Chapter 971

971.23 Annotation The state unconstitutionally excluded the defendant’s alibi testimony for failure to comply with this section, but the error was harmless. Alicea v. Gagnon, 675 F.2d 913 (1982).

971.23 Annotation Criminal Discovery—Comparison of Federal Discovery and the ABA Standards With the New Statutory Provisions in Wisconsin. 1971 WLR 614.

971.26 971.26 Formal defects. No indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant.

971.26 Annotation The fact that the information alleged the wrong date for the offense was not prejudicial when the complaint stated the correct date and there was no evidence that the defendant was misled. A charge of the violation of s. “946.42 (2) (a) (c)” was a technical defect of language when both paragraphs applied. Burkhalter v. State, 52 Wis. 2d 413, 190 N.W.2d 502 (1971).

971.26 Annotation The failure to cite in the information and certificate of conviction the correct statutory subsections violated was immaterial when the defendant could not show that the defendant was misled. Craig v. State, 55 Wis. 2d 489, 198 N.W.2d 609 (1972).

971.26 Annotation A lack of prejudice to the defendant, notwithstanding technical defects in the information, was made patent by defense counsel’s concession that the defendant knew precisely what crime the defendant was charged with having committed, and the absence in the record of any such claim asserted during the case, which was vigorously tried. Clark v. State, 62 Wis. 2d 194, 214 N.W.2d 450 (1974).

971.26 Annotation Failure to allege lack of consent was not a fatal jurisdictional defect of an information charging burglary. Schleiss v. State, 71 Wis. 2d 733, 239 N.W.2d 68 (1976).

971.26 Annotation No statute authorizes a clerk of court’s office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk’s office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, 98-2263.

971.26 Annotation Section 971.08 (2), requiring vacation of judgment and permission to withdraw a plea in the event of improper notice of the consequences of the plea on immigration and naturalization is subject to harmless error analysis under this section and s. 805.18. Douangmala, 2002 WI 62, was objectively wrong because it failed to properly consider this section and s. 805.18 and is thus overruled. The mandatory “shall” in s. 971.08 (2) did not control when both of the harmless error savings statutes also use the mandatory “shall” language. This section and ss. 805.18 and 971.08 (2) are most comprehensibly harmonized by applying harmless error analysis. All of the relevant statutes use “shall,” and, accordingly, none is “more mandatory” than any other. State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773, 15-2041.

971.27 971.27 Lost information, complaint or indictment. In the case of the loss or destruction of an information or complaint, the district attorney may file a copy, and the prosecution shall proceed without delay from that cause. In the case of the loss or destruction of an indictment, an information may be filed.

971.28 971.28 Pleading judgment. In pleading a judgment or other determination of or proceeding before any court or officer, it shall be sufficient to state that the judgment or determination was duly rendered or made or the proceeding duly had.

971.29 971.29 Amending the charge.

971.29(1) (1) A complaint or information may be amended at any time prior to arraignment without leave of the court.

971.29(2) (2) At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.

971.29(3) (3) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.

971.29 Annotation When there is evidence that a jury could believe proved guilt, the trial court cannot sua sponte set aside the verdict, amend the information, and find the defendant guilty on a lesser charge. State v. Helnik, 47 Wis. 2d 720, 177 N.W.2d 881 (1970).

971.29 Annotation Since theft is an included crime of robbery, the amendment of the information from robbery to theft did not materially prejudice the defendant. All of the elements of theft are included in the elements of robbery. Of necessity, then, the defendant had notice and opportunity to prepare a defense to the elements of theft as well as to the additional elements that comprise the crime of robbery. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972).

971.29 Annotation Sub. (2), in regard to amendments after verdict, applies only to technical variances in the complaint, not material to the merits of the action. It may not be used to substitute a new charge. State v. Duda, 60 Wis. 2d 431, 210 N.W.2d 763 (1973).

