d 209, 09-2578.

968.26 Annotation Under the statute, as amended by 2009 Wis. Act 24, a judge has a mandatory duty to refer a John Doe complaint to the district attorney only if the four corners of the complaint provide a sufficient factual basis to establish an objective reason to believe that a crime has been committed in the judge’s jurisdiction, the same as under the prior statute. Naseer v. Miller, 2010 WI App 142, 329 Wis. 2d 724, 793 N.W.2d 209, 09-2578.

968.26 Annotation This section grants a John Doe judge broad authority to conduct an investigation into alleged crimes. The judge is also given those powers necessary to carry out this duty. The judge is the governor of the proceedings and is responsible for maintaining the good order, dignity, and, insofar as it is compatible with the administration of justice, efficiency of those proceedings. State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363 Wis. 2d 1, 866 N.W.2d 165, 14-0421.

968.26 Annotation Discussing the limits of a judge’s authority in presiding over or conducting John Doe proceedings. 76 Atty. Gen. 217.

968.26 Annotation Applicable law allows electronic transmission of certain confidential case information among clerks of circuit court, county sheriff’s offices, and the Department of Justice through electronic interfaces involving the Department of Administration’s Office of Justice Assistance, specifically including electronic data messages about an arrest warrant if the warrant was issued in John Doe proceedings that have been sealed under this section. OAG 2-10.

968.265 968.265 Lie detector tests; sexual assault victims.

968.265(1) (1) In this section, “lie detector” has the meaning given in s. 111.37 (1) (b).

968.265(2) (2) If a person reports to a law enforcement officer that he or she was the victim of an offense under s. 940.22 (2), 940.225, 948.02 (1) or (2), or 948.085, no law enforcement officer may in connection with the report order, request, or suggest that the person submit to a test using a lie detector, or provide the person information regarding tests using lie detectors unless the person requests information regarding tests using lie detectors.

968.265(3) (3) If a person reports to a district attorney that he or she was the victim of an offense under s. 940.22 (2), 940.225, 948.02 (1) or (2), or 948.085, no district attorney may do any of the following in connection with the report:

968.265(3)(a) (a) Order that the person submit to a test using a lie detector.

968.265(3)(b) (b) Suggest or request that the person submit to a test using a lie detector without first providing the person with notice and an explanation of his or her right not to submit to such a test.

968.265 History History: 2003 a. 224; 2005 a. 277.

968.27 968.27 Definitions. In ss. 968.28 to 968.375:

968.27(1) (1) “Aggrieved person” means a person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed.

968.27(2) (2) “Aural transfer” means a transfer containing the human voice at any point from the point of origin to the point of reception.

968.27(3) (3) “Contents,” when used with respect to any wire, electronic, or oral communication, includes any information concerning the substance, purport, or meaning of that communication.

968.27(4) (4) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature wholly or partially transmitted by a wire, radio, electromagnetic, photoelectronic or photooptical system. “Electronic communication” does not include any of the following:

968.27(4)(a) (a) The radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

968.27(4)(b) (b) Any wire or oral communication.

968.27(4)(c) (c) Any communication made through a tone-only paging device.

968.27(4)(d) (d) Any communication from a tracking device.

968.27(5) (5) “Electronic communication service” means any service that provides its users with the ability to send or receive wire or electronic communications.

968.27(6) (6) “Electronic communications system” means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of those communications.

968.27(7) (7) “Electronic, mechanical or other device” means any device or apparatus which can be used to intercept a wire, electronic or oral communication other than:

968.27(7)(a) (a) Any telephone or telegraph instrument, equipment or facilities, or any component thereof, which is:

968.27(7)(a)1. 1. Furnished to the subscriber or user by a provider of electronic or wire communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; or

968.27(7)(a)2. 2. Being used by a provider of electronic or wire communication service in the ordinary course of its business, or by a law enforcement officer in the ordinary course of his or her duties.

