The proper standard of review of the trial court's dangerousness finding under sub. (2), 1987 stats., as applied under sub. (8) is the sufficiency of the evidence test. Trial courts are to determine dangerousness by considering the statutory factors of sub. (4) (d), 2009 stats., and balancing the interests at stake. State v. Randall, 2011 WI App 102
, 336 Wis. 2d 399
, 802 N.W.2d 194
Under the broad terms of s. 51.30 (7), the confidentiality requirements created under s. 51.30 generally apply to “treatment records" in criminal not guilty by reason of insanity (NGI) cases. All conditional release plans in NGI cases are, by statutory definition, treatment records. They are “created in the course of providing services to individuals for mental illness," and thus should be deemed confidential. An order of placement in an NGI case is not a “treatment record." La Crosse Tribune v. Circuit Court for La Crosse County, 2012 WI App 42
, 340 Wis. 2d 663
, 814 N.W.2d 867
Sub. (3) (c) is unconstitutional to the extent that it allows administration of psychotropic medication to an inmate based on a finding of incompetence to refuse without there being a finding that the inmate is dangerous to himself or others. Enis. v. DHSS, 962 F. Supp. 1192
(1997). But see State v. Wood, 2010 WI 17
, 323 Wis. 2d 321
, 780 N.W.2d 63
Inadmissibility of statements for purposes of examination.
A statement made by a person subjected to psychiatric examination or treatment pursuant to this chapter for the purposes of such examination or treatment shall not be admissible in evidence against the person in any criminal proceeding on any issue other than that of the person's mental condition.
History: 1993 a. 486
Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided.
Where 2 or more acts are requisite to the commission of any offense, the trial may be in any county in which any of such acts occurred.
Where an offense is committed on or within one-fourth of a mile of the boundary of 2 or more counties, the defendant may be tried in any of such counties.
If a crime is committed in, on or against any vehicle passing through or within this state, and it cannot readily be determined in which county the crime was committed, the defendant may be tried in any county through which such vehicle has passed or in the county where the defendant's travel commenced or terminated.
If the act causing death is in one county and the death ensues in another, the defendant may be tried in either county. If neither location can be determined, the defendant may be tried in the county where the body is found.
If an offense is commenced outside the state and is consummated within the state, the defendant may be tried in the county where the offense was consummated.
If a crime is committed on boundary waters at a place where 2 or more counties have common jurisdiction under s. 2.03
or under any other law, the prosecution may be in either county. The county whose process against the offender is first served shall be conclusively presumed to be the county in which the crime was committed.
In an action for a violation of s. 948.31
, the defendant may be tried in the county where the crime was committed or the county of lawful residence of the child.
In an action under s. 301.45 (6) (a)
, the defendant may be tried in the defendant's county of residence at the time that the complaint is filed. If the defendant does not have a county of residence in this state at the time that the complaint is filed, or if the defendant's county of residence is unknown at the time that the complaint is filed, the defendant may be tried in any of the following counties:
The county in which he or she was convicted, found not guilty or not responsible by reason of mental disease or defect or adjudicated delinquent for the sex offense that requires the person to register under s. 301.45
If the defendant is required to register under s. 301.45 (1g) (dt)
, the county in which the person was found to be a sexually violent person under ch. 980
If the person is required to register only under s. 301.45 (1g) (f)
, any county in which the person has been a student in this state or has been employed or carrying on a vocation in this state.
In an action under s. 23.33 (2h)
, 23.335 (5m)
, or 350.12 (3i)
for intentionally falsifying an application for a certificate of number, a registration, or a certificate of title, the defendant may be tried in the defendant's county of residence at the time that the complaint is filed, in the county where the defendant purchased the all-terrain vehicle, utility terrain vehicle, off-highway motorcycle, boat, or snowmobile if purchased from a dealer or the county where the department of natural resources received the application.
In an action under s. 943.201
, the defendant may be tried in the county where the victim or intended victim resided at the time of the offense or in any other county designated under this section. In an action under s. 943.203
, the defendant may be tried in the county where the victim or intended victim was located at the time of the offense or in any other county designated under this section.
Except as provided in s. 971.223
, in an action for a violation of chs. 5
, subch. III of ch. 13
, or subch. III of ch. 19
, or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5
, subch. III of ch. 13
, or subch. III of ch. 19
a defendant who is a resident of this state shall be tried in circuit court for the county where the defendant resides. For purposes of this subsection, a person other than a natural person resides within a county if the person's principal place of operation is located within that county.