971.29 Annotation The refusal of a proposed amendment of an information has no effect on the original information. An amendment to charge a violation of a substantive section as well as a separate penalty section is not prejudicial to a defendant. Wagner v. State, 60 Wis. 2d 722, 211 N.W.2d 449 (1973).

971.29 Annotation Sub. (1) does not prohibit amendment of the information with leave of the court after arraignment, but before trial, provided that the defendant’s rights are not prejudiced. Whitaker v. State, 83 Wis. 2d 368, 265 N.W.2d 575 (1978).

971.29 Annotation Notice of the nature and cause of the accusations is a key factor in determining whether an amendment at trial has prejudiced a defendant. The inquiry is whether the new charge is so related to the transaction and facts adduced at the preliminary hearing that a defendant cannot be surprised by the new charge since the preparation for the new charge would be no different than the preparation for the old charge. State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992).

971.29 Annotation Failure of the state to obtain court permission to file a post-arraignment amended information did not deprive the court of subject matter jurisdiction. State v. Webster, 196 Wis. 2d 308, 538 N.W.2d 810 (Ct. App. 1995), 93-3217.

971.29 Annotation That the court’s jurisdiction is invoked by the commencement of a case and that the legislature has granted prosecutors sole discretion to amend a charge only prior to arraignment means that the prosecutor’s unchecked discretion stops at the point of arraignment. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, 797 N.W.2d 341, 08-0755.

971.29 Annotation The trial court cannot after trial amend a charge of sexual intercourse with a child to one of contributing to the delinquency of a minor since the offenses require proof of different facts and the defendant is entitled to notice of the charge against the defendant. LaFond v. Quatsoe, 325 F. Supp. 1010 (1971).

971.30 971.30 Motion defined.

971.30(1) (1) ‘‘Motion” means an application for an order.

971.30(2) (2) Unless otherwise provided or ordered by the court, all motions shall meet the following criteria:

971.30(2)(a) (a) Be in writing.

971.30(2)(b) (b) Contain a caption setting forth the name of the court, the venue, the title of the action, the file number, a denomination of the party seeking the order or relief and a brief description of the type of order or relief sought.

971.30(2)(c) (c) State with particularity the grounds for the motion and the order or relief sought.

971.30 History History: Sup. Ct. Order, 171 Wis. 2d xix (1992).

971.31 971.31 Motions before trial.

971.31(1) (1) Any motion which is capable of determination without the trial of the general issue may be made before trial.

971.31(2) (2) Except as provided in sub. (5), defenses and objections based on defects in the institution of the proceedings, insufficiency of the complaint, information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence shall be raised before trial by motion or be deemed waived. The court may, however, entertain such motion at the trial, in which case the defendant waives any jeopardy that may have attached. The motion to suppress evidence shall be so entertained with waiver of jeopardy when it appears that the defendant is surprised by the state’s possession of such evidence.

971.31(3) (3) The admissibility of any statement of the defendant shall be determined at the trial by the court in an evidentiary hearing out of the presence of the jury, unless the defendant, by motion, challenges the admissibility of such statement before trial.

971.31(4) (4) Except as provided in sub. (3), a motion shall be determined before trial of the general issue unless the court orders that it be deferred for determination at the trial. All issues of fact arising out of such motion shall be tried by the court without a jury.

971.31(5) (5) 

971.31(5)(a) (a) Motions before trial shall be served and filed within 10 days after the initial appearance of the defendant in a misdemeanor action or 10 days after arraignment in a felony action unless the court otherwise permits.

971.31(5)(b) (b) In felony actions, motions to suppress evidence or motions under s. 971.23 or objections to the admissibility of statements of a defendant shall not be made at a preliminary examination and not until an information has been filed.

971.31(5)(c) (c) In felony actions, objections based on the insufficiency of the complaint shall be made prior to the preliminary examination or waiver thereof or be deemed waived.

971.31(6) (6) If the court grants a motion to dismiss based upon a defect in the indictment, information or complaint, or in the institution of the proceedings, it may order that the defendant be held in custody or that the defendant’s bail be continued for not more than 72 hours pending issuance of a new summons or warrant or the filing of a new indictment, information or complaint.

