Chapter 968

968.375(10) (10) Secrecy. A subpoena or warrant issued under this section shall be issued with all practicable secrecy and the request, complaint, affidavit, or testimony upon which it is based may not be filed with the clerk or made public until the subpoena or warrant has been executed and returned to the court. The judge may issue an order sealing the subpoena or warrant and the request, complaint, affidavit, or testimony upon which it is based. The judge may issue an order prohibiting the person on whom the subpoena or warrant is served from disclosing the existence of the subpoena or warrant to the customer or subscriber unless the judge subsequently authorizes such disclosure.

968.375(11) (11) Immunity. A person on whom a subpoena or warrant issued under this section is served is immune from civil liability for acts or omissions in providing records or information, facilities, or assistance in accordance with the terms of the subpoena or warrant.

968.375(12) (12) Technical irregularities. Evidence disclosed under a subpoena or warrant issued under this section shall not be suppressed because of technical irregularities or errors not affecting the substantial rights of the defendant.

968.375(13) (13) Disclosure without subpoena or warrant. A provider of electronic communication or remote computing service may disclose records or information described under sub. (2) (a) of a customer or subscriber or the content of communications of a customer or subscriber described under sub. (3) without a subpoena or warrant if any of the following applies:

968.375(13)(a) (a) The customer or subscriber provides consent for the particular disclosure.

968.375(13)(b) (b) The provider of electronic communication or remote computing service believes in good faith that an emergency involving the danger of death or serious physical injury to any person exists and that disclosure of the information is required to prevent the death or injury or to mitigate the injury.

968.375 History History: 2009 a. 349; 2011 a. 260 s. 81; 2013 a. 167, 375; 2015 a. 195 s. 82.

968.38 968.38 Testing for HIV infection and certain diseases.

968.38(1) (1) In this section:

968.38(1)(a) (a) “Health care professional” means a physician or a registered nurse or licensed practical nurse who is licensed under ch. 441.

968.38(1)(b) (b) “HIV” means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

968.38(1)(bc) (bc) “HIV test” has the meaning given in s. 252.01 (2m).

968.38(1)(bm) (bm) “Physician” has the meaning given in s. 448.01 (5).

968.38(1)(c) (c) “Sexually transmitted disease” has the meaning given in s. 252.11 (1).

968.38(1)(d) (d) “Significant exposure” has the meaning given in s. 252.15 (1) (em).

968.38(2) (2) In a criminal action under s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095, if all of the following apply, the district attorney shall apply to the circuit court for his or her county to order the defendant to submit to an HIV test and to a test or a series of tests to detect the presence of a sexually transmitted disease, each of which tests shall be administered by a health care professional, and to disclose the results of the test or tests as specified in sub. (4) (a) to (c):

968.38(2)(a) (a) The district attorney has probable cause to believe that the alleged victim or victim has had contact with body fluid of the defendant that constitutes a significant exposure. If the defendant is convicted or found not guilty by reason of mental disease or defect, this paragraph does not apply.

968.38(2)(b) (b) The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to so apply for an order.

968.38(2m) (2m) In a criminal action under s. 941.375 (2) or 946.43 (2m), the district attorney shall apply to the circuit court for his or her county for an order requiring the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a) to (c), if all of the following apply:

968.38(2m)(a) (a) The district attorney has probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 941.375 (2) or 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant.

968.38(2m)(b) (b) The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to apply for an order.

968.38(3) (3) The district attorney may apply under sub. (2) or (2m) for an order at any of the following times, and, within those times, shall do so as soon as possible so as to enable the court to provide timely notice:

968.38(3)(a) (a) At or after the initial appearance and prior to the preliminary examination.

968.38(3)(b) (b) If the defendant waives the preliminary examination, at any time after the court binds the defendant over for trial and before a verdict is rendered.

968.38(3)(c) (c) At any time after the defendant is convicted or is found not guilty by reason of mental disease or defect.

968.38(3)(d) (d) If the court has determined that the defendant is not competent to proceed under s. 971.14 (4) and suspended the criminal proceedings, at any time after the determination that the defendant is not competent to proceed.

968.38(4) (4) The court shall set a time for a hearing on the matter under sub. (2) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the victim or alleged victim has had contact with body fluid of the defendant that constitutes a significant exposure, the court shall order the defendant to submit to an HIV test and to a test or a series of tests to detect the presence of a sexually transmitted disease. The tests shall be performed by a health care professional. The court shall require the health care professional who performs the test to disclose the test results to the defendant, to refrain from making the test results part of the defendant’s permanent medical record, and to disclose the results of the test to any of the following:

968.38(4)(a) (a) The alleged victim or victim, if the alleged victim or victim is not a minor.

968.38(4)(b) (b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.

968.38(4)(c) (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim.

