Chapter 968

968.26(1b)(a)4m. 4m. A solicitation, conspiracy, or attempt to commit any violation under subd. 1., 2., 3., or 4.

968.26(1b)(a)5. 5. Any conduct that is prohibited by state law and punishable by fine or imprisonment or both if the individual who allegedly participated in the conduct was a law enforcement officer; a correctional officer; or a state probation, parole, or extended supervision officer and the individual was engaged in his or her official duties at the time of the alleged conduct.

968.26(1b)(b) (b) “Judge” does not include a permanent reserve judge, as defined in s. 753.075 (1) (a), or a temporary reserve judge, as defined in s. 753.075 (1) (b).

968.26(1m) (1m) If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court’s jurisdiction, the judge shall convene a proceeding described under sub. (3) and shall subpoena and examine any witnesses the district attorney identifies.

968.26(2) (2) 

968.26(2)(a) (a) Except in par. (am), in this subsection, “district attorney” includes a prosecutor to whom the judge has referred the complaint under par. (am).

968.26(2)(am) (am) If a person who is not a district attorney complains to a judge that he or she has reason to believe that a crime has been committed within the judge’s jurisdiction, the judge shall refer the complaint to the district attorney or, if the complaint may relate to the conduct of the district attorney, to another prosecutor under s. 978.045.

968.26(2)(b) (b) If a district attorney receives a referral under par. (am), the district attorney shall, within 90 days of receiving the referral, issue charges or refuse to issue charges. If the district attorney refuses to issue charges, the district attorney shall forward to the judge in whose jurisdiction the crime has allegedly been committed all law enforcement investigative reports on the matter that are in the custody of the district attorney, his or her records and case files on the matter, and a written explanation why he or she refused to issue charges. The judge may require a law enforcement agency to provide to him or her any investigative reports that the law enforcement agency has on the matter. The judge shall convene a proceeding as described under sub. (3) if he or she determines that a proceeding is necessary to determine if a crime has been committed. When determining if a proceeding is necessary, the judge may consider the law enforcement investigative reports, the records and case files of the district attorney, and any other written records that the judge finds relevant.

968.26(2)(c) (c) In a proceeding convened under par. (b), the judge shall subpoena and examine under oath the complainant and any witnesses that the judge determines to be necessary and appropriate to ascertain whether a crime has been committed and by whom committed. The judge shall consider the credibility of testimony in support of and opposed to the person’s complaint.

968.26(2)(d) (d) In a proceeding convened under par. (b), the judge may issue a criminal complaint if the judge finds sufficient credible evidence to warrant a prosecution of the complaint. The judge shall consider, in addition to any testimony under par. (c), the law enforcement investigative reports, the records and case files of the district attorney, and any other written reports that the judge finds relevant.

968.26(3) (3) 

968.26(3)(a) (a) Except as provided in sub. (5), the extent to which the judge may proceed in an examination under sub. (1m) or (2) is within the judge’s discretion.

968.26(3)(b) (b) The examination may be adjourned.

968.26(3)(c) (c) Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses, or argue before the judge.

968.26(3)(d) (d) A court, on the motion of a district attorney, may compel a person to testify or produce evidence under s. 972.08 (1). The person is immune from prosecution as provided in s. 972.08 (1), subject to the restrictions under s. 972.085.

968.26(4) (4) 

968.26(4)(a) (a) The judge may enter a secrecy order upon a showing of good cause by the district attorney. A secrecy order under this paragraph may apply to only the judge, a district attorney or other prosecuting attorney who participates in a proceeding under this section, law enforcement personnel admitted to a proceeding under this section, an interpreter who participates in a proceeding under this section, or a reporter who makes or transcribes a record of a proceeding under this section. No secrecy order under this section may apply to any other person.

968.26(4)(b) (b) If a judge enters a secrecy order under par. (a), the judge shall terminate that secrecy order if any person applies to the judge for the termination and establishes that the good cause shown under par. (a) no longer exists. If a judge terminates a secrecy order entered under par. (a), the identity of the subject of the proceeding under this section may not be disclosed without the subject’s consent, except as provided in par. (c).

968.26(4)(c) (c) If a criminal complaint is filed following a proceeding in which the judge entered a secrecy order, the order is terminated at the initial appearance and s. 971.23 governs disclosure of information from a proceeding under this section.

968.26(4)(d) (d) Any person who violates a secrecy order entered under par. (a) is subject to a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.

