Chapter 980

980.034(4)(a)1. 1. The court will sequester the jurors during the trial.

980.034(4)(a)2. 2. There are grounds for changing the place of trial under sub. (1).

980.034(4)(a)3. 3. The estimated cost to the county of using the procedure under this subsection is less than the estimated cost to the county of holding the trial in another county.

980.034(4)(b) (b) A court that proceeds under this subsection shall follow the procedure under sub. (3) 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.

980.034 History History: 2005 a. 434.

980.036 980.036 Discovery and inspection.

980.036(1) (1) Definitions. In this section:

980.036(1)(a) (a) “Person subject to this chapter” means a person who is subject to a petition filed under s. 980.02 or a person who has been committed under s. 980.06.

980.036(1)(b) (b) “Prosecuting attorney” means an attorney representing the state in a proceeding under this chapter.

980.036(2) (2) What a prosecuting attorney must disclose to a person subject to this chapter. Upon demand, a prosecuting attorney shall disclose to a person subject to this chapter or his or her attorney, and permit the person subject to this chapter or his or her attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the state:

980.036(2)(a) (a) Any written or recorded statement made by the person subject to this chapter concerning the allegations in the petition filed under s. 980.02 or concerning other matters at issue in the trial or proceeding and the names of witnesses to the written statements of the person subject to this chapter.

980.036(2)(b) (b) A written summary of all oral statements of the person subject to this chapter that the prosecuting attorney plans to use at the trial or proceeding and the names of witnesses to the oral statements of the person subject to this chapter.

980.036(2)(c) (c) Evidence obtained in the manner described under s. 968.31 (2) (b), if the prosecuting attorney intends to use the evidence at the trial or proceeding.

980.036(2)(d) (d) A copy of the criminal record of the person subject to this chapter.

980.036(2)(e) (e) A list of all witnesses whom the prosecuting attorney intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

980.036(2)(f) (f) Any relevant written or recorded statements of a witness listed under par. (e), including all of the following:

980.036(2)(f)1. 1. Any videotaped oral statement of a child under s. 908.08.

980.036(2)(f)2. 2. Any reports prepared in accordance with s. 980.031 (5).

980.036(2)(g) (g) The criminal record of a witness listed under par. (e) that is known to the prosecuting attorney.

980.036(2)(h) (h) The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the prosecuting attorney intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

980.036(2)(i) (i) Any physical or documentary evidence that the prosecuting attorney intends to offer in evidence at the trial or proceeding.

980.036(2)(j) (j) Any exculpatory evidence.

980.036(3) (3) What a person subject to this chapter must disclose to the prosecuting attorney. Upon demand, a person who is subject to this chapter or his or her attorney shall disclose to the prosecuting attorney, and permit the prosecuting attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the person who is subject to this chapter or his or her attorney:

980.036(3)(a) (a) A list of all witnesses, other than the person who is subject to this chapter, whom the person who is subject to this chapter intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

980.036(3)(b) (b) Any relevant written or recorded statements of a witness listed under par. (a), including any reports prepared in accordance with s. 980.031 (5).

980.036(3)(c) (c) The criminal record of a witness listed under par. (a) if the criminal record is known to the attorney for the person who is subject to this chapter.

980.036(3)(d) (d) The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

980.036(3)(e) (e) Any physical or documentary evidence that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding.

980.036(3m) (3m) When disclosure must be made. A party required to make a disclosure under this section shall do so within a reasonable time after the probable cause hearing and within a reasonable time before a trial under s. 980.05, if the other party’s demand is made in connection with a trial. If the demand is made in connection with a proceeding under s. 980.08 or 980.09 (3), the party shall make the disclosure within a reasonable time before the start of that proceeding.

980.036(4) (4) Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial may be made or given if the sole basis for the comment or instruction is the fact that the name of the witness appears upon a list furnished under this section.

980.036(5) (5) Testing or analysis of evidence. On motion of a party, the court may order the production of any item of evidence or raw data that is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.

980.036(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 prosecuting attorney or the attorney for a person subject to this chapter certifies that listing a witness under sub. (2) (e) or (3) (a) 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 under 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.