968.38(5) (5) The court shall set a time for a hearing on the matter under sub. (2m) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 941.375 (2) or 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the defendant. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain from making the test results part of the defendant’s permanent medical record and to disclose the results of the test to any of the following:

968.38(5)(a) (a) The alleged victim or victim, if the alleged victim or victim is not a minor.

968.38(5)(b) (b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.

968.38(5)(c) (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim.

968.38 History History: 1991 a. 269; 1993 a. 27, 32, 183, 227, 495; 1995 a. 456; 1997 a. 182; 1999 a. 188; 2005 a. 277; 2009 a. 209; 2021 a. 54.

968.38 Annotation Acquittal on a charge of sexual intercourse with a minor did not prevent an order for HIV testing following a conviction for sexual assault; the test is probable cause and is not governed by the outcome of the trial. State v. Parr, 182 Wis. 2d 349, 513 N.W.2d 647 (Ct. App. 1994).

968.40 968.40 Grand jury.

968.40(1) (1) Selection of grand jury list. Any judge may, in writing, order the clerk of circuit court to select a grand jury list within a specified reasonable time. The clerk shall select from the prospective juror list for the county the names of not fewer than 75 nor more than 150 persons to constitute the prospective grand juror list. The list shall be kept secret.

968.40(3) (3) Examination of prospective jurors. At the time set for the prospective grand jurors to appear, the judge shall and the district attorney or other prosecuting officer may examine the prospective jurors under oath or affirmation relative to their qualifications to serve as grand jurors and the judge shall excuse those who are disqualified, and may excuse others for any reason which seems proper to the judge.

968.40(4) (4) Additional grand jurors. If after such examination fewer than 17 grand jurors remain, additional prospective jurors shall be selected, summoned and examined until there are at least 17 qualified jurors on the grand jury.

968.40(6) (6) Time grand jurors to serve. Grand jurors shall serve for a period of 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time.

968.40(7) (7) Orders filed with clerk. All orders mentioned in this section shall be filed with the clerk of court.

968.40(8) (8) Intercounty racketeering and crime. When a grand jury is convened pursuant to this section to investigate unlawful activity under s. 165.70, and such activity involves more than one county, including the county where the petition for such grand jury is filed, then if the attorney general approves, all expenses of such proceeding shall be charged to the appropriation under s. 20.455 (1) (d).

968.40 History History: 1971 c. 125 s. 522 (1); 1977 c. 29 s. 1656 (27); 1977 c. 187 ss. 95, 135; 1977 c. 318; 1977 c. 447 s. 210; 1977 c. 449; Stats. 1977 s. 756.10; 1991 a. 39; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.40.

968.40 Annotation A claim of grand jury discrimination necessitates federal habeas corpus review. Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979).

968.40 Annotation The Grand Jury in Wisconsin. Coffey & Richards. 58 MLR 517 (1975).

968.41 968.41 Oath or affirmation of grand jurors. Grand jurors shall, before they begin performance of their duties, solemnly swear or affirm that they will diligently inquire as to all matters and things which come before the grand jury; that they will keep all matters which come before the grand jury secret; that they will indict no person for envy, hatred or malice; that they will not leave any person unindicted for love, fear, favor, affection or hope of reward; and that they will indict truly, according to the best of their understanding.

968.41 History History: 1975 c. 94 s. 91 (12); 1977 c. 187 s. 95; Stats. 1977 s. 756.11; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.41.

968.42 968.42 Presiding juror and clerk. The grand jury shall select from their number a presiding juror and a clerk. The clerk shall preserve the minutes of the proceedings before them and all exhibits.

968.42 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.12; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.42.

968.43 968.43 Reporter; salary; assistant.

968.43(1) (1) Every grand jury shall when ordered by the judge ordering such grand jury, employ one or more reporters to attend their sessions and to make and transcribe a verbatim record of all proceedings had before them.

968.43(2) (2) Before assuming the duties under this section, each reporter shall make and file an oath or affirmation faithfully to record and transcribe all of the proceedings before the grand jury and to keep secret the matters relative to the proceedings. Each reporter shall be paid out of the county treasury of the county in which the service is rendered such sum for compensation and expenses as shall be audited and allowed as reasonable by the court ordering the grand jury. Each reporter may employ on his or her own account a person to transcribe the testimony and proceedings of the grand jury, but before entering upon the duties under this subsection, the person shall be required to make and file an oath or affirmation similar to that required of each reporter.

968.43(3) (3) Any person who violates an oath or affirmation required by sub. (2) is guilty of a Class H felony.

968.43 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.13; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.43.; 1997 a. 283; 2001 a. 109.