968.26(5) (5) 

968.26(5)(a) (a)

968.26(5)(a)1. 1. Except as provided in subd. 2., no proceeding may last longer than the following:

968.26(5)(a)1.a. a. If the proceeding begins under sub. (1m), 6 months beginning on the day the district attorney requests the judge to convene the proceeding.

968.26(5)(a)1.b. b. If the proceeding begins under sub. (2), 6 months beginning on the day the district attorney forwards under sub. (2) (b) to a judge all reports, records and case files, and an explanation of his or her refusal.

968.26(5)(a)2. 2. The period under subd. 1. may be extended only if a majority of judicial administrative district chief judges find good cause for the extension and identification of the vote of each judge is available to the public. The period under subd. 1. may be extended an unlimited number of times, but each extension may be for no more than 6 months and, for each extension, a majority of judicial administrative district chief judges must find good cause and the identification of the vote of each judge must be available to the public.

968.26(5)(b) (b) A proceeding may not investigate a crime that was not part of the original request under sub. (1m) or complaint under sub. (2) (a), whichever is appropriate, unless a majority of judicial administrative district chief judges find good cause to add specified crimes and the identification of the vote of each judge is available to the public. An unlimited number of specified crimes may be added but, for each addition of a specified crime, a majority of judicial administrative district chief judges must find good cause and the identification of the vote of each judge must be available to the public.

968.26(5)(c) (c) A judge may issue a search warrant relating to a proceeding under this section only if the judge is not presiding over that proceeding.

968.26(6) (6) Records reflecting the costs of an investigation and proceedings under sub. (3) are subject to the provisions of subch. II of ch. 19. If a request to inspect or copy a record is received, but no record exists, then, notwithstanding s. 19.35 (1) (L), the recipient of the request shall provide a summary amount of the costs.

968.26(7) (7) If property was seized during a proceeding under this section, the judge shall, at the close of the proceeding, order notice as he or she determines to be adequate to all persons who have or may have an interest in the property.

968.26 History History: 1989 a. 122; 1991 a. 88, 223, 315; 2009 a. 24; 2015 a. 64; 2021 a. 76, 209.

968.26 Annotation A defendant must be allowed to use testimony of witnesses at a secret John Doe proceeding to impeach the same witnesses at the trial, even if the prosecution does not use the John Doe testimony. Myers v. State, 60 Wis. 2d 248, 208 N.W.2d 311 (1973).

968.26 Annotation An immunity hearing must be in open court. State ex rel. Newspapers, Inc. v. Circuit Court, 65 Wis. 2d 66, 221 N.W.2d 894 (1974).

968.26 Annotation A person charged as a result of a John Doe proceeding has no recognized interest in the maintenance of secrecy in that proceeding. Discussing John Doe proceedings. State v. O’Connor, 77 Wis. 2d 261, 252 N.W.2d 671 (1977).

968.26 Annotation No restriction under the 4th or 5th amendment to the U.S. Constitution precludes the enforcement of an order for handwriting exemplars directed by a presiding judge in a John Doe proceeding. State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (1977).

968.26 Annotation Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target” of the investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977).

968.26 Annotation This section does not violate the constitutional separation of powers doctrine. It does not invest in the John Doe judge an investigatory power that properly can be exercised only by members of the executive branch of government. The judge considers the testimony presented, utilizes the judge’s training in constitutional and criminal law and in courtroom procedure in determining the need to subpoena witnesses requested by the district attorney, in presiding at the examination of witnesses, and in determining probable cause, and ensures procedural fairness. The John Doe judge must conduct himself or herself as a neutral and detached magistrate in determining probable cause, which is the basic function of the proceeding. State v. Washington, 83 Wis. 2d 808, 266 N.W.2d 597 (1978).

968.26 Annotation Discussing a balance between the public’s right to know and the need for secrecy in John Doe proceedings. In re Wisconsin Family Counseling Services, Inc. v. State, 95 Wis. 2d 670, 291 N.W.2d 631 (Ct. App. 1980).

968.26 Annotation A John Doe judge may not issue a material witness warrant under s. 969.01 (3). State v. Brady, 118 Wis. 2d 154, 345 N.W.2d 533 (Ct. App. 1984).

968.26 Annotation When a John Doe proceeding is not a joint executive and judicial undertaking, the procedure does not violate the separation of powers doctrine and is constitutional. State v. Unnamed Defendant, 150 Wis. 2d 352, 441 N.W.2d 696 (1989).

