972.11 AnnotationWriting about sexual desires or activities was not itself prior “sexual conduct.” The victim’s notes expressing sexual desires and fantasies were, therefore, admissible. State v. Vonesh, 135 Wis. 2d 477, 401 N.W.2d 170 (Ct. App. 1986). 972.11 AnnotationErroneously admitted and false testimony of a victim that the victim was a virgin at the time of a disputed assault so pervasively affected the trial that the issue of consent was not fully tried. State v. Penigar, 139 Wis. 2d 569, 408 N.W.2d 28 (1987). 972.11 AnnotationSub. (2) (b), the rape shield law, bars, with two narrow exceptions, evidence of all sexual activity by a complainant not incident to the alleged assault. State v. Gulrud, 140 Wis. 2d 721, 412 N.W.2d 139 (Ct. App. 1987). 972.11 AnnotationIn limited circumstances, expert testimony about the consistency of a sexual assault complainant’s behavior with victims of the same type of crime may be offered for the purpose of helping the trier of fact understand the evidence to determine a fact in issue, as long as the expert does not give an opinion about the veracity of the complainant’s allegations. State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988). 972.11 AnnotationThis section does not on its face violate the constitutional right to present evidence but may in particular circumstances violate that right. To establish the right to present otherwise excluded evidence, the defendant must make an offer of proof establishing five factors, and the court must perform a balancing test. State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990). 972.11 AnnotationSummary judgment does not apply to cases brought under the criminal code. State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992). 972.11 AnnotationSection 805.03 authorizing sanctions for failure to comply with court orders is applicable to criminal actions. State v. Heyer, 174 Wis. 2d 164, 496 N.W.2d 779 (Ct. App. 1993). 972.11 AnnotationSub. (2) requires exclusion of testimony of a victim’s possible prior sexual conduct although when the alleged victim is an eight-year-old child, physical evidence of sexual contact may create an unjust inference that the sexual contact was by sexual assault. Michael R.B. v. State, 175 Wis. 2d 713, 499 N.W.2d 641 (1993). 972.11 AnnotationThat the complaining witness in a sexual assault case had previously consented to sexual intercourse has virtually no probative value regarding whether the witness consented to sexual intercourse under the use or threat of violence. State v. Neumann, 179 Wis. 2d 687, 508 N.W.2d 54 (Ct. App. 1993). 972.11 AnnotationWhen the state questioned an alleged rapist about the victim’s motive to lie, it did not open the door for admission of evidence of prior acts of consensual sex. State v. Jackson, 216 Wis. 2d 646, 575 N.W.2d 475 (1998), 96-1618. 972.11 AnnotationNot all comparison testimony that an alleged sexual assault victim’s behavior was consistent with that of child sexual assault victims opens the door to cross-examination about the alleged victim’s sexual behavior prior to the alleged assault. State v. Dunlap, 2002 WI 19, 250 Wis. 2d 466, 640 N.W.2d 112, 99-2189. 972.11 AnnotationIn order to admit evidence of alleged prior untruthful allegations of sexual assault under sub. (2) (b) 3., the circuit court must first conclude from the proffered evidence that a jury could reasonably find that the complainant made prior untruthful allegations of sexual assault. The judge must determine whether a jury, acting reasonably, could find that it is more likely than not that the complainant made prior untruthful allegations of sexual assault. State v. Ringer, 2010 WI 69, 326 Wis. 2d 351, 785 N.W.2d 448, 08-0652. 972.11 AnnotationUnder sub. (2) (b) 1. and s. 971.31 (11), evidence of the complainant’s alleged past sexual conduct with the defendant is admissible only if the defendant makes a three-part showing that: 1) the proffered evidence relates to sexual activities between the complainant and the defendant; 2) the evidence is material to a fact at issue; and 3) the evidence of sexual contact with the complainant is of sufficient probative value to outweigh its inflammatory and prejudicial nature. In determining that evidence of prior sexual conduct has a highly prejudicial effect, the legislature crafted into the rape shield law a balancing test that assumes, absent an evidentiary showing to the contrary, that the proffered evidence is more prejudicial than probative. State v. Sarfraz, 2014 WI 78, 356 Wis. 2d 460, 851 N.W.2d 235, 12-0337. 972.11 AnnotationThe exceptions to this section do not require proffered evidence of past sexual conduct between the accuser and the defendant to be the same as the criminal conduct alleged against the defendant. State v. Sarfraz, 2014 WI 78, 356 Wis. 2d 460, 851 N.W.2d 235, 12-0337. 