968.44 968.44 Witnesses. The presiding juror of every grand jury and the district attorney or other prosecuting officer who is before the grand jury may administer all oaths and affirmations in the manner prescribed by law to witnesses who appear before the jury for the purpose of testifying in any matter of which the witnesses have cognizance. At the request of the court, the presiding juror shall return to the court a list, under his or her hand, of all witnesses who are sworn before the grand jury. That list shall be filed by the clerk of circuit court.

968.44 History History: 1977 c. 187 s. 95; 1977 c. 449; Stats. 1977 s. 756.14; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.44.

968.45 968.45 Witness rights; transcripts.

968.45(1) (1) Any witness appearing before a grand jury may have counsel present, but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses or argue before the judge. Counsel may consult with his or her client while before a grand jury. If the prosecuting officer, attorney for a witness or a grand juror believes that a conflict of interest exists for an attorney or attorneys to represent more than one witness before a grand jury, the person so believing may make a motion before the presiding judge to disqualify the attorney from representing more than one witness before the grand jury. A hearing shall be held upon notice with the burden upon the moving party to establish the conflict.

968.45(2) (2) No grand jury transcript may be made public until the trial of anyone indicted by the grand jury and then only that portion of the transcript that is relevant and material to the case at hand. This subsection does not limit the defendant’s rights to discovery under s. 971.23.

968.45 History History: 1979 c. 291; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.45.

968.46 968.46 Secrecy. Notwithstanding s. 757.14, all motions, including but not limited to those for immunity or a privilege, brought by a prosecuting officer or witness appearing before a grand jury shall be made, heard and decided in complete secrecy and not in open court if the prosecuting officer or witness bringing the motion or exercising the immunity or privilege so requests.

968.46 History History: 1979 c. 291; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.46.

968.47 968.47 District attorney, when to attend. Whenever required by the grand jury it shall be the duty of the district attorney of the county to attend them for the purpose of examining witnesses in their presence or of giving them advice upon any legal matter, and to issue subpoenas and other process to bring up witnesses.

968.47 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.15; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.47.

968.48 968.48 Attendance; absence; excuse; number required for grand jury session; number required to concur in indictment. Each grand juror shall attend every session of the grand jury unless excused by the presiding juror. The presiding juror may excuse a grand juror from attending a grand jury session only for a reason which appears to the presiding juror in his or her discretion as good and sufficient cause for the excuse. No business may be transacted at any session of the grand jury at which less than 14 members of the grand jury are in attendance and no indictment may be found by any grand jury unless at least 12 of their number shall concur in the indictment.

968.48 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.16; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.48.

968.49 968.49 Fine for nonattendance. Any person lawfully summoned to attend as a grand juror who fails to attend without any sufficient excuse shall pay a fine not exceeding $40, which shall be imposed by the court to which the person was summoned and shall be paid into the county treasury.

968.49 History History: Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).

968.50 968.50 Report progress and return indictments. A grand jury may report progress and return indictments to the court from time to time during its session and until discharged.

968.50 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.17; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.50.

968.50 Annotation A grand jury performs a judicial rather than a legislative function; therefore, a progress report unconnected to an indictment may not be made public. State ex rel. Caledonia v. County Court, 78 Wis. 2d 429, 254 N.W.2d 317 (1977).

968.505 968.505 Procedure upon discharge of grand jury. When the grand jury is discharged the clerk shall collect all transcripts of testimony, minutes of proceedings, exhibits and other records of the grand jury, and deliver them as the jury directs either to the attorney general or to the district attorney, or upon approval of the court deliver them to the clerk of the court who shall impound them subject to the further order or orders of the court.

968.505 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.18; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.505; 1997 a. 35 s. 586.

968.51 968.51 Indictment not to be disclosed. No grand juror or officer of the court, if the court shall so order, shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on such indictment, until such person has been arrested.

968.51 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.19; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.51.

968.52 968.52 Votes not to be disclosed. No grand juror may be allowed to state or testify in any court in what manner he or she or any other member of the jury voted on any question before them, or what opinion was expressed by any juror in relation to the question.

968.52 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.20; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.52.

968.53 968.53 When testimony may be disclosed. Members of the grand jury and any grand jury reporter may be required by any court to testify whether the testimony of a witness examined before the jury is consistent with or different from the evidence given by the witness before the court; and they may also be required to disclose the testimony given before the grand jury by any person upon a complaint against the person for perjury, or upon trial for the offense. Any transcript of testimony taken before the grand jury and certified by a grand jury reporter to have been carefully compared by the reporter with his or her minutes of testimony so taken and to be a true and correct transcript of all or a specified portion of the transcript, may be received in evidence with the same effect as the oral testimony of the reporter to the facts so certified, but the reporter may be cross-examined by any party as to the matter.

968.53 History History: 1977 c. 187 s. 95; Stats. 1977 s. 756.21; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.53.