980.036(7) (7) In camera proceedings. Either party may move for an in camera inspection of any document required to be disclosed under sub. (2) or (3) for the purpose of masking or deleting any material that is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

980.036(8) (8) Continuing duty to disclose. If, after complying with a requirement of this section, and before or during trial, a party discovers additional material or the names of additional witnesses requested that 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.

980.036(9) (9) Sanctions for failure to comply.

980.036(9)(a) (a) The court shall exclude any witness not listed or evidence not presented for inspection, copying, or photographing 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.

980.036(9)(b) (b) In addition to or in place of any sanction specified in par. (a), a court may, subject to sub. (4), advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (2) or (3), or of any untimely disclosure of material or information required to be disclosed under sub. (2) or (3).

980.036(10) (10) Payment of copying costs in cases involving indigent respondents. 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).

980.036(11) (11) Exclusive method of discovery. Chapter 804 does not apply to proceedings under this chapter. This section provides the only methods of obtaining discovery and inspection in proceedings under this chapter.

980.036 History History: 2005 a. 434; 2007 a. 20; 2009 a. 28.

980.036 Annotation In the context of this chapter, raw data is data that informs an expert’s analysis regarding the risk a respondent will engage in future acts of sexual violence. But without that analysis, the raw data alone has no probative value. The language of sub. (5) reflects that reality in that it acknowledges the purpose of requesting raw data is to subject it to “testing or analysis.” Thus, in the context of this chapter, the only reasonable reading of “raw data that is intended to be introduced at the trial” is that the analysis of the raw data is intended to be introduced. State v. Jendusa, 2021 WI 24, 396 Wis. 2d 34, 955 N.W.2d 777, 18-2357.

980.038 980.038 Miscellaneous procedural provisions.

980.038(1) (1) Motions challenging jurisdiction or competency of court or timeliness of petition.

980.038(1)(a) (a) A motion challenging the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02 shall be filed within 30 days after the court holds the probable cause hearing under s. 980.04 (2). Failure to file a motion within the time specified in this paragraph waives the right to challenge the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02.

980.038(1)(b) (b) Notwithstanding s. 801.11, a court may exercise personal jurisdiction over a person who is the subject of a petition filed under s. 980.02 even though the person is not served as provided under s. 801.11 (1) or (2) with a verified petition and summons or with an order for detention under s. 980.04 (1) and the person has not had a probable cause hearing under s. 980.04 (2).

980.038(2) (2) Evidence of refusal to participate in examination.

980.038(2)(a) (a) At any hearing under this chapter, the state may present evidence or comment on evidence that a person who is the subject of a petition filed under s. 980.02 or a person who has been committed under this chapter refused to participate in an examination of his or her mental condition that was being conducted under this chapter or that was conducted for the purpose of evaluating whether to file a petition before the petition under s. 980.02 was filed.

980.038(2)(b) (b) A licensed physician, licensed psychologist, or other mental health professional may indicate in any written report that he or she prepares in connection with a proceeding under this chapter that the person whom he or she examined refused to participate in the examination.

980.038(3) (3) Testimony by telephone or live audiovisual means. Unless good cause to the contrary is shown, proceedings under ss. 980.04 (2) (a) and 980.08 (7) (d) may be conducted by telephone or audiovisual means, if available. If the proceedings are required to be reported under SCR 71.02 (2), the proceedings shall be reported by a court reporter who is in simultaneous voice communication with all parties to the proceeding. Regardless of the physical location of any party to the telephone call, any action taken by the court or any party has the same effect as if made in open court. A proceeding under this subsection shall be conducted in a courtroom or other place reasonably accessible to the public. Simultaneous access to the proceeding shall be provided to a person entitled to attend by means of a loudspeaker or, upon request to the court, by making the person party to the telephone call without charge.

980.038(4) (4) Motions for postcommitment relief; appeal.

980.038(4)(a) (a) A motion for postcommitment relief by a person committed under s. 980.06 shall be made in the time and manner provided in ss. 809.30 to 809.32. An appeal by a person who has been committed under s. 980.06 from a final order under s. 980.06, 980.08, or 980.09 or from an order denying a motion for postcommitment relief or from both shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30 to 809.32. If a person is seeking relief from an order of commitment under s. 980.06, the person shall file a motion for postcommitment relief in the trial court prior to an appeal unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.