972.11 AnnotationSub. (1) points in two different directions. The rules of civil procedure are applicable generally to criminal proceedings, and the application of the rules of civil procedure mandates reasonable diligence for substituted service of a subpoena. On the other hand, ch. 885 is to apply in all criminal proceedings and s. 885.03 sets forth three manners for service of a subpoena that do not include the reasonable diligence mandate. Because sub. (1) explicitly references it, ch. 885 is the more specific textual provision. Thus, service of a witness subpoena in a criminal proceeding is controlled by s. 885.03, which provides only that “any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness’s abode.” State v. Wilson, 2017 WI 63, 376 Wis. 2d 92, 896 N.W.2d 682, 15-0671. 972.11 AnnotationThe broad language used to define “sexual conduct” in the rape shield statute’s prohibition includes evidence concerning a victim’s lack of sexual intercourse. Therefore, the victim’s testimony in this case regarding the victim’s lack of sexual intercourse in the week prior to the sexual assault was improperly admitted. State v. Mulhern, 2022 WI 42, 402 Wis. 2d 64, 975 N.W.2d 209, 19-1565. 972.11 AnnotationIn this case, testimony regarding the victim’s use of birth control was not barred by sub. (2) (b) because it was connected to the course of conduct of the defendant’s sexual assaults. The evidence of the defendant’s apparent preoccupation with the victim’s continued use of birth control during the time period the defendant was sexually assaulting the victim connects the victim’s use of birth control to the course of the assaultive conduct. State v. Mader, 2023 WI App 35, 408 Wis. 2d 632, 993 N.W.2d 761, 22-0382. 972.11 AnnotationThis section protects complaining witnesses in sexual assault cases from being questioned about sexual conduct, but a false charge of sexual assault is not sexual conduct. Redmond v. Kingston, 240 F.3d 590 (2001). 972.11 AnnotationPrior Untruthful Allegations Under Wisconsin’s Rape Shield Law: Will Those Words Come Back to Haunt You? Berry. 2002 WLR 1237.
972.115972.115 Admissibility of defendant’s statement. 972.115(1)(d)(d) “Statement” means an oral, written, sign language, or nonverbal communication. 972.115(2)(a)(a) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is not available, upon a request made by the defendant as provided in s. 972.10 (5) and unless the state asserts and the court finds that one of the following conditions applies or that good cause exists for not providing an instruction, the court shall instruct the jury that it is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony and that the jury may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case: 972.115(2)(a)1.1. The person refused to respond or cooperate in the interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the subject’s refusal. 972.115(2)(a)2.2. The statement was made in response to a question asked as part of the routine processing of the person. 972.115(2)(a)3.3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer’s or agent’s knowledge, the equipment malfunctioned or stopped operating. 972.115(2)(a)4.4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency. 972.115(2)(a)5.5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible. 972.115(2)(a)6.6. The law enforcement officer conducting the interrogation or the law enforcement officer responsible for observing an interrogation conducted by an agent of a law enforcement agency reasonably believed at the commencement of the interrogation that the offense for which the person was taken into custody or for which the person was being investigated, was not a felony. 972.115(2)(b)(b) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a proceeding heard by the court without a jury in a felony case and if an audio or audio and visual recording of the interrogation is not available, the court may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement unless the court determines that one of the conditions under par. (a) 1. to 6. applies. 972.115(4)(4) Notwithstanding ss. 968.28 to 968.37, a defendant’s lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the defendant during the interrogation. 972.115(5)(5) An audio or audio and visual recording of a custodial interrogation shall not be open to public inspection under ss. 19.31 to 19.39 before one of the following occurs: 972.115(5)(a)(a) The person interrogated is convicted or acquitted of an offense that is a subject of the interrogation. 972.115(5)(b)(b) All criminal investigations and prosecutions to which the interrogation relates are concluded. 972.115 HistoryHistory: 2005 a. 60. 972.115 AnnotationInstituting Innocence Reform: Wisconsin’s New Governance Experiment. Kruse. 2006 WLR 645.
