Chapter 971

971.20 Annotation There is no “trial court” under sub. (4) until after a bindover. A motion to reduce bail prior to the bindover was not a motion to the trial court that prevented filing a request for substitution. State ex rel. Mace v. Circuit Court, 193 Wis. 2d 208, 532 N.W.2d 720 (1995).

971.20 Annotation A defendant who is charged jointly with another defendant may not obtain substitution of a judge under sub. (6) when the codefendant is not yet before the court. Sub. (6) applies in all multiple defendant actions when a codefendant is unavailable to join or refuses to join a substitution request. State ex rel. Garibay v. Circuit Court, 2002 WI App 164, 256 Wis. 2d 438, 647 N.W.2d 455, 02-0952.

971.20 Annotation There is no requirement under this section that a judge inform a defendant of the right to substitute a judge or that a judge provide facts bearing on a defendant’s exercise of the right. State v. Tappa, 2002 WI App 303, 259 Wis. 2d 402, 655 N.W.2d 223, 02-0247.

971.20 Annotation When the original judge assigned to a case is later reassigned back to the case, the original judge is not a “new judge” under sub. (5), but remains the judge “originally assigned” under sub. (4). The reassignment does not create a second opportunity to substitute the original judge. State v. Bohannon, 2013 WI App 87, 349 Wis. 2d 368, 835 N.W.2d 262, 12-1691.

971.20 Annotation When the defendant persisted with a substitution request throughout the proceedings and did not follow the procedure under sub. (11) for abandoning the substitution request, the circuit court erred in presiding over the defendant’s trial, sentencing, and postconviction motions. Harmless error analysis did not apply. State v. Harrison, 2015 WI 5, 360 Wis. 2d 246, 858 N.W.2d 372, 13-0298.

971.20 Annotation Under the unique circumstances in this case, when a defendant followed a circuit court’s instruction to defer filing a request for substitution of a judge until after counsel was appointed, strict compliance with the 20-day deadline for filing a request for substitution after remittitur was not warranted. Although the substitution motion was not timely filed under the statute, it was timely filed in this case because the circuit court in essence extended the deadline until after trial counsel was appointed. State v. Zimbal, 2017 WI 59, 375 Wis. 2d 643, 896 N.W.2d 327, 15-1292.

971.20 Annotation A request for substitution of judge under sub. (7) must be filed in writing with the circuit court. State v. Zimbal, 2017 WI 59, 375 Wis. 2d 643, 896 N.W.2d 327, 15-1292.

971.20 Annotation An untimely request for a substitution of a judge under this section may be considered timely when a government-created obstacle prevents a defendant from meeting the statutory deadline. State ex rel. Davis v. Circuit Court, 2024 WI 14, 411 Wis. 2d 123, 4 N.W.3d 273, 22-1999.

971.22 971.22 Change of place of trial.

971.22(1) (1) The defendant may move for a change of the place of trial on the ground that an impartial trial cannot be had in the county. The motion shall be made at arraignment, but it may be made thereafter for cause.

971.22(2) (2) The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The district attorney may file counter affidavits.

971.22(3) (3) If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it shall order that the trial be held in any county where an impartial trial can be had. Only one change may be granted under this subsection. The judge who orders the change in the place of trial shall preside at the trial. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the defendant, if he or she is in custody, shall be held and where the record shall be kept. If the criteria under s. 971.225 (1) (a) to (c) exist, the court may proceed under s. 971.225 (2).

971.22 History History: 1981 c. 115.

971.22 Annotation Relevant factors as to whether a change of venue should have been granted include: 1) the inflammatory nature of publicity concerning the crime; 2) the degree to which adverse publicity permeated the area from which the jury would be drawn; 3) the timing and specificity of the publicity; 4) the degree of care exercised; 5) the amount of difficulty encountered in selecting the jury panel; 6) the extent to which the jurors were familiar with the publicity; 7) the defendant’s use of challenges available in voir dire; 8) the state’s participation in adverse publicity; 9) the severity of the offense charged; and 10) the verdict returned. State v. Hebard, 50 Wis. 2d 408, 184 N.W.2d 156 (1971).

971.22 Annotation While actual prejudice need not be shown, there must be a showing of a reasonable probability of prejudice inherent in the situation. Gibson v. State, 55 Wis. 2d 110, 197 N.W.2d 813 (1972).

971.22 Annotation The timing, specificity, inflammatory nature, and degree of permeation of publicity are extremely important in determining the likelihood of prejudice in the community. State ex rel. Hussong v. Froelich, 62 Wis. 2d 577, 215 N.W.2d 390 (1974).