968.27(7)(b) (b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

968.27(8) (8) “Electronic storage” means any of the following:

968.27(8)(a) (a) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.

968.27(8)(b) (b) Any storage of a wire or electronic communication by an electronic communication service for purposes of backup protection of the communication.

968.27(9) (9) “Intercept” means the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.

968.27(10) (10) “Investigative or law enforcement officer” means any officer of this state or political subdivision thereof, who is empowered by the laws of this state to conduct investigations of or to make arrests for violations of the laws that he or she is employed to enforce, and any attorney authorized by law to prosecute or participate in the prosecution of those offenses.

968.27(11) (11) “Judge” means the judge sitting at the time an application is made under s. 968.30 or his or her successor.

968.27(12) (12) “Oral communication” means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. “Oral communication” does not include any electronic communication.

968.27(13) (13) “Pen register” means a device that records or decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached. “Pen register” does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.

968.27(14) (14) “Readily accessible to the general public” means, with respect to a radio communication, that the communication is not any of the following:

968.27(14)(a) (a) Scrambled or encrypted.

968.27(14)(b) (b) Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication.

968.27(14)(c) (c) Carried on a subcarrier or other signal subsidiary to a radio transmission.

968.27(14)(d) (d) Transmitted over a communication system provided by a common carrier, including a commercial mobile radio service provider, as defined in s. 196.01 (2g), unless the communication is a tone-only paging system communication.

968.27(14)(e) (e) Transmitted on frequencies allocated under 47 CFR part 25, subpart D, E or F of part 74, or part 94, unless in the case of a communication transmitted on a frequency allocated under 47 CFR part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a 2-way voice communication by radio.

968.27(14g) (14g) “Remote computing service” means computer storage or processing that is provided to the public by means of an electronic communications system.

968.27(15) (15) “Trap and trace device” means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.

968.27(16) (16) “User” means any person who or entity that:

968.27(16)(a) (a) Uses an electronic communication service; and

968.27(16)(b) (b) Is duly authorized by the provider of the service to engage in that use.

968.27(17) (17) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of the connection in any switching station, furnished or operated by any person in providing or operating the facilities for the transmission of intrastate, interstate or foreign communications. “Wire communication” includes the electronic storage of any such aural transfer.

968.27 History History: 1971 c. 40 s. 93; 1987 a. 399; 1991 a. 39; 1997 a. 218; 2009 a. 349; 2013 a. 375; 2015 a. 196.

968.27 Annotation The constitutionality of ss. 968.27 to 968.30 is upheld. State ex rel. Hussong v. Froelich, 62 Wis. 2d 577, 215 N.W.2d 390 (1974).

968.27 Annotation An informant who is a party to a tape recorded telephone conversation also acquired the conversation in the informant’s mind, regardless of the use of the tape recorder; that acquisition is not an “intercept.” The informant may testify to the conversation without use of the recording. State v. Maloney, 161 Wis. 2d 127, 467 N.W.2d 215 (Ct. App. 1991).

968.27 Annotation An “oral communication” under sub. (12) is a statement uttered under circumstances in which the speaker has a reasonable expectation of privacy. An individual has a reasonable expectation of privacy when the individual has both an actual subjective expectation of privacy in the speech and a subjective expectation that is one that society is willing to recognize as reasonable, which requires examination of the totality of the circumstances. State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, 05-2175.

968.27 Annotation Courts have identified a non-exclusive list of factors to discern whether an individual’s expectation of privacy in the individual’s oral statements is objectively reasonable, including: 1) the volume of the statements; 2) the proximity of other individuals to the speaker; 3) the potential for the communications to be reported; 4) the actions taken by the speaker to ensure privacy; 5) the need to employ technological enhancements for one to hear the speaker’s statements; and 6) the place or location where the statements are made. State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, 05-2175.