972.12972.12 Sequestration of jurors. The court may direct that the jurors sworn be kept together or be permitted to separate. The court may appoint an officer of the court to keep the jurors together and to prevent communication between the jurors and others. 972.12 HistoryHistory: 1987 a. 73; 1991 a. 39. 972.13(1)(1) A judgment of conviction shall be entered upon a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest. 972.13(2)(2) Except in cases where ch. 975 is applicable, upon a judgment of conviction the court shall proceed under ch. 973. The court may adjourn the case from time to time for the purpose of pronouncing sentence. 972.13(3)(3) A judgment of conviction shall set forth the plea, the verdict or finding, the adjudication and sentence, and a finding as to the specific number of days for which sentence credit is to be granted under s. 973.155. If the defendant is acquitted, judgment shall be entered accordingly. 972.13(4)(4) Judgments shall be in writing and signed by the judge or clerk. 972.13(5)(5) A copy of the judgment shall constitute authority for the sheriff to execute the sentence. 972.13(6)(6) The following forms may be used for judgments: STATE OF WISCONSIN
.... County
In .... Court
The State of Wisconsin
vs.
.... (Name of defendant)
UPON ALL THE FILES, RECORDS AND PROCEEDINGS,
IT IS ADJUDGED That the defendant has been convicted upon the defendant’s plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty) (no contest) on the .... day of ...., .... (year), of the crime of .... in violation of s. ....; and the court having asked the defendant whether the defendant has anything to state why sentence should not be pronounced, and no sufficient grounds to the contrary being shown or appearing to the court.
*IT IS ADJUDGED That the defendant is guilty as convicted.
*IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin state prisons (county jail of .... county) for an indeterminate term of not more than .....
*IT IS ADJUDGED That the defendant is ordered to serve a bifurcated sentence consisting of .... year(s) of confinement in prison and .... months/years of extended supervision.
*IT IS ADJUDGED That the defendant is placed in the intensive sanctions program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes and the following conditions: ....
*IT IS ADJUDGED That the defendant is hereby committed to detention in (the defendant’s place of residence or place designated by judge) for a term of not more than ....
*IT IS ADJUDGED That the defendant is placed on lifetime supervision by the department of corrections under section 939.615 of the Wisconsin Statutes.
*IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).
*IT IS ADJUDGED That the defendant pay restitution to ....
*IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows: ....
*The .... at .... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.
*IT IS ORDERED That the clerk deliver a duplicate original of this judgment to the sheriff who shall forthwith execute the same and deliver it to the warden.
Dated this .... day of ...., .... (year)
BY THE COURT ....
Date of Offense ....,
District Attorney ....,
Defense Attorney ....
*Strike inapplicable paragraphs.
STATE OF WISCONSIN
.... County
In .... Court
The State of Wisconsin
vs.
.... (Name of defendant)
On the .... day of ...., .... (year), the district attorney appeared for the state and the defendant appeared in person and by .... the defendant’s attorney.
UPON ALL THE FILES, RECORDS AND PROCEEDINGS
IT IS ADJUDGED That the defendant has been found not guilty by the verdict of the jury (by the court) and is therefore ordered discharged forthwith.
Dated this .... day of ...., .... (year)
BY THE COURT ....
972.13(7)(7) The department shall prescribe and furnish forms to the clerk of each county for use as judgments in cases where a defendant is placed on probation or committed to the custody of the department pursuant to chs. 967 to 979.