971.22 Annotation When news stories concerning the crime were accurate informational articles of a nature that would not cause prejudice and four months had elapsed between the publication of the news stories and the trial, it tended to indicate little or no prejudice against the defendant. Jones v. State, 66 Wis. 2d 105, 223 N.W.2d 889 (1974).

971.22 Annotation There was no abuse of discretion in not changing the venue of a prosecution for first-degree murder when the transcript of the hearing on the issuance of the arrest warrant was sealed, the preliminary examination and other hearings were closed to the public and press, the police and prosecutor refused to divulge any facts to the public and press, and press reports were generally free from the details of incriminating evidence, straightforward, and not incendiary. State v. Dean, 67 Wis. 2d 513, 227 N.W.2d 712 (1975).

971.22 Annotation Only the defendant may waive the right to venue where the crime was committed. State v. Mendoza, 80 Wis. 2d 122, 258 N.W.2d 260 (1977).

971.22 Annotation The right to venue where the crime occurred is not a fundamental right of a criminal defendant. The decision to move for a change of venue is a tactical judgment delegated to counsel that does not require the defendant’s personal concurrence. State v. Hereford, 224 Wis. 2d 605, 592 N.W.2d 247 (Ct. App. 1999), 98-1270.

971.223 971.223 Change of place of trial for certain violations.

971.223(1) (1) In an action for a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, a defendant who is a resident of this state may move to change the place of trial to the county where the offense was committed. The motion shall be in writing.

971.223(2) (2) The court shall grant a motion under this section if the court determines that the county where the offense was committed is different than the county where the defendant resides. If there is more than one county where the offense was committed, the court shall determine which of the counties where the offense was committed will be the place of trial. The judge who orders the change in the place of trial shall preside at the trial and the jury shall be chosen from the county where the trial will be held. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the record shall be kept and, if the defendant is in custody, where the defendant shall be held.

971.223(3) (3) This section does not affect which prosecutor has responsibility under s. 978.05 (1) to prosecute criminal actions arising from violations under sub. (1).

971.223(4) (4) This section does not affect the application of s. 971.22. In actions under sub. (1), the court may enter an order under s. 971.225 only if the order is agreed to by the defendant.

971.223 History History: 2007 a. 1.

971.225 971.225 Jury from another county.

971.225(1) (1) In lieu of changing the place of trial under s. 971.22 (3) or 971.223, the court may require the selection of a jury under sub. (2) if:

971.225(1)(a) (a) The court has decided to sequester the jurors after the commencement of the trial, as provided in s. 972.12;

971.225(1)(b) (b) There are grounds for changing the place of trial under s. 971.22 (1); and

971.225(1)(c) (c) The estimated costs to the county appear to be less using the procedure under this section than using the procedure for holding the trial in another county.

971.225(2) (2) If the court decides to proceed under this section it shall follow the procedure under s. 971.22 until the jury is chosen in the 2nd county. At that time, the proceedings shall return to the original county using the jurors selected in the 2nd county. The original county shall reimburse the 2nd county for all applicable costs under s. 814.22.

971.225 History History: 1981 c. 115; 1991 a. 39; 2007 a. 1.

971.23 971.23 Discovery and inspection.

971.23(1) (1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:

971.23(1)(a) (a) Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under s. 968.26 or before a grand jury, and the names of witnesses to the defendant’s written statements.

971.23(1)(b) (b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant’s oral statements.

971.23(1)(bm) (bm) Evidence obtained in the manner described under s. 968.31 (2) (b), if the district attorney intends to use the evidence at trial.

971.23(1)(c) (c) A copy of the defendant’s criminal record.

971.23(1)(d) (d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

971.23(1)(e) (e) Any relevant written or recorded statements of a witness named on a list under par. (d), including any audiovisual recording of an oral statement of a child under s. 908.08, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert’s findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.

971.23(1)(f) (f) The criminal record of a prosecution witness which is known to the district attorney.

971.23(1)(g) (g) Any physical evidence that the district attorney intends to offer in evidence at the trial.

971.23(1)(h) (h) Any exculpatory evidence.

971.23(2m) (2m) What a defendant must disclose to the district attorney. Upon demand, the defendant or his or her attorney shall, within a reasonable time before trial, disclose to the district attorney and permit the district attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the defendant:

971.23(2m)(a) (a) A list of all witnesses, other than the defendant, whom the defendant intends to call at trial, together with their addresses. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

971.23(2m)(am) (am) Any relevant written or recorded statements of a witness named on a list under par. (a), including any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert’s findings or the subject matter of his or her testimony, and including the results of any physical or mental examination, scientific test, experiment or comparison that the defendant intends to offer in evidence at trial.

971.23(2m)(b) (b) The criminal record of a defense witness, other than the defendant, which is known to the defense attorney.