When failure to file a registration form and the act of soliciting contributions were elements of the offense, venue was proper in either of the 2 counties under sub. (2). Blenski v. State, 73 Wis. 2d 685
, 245 N.W.2d 906
If any element of the crime charged occurred in a given county, then that county can be the place of trial. Because the crime of receiving stolen property requires more than two acts, and one of the acts is that the property must be stolen, venue is properly established in the county where that act occurred. State v. Lippold, 2008 WI App 130
, 313 Wis. 2d 699
, 757 N.W.2d 825
The phrase “for a violation of any other law arising from or in relation to" in sub. (12) modifies both “the official functions of the subject of the investigation" and “any matter that involves elections, ethics, or lobbying regulation." Accordingly, sub. (12) establishes venue in the county where the defendant resides for an alleged violation of any other law arising from or in relation to any matter that involves elections, ethics, or lobbying regulation. State v. Jensen, 2010 WI 38
, 324 Wis. 2d 586
, 782 N.W.2d 415
In sub. (12) “regulation" modifies only “lobbying." Because regulation modifies only the word lobbying, sub. (12) is not limited to violations of administrative regulations; rather, it encompasses violations of any matter that involves elections, ethics, and lobbying regulation. State v. Jensen, 2010 WI 38
, 324 Wis. 2d 586
, 782 N.W.2d 415
Sub. (2) provides that “where 2 or more acts are requisite to the commission of any offense, the trial may be in any county in which any of such acts occurred." Venue is therefore appropriate in any county in which at least one of the alleged acts occurred when the charge is based on a continuous offense. State v. Elverman, 2015 WI App 91
, 367 Wis. 2d 126
, 876 N.W.2d 511
Substitution of judge. 971.20(1)(1)
In this section, “action" means all proceedings before a court from the filing of a complaint to final disposition at the trial level.
In any criminal action, the defendant has a right to only one substitution of a judge, except under sub. (7)
. The right of substitution shall be exercised as provided in this section.
Substitution of judge assigned to preliminary examination. 971.20(3)(a)(a)
In this subsection, “judge" includes a circuit court commissioner who is assigned to conduct the preliminary examination.
A written request for the substitution of a different judge for the judge assigned to preside at the preliminary examination may be filed with the clerk, or with the court at the initial appearance. If filed with the clerk, the request must be filed at least 5 days before the preliminary examination unless the court otherwise permits. Substitution of a judge assigned to a preliminary examination under this subsection exhausts the right to substitution for the duration of the action, except under sub. (7)
Substitution of trial judge originally assigned.
A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.
Substitution of trial judge subsequently assigned.
If a new judge is assigned to the trial of an action and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed with the clerk within 15 days of the clerk's giving actual notice or sending notice of the assignment to the defendant or the defendant's attorney. If the notification occurs within 20 days of the date set for trial, the request shall be filed within 48 hours of the clerk's giving actual notice or sending notice of the assignment. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings.
Substitution of judge in multiple defendant actions.
In actions involving more than one defendant, the request for substitution shall be made jointly by all defendants. If severance has been granted and the right to substitute has not been exercised prior to the granting of severance, the defendant or defendants in each action may request a substitution under this section.
Substitution of judge following appeal.
If an appellate court orders a new trial or sentencing proceeding, a request under this section may be filed within 20 days after the filing of the remittitur by the appellate court, whether or not a request for substitution was made prior to the time the appeal was taken.
Procedures for clerk.
Upon receiving a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge for the determination and reassignment of the action as necessary. If the request is determined to be proper, the clerk shall request the assignment of another judge under s. 751.03
Judge's authority to act.
Upon the filing of a request for substitution in proper form and within the proper time, the judge whose substitution has been requested has no authority to act further in the action except to conduct the initial appearance, accept pleas and set bail.
Form of request.
A request for substitution of a judge may be made in the following form:
STATE OF WISCONSIN
State of Wisconsin
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)
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.
NOTE: See the 1979-80 Statutes for notes and annotations relating to s. 971.20 prior to its repeal and recreation by ch. 137, laws of 1981.
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.
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).
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.
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.
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.
Sub. (6) clarifies that all defendants in a single action must join in a substitution request.
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.]
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.
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.
Sub. (10) is prior sub. (5).
Sub. (11) is prior sub. (6). [Bill 163-S]
When an appellate court remands for the exercise of discretion in ordering restitution, it has not remanded for a sentencing proceeding, and the defendant is not entitled to substitution under sub. (7). State v. Foley, 153 Wis. 2d 748
, 451 N.W.2d 796
(Ct. App. 1989).
