Evidence privileged. 165.79(1)(1)
Evidence, information and analyses of evidence obtained from law enforcement officers by the laboratories is privileged and not available to persons other than law enforcement officers nor is the defendant entitled to an inspection of information and evidence submitted to the laboratories by the state or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the state at a preliminary hearing and except as provided in s. 971.23
. Upon request of a defendant in a felony action, approved by the presiding judge, the laboratories shall conduct analyses of evidence on behalf of the defendant. No prosecuting officer is entitled to an inspection of information and evidence submitted to the laboratories by the defendant, or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the accused at a preliminary hearing and except as provided in s. 971.23
. Employees who made examinations or analyses of evidence shall attend the criminal trial as witnesses, without subpoena, upon reasonable written notice from either party requesting the attendance.
Upon the termination or cessation of the criminal proceedings, the privilege of the findings obtained by a laboratory may be waived in writing by the department and the prosecutor involved in the proceedings. The employees may then be subpoenaed in civil actions in regard to any information and analysis of evidence previously obtained in the criminal investigation, but the laboratories shall not engage in any investigation requested solely for the preparation for trial of a civil matter. Upon appearance as a witness or receipt of a subpoena or notice to prepare for trial in a civil action, or appearance either with or without subpoena, the laboratories shall be compensated by the party at whose request the appearance or preparation was made in a reasonable amount to be determined by the trial judge, which fee shall be paid into the state treasury. In fixing the compensation the court may give consideration to the time spent in obtaining and analyzing the evidence for the purposes of criminal proceedings.
Cross-examination of a highly qualified witness who is familiar with the procedures used in performing the tests whose results are offered as evidence, who supervises or reviews the work of the testing analyst, and who renders his or her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. State v. Williams, 2002 WI 58
, 253 Wis. 2d 99
, 644 N.W.2d 919
Under the facts of the case, the privilege in sub. (1) did not prevent the defendant from obtaining evidence he was entitled to under s. 971.23 when he received the physical evidence that the state intended to offer at trial and a copy of the crime lab report and was granted permission to submit the evidence for testing by his own expert. The defendant was entitled to examine the crime lab analyst at trial but not at an evidentiary hearing. State v. Franszczak, 2002 WI App 141
, 256 Wis. 2d 68
, 647 N.W.2d 396
, 541 U.S. 36
analysts' affidavits that certified that evidence was in fact cocaine were testimonial statements, and the analysts were “witnesses" for purposes of the 6th amendment confrontation clause. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305
, 174 L. Ed. 2d 314
, 129 S. Ct. 2527
Cooperation with other state departments.
For the purpose of coordinating the work of the crime laboratories with the research departments located in the University of Wisconsin, the attorney general and the University of Wisconsin may agree for the use of university laboratories and university physical facilities and the exchange and utilization of personnel between the crime laboratories and the university.
History: 1985 a. 29
; 1997 a. 27
Disposal of evidence. 165.81(1)(1)
Whenever the department is informed by the submitting officer or agency that physical evidence in the possession of the laboratories is no longer needed the department may, except as provided in sub. (3)
or unless otherwise provided by law, destroy the evidence, retain it in the laboratories, return it to the submitting officer or agency, or turn it over to the University of Wisconsin upon the request of the head of any department of the University of Wisconsin. If the department returns the evidence to the submitting officer or agency, any action taken by the officer or agency with respect to the evidence shall be in accordance with s. 968.20
. Except as provided in sub. (3)
, whenever the department receives information from which it appears probable that the evidence is no longer needed, the department may give written notice to the submitting agency and the appropriate district attorney, by registered mail, of the intention to dispose of the evidence. If no objection is received within 20 days after the notice was mailed, it may dispose of the evidence.
Any electric weapon, as defined in s. 941.295 (1c) (a)
, in the possession of the laboratories shall either be destroyed or be turned over to an agency authorized to have electric weapons under s. 941.295 (2)
Except as provided in par. (c)
, if physical evidence that is in the possession of the laboratories includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, a delinquency adjudication, or commitment under s. 971.17
and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the laboratories shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.
The laboratories shall retain evidence to which par. (b)
applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a)
, from the biological material contained in or included on the evidence.
Subject to par. (e)
, the department may destroy evidence that includes biological material before the expiration of the time period specified in par. (b)
if all of the following apply:
The department sends a notice of its intent to destroy the evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.
No person who is notified under subd. 1.
does either of the following within 90 days after the date on which the person received the notice:
Submits a written request for retention of the evidence to the department.