971.31(7) (7) If the motion to dismiss is based upon a misnomer, the court shall forthwith amend the indictment, information or complaint in that respect, and require the defendant to plead thereto.

971.31(8) (8) No complaint, indictment, information, process, return or other proceeding shall be dismissed or reversed for any error or mistake where the case and the identity of the defendant may be readily understood by the court; and the court may order an amendment curing such defects.

971.31(9) (9) A motion required to be served on a defendant may be served upon the defendant’s attorney of record.

971.31(10) (10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty or no contest to the information or criminal complaint.

971.31(11) (11) In actions under s. 940.225, 948.02, 948.025, 948.051, 948.085, or 948.095, or under s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5), evidence which is admissible under s. 972.11 (2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial.

971.31(12) (12) In actions under s. 940.22, the court may determine the admissibility of evidence under s. 972.11 only upon a pretrial motion.

971.31(13) (13) 

971.31(13)(a) (a) A juvenile over whom the court has jurisdiction under s. 938.183 (1) (b) or (c) on a misdemeanor action may make a motion before trial to transfer jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938. The motion may allege that the juvenile did not commit the violation under the circumstances described in s. 938.183 (1) (b) or (c), whichever is applicable, or that transfer of jurisdiction would be appropriate because of all of the following:

971.31(13)(a)1. 1. If convicted, the juvenile could not receive adequate treatment in the criminal justice system.

971.31(13)(a)2. 2. Transferring jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 would not depreciate the seriousness of the offense.

971.31(13)(a)3. 3. Retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in s. 938.183 (1) (b) or (c), whichever is applicable.

971.31(13)(b) (b) The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence that he or she did not commit the violation under the circumstances described in s. 938.183 (1) (b) or (c), whichever is applicable, or that transfer would be appropriate because all of the factors specified in par. (a) 1., 2. and 3. are met.

971.31 History History: 1975 c. 184; 1985 a. 275; 1987 a. 332 s. 64; 1993 a. 227, 486; 1995 a. 352, 387, 456; 1997 a. 205; 2005 a. 277; 2007 a. 116; 2009 a. 27.

971.31 Annotation When defense counsel refused, for strategic reasons, to pursue a motion made pro se by the defendant before trial to suppress evidence of identification at a lineup, there was a waiver of the motion. State v. McDonald, 50 Wis. 2d 534, 184 N.W.2d 886 (1971).

971.31 Annotation A claim of illegal arrest for lack of probable cause must be raised by motion before trial. Lampkins v. State, 51 Wis. 2d 564, 187 N.W.2d 164 (1971).

971.31 Annotation The waiver provision in sub. (2) is constitutional. Day v. State, 52 Wis. 2d 122, 187 N.W.2d 790 (1971).

971.31 Annotation A defendant is not required to make a motion to withdraw the defendant’s plea to preserve the right to a review of an alleged error of refusal to suppress evidence. State v. Meier, 60 Wis. 2d 452, 210 N.W.2d 685 (1973).

971.31 Annotation A motion to suppress statements on the ground that they were products of an allegedly improper arrest was timely, notwithstanding failure to assert that challenge prior to arraignment, since it was made after the information was filed and prior to trial. Rinehart v. State, 63 Wis. 2d 760, 218 N.W.2d 323 (1974).

971.31 Annotation A request for a Goodchild hearing after direct testimony is concluded is not timely under sub. (2). Coleman v. State, 64 Wis. 2d 124, 218 N.W.2d 744 (1974).

971.31 Annotation The rule in sub. (2) does not apply to confessions because sub. (2) is qualified by subs. (3) and (4). Upchurch v. State, 64 Wis. 2d 553, 219 N.W.2d 363 (1974).

971.31 Annotation A challenge to the search of one’s person cannot be raised for the first time on appeal. Madison v. State, 64 Wis. 2d 564, 219 N.W.2d 259 (1974).