968.26 Annotation A John Doe judge may issue and seal a search warrant, and a district attorney may independently issue a criminal complaint, regardless of the existence of the John Doe. A John Doe cannot be used to obtain evidence against a defendant who has already been charged. State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), 93-2445.

968.26 Annotation To be entitled to a hearing, a John Doe complainant must do more than merely allege in conclusory terms that a crime has been committed. The complainant’s petition must allege facts that raise a reasonable belief that a crime has been committed. State ex rel. Reimann v. Circuit Court, 214 Wis. 2d 605, 571 N.W.2d 385 (1997), 96-2361.

968.26 Annotation A nonlawyer’s questioning of a witness on the state’s behalf at a John Doe hearing even if constituting the unauthorized practice of law did not require exclusion of the testimony at trial. State v. Noble, 2002 WI 64, 253 Wis. 2d 206, 646 N.W.2d 38, 99-3271.

968.26 Annotation Article VII, section 5 (3), of the Wisconsin Constitution read together with ss. 808.03 (2) and 809.51 (1) is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding. When rendering judicial decisions in the context of a John Doe proceeding, the judge must create a record for possible review. On review of a petition for a writ stemming from a secret John Doe proceeding, the court of appeals may seal parts of a record in order to comply with existing secrecy orders issued by the John Doe judge. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 260 Wis. 2d 653, 660 N.W.2d 260, 01-3220.

968.26 Annotation A John Doe judge must have the authority to disqualify counsel and may permit argument by counsel when necessary to ensure procedural fairness. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 260 Wis. 2d 653, 660 N.W.2d 260, 01-3220.

968.26 Annotation The John Doe judge erred as a matter of law by requiring an oath of secrecy from a witness’s counsel when a secrecy order was in effect. State ex rel. Individual Subpoenaed to Appear at Waukesha County John Doe Case No. 2003 JD 001 v. Davis, 2005 WI 70, 281 Wis. 2d 431, 697 N.W.2d 803, 04-1804.

968.26 Annotation The circuit judge erred when in reviewing a John Doe petition the judge reviewed police reports containing information casting doubt on assertions in the petition and explained that the judge’s review of the petition and the police reports led the judge to conclude that the petitioner failed to allege facts sufficient to raise a reasonable belief that a crime has been committed. This section does not permit this sort of analysis at the threshold stage of determining whether a petition contains reason to believe that a crime has been committed. State ex rel. Williams v. Fiedler, 2005 WI App 91, 282 Wis. 2d 486, 698 N.W.2d 294, 04-0175.

968.26 Annotation A John Doe judge has exclusive authority to subpoena witnesses in a John Doe proceeding based upon the language of this section. State ex rel. Hipp v. Murray, 2008 WI 67, 310 Wis. 2d 342, 750 N.W.2d 873, 07-0230.

968.26 Annotation The judge in a John Doe hearing is not required to examine all the witnesses a complainant produces and to issue subpoenas to all the witnesses a complainant wishes to produce. This section extends judicial discretion in a John Doe hearing not only to the scope of a witness’s examination, but also to whether a witness need testify at all. State ex rel. Robins v. Madden, 2009 WI 46, 317 Wis. 2d 364, 766 N.W.2d 542, 07-1526.

968.26 Annotation Under sub. (3), as revised by 2009 Wis. Act 24, a John Doe judge must potentially undertake four inquiries: 1) decide whether to refer the John Doe complaint to the district attorney in the first instance; 2) decide whether it is necessary to conduct any additional proceedings if the district attorney chooses not to issue charges; 3) determine what, if any, witnesses to subpoena and examine if additional proceedings are deemed necessary; and 4) decide whether to issue a criminal complaint if the judge finds that the additional proceedings have produced sufficient credible evidence to warrant prosecution. Naseer v. Miller, 2010 WI App 142, 329 Wis. 2d 724, 793 N.W.2d 209, 09-2578.

968.26 Annotation Under the statute, as amended by 2009 Wis. Act 24, a judge has a mandatory duty to refer a John Doe complaint to the district attorney only if the four corners of the complaint provide a sufficient factual basis to establish an objective reason to believe that a crime has been committed in the judge’s jurisdiction, the same as under the prior statute. Naseer v. Miller, 2010 WI App 142, 329 Wis. 2d 724, 793 N.W.2d 209, 09-2578.