971.23(2m)(c) (c) Any physical evidence that the defendant intends to offer in evidence at the trial.

971.23(3) (3) Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial shall be made or given if the sole basis for such comment or instruction is the fact the name of the witness appears upon a list furnished pursuant to this section.

971.23(5) (5) Scientific testing. On motion of a party subject to s. 971.31 (5), the court may order the production of any item of physical evidence which is intended to be introduced at the trial for scientific analysis under such terms and conditions as the court prescribes.

971.23(5c) (5c) Psychiatric testing of victims or witnesses. In a prosecution of s. 940.225, 948.02, or 948.025 or of any other crime if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), the court may not order any witness or victim, as a condition of allowing testimony, to submit to a psychiatric or psychological examination to assess his or her credibility.

971.23(6) (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 district attorney or defense counsel certifies that to list a witness 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 pursuant to s. 967.04 (2) to (6). 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.

971.23(6c) (6c) Interviews of victims by defense. Except as provided in s. 967.04, the defendant or his or her attorney may not compel a victim of a crime to submit to a pretrial interview or deposition.

971.23(6m) (6m) In camera proceedings. Either party may move for an in camera inspection by the court of any document required to be disclosed under sub. (1) or (2m) for the purpose of masking or deleting any material which is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

971.23(7) (7) Continuing duty to disclose. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which 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.

971.23(7m) (7m) Sanctions for failure to comply.

971.23(7m)(a) (a) The court shall exclude any witness not listed or evidence not presented for inspection or copying 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.

971.23(7m)(b) (b) In addition to or in lieu of any sanction specified in par. (a), a court may, subject to sub. (3), advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (1) or (2m), or of any untimely disclosure of material or information required to be disclosed under sub. (1) or (2m).

971.23(8) (8) Notice of alibi.

971.23(8)(a) (a) If the defendant intends to rely upon an alibi as a defense, the defendant shall give notice to the district attorney at the arraignment or at least 30 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known. If at the close of the state’s case the defendant withdraws the alibi or if at the close of the defendant’s case the defendant does not call some or any of the alibi witnesses, the state shall not comment on the defendant’s withdrawal or on the failure to call some or any of the alibi witnesses. The state shall not call any alibi witnesses not called by the defendant for the purpose of impeaching the defendant’s credibility with regard to the alibi notice. Nothing in this section may prohibit the state from calling said alibi witnesses for any other purpose.

971.23(8)(b) (b) In default of such notice, no evidence of the alibi shall be received unless the court, for cause, orders otherwise.

971.23(8)(c) (c) The court may enlarge the time for filing a notice of alibi as provided in par. (a) for cause.

971.23(8)(d) (d) Within 20 days after receipt of the notice of alibi, or such other time as the court orders, the district attorney shall furnish the defendant notice in writing of the names and addresses, if known, of any witnesses whom the state proposes to offer in rebuttal to discredit the defendant’s alibi. In default of such notice, no rebuttal evidence on the alibi issue shall be received unless the court, for cause, orders otherwise.

971.23(8)(e) (e) A witness list required under par. (a) or (d) shall be provided in addition to a witness list required under sub. (1) (d) or (2m) (a), and a witness disclosed on a list under sub. (1) (d) or (2m) (a) shall be included on a list under par. (a) or (d) if the witness is required to be disclosed under par. (a) or (d).

971.23(9) (9) Deoxyribonucleic acid evidence.

971.23(9)(a) (a) In this subsection “deoxyribonucleic acid profile” has the meaning given in s. 939.74 (2d) (a).

971.23(9)(b) (b) Notwithstanding sub. (1) (e) or (2m) (am), if either party intends to submit deoxyribonucleic acid profile evidence at a trial to prove or disprove the identity of a person, the party seeking to introduce the evidence shall notify the other party of the intent to introduce the evidence in writing by mail at least 45 days before the date set for trial; and shall provide the other party, within 15 days of request, the material identified under sub. (1) (e) or (2m) (am), whichever is appropriate, that relates to the evidence.

971.23(9)(c) (c) The court shall exclude deoxyribonucleic acid profile evidence at trial, if the notice and production deadlines under par. (b) are not met, except the court may waive the 45 day notice requirement or may extend the 15 day production requirement upon stipulation of the parties, or for good cause, if the court finds that no party will be prejudiced by the waiver or extension. The court may in appropriate cases grant the opposing party a recess or continuance.

971.23(10) (10) Payment of copying costs in cases involving indigent defendants. 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).

971.23(11) (11) Child pornography recordings.