971.31 Annotation A defendant’s right to testify at a Goodchild, 27 Wis. 2d 244 (1965), hearing may be curtailed only for the most compelling reasons. Franklin v. State, 74 Wis. 2d 717, 247 N.W.2d 721 (1976).

971.31 Annotation When the state used a traffic citation to initiate legal proceedings and subsequently decided to prosecute the action as a crime, the trial court erred in not giving the defendant ten days from the date of the amended charge to object to the sufficiency of the complaint. State v. Mudgett, 99 Wis. 2d 525, 299 N.W.2d 621 (Ct. App. 1980).

971.31 Annotation Sub. (6) authorizes the court to hold a defendant in custody or on bail for 72 hours pending new proceedings. State ex rel. Brockway v. Milwaukee County Circuit Court, 105 Wis. 2d 341, 313 N.W.2d 845 (Ct. App. 1981).

971.31 Annotation Factors that a court should consider when a defendant requests to be tried after a codefendant in order to secure the testimony of the codefendant are: 1) the likelihood that the codefendant will testify; 2) the likelihood that the testimony will be significant and beneficial to the defendant; 3) whether the defendant diligently attempted to secure the evidence in time for trial; 4) the length of delay requested; and 5) the burden on the trial court and prosecution. State v. Anastas, 107 Wis. 2d 270, 320 N.W.2d 15 (Ct. App. 1982).

971.31 Annotation By pleading guilty, the defendant waived the right to appeal the trial court’s ruling on the admissibility of other crimes evidence. State v. Nelson, 108 Wis. 2d 698, 324 N.W.2d 292 (Ct. App. 1982).

971.31 Annotation A finding of not guilty by reason of mental disease or defect is a judgment of conviction under s. 972.13 (1), and thus sub. (10) is applicable. State v. Smith, 113 Wis. 2d 497, 335 N.W.2d 376 (1983).

971.31 Annotation Sub. (10) does not apply to civil forfeiture cases. County of Racine v. Smith, 122 Wis. 2d 431, 362 N.W.2d 439 (Ct. App. 1984).

971.31 Annotation To admit evidence of prior untruthful allegations of sexual assault under sub. (11) and s. 972.11 (2) (b) 3., the court must be able to conclude from an offer of proof that a reasonable person could infer that the complainant made a prior untruthful allegation. “Allegation” is not restricted to allegations reported to the police. State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (1990).

971.31 Annotation Sub. (10) is inapplicable when the statement sought to be suppressed has no possible relevance to the charge to which the defendant pled guilty. State v. Pozo, 198 Wis. 2d 705, 544 N.W.2d 228 (Ct. App. 1995).

971.31 Annotation An evidentiary hearing need not be granted as a matter of course when requested prior to trial. The Nelson, 54 Wis. 2d 489 (1972), standards for granting an evidentiary hearing, coupled with the safeguards provided by Garner, 207 Wis. 2d 520 (1996), are applicable to a circuit court’s consideration of a pretrial motion. State v. Velez, 224 Wis. 2d 1, 589 N.W.2d 9 (1999), 96-2430.

971.31 Annotation The harmless error approach in appeals under sub. (10) is not precluded in any way. State v. Armstrong, 225 Wis. 2d 121, 591 N.W.2d 604 (1999), 97-0925.

971.31 Annotation A Miranda, 384 U.S. 436 (1966)-Goodchild, 27 Wis. 2d 244 (1965), hearing to determine voluntariness of confessions is an evidentiary hearing for the parties. It is not a soliloquy for the court. The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the prosecutor is reduced to a bystander. State v. Jiles, 2003 WI 66, 262 Wis. 2d 457, 663 N.W.2d 798, 02-0153.

971.31 Annotation The defendant has no statutory subpoena right to obtain and copy police investigation reports and nonprivileged materials prior to a preliminary examination. Section 972.11 does not allow a criminal defendant access to the civil subpoena duces tecum power embodied in s. 805.07 (2). State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826.

