Chapter 968

968.32   Forfeiture of contraband devices.

968.33   Reports concerning intercepted wire or oral communications.

968.34   Use of pen register or trap and trace device restricted.

968.35   Application for an order for a pen register or a trap and trace device.

968.36   Issuance of an order for a pen register or a trap and trace device.

968.37   Assistance in the installation and use of a pen register or trap and trace device.

968.373   Warrant to track a communications device.

968.375   Subpoenas and warrants for records or communications of customers of an electronic communication service or remote computing service provider.

968.38   Testing for HIV infection and certain diseases.

968.40   Grand jury.

968.41   Oath or affirmation of grand jurors.

968.42   Presiding juror and clerk.

968.43   Reporter; salary; assistant.

968.44   Witnesses.

968.45   Witness rights; transcripts.

968.46   Secrecy.

968.47   District attorney, when to attend.

968.48   Attendance; absence; excuse; number required for grand jury session; number required to concur in indictment.

968.49   Fine for nonattendance.

968.50   Report progress and return indictments.

968.505   Procedure upon discharge of grand jury.

968.51   Indictment not to be disclosed.

968.52   Votes not to be disclosed.

968.53   When testimony may be disclosed.

Ch. 968 Cross-reference Cross-reference: See definitions in s. 967.02.

968.01 968.01 Complaint.

968.01(1) (1) In this section:

968.01(1)(a) (a) “Electronic” has the meaning given in s. 137.11 (5).

968.01(1)(b) (b) “Electronic signature” has the meaning given in s. 801.18 (1) (f).

968.01(1)(c) (c) “Facsimile machine” has the meaning given in s. 134.72 (1) (a).

968.01(2) (2) The complaint is a written statement of the essential facts constituting the offense charged. A person may make a complaint on information and belief. Except as provided in sub. (3) or (4), the complaint shall be made upon oath before a district attorney or judge as provided in this chapter.

968.01(3) (3) A person may comply with sub. (2) if he or she makes the oath by telephone contact with the district attorney or judge, signs the statement and immediately thereafter transmits a copy of the signed statement to the district attorney or judge using a facsimile machine. The person shall also transmit the original signed statement, without using a facsimile machine, to the district attorney or judge. If the complaint is filed, both the original and the copy shall be filed under s. 968.02 (2).

968.01(4) (4) A person may comply with sub. (2) if he or she makes the oath by telephone contact with the district attorney or judge and immediately thereafter electronically transmits the statement, accompanied by the person’s electronic signature, to the district attorney or judge. If the complaint is filed, the electronically transmitted statement shall be incorporated into a criminal complaint filed in either an electronic or paper format under s. 968.02 (2).

968.01 History History: 1989 a. 336; 1995 a. 351; 2009 a. 184; 2017 a. 365.

968.01 Annotation To be constitutionally sufficient to support the issuance of an arrest warrant and to show probable cause, a complaint must contain the essential facts constituting the offense charged. A complaint was fatally defective in merely repeating the language of the statute allegedly violated. State v. Williams, 47 Wis. 2d 242, 177 N.W.2d 611 (1970).

968.01 Annotation For a charge of resisting arrest, a complaint stated in statutory language was sufficient and no further facts were necessary. State v. Smith, 50 Wis. 2d 460, 184 N.W.2d 889 (1971).

968.01 Annotation A complaint is sufficient as to reliability of hearsay information if the officer making it states that it is based on a written statement of the minor victim of the offense charged. State v. Knudson, 51 Wis. 2d 270, 187 N.W.2d 321 (1971).

968.01 Annotation A disorderly conduct complaint, which alleged that the defendant at a stated time and place violated s. 947.01 (1) by interfering with the police officer-complainant while the officer was taking another person into custody and that the charge was based on the complainant’s personal observations, met the test of legal sufficiency and did not lack specificity so as to invalidate a conviction. State v. Becker, 51 Wis. 2d 659, 188 N.W.2d 449 (1971).