980.038(4)(b) (b) An appeal by the state from a final judgment or order under this chapter may be taken to the court of appeals within the time specified in s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809.

980.038(5) (5) Failure to comply with time limits; effect. Failure to comply with any time limit specified in this chapter does not deprive the circuit court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to comply with any time limit specified in this chapter is not grounds for an appeal or grounds to vacate any order, judgment, or commitment issued or entered under this chapter. Failure to object to a period of delay or a continuance waives the time limit that is the subject of the period of delay or continuance.

980.038(6) (6) Errors and defects not affecting substantial rights. The court shall, in every stage of a proceeding under this chapter, disregard any error or defect in the pleadings or proceedings that does not affect the substantial rights of either party.

980.038 History History: 2005 a. 434; 2007 a. 96; 2009 a. 26.

980.04 980.04 Detention; probable cause hearing; transfer for examination.

980.04(1) (1) Upon the filing of a petition under s. 980.02, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition. The person shall be detained only if there is probable cause to believe that the person is eligible for commitment under s. 980.05 (5). A person detained under this subsection shall be held in a facility approved by the department. If the person is serving a sentence of imprisonment, is in a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g), or is committed to institutional care, and the court orders detention under this subsection, the court shall order that the person be transferred to a detention facility approved by the department. A detention order under this subsection remains in effect until the petition is dismissed after a hearing under sub. (3) or after a trial under s. 980.05 (5) or until the effective date of a commitment order under s. 980.06, whichever is applicable.

980.04(2) (2) 

980.04(2)(a) (a) Whenever a petition is filed under s. 980.02, the court shall hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person.

980.04(2)(b) (b)

980.04(2)(b)1. 1. Except as provided in subd. 2., the court shall hold the probable cause hearing within 30 days, excluding Saturdays, Sundays, and legal holidays, after the filing of the petition, unless that time is extended by the court for good cause shown upon its own motion, the motion of any party, or the stipulation of the parties.

980.04(2)(b)2. 2. If the person named in the petition is in custody under a sentence, dispositional order, or commitment and the probable cause hearing will be held after the date on which the person is scheduled to be released or discharged from the sentence, dispositional order, or commitment, the probable cause hearing under par. (a) shall be held no later than 10 days after the person’s scheduled release or discharge date, excluding Saturdays, Sundays, and legal holidays, unless that time is extended by the court for good cause shown upon its own motion, the motion of any party, or the stipulation of the parties.

980.04(3) (3) If the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility specified by the department for an evaluation by the department as to whether the person is a sexually violent person. If the court determines that probable cause does not exist to believe that the person is a sexually violent person, the court shall dismiss the petition.

980.04(4) (4) The department shall promulgate rules that provide the qualifications for persons conducting evaluations under sub. (3).

980.04(5) (5) If the person named in the petition claims or appears to be indigent, the court shall, prior to the probable cause hearing under sub. (2) (a), refer the person to the authority for indigency determinations under s. 977.07 (1) and, if applicable, the appointment of counsel.

980.04 History History: 1993 a. 479; 1995 a. 77; 1999 a. 9; 2005 a. 344, 434; 2007 a. 97.

980.04 Cross-reference Cross-reference: See also ch. DHS 99, Wis. adm. code.

980.04 Annotation The rules of evidence apply to probable cause hearings under ch. 980. The exceptions to the rules for preliminary examinations also apply. Although s. 907.03 allows an expert to base an opinion on hearsay, an expert’s opinion based solely on hearsay cannot constitute probable cause. State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), 95-1067.

980.04 Annotation In sub. (2), “in custody” means in custody pursuant to ch. 980 and does not apply to custody under a previously imposed sentence. State v. Brissette, 230 Wis. 2d 82, 601 N.W.2d 678 (Ct. App. 1999), 98-2152.