971.31 Annotation In order to admit evidence of alleged prior untruthful allegations of sexual assault under sub. (11) and s. 972.11 (2) (b) 3., the circuit court must first conclude from the proffered evidence that a jury could reasonably find that the complainant made prior untruthful allegations of sexual assault. The judge must determine whether a jury, acting reasonably, could find that it is more likely than not that the complainant made prior untruthful allegations of sexual assault. State v. Ringer, 2010 WI 69, 326 Wis. 2d 351, 785 N.W.2d 448, 08-0652.

971.31 Annotation Under sub. (11) and s. 972.11 (2) (b) 1., evidence of the complainant’s alleged past sexual conduct with the defendant is admissible only if the defendant makes a three-part showing that: 1) the proffered evidence relates to sexual activities between the complainant and the defendant; 2) the evidence is material to a fact at issue; and 3) the evidence of sexual contact with the complainant is of sufficient probative value to outweigh its inflammatory and prejudicial nature. In determining that evidence of prior sexual conduct has a highly prejudicial effect, the legislature crafted into the rape shield law a balancing test that assumes, absent an evidentiary showing to the contrary, that the proffered evidence is more prejudicial than probative. State v. Sarfraz, 2014 WI 78, 356 Wis. 2d 460, 851 N.W.2d 235, 12-0337.

971.31 Annotation A court is under no obligation to hold an evidentiary hearing if a defendant’s motion presents nothing more than conclusory allegations and fails to show that there are any factual disputes that require a hearing. State v. Radder, 2018 WI App 36, 382 Wis. 2d 749, 915 N.W.2d 180, 16-1954.

971.31 Annotation The purpose of sub. (10) is to promote judicial economy by offering defendants an incentive to plead guilty in cases in which a crucial issue is whether the order denying a motion to suppress was proper. The statute serves this purpose because defendants are more likely to plead guilty when they know that, if it is determined on appeal that the circuit court erroneously failed to suppress evidence, their convictions will be reversed and they will be entitled to trials unless the state proves that the error was harmless. State v. Abbott, 2020 WI App 25, 392 Wis. 2d 232, 944 N.W.2d 8, 19-0021.

971.31 Annotation Under Armstrong, 223 Wis. 2d 331 (1999), sub. (10) appeals are subject to a harmless error test. Although the manifest injustice standard applies when a defendant seeks to withdraw a guilty plea based on an error in the plea colloquy, a plea colloquy error is not governed by sub. (10). State v. Abbott, 2020 WI App 25, 392 Wis. 2d 232, 944 N.W.2d 8, 19-0021.

971.31 Annotation The press and public have no constitutional right to attend a pretrial suppression hearing when the defendant demands a closed hearing to avoid prejudicial publicity. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979).

971.315 971.315 Inquiry upon dismissal. Before a court dismisses a criminal charge against a person, the court shall inquire of the district attorney whether he or she has complied with s. 971.095 (2).

971.315 History History: 1997 a. 181.

971.32 971.32 Ownership, how alleged. In an indictment, information or complaint for a crime committed in relation to property, it shall be sufficient to state the name of any one of several co-owners, or of any officer or manager of any corporation, limited liability company or association owning the same.

971.32 History History: 1993 a. 112, 491.

971.33 971.33 Possession of property, what sufficient. In the prosecution of a crime committed upon or in relation to or in any way affecting real property or any crime committed by stealing, damaging or fraudulently receiving or concealing personal property, it is sufficient if it is proved that at the time the crime was committed either the actual or constructive possession or the general or special property in any part of such property was in the person alleged to be the owner thereof.

971.34 971.34 Intent to defraud. Where the intent to defraud is necessary to constitute the crime it is sufficient to allege the intent generally; and on the trial it shall be sufficient if there appears to be an intent to defraud the United States or any state or any person.

971.36 971.36 Theft; pleading and evidence; subsequent prosecutions.

971.36(1) (1) In any criminal pleading for theft, it is sufficient to charge that the defendant did steal the property (describing it) of the owner (naming the owner) of the value of (stating the value in money).