971.23(11)(a) (a) In this subsection:

971.23(11)(a)1. 1. “Defense” means the defendant, his or her attorney, and any individual retained by the defendant or his or her attorney for the purpose of providing testimony if the testimony is expert testimony that relates to an item or material included under par. (b).

971.23(11)(a)2. 2. “Reasonably available” means sufficient opportunity for inspection, viewing, and examination at a law enforcement or government facility.

971.23(11)(a)3. 3. “Sexually explicit conduct” has the meaning given in s. 948.01 (7).

971.23(11)(b) (b) Any undeveloped film, photographic negative, photograph, motion picture, videotape, or recording, which includes any item or material that would be included under s. 948.01 (3r), or any copy of the foregoing, that is of a person who has not attained the age of 18 and who is engaged in sexually explicit conduct and that is in the possession, custody, and control of the state shall remain in the possession, custody, and control of a law enforcement agency or a court but shall be made reasonably available to the defense.

971.23(11)(c) (c)

971.23(11)(c)1. 1. Notwithstanding sub. (1) (e) and (g), a court shall deny any request by the defense to provide, and a district attorney or law enforcement agency may not provide to the defense, any item or material required in par. (b) to remain in the possession, custody, and control of a law enforcement agency or court, except that a court may order that a copy of an item or material included under par. (b) be provided to the defense if that court finds that a copy of the item or material has not been made reasonably available to the defense. The defense shall have the burden to establish that the item or material has not been made reasonably available.

971.23(11)(c)2. 2. If a court orders under subd. 1. a copy of an item or material included under par. (b) to be provided to the defense, the court shall enter a protective order under sub. (6) that includes an order that the copy provided to the defense may not be copied, printed, or disseminated by the defense and shall be returned to the court or law enforcement agency, whichever is appropriate, at the completion of the trial.

971.23(11)(d) (d) Any item or material that is required under par. (b) to remain in possession, custody, and control of a law enforcement agency or court is not subject to the right of inspection or copying under s. 19.35 (1).

971.23 History History: 1973 c. 196; 1975 c. 378, 421; 1989 a. 121; 1991 a. 223; 1993 a. 16, 486; 1995 a. 27, 387; 2001 a. 16; 2005 a. 42, 279; 2007 a. 20; 2009 a. 28, 138, 276; 2011 a. 284; 2017 a. 59.

971.23 Annotation Inadequate preparation for trial that results in a district attorney’s failure to disclose all scientific reports does not constitute good cause for the failure if the defense is misled, but this is subject to the harmless error rule. Wold v. State, 57 Wis. 2d 344, 204 N.W.2d 482 (1973).

971.23 Annotation When a prosecutor submitted a list of 97 witnesses the prosecutor intended to call, the court should have required the prosecutor to be more specific as to those the prosecutor really intended to call. Irby v. State, 60 Wis. 2d 311, 210 N.W.2d 755 (1973).

971.23 Annotation When a party successfully moves to have material masked or deleted from a discovery document, the proper procedure to be pursued is to place it in a sealed envelope or container, if necessary, so that it may be preserved for appellate review. State v. Van Ark, 62 Wis. 2d 155, 215 N.W.2d 41 (1974).

971.23 Annotation Under both the provisions of this section and the constitutional duty of the state to disclose to a criminal defendant evidence that is exculpatory in nature, there is no requirement to provide exculpatory evidence that is not within the exclusive possession of the state and does not surprise or prejudice the defendant. State v. Calhoun, 67 Wis. 2d 204, 226 N.W.2d 504 (1975).

971.23 Annotation Although substantial evidence indicated that the state had subpoenaed its “rebuttal” witness at least two weeks before the witness was called to testify and deliberately held the witness back for “dramatic” effect, no objection or motion to suppress was made on the proper ground that the witness was not a bona fide rebuttal witness; hence objection to the witness’s testimony was waived. Caccitolo v. State, 69 Wis. 2d 102, 230 N.W.2d 139 (1975).

971.23 Annotation The prosecutor’s duty to disclose does not ordinarily extend to discovery of criminal records from other jurisdictions. The prosecutor must make good faith efforts to obtain records from other jurisdictions specifically requested by the defense. Jones v. State, 69 Wis. 2d 337, 230 N.W.2d 677 (1975).

971.23 Annotation Police officers’ “memo books” and reports were within the rule requiring production of witness statements because the books and reports were written by the officers, the reports were signed by them, and both officers testified as to the incident preceding the defendant’s arrest. State v. Groh, 69 Wis. 2d 481, 230 N.W.2d 745 (1975).

971.23 Annotation When the state calls a witness not included in its list of witnesses, the preferable procedure is not to strike the witness but to allow a defendant, who makes a timely showing of surprise and prejudice, a continuance sufficient to interview the witness. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750 (1975).