968.27 Annotation That a global positioning system (GPS) tracking device did not emit any signal but rather received signals and stored data that could be retrieved later did not take it outside the meaning of a tracking device under sub. (4) (d). It is not rational to limit the admission of tracking information based on whether it is obtained in real time by a signal or at a later time by direct access to the device. State v. Sveum, 2009 WI App 81, 319 Wis. 2d 498, 769 N.W.2d 53, 08-0658.

968.27 Annotation Affirmed on other grounds. 2010 WI 92, 328 Wis. 2d 369, 787 N.W.2d 317, 08-0658.

968.28 968.28 Application for court order to intercept communications. The attorney general together with the district attorney of any county may approve a request of an investigative or law enforcement officer to apply to the chief judge of the judicial administrative district for the county where the interception is to take place for an order authorizing or approving the interception of wire, electronic or oral communications. The chief judge may under s. 968.30 grant an order authorizing or approving the interception of wire, electronic or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense for which the application is made. The authorization shall be permitted only if the interception may provide or has provided evidence of the commission of the offense of homicide, felony murder, kidnapping, commercial gambling, bribery, extortion, dealing in controlled substances or controlled substance analogs, a computer crime that is a felony under s. 943.70, sexual exploitation of a child under s. 948.05, trafficking of a child under s. 948.051, child enticement under s. 948.07, use of a computer to facilitate a child sex crime under s. 948.075, or soliciting a child for prostitution under s. 948.08, or any conspiracy to commit any of the foregoing offenses.

968.28 History History: 1971 c. 219; 1977 c. 449; 1983 a. 438; 1987 a. 399; 1995 a. 448; 2011 a. 271.

968.28 Annotation The authorization of a wiretap for offenses not enumerated in this section did not warrant suppression of the evidence obtained from the wiretap when the order included both enumerated and non-enumerated offenses and contained sufficient probable cause for the enumerated offenses, the evidence obtained by wiretap was for enumerated offenses, and charges were brought only for enumerated offenses. State v. House, 2007 WI 79, 302 Wis. 2d 1, 734 N.W.2d 140, 05-2202.

968.29 968.29 Authorization for disclosure and use of intercepted wire, electronic or oral communications.

968.29(1) (1) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer only to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

968.29(2) (2) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use the contents only to the extent the use is appropriate to the proper performance of the officer’s official duties.

968.29(3) (3) 

968.29(3)(a) (a) Any person who has received, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520 or by a like statute of any other state, any information concerning a wire, electronic or oral communication or evidence derived therefrom intercepted in accordance with ss. 968.28 to 968.37, may disclose the contents of that communication or that derivative evidence only while giving testimony under oath or affirmation in any proceeding in any court or before any magistrate or grand jury in this state, or in any court of the United States or of any state, or in any federal or state grand jury proceeding.

968.29(3)(b) (b) In addition to the disclosure provisions of par. (a), any person who has received, in the manner described under s. 968.31 (2) (b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding described in par. (a) in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording.

968.29(4) (4) No otherwise privileged wire, electronic or oral communication intercepted in accordance with, or in violation of, ss. 968.28 to 968.37 or 18 USC 2510 to 2520, may lose its privileged character.

968.29(5) (5) When an investigative or law enforcement officer, while engaged in intercepting wire, electronic or oral communications in the manner authorized, intercepts wire, electronic or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subs. (1) and (2). The contents and any evidence derived therefrom may be used under sub. (3) when authorized or approved by the judge who acted on the original application where the judge finds on subsequent application, made as soon as practicable but no later than 48 hours, that the contents were otherwise intercepted in accordance with ss. 968.28 to 968.37 or 18 USC 2510 to 2520 or by a like statute.

968.29 History History: 1971 c. 40 ss. 91, 93; 1987 a. 399; 1989 a. 121, 359; 1993 a. 98; 1995 a. 30.

968.29 Annotation Evidence of intercepted oral or wire communications can be introduced only if the interception was authorized under s. 968.30; consent by one party to the communication is not sufficient. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N.W.2d 354 (1971).