968.01 Annotation A defendant waives objections to the sufficiency of a complaint by not objecting before or at the time of pleading to the information. Day v. State, 52 Wis. 2d 122, 187 N.W.2d 790 (1971).

968.01 Annotation A complaint is a self-contained charge, and it alone can be considered in determining probable cause. Facts that would lead a reasonable person to conclude that a crime was committed by the defendant must appear within the four corners of the document. State v. Haugen, 52 Wis. 2d 791, 191 N.W.2d 12 (1971).

968.01 Annotation A complaint is not defective because, based on statements to an officer that cannot be admitted at the trial, Miranda, 384 U.S. 436 (1966), warnings were not given. Such an objection is waived if not raised prior to trial. Gelhaar v. State, 58 Wis. 2d 547, 207 N.W.2d 88 (1973).

968.01 Annotation To charge a defendant with the possession or sale of obscene materials, the complaint must allege that the defendant knew the nature of the materials; a charge of acting “feloniously” is insufficient to charge scienter. State v. Schneider, 60 Wis. 2d 563, 211 N.W.2d 630 (1973).

968.01 Annotation A complaint based on a police officer’s sworn statement of what the alleged victim described as having actually happened met the test of reliability of the informer and constituted probable cause for a magistrate to issue a warrant for the arrest of the defendant. Allison v. State, 62 Wis. 2d 14, 214 N.W.2d 437 (1974).

968.01 Annotation An absolute privilege attached to alleged defamatory statements made by the defendant about the plaintiff to an assistant district attorney in seeking the issuance of a criminal complaint. Bergman v. Hupy, 64 Wis. 2d 747, 221 N.W.2d 898 (1974).

968.01 Annotation A criminal complaint sufficiently alleges probable cause that the defendant has committed the alleged offense when it recites that a participant in the crime has admitted the participant’s own participation and implicates the defendant, since an inference may be reasonably drawn that the participant is telling the truth. Ruff v. State, 65 Wis. 2d 713, 223 N.W.2d 446 (1974).

968.01 Annotation A complaint, alleging that the defendant burglarized a trailer at a construction site, based in part upon the hearsay statements of the construction foreman that tools found in the defendant’s automobile had been locked in the trailer, was sufficient to satisfy the two-pronged test of Aguilar, 378 U.S. 108 (1964). Anderson v. State, 66 Wis. 2d 233, 223 N.W.2d 879 (1974).

968.01 Annotation In determining the sufficiency of a complaint, the credibility of informants or witnesses is adequately tested by the two-pronged Aguilar, 378 U.S. 108 (1964), standard. State v. Marshall, 92 Wis. 2d 101, 284 N.W.2d 592 (1979).

968.01 Annotation A criminal complaint may be attacked when there has been an omission of critical material when inclusion is necessary for an impartial judge to determine probable cause. State v. Mann, 123 Wis. 2d 375, 367 N.W.2d 209 (1985).

968.01 Annotation Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following a mistrial resulting from a hung jury, the prosecutor filed increased charges and then offered to accept a plea bargain requiring a guilty plea to the original charges. Adding additional charges to obtain a guilty plea does no more than present the defendant with the alternative of forgoing trial or facing charges on which the defendant is subject to prosecution. State v. Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, 97-1360.

968.01 Annotation The test of a complaint is of minimal adequacy in setting forth the essential facts establishing probable cause through a common sense, and not hypertechnical, evaluation. Only affidavits specifically incorporated into the complaint may be used to show probable cause, but the legal term of art, “incorporated by reference,” need not be used; the term “attached” was sufficient. State v. Smaxwell, 2000 WI App 112, 235 Wis. 2d 230, 612 N.W.2d 756, 99-2261.

968.01 Annotation A prosecutor has great discretion in charging decisions and generally answers to the public, not the courts, for those decisions. As such, courts review the prosecutor’s charging decisions for an erroneous exercise of discretion. If there is a reasonable likelihood that a prosecutor’s decision to bring additional charges is rooted in prosecutorial vindictiveness, a rebuttable presumption of vindictiveness applies. If there is no presumption of vindictiveness, the defendant must establish actual prosecutorial vindictiveness. The filing of additional charges during the give-and-take of pretrial plea negotiations does not warrant a presumption of vindictiveness. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433, 11-1368.