When an initial appearance is conducted before the judge assigned to hear the matter, strict application of the filing deadline is appropriate. When the intake system does not provide adequate notice of the assigned judge prior to arraignment, deadlines are relaxed to allow the defendant to intelligently exercise the right. Tinti v. Waukesha County Circuit Court, 159 Wis. 2d 783
, 464 N.W.2d 853
(Ct. App. 1990).
Once a judge is substituted, that 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 Wis. 2d 251
, 490 N.W.2d 780
(Ct. App. 1992).
When 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 Wis. 2d 223
, 416 N.W.2d 451
(Ct. App. 1994).
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 that prevented filing a request for substitution. Mace v. Green Lake Co. Circuit Court, 193 Wis. 2d 208
, 532 N.W.2d 720
A defendant who is charged jointly with another defendant may not obtain substitution of a judge under sub. (6) when the codefendant is not yet before the court. Sub. (6) applies in all multiple defendant actions when a codefendant is unavailable to join or refuses to join a substitution request. Garibay v. Circuit Court for Kenosha County, 2002 WI App 164
, 256 Wis. 2d 438
, 647 N.W.2d 455
There is no requirement under this section that a judge inform a defendant of the right to substitute a judge or that a judge provide facts bearing on a defendant's exercise of the right. State v. Tappa, 2002 WI App 303
, 259 Wis. 2d 402
, 655 N.W.2d 223
When the original judge assigned to a case is later reassigned back to the case, the original judge is not a “new judge" under sub. (5), but remains the judge “originally assigned" under sub. (4). The reassignment does not create a second opportunity to substitute the original judge. State v. Bohannon, 2013 WI App 87
, 349 Wis. 2d 368
, 835 N.W.2d 262
When the defendant persisted with his substitution request throughout the proceedings and did not follow the procedure under sub. (11) for abandoning his substitution request, the circuit court erred in presiding over the defendant's trial, sentencing, and postconviction motions. Harmless error analysis did not apply. State v. Harrison, 2015 WI 5
, 360 Wis. 2d 246
, 858 N.W.2d 372
Under the unique circumstances in this case, when a defendant followed a circuit court's instruction to defer filing a request for substitution of a judge until after counsel was appointed, strict compliance with the 20-day deadline for filing a request for substitution after remittitur was not warranted. Although the substitution motion was not timely filed under the statute, it was timely filed in this case because the circuit court in essence extended the deadline until after trial counsel was appointed. State v. Zimbal, 2017 WI 59
, 375 Wis. 2d 643
, 896 N.W.2d 327
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.
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.
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)
exist, the court may proceed under s. 971.225 (2)
History: 1981 c. 115
Relevant factors as to whether a change of venue should have been granted include: 1) the inflammatory nature of publicity concerning the crime; 2) the degree to which adverse publicity permeated the area from which the jury would be drawn; 3) the timing and specificity of the publicity; 4) the degree of care exercised; 5) the amount of difficulty encountered in selecting the jury panel; 6) the extent to which the jurors were familiar with the publicity; 7) the defendants use of challenges available in voir dire 8) the state's participation in adverse publicity; 9) the severity of the offense charged; and 10) the verdict returned. State v. Hebard, 50 Wis. 2d 408
, 184 N.W.2d 156
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 Wis. 2d 110
, 197 N.W.2d 813
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 Wis. 2d 577
, 215 N.W.2d 390
When news stories concerning the crime were accurate informational articles of a nature that would not cause prejudice and 4 months had elapsed between the publication of the news stories and the trial, it tended to indicate little or no prejudice against the defendant. Jones v. State, 66 Wis. 2d 105
, 223 N.W.2d 889
There was no abuse of discretion in not changing the venue of a prosecution for 1st-degree murder when the transcript of the hearing on the issuance of the arrest warrant was sealed, the preliminary examination and other hearings were closed to the public and press, the police and prosecutor refused to divulge any facts to the public and press, and press reports were generally free from the details of incriminating evidence, straightforward, and not incendiary. State v. Dean, 67 Wis. 2d 513
, 227 N.W.2d 712
Only the defendant may waive the right to venue where the crime was committed. State v. Mendoza, 80 Wis. 2d 122
, 258 N.W.2d 260
The right to venue where the crime occurred is not a fundamental right of a criminal defendant. The decision to move for a change of venue is a tactical judgment delegated to counsel that does not require the defendant's personal concurrence. State v. Hereford, 224 Wis. 2d 605
, 592 N.W.2d 247
(Ct. App. 1999), 98-1270