The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.
Any physical or documentary evidence that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding.
(3m) When disclosure must be made.
A party required to make a disclosure under this section shall do so within a reasonable time after the probable cause hearing and within a reasonable time before a trial under s. 980.05
, if the other party's demand is made in connection with a trial. If the demand is made in connection with a proceeding under s. 980.08
or 980.09 (3)
, the party shall make the disclosure within a reasonable time before the start of that proceeding.
(4) Comment or instruction on failure to call witness.
No comment or instruction regarding the failure to call a witness at the trial may be made or given if the sole basis for the comment or instruction is the fact that the name of the witness appears upon a list furnished under this section.
(5) Testing or analysis of evidence.
On motion of a party, the court may order the production of any item of evidence or raw data that is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.
(6) Protective order.
Upon motion of a party, the court may at any time order that discovery, inspection, or the listing of witnesses required under this section be denied, restricted, or deferred, or make other appropriate orders. If the prosecuting attorney or the attorney for a person subject to this chapter certifies that listing a witness under sub. (2) (e)
or (3) (a)
may subject the witness or others to physical or economic harm or coercion, the court may order that the deposition of the witness be taken under s. 967.04 (2)
. The name of the witness need not be divulged prior to the taking of such deposition. If the witness becomes unavailable or changes his or her testimony, the deposition shall be admissible at trial as substantive evidence.
(7) In camera proceedings.
Either party may move for an in camera inspection of any document required to be disclosed under sub. (2)
for the purpose of masking or deleting any material that is not relevant to the case being tried. The court shall mask or delete any irrelevant material.
(8) Continuing duty to disclose.
If, after complying with a requirement of this section, and before or during trial, a party discovers additional material or the names of additional witnesses requested that are subject to discovery, inspection, or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.
The court shall exclude any witness not listed or evidence not presented for inspection, copying, or photographing required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.
In addition to or in place of any sanction specified in par. (a)
, a court may, subject to sub. (4)
, advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (2)
, or of any untimely disclosure of material or information required to be disclosed under sub. (2)
(10) Payment of copying costs in cases involving indigent respondents.
When the state public defender or a private attorney appointed under s. 977.08
requests copies, in any format, of any item that is discoverable under this section, the state public defender shall pay any fee charged for the copies from the appropriation account under s. 20.550 (1) (a)
. If the person providing copies under this section charges the state public defender a fee for the copies, the fee may not exceed the applicable maximum fee for copies of discoverable materials that is established by rule under s. 977.02 (9)
(11) Exclusive method of discovery. Chapter 804
does not apply to proceedings under this chapter. This section provides the only methods of obtaining discovery and inspection in proceedings under this chapter.
Miscellaneous procedural provisions. 980.038(1)(1)
Motions challenging jurisdiction or competency of court or timeliness of petition. 980.038(1)(a)(a)
A motion challenging the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02
shall be filed within 30 days after the court holds the probable cause hearing under s. 980.04 (2)
. Failure to file a motion within the time specified in this paragraph waives the right to challenge the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02
Notwithstanding s. 801.11
, a court may exercise personal jurisdiction over a person who is the subject of a petition filed under s. 980.02
even though the person is not served as provided under s. 801.11 (1)
with a verified petition and summons or with an order for detention under s. 980.04 (1)
and the person has not had a probable cause hearing under s. 980.04 (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
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.
(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.
(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
. An appeal by a person who has been committed under s. 980.06
from a final order under s. 980.06
, 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)
. 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.
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
(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.
(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.
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.
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.
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.
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.
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.
The department shall promulgate rules that provide the qualifications for persons conducting evaluations under sub. (3)
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.
See also ch. DHS 99
, Wis. adm. code.
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
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
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
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
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.
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.
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.
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.
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)
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.
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)
, the state is required to prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.
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.
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.
The trier of fact is free to weigh expert testimony that conflicts and decide which is more reliable, to accept or reject an expert's testimony, including accepting only parts of the testimony, and to consider all non-expert testimony. State v. Kienitz, 227 Wis. 2d 423
, 597 N.W.2d 712
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
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
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
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
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
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
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
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
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
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
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
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, as required under [former] s. 980.01 (7). State v. Franklin, 2004 WI 38
, 270 Wis. 2d 271
, 677 N.W.2d 276
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
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
, 2006 WI 78
, the respondent has the same 5th amendment privilege against self-incrimination as does a defendant at a criminal trial.
, 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
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
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
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. 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
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.
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
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
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
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
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
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
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
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