968.01 Annotation The state has discretion to charge a defendant with one continuing offense based on multiple criminal acts when the separately chargeable offenses are committed by the same person at substantially the same time and relating to one continued transaction. In that situation, the nature of the charge is a matter of election on the part of the state. Moreover, in s. 971.36 (3) (a) the legislature has explicitly provided prosecutors with discretion to charge multiple thefts as a single crime when the property belongs to the same owner and the thefts are committed pursuant to a single intent and design or in execution of a single deceptive scheme. State v. Jacobsen, 2014 WI App 13, 352 Wis. 2d 409, 842 N.W.2d 365, 13-0830.

968.01 Annotation Multiplicity arises when a defendant is charged in more than one count for a single offense. Challenges may arise when a single course of conduct is charged in multiple counts of the same statutory offense. Multiplicity claims are examined using a two-part test: 1) whether the charged offenses are identical in law and in fact; and 2) whether the legislature intended to authorize multiple punishments. If the first part of the test reveals that the charged offenses are not identical in law and in fact, a presumption arises that the legislature did not intend to preclude cumulative punishments. State v. Jacobsen, 2014 WI App 13, 352 Wis. 2d 409, 842 N.W.2d 365, 13-0830.

968.01 Annotation While citation to a specific statute may be the preferred practice, failure to specifically cite to a statute in the information and complaint is harmless error when there is no prejudice to the defendant. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354.

968.01 Annotation Forms similar to the uniform traffic citation that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases are sufficient to confer subject matter jurisdiction on the court, but any conviction that results from their use in the manner described in the opinion is null and void. Discussing this section and ss. 968.02, 968.04, 971.01, 971.04, 971.05, and 971.08. 63 Atty. Gen. 540.

968.02 968.02 Issuance and filing of complaints.

968.02(1) (1) Except as otherwise provided in this section, a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed. A complaint is issued when it is approved for filing by the district attorney. The approval shall be in the form of a written endorsement on the complaint or the electronic signature of the district attorney as provided in s. 801.18 (12).

968.02(2) (2) After a complaint has been issued, it shall be filed with a judge and either a warrant or summons shall be issued or the complaint shall be dismissed, pursuant to s. 968.03. Such filing commences the action.

968.02(3) (3) If a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. If the district attorney has refused to issue a complaint, he or she shall be informed of the hearing and may attend. The hearing shall be ex parte without the right of cross-examination.

968.02(4) (4) If the alleged violator under s. 948.55 (2) or 948.60 (2) (c) is or was the parent or guardian of a child who is injured or dies as a result of an accidental shooting, the district attorney may consider, among other factors, the impact of the injury or death on the alleged violator when deciding whether to issue a complaint regarding the alleged violation. This subsection does not restrict the factors that a district attorney may consider in deciding whether to issue a complaint regarding any alleged violation.

968.02 History History: 1977 c. 449; 1991 a. 139; 1999 a. 185; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii.

968.02 Annotation A judge abused the judge’s discretion in barring the public from a hearing under sub. (3). State ex rel. Newspapers, Inc. v. Circuit Court, 124 Wis. 2d 499, 370 N.W.2d 209 (1985).

968.02 Annotation A judge’s order under sub. (3) is not appealable. Gavcus v. Maroney, 127 Wis. 2d 69, 377 N.W.2d 201 (Ct. App. 1985).

968.02 Annotation Sub. (3) does not give a trial court authority to order a district attorney to file different or additional charges than those already brought. State ex rel. Unnamed Petitioner v. Circuit Court, 157 Wis. 2d 157, 458 N.W.2d 575 (Ct. App. 1990).

968.02 Annotation Sub. (3) does not confer upon the person who is the subject of a proposed prosecution the right to participate in any way or to obtain reconsideration of the ultimate decision reached. A defendant named in a complaint issued pursuant to sub. (3) has the same opportunity to challenge in circuit court the legal and factual sufficiency of that complaint as a defendant named in a complaint issued pursuant to sub. (1). State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, 02-2490.