No other provision of federal or state law requires the department to retain the evidence.
A notice provided under par. (c) 1.
shall clearly inform the recipient that the evidence will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the evidence is filed under s. 974.07 (2)
or a written request for retention of the evidence is submitted to the department.
If, after providing notice under par. (c) 1.
of its intent to destroy evidence, the department receives a written request for retention of the evidence, the department shall retain the evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7)
, (9) (a)
, or (10) (a) 5.
, unless the court orders destruction or transfer of the evidence under s. 974.07 (9) (b)
or (10) (a) 5.
Unless otherwise provided in a court order issued under s. 974.07 (9) (a)
or (10) (a) 5.
, nothing in this subsection prohibits the laboratories from returning evidence that must be preserved under par. (b)
to the agency that submitted the evidence to the laboratories. If the laboratories return evidence that must be preserved under par. (b)
to a submitting agency, any action taken by the agency with respect to the evidence shall be in accordance with s. 968.205
Criminal history search fee. 165.82(1)(1)
Notwithstanding s. 19.35 (3)
, the department of justice shall impose the following fees, plus any surcharge required under sub. (1m)
, for criminal history searches for purposes unrelated to criminal justice or to s. 175.35
, or 175.60
For each record check, except a fingerprint card record check, $7.
For each fingerprint card record check requested by a governmental agency or nonprofit organization, $15.
The department of justice shall impose a $5 surcharge if a person requests a paper copy of the results of a criminal history search requested under sub. (1)
The department of justice shall not impose fees for criminal history searches for purposes related to criminal justice.
The department of justice shall cooperate with the departments of safety and professional services, health services, and financial institutions in developing and maintaining a computer linkup to provide access to the information obtained from a criminal history search.
Transaction information for the management of enforcement system; fees.
The department of justice shall administer a transaction information for the management of enforcement system to provide access to information concerning law enforcement. The department of justice may impose fees on law enforcement agencies and tribal law enforcement agencies, as defined in s. 165.83 (1) (e)
, for rentals, use of terminals and related costs and services associated with the system. All moneys collected under this section shall be credited to the appropriation account under s. 20.455 (2) (h)
Transaction information for management of enforcement system; department of corrections records. 165.8285(1)(1)
The department of justice shall, through the transaction information for management of enforcement system, provide local law enforcement agencies with access to the registry of sex offenders maintained by the department of corrections under s. 301.45
The department of justice shall provide the department of corrections with access to the transaction information for management of enforcement system administrative message process.
Beginning on July 9, 1996, the department of justice and the department of corrections shall cooperate in using the transaction information for management of enforcement system, and in developing or using any other computerized or direct electronic data transfer system, in anticipation of the transfer of the sex offender registry from the department of justice to the department of corrections under 1995 Wisconsin Act 440
and for the purpose of providing access to or disseminating information from the sex offender registry under s. 301.45
History: 1995 a. 440
Transaction information for management of enforcement system; department of transportation photographs. 165.8287(2)
Upon electronic request, the department of transportation shall make available to the department of justice, in a digital format, any photograph taken of an applicant under s. 343.14 (3)
or 343.50 (4)
that is maintained by the department of transportation. Updated photographs shall be available to the department of justice within 30 days of photograph capture.
The department of justice shall, through the transaction information for the management of enforcement system or another similar system operated by the department of justice, provide Wisconsin law enforcement agencies, federal law enforcement agencies, and law enforcement agencies of other states with electronic access to any photograph specified in sub. (2)
for the administration of criminal justice and for traffic enforcement. Access to these photographs shall be available electronically if the law enforcement agency submits an electronic request bearing an electronic certification or other indicator of authenticity. For an electronic request made by a law enforcement agency of another state, the electronic certification or other indicator of authenticity shall include an electronic signature or verification of the agency making the request and a certification that the request is made for the purpose of administration of criminal justice or traffic enforcement.
Any photograph electronically available under this subsection shall contain the notation: “This photograph is subject to the requirements and restrictions of section 165.8287 of the Wisconsin Statutes. The photograph shall not be used for any purpose other than the administration of criminal justice or traffic enforcement. Secondary dissemination is prohibited and the photograph shall be destroyed when no longer necessary for the purpose requested. The photograph shall not be used as part of a photo lineup or photo array."