980.04 Annotation Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136, 246 Wis. 2d 233, 631 N.W.2d 240, 99-2145.

980.04 Annotation The 72-hour time limit in sub. (2) is directory rather than mandatory. However, the individual’s due process rights prevent the state from indefinitely delaying the probable cause hearing when the subject of the petition is in custody awaiting the hearing and has made a request for judicial substitution. State v. Beyer, 2001 WI App 167, 247 Wis. 2d 13, 633 N.W.2d 627, 00-0036.

980.04 Annotation Sub. (3) is not a rule regarding the admissibility of expert testimony. It provides the procedure for determining probable cause to believe a person is a sexually violent offender. The general rule for determining the qualification of an expert applies. State v. Sprosty, 2001 WI App 231, 248 Wis. 2d 480, 636 N.W.2d 213, 00-2404.

980.05 980.05 Trial.

980.05(1) (1) A trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person shall commence no later than 90 days after the date of the probable cause hearing under s. 980.04 (2) (a). The court may grant one or more continuances of the trial date for good cause upon its own motion, the motion of any party or the stipulation of the parties.

980.05(2) (2) The person who is the subject of the petition, the person’s attorney, or the petitioner may request that a trial under this section be to a jury of 12. A request for a jury trial under this subsection shall be made within 10 days after the probable cause hearing under s. 980.04 (2) (a). If no request is made, the trial shall be to the court. The person, the person’s attorney, or the petitioner may withdraw his, her, or its request for a jury trial if the 2 persons who did not make the request consent to the withdrawal.

980.05(2m) (2m) 

980.05(2m)(a) (a) At a jury trial under this section, juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court, except that, notwithstanding s. 805.08 (3), each party shall be entitled to 4 peremptory challenges or, if the court orders additional jurors to be selected under s. 805.08 (2), to 5 peremptory challenges. A party may waive in advance any or all of its peremptory challenges and the number of jurors called under par. (b) shall be reduced by this number.

980.05(2m)(b) (b) The number of jurors selected shall be the number prescribed in sub. (2), unless a lesser number has been stipulated to and approved under par. (c) or the court orders that additional jurors be selected. That number of jurors, plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

980.05(2m)(c) (c) At any time before the verdict in a jury trial under this section, the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than the number prescribed in sub. (2).

980.05(3) (3) 

980.05(3)(a) (a) At a trial on a petition under this chapter, the petitioner has the burden of proving beyond a reasonable doubt that the person who is the subject of the petition is a sexually violent person.

980.05(3)(b) (b) If the state alleges that the sexually violent offense or act that forms the basis for the petition was an act that was sexually motivated as provided in s. 980.01 (6) (b) or (bm), the state is required to prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.

980.05(4) (4) Evidence that the person who is the subject of a petition under s. 980.02 was convicted for or committed sexually violent offenses before committing the offense or act on which the petition is based is not sufficient to establish beyond a reasonable doubt that the person has a mental disorder.

980.05(5) (5) If the court or jury determines that the person who is the subject of a petition under s. 980.02 is a sexually violent person, the court shall enter a judgment on that finding and shall commit the person as provided under s. 980.06. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent person, the court shall dismiss the petition and direct that the person be released unless he or she is under some other lawful restriction.

980.05 History History: 1993 a. 479; 1999 a. 9; 2005 a. 434.

980.05 Annotation The trier of fact is free to weigh expert testimony that conflicts and decide which is more reliable, to accept or reject an expert’s testimony, including accepting only parts of the testimony, and to consider all non-expert testimony. State v. Kienitz, 227 Wis. 2d 423, 597 N.W.2d 712 (1999), 97-1460.

980.05 Annotation This section does not confine expert testimony to any specific standard nor mandate the type or character of relevant evidence that the state may choose to meet its burden of proof. State v. Zanelli, 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998), 98-0733.

980.05 Annotation The standard of review for commitments under ch. 980 is the standard applicable to the review of criminal cases — whether the evidence could have led the trier of fact to find beyond a reasonable doubt that the person subject to commitment is a sexually violent person. State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999), 97-1337.

980.05 Annotation The right to a jury trial under ch. 980 is governed by sub. (2) rather than case law governing the right to a jury trial in criminal proceedings. State v. Bernstein, 231 Wis. 2d 392, 605 N.W.2d 555 (1999), 98-2259.