968.02 Annotation A refusal to issue a complaint under sub. (3) may be proven directly or circumstantially, by inferences reasonably drawn from words and conduct. The refusal can be open and explicit or indirect and inferred. Inaction alone will ordinarily not support an inference of a refusal to prosecute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, 02-2490.

968.02 Annotation Forms similar to the uniform traffic citation that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases are sufficient to confer subject matter jurisdiction on the court, but any conviction that results from their use in the manner described in the opinion is null and void. Discussing this section and ss. 968.01, 968.04, 971.01, 971.04, 971.05, and 971.08. 63 Atty. Gen. 540.

968.02 Annotation Judicial Scrutiny of Prosecutorial Discretion in the Decision Not to File a Complaint. Becker. 71 MLR 749 (1988).

968.03 968.03 Dismissal or withdrawal of complaints.

968.03(1) (1) If the judge does not find probable cause to believe that an offense has been committed or that the accused has committed it, the judge shall endorse such finding on the complaint and file the complaint with the clerk.

968.03(2) (2) An unserved warrant or summons shall, at the request of the district attorney, be returned to the judge who may dismiss the action. Such request shall be in writing, it shall state the reasons therefor in writing and shall be filed with the clerk.

968.03(3) (3) The dismissals in subs. (1) and (2) are without prejudice.

968.03 History History: 1993 a. 486.

968.04 968.04 Warrant or summons on complaint.

968.04(1) (1) Warrants. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint or after an examination under oath of the complainant or witnesses, when the judge determines that this is necessary, that there is probable cause to believe that an offense has been committed and that the accused has committed it, the judge shall issue a warrant for the arrest of the defendant or a summons in lieu thereof. The warrant or summons shall be delivered forthwith to a law enforcement officer for service.

968.04(1)(a) (a) When an accused has been arrested without a warrant and is in custody or appears voluntarily before a judge, no warrant shall be issued and the complaint shall be filed forthwith with a judge.

968.04(1)(b) (b) A warrant or summons may be issued by a judge in another county when there is no available judge of the county in which the complaint is issued. The warrant shall be returnable before a judge in the county in which the offense alleged in the complaint was committed, and the summons shall be returnable before the circuit court of the county in which the offense alleged in the complaint was committed.

968.04(1)(c) (c) A judge may specify geographical limits for enforcement of a warrant.

968.04(1)(d) (d) An examination of the complainant or witness under sub. (1) may take place by telephone on request of the person seeking the warrant or summons unless good cause to the contrary appears. The judge shall place each complainant or witness under oath and arrange for all sworn testimony to be recorded, either by a court reporter or by means of a voice recording device. The judge shall have the record transcribed. The transcript, certified as accurate by the judge or reporter, as appropriate, shall be filed with the court. If the testimony was recorded by means of a voice recording device, the judge shall also file the original recording with the court.

968.04(2) (2) Summons.

968.04(2)(a) (a) In any case the district attorney, after the issuance of a complaint, may issue a summons in lieu of requesting the issuance of a warrant. The complaint shall then be filed with the clerk.

968.04(2)(b) (b) In misdemeanor actions where the maximum imprisonment does not exceed 6 months, the judge shall issue a summons instead of a warrant unless the judge believes that the defendant will not appear in response to a summons.

968.04(2)(c) (c) If a person summoned fails to appear in response to a summons issued by a district attorney, the district attorney may proceed to file the complaint as provided in s. 968.02 and, in addition to endorsing his or her approval on the complaint, shall endorse upon the complaint the fact that the accused failed to respond to a summons.

968.04(3) (3) Mandatory provisions.

968.04(3)(a) (a) Warrant. The warrant shall:

968.04(3)(a)1. 1. Be in writing and signed by the judge.

968.04(3)(a)2. 2. State the name of the crime and the section charged and number of the section alleged to have been violated.

968.04(3)(a)3. 3. Have attached to it a copy of the complaint.