The provisions of s. 343.237 (5)
, and (10)
shall apply to any photograph obtained electronically by a law enforcement agency under this subsection. Any photograph obtained electronically by a law enforcement agency under this subsection may not be used for a photo lineup or photo array. For purposes of this paragraph, any photograph obtained electronically by a law enforcement agency under this subsection shall be considered a copy of a photograph obtained under s. 343.237 (3)
with respect to s. 343.237 (5)
, and (10)
The department of justice shall maintain a record, which may be electronic, of each request by a law enforcement agency for a photograph under this subsection and of the response to the request. Except as provided in s. 343.237 (9)
, the department of justice may not disclose any record or other information concerning or relating to the request to any person other than a court, district attorney, county corporation counsel, city, village, or town attorney, law enforcement agency, the applicant under s. 343.14 (3)
or 343.50 (4)
, or, if the applicant is under 18 years of age, his or her parent or guardian. Records maintained under this paragraph shall be maintained for at least 12 months.
The department of justice and the department of transportation shall ensure that, upon submission by law enforcement agencies of electronic requests meeting the requirements under this subsection, access to photographs under this subsection is promptly available to these requesting agencies.
History: 2009 a. 167
Criminal identification, records and statistics. 165.83(1)(b)
“Law enforcement agency" means a governmental unit of one or more persons employed full time by the state or a political subdivision of the state for the purpose of preventing and detecting crime and enforcing state laws or local ordinances, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority.
An act that is committed by a person who has attained the age of 17 and that is a felony or a misdemeanor.
An act that is committed by a person who has attained the age of 10 but who has not attained the age of 17 and that would be a felony or misdemeanor if committed by an adult.
An act that is committed by any person and that is a violation of a city, county, village or town ordinance.
“Tribal law enforcement agency" means any of the following:
An agency of a tribe that is established for the purpose of preventing and detecting crime on the reservation or trust lands of the tribe and enforcing the tribe's laws or ordinances, that employs full time one or more persons who are granted law enforcement and arrest powers under s. 165.92 (2) (a)
, and that was created by a tribe that agrees that its law enforcement agency will perform the duties required of the agency under this section and s. 165.84
The Great Lakes Indian Fish and Wildlife Commission, if the Great Lakes Indian Fish and Wildlife Commission agrees to perform the duties required under this section and s. 165.84
Obtain and file fingerprints, descriptions, photographs and any other available identifying data on persons who have been arrested or taken into custody in this state:
For an offense which is a felony or which would be a felony if committed by an adult.
For an offense which is a misdemeanor, which would be a misdemeanor if committed by an adult or which is a violation of an ordinance, and the offense involves burglary tools, commercial gambling, dealing in gambling devices, contributing to the delinquency of a child, dealing in stolen property, controlled substances or controlled substance analogs under ch. 961
, firearms, dangerous weapons, explosives, pandering, prostitution, sex offenses where children are victims, or worthless checks.
For an offense charged or alleged as disorderly conduct but which relates to an act connected with one or more of the offenses under subd. 2.
For any other offense designated by the attorney general.
Accept for filing fingerprints and other identifying data, taken at the discretion of the law enforcement or tribal law enforcement agency involved, on persons arrested or taken into custody for offenses other than those listed in par. (a)
Obtain and file fingerprints and other available identifying data on unidentified human corpses found in this state.
Obtain and file information relating to identifiable stolen or lost property.
Obtain and file a copy or detailed description of each arrest warrant issued in this state for the offenses under par. (a)
or s. 346.63 (1)
but not served because the whereabouts of the person named on the warrant is unknown or because that person has left the state. All available identifying data shall be obtained with the copy of the warrant, including any information indicating that the person named on the warrant may be armed, dangerous or possessed of suicidal tendencies.
Collect information concerning the legal action taken in connection with offenses committed in this state from the inception of the complaint to the final discharge of the defendant and such other information as may be useful in the study of crime and the administration of justice. The department may determine any other information to be obtained regarding crime records.
Furnish all reporting officials with forms and instructions which specify in detail the nature of the information required under pars. (a)
and any other matters which facilitate collection.
Cooperate with and assist all law enforcement and tribal law enforcement agencies in the state in the establishment of a state system of criminal identification and in obtaining fingerprints and other identifying data on all persons described in pars. (a)
Offer assistance and, when practicable, instructions to all local and tribal law enforcement agencies in establishing efficient local and tribal bureaus of identification and records systems.
Compare the fingerprints and descriptions that are received from law enforcement and tribal law enforcement agencies with the fingerprints and descriptions already on file and, if the person arrested or taken into custody is a fugitive from justice or has a criminal record, immediately notify the law enforcement and tribal law enforcement agencies concerned and supply copies of the criminal record to these agencies.
Make available all statistical information obtained to the governor and the legislature.