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: