LRB-4090/3
CMH:cjs:pg
2007 - 2008 LEGISLATURE
February 26, 2008 - Introduced by Senators Taylor, Hansen, Lehman, Erpenbach
and Roessler, cosponsored by Representatives Grigsby and Turner. Referred
to Committee on Judiciary, Corrections, and Housing.
SB537,1,3
1An Act to renumber and amend 968.26;
to amend 911.01 (4) (b), 972.08 (2)
2and 978.045 (1r) (intro.); and
to create 968.26 (1) and 968.26 (2) (b), (d) and (e)
3of the statutes;
relating to: judicial discretion in certain John Doe proceedings.
Analysis by the Legislative Reference Bureau
Under current law, under a John Doe proceeding, a person who believes a crime
has been committed may complain to a judge. Then the judge must ascertain if a
crime has been committed. The scope of examination is within the judge's discretion.
If the judge determines that a crime has probably been committed, she or he will
issue a warrant for the arrest of the accused.
Under this bill, if a district attorney who believes a crime has been committed
complains to a judge, the judge must convene a John Doe proceeding as described
above except that the judge does not issue a warrant for the arrest of the accused
because the district attorney has that ability as under current law. If a person other
than a district attorney who believes a crime has been committed complains to a
judge, the judge must refer the complaint to the district attorney. If the district
attorney refuses in writing to issue a charge or takes no action for 90 days, the judge
must convene a proceeding if the judge determines that the proceeding is necessary
to determine if a crime has been committed. The judge has discretion over the scope
of the examination, and the judge may issue a criminal complaint if the judge finds
sufficient evidence to warrant prosecution. In determining whether to convene a
proceeding and whether to issue a complaint, this bill specifies that a judge may
consider law enforcement investigative reports, records and case files of the district
attorney, and any other written records.
This bill also adds statutory cross-references to three John Doe references to
aid individuals in finding the John Doe statute.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB537, s. 1
1Section
1. 911.01 (4) (b) of the statutes is amended to read:
SB537,2,32
911.01
(4) (b)
Grand jury; John Doe proceedings. Proceedings before grand
3juries or a John Doe proceeding
under s. 968.26.
SB537, s. 2
4Section
2. 968.26 of the statutes is renumbered 968.26 (2) (a) and amended
5to read:
SB537,2,86
968.26
(2) (a) If a person
who is not a district attorney complains to a judge that
7he or she has reason to believe that a crime has been committed within
his or her the
8judge's jurisdiction, the judge shall
refer the complaint to the district attorney.
SB537,2,15
9(c) In a proceeding convened under par. (b), the judge shall subpoena and 10examine
the complainant under oath
the complainant and any witnesses
produced
11by him or her and may, and at the request of the district attorney shall, subpoena and
12examine other witnesses that the judge determines to be necessary and appropriate 13to ascertain whether a crime has been committed and by whom committed.
The
14judge shall consider the credibility of testimony in support of and opposed to the
15person's complaint.
SB537,3,10
16(3) The extent to which the judge may proceed in
the an examination
under sub.
17(1) or (2) is within the judge's discretion. The examination may be adjourned and may
18be secret. Any witness examined under this section may have counsel present at the
19examination but the counsel shall not be allowed to examine his or her client,
20cross-examine other witnesses
, or argue before the judge.
If it appears probable from
1the testimony given that a crime has been committed and who committed it, the
2complaint may be reduced to writing and signed and verified; and thereupon a
3warrant shall issue for the arrest of the accused. Subject to s. 971.23, if the
4proceeding is secret, the record of the proceeding and the testimony taken shall not
5be open to inspection by anyone except the district attorney unless it is used by the
6prosecution at the preliminary hearing or the trial of the accused and then only to
7the extent that it is so used. A court, on the motion of a district attorney, may compel
8a person to testify or produce evidence under s. 972.08 (1). The person is immune
9from prosecution as provided in s. 972.08 (1), subject to the restrictions under s.
10972.085.
SB537, s. 3
11Section
3. 968.26 (1) of the statutes is created to read:
SB537,3,1512
968.26
(1) If a district attorney requests a judge to convene a proceeding to
13determine whether a crime has been committed in the court's jurisdiction, the judge
14shall convene a proceeding described under sub. (3) and shall subpoena and examine
15any witnesses the district attorney identifies.
SB537, s. 4
16Section
4. 968.26 (2) (b), (d) and (e) of the statutes are created to read:
SB537,3,2117
968.26
(2) (b) If a district attorney receives a referral under par. (a), and the
18district attorney refuses in writing to issue charges or the district attorney takes no
19action within 90 days, the judge shall convene a proceeding described under sub. (3)
20if the judge determines that a proceeding is necessary to determine if a crime has
21been committed.
SB537,3,2422
(d) In a proceeding convened under par. (b), the judge may issue a criminal
23complaint if the judge finds sufficient credible evidence to warrant a prosecution of
24the complaint.
SB537,4,5
1(e) When determining whether the proceeding is necessary under par. (b) and
2when determining whether to issue a complaint under par. (d), in addition to any
3testimony under par. (c), the judge may consider law enforcement investigative
4reports, the records and case files of the district attorney, and any other written
5records that the judge finds relevant.
SB537, s. 5
6Section
5. 972.08 (2) of the statutes is amended to read:
SB537,4,167
972.08
(2) Whenever a witness attending in any court trial or appearing before
8any grand jury or John Doe investigation
under s. 968.26 fails or refuses without just
9cause to comply with an order of the court under this section to give testimony in
10response to a question or with respect to any matter, the court, upon such failure or
11refusal, or when such failure or refusal is duly brought to its attention, may
12summarily order the witness's confinement at a suitable place until such time as the
13witness is willing to give such testimony or until such trial, grand jury term
, or John
14Doe investigation
under s. 968.26 is concluded but in no case exceeding one year. No
15person confined under this section shall be admitted to bail pending the
16determination of an appeal taken by the person from the order of confinement.
SB537, s. 6
17Section
6. 978.045 (1r) (intro.) of the statutes is amended to read:
SB537,5,218
978.045
(1r) (intro.) Any judge of a court of record, by an order entered in the
19record stating the cause for it, may appoint an attorney as a special prosecutor to
20perform, for the time being, or for the trial of the accused person, the duties of the
21district attorney. An attorney appointed under this subsection shall have all of the
22powers of the district attorney. The judge may appoint an attorney as a special
23prosecutor at the request of a district attorney to assist the district attorney in the
24prosecution of persons charged with a crime, in grand jury
proceedings or John Doe
25proceedings
under s. 968.26, in proceedings under ch. 980, or in investigations. The
1judge may appoint an attorney as a special prosecutor if any of the following
2conditions exists:
SB537,5,54
(1) This act first applies to complaints made on the effective date of this
5subsection.