968.26 Annotation This section grants a John Doe judge broad authority to conduct an investigation into alleged crimes. The judge is also given those powers necessary to carry out this duty. The judge is the governor of the proceedings and is responsible for maintaining the good order, dignity, and, insofar as it is compatible with the administration of justice, efficiency of those proceedings. State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363 Wis. 2d 1, 866 N.W.2d 165, 14-0421.

968.26 Annotation Discussing the limits of a judge’s authority in presiding over or conducting John Doe proceedings. 76 Atty. Gen. 217.

968.26 Annotation Applicable law allows electronic transmission of certain confidential case information among clerks of circuit court, county sheriff’s offices, and the Department of Justice through electronic interfaces involving the Department of Administration’s Office of Justice Assistance, specifically including electronic data messages about an arrest warrant if the warrant was issued in John Doe proceedings that have been sealed under this section. OAG 2-10.

968.265 968.265 Lie detector tests; sexual assault victims.

968.265(1) (1) In this section, “lie detector” has the meaning given in s. 111.37 (1) (b).

968.265(2) (2) If a person reports to a law enforcement officer that he or she was the victim of an offense under s. 940.22 (2), 940.225, 948.02 (1) or (2), or 948.085, no law enforcement officer may in connection with the report order, request, or suggest that the person submit to a test using a lie detector, or provide the person information regarding tests using lie detectors unless the person requests information regarding tests using lie detectors.

968.265(3) (3) If a person reports to a district attorney that he or she was the victim of an offense under s. 940.22 (2), 940.225, 948.02 (1) or (2), or 948.085, no district attorney may do any of the following in connection with the report:

968.265(3)(a) (a) Order that the person submit to a test using a lie detector.

968.265(3)(b) (b) Suggest or request that the person submit to a test using a lie detector without first providing the person with notice and an explanation of his or her right not to submit to such a test.

968.265 History History: 2003 a. 224; 2005 a. 277.

968.27 968.27 Definitions. In ss. 968.28 to 968.375:

968.27(1) (1) “Aggrieved person” means a person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed.

968.27(2) (2) “Aural transfer” means a transfer containing the human voice at any point from the point of origin to the point of reception.

968.27(3) (3) “Contents,” when used with respect to any wire, electronic, or oral communication, includes any information concerning the substance, purport, or meaning of that communication.

968.27(4) (4) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature wholly or partially transmitted by a wire, radio, electromagnetic, photoelectronic or photooptical system. “Electronic communication” does not include any of the following:

968.27(4)(a) (a) The radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

968.27(4)(b) (b) Any wire or oral communication.

968.27(4)(c) (c) Any communication made through a tone-only paging device.

968.27(4)(d) (d) Any communication from a tracking device.

968.27(5) (5) “Electronic communication service” means any service that provides its users with the ability to send or receive wire or electronic communications.

968.27(6) (6) “Electronic communications system” means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of those communications.

968.27(7) (7) “Electronic, mechanical or other device” means any device or apparatus which can be used to intercept a wire, electronic or oral communication other than:

968.27(7)(a) (a) Any telephone or telegraph instrument, equipment or facilities, or any component thereof, which is:

968.27(7)(a)1. 1. Furnished to the subscriber or user by a provider of electronic or wire communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; or

968.27(7)(a)2. 2. Being used by a provider of electronic or wire communication service in the ordinary course of its business, or by a law enforcement officer in the ordinary course of his or her duties.

968.27(7)(b) (b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

968.27(8) (8) “Electronic storage” means any of the following:

968.27(8)(a) (a) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.

968.27(8)(b) (b) Any storage of a wire or electronic communication by an electronic communication service for purposes of backup protection of the communication.

968.27(9) (9) “Intercept” means the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.

968.27(10) (10) “Investigative or law enforcement officer” means any officer of this state or political subdivision thereof, who is empowered by the laws of this state to conduct investigations of or to make arrests for violations of the laws that he or she is employed to enforce, and any attorney authorized by law to prosecute or participate in the prosecution of those offenses.

968.27(11) (11) “Judge” means the judge sitting at the time an application is made under s. 968.30 or his or her successor.

968.27(12) (12) “Oral communication” means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. “Oral communication” does not include any electronic communication.

968.27(13) (13) “Pen register” means a device that records or decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached. “Pen register” does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.

968.27(14) (14) “Readily accessible to the general public” means, with respect to a radio communication, that the communication is not any of the following:

968.27(14)(a) (a) Scrambled or encrypted.

968.27(14)(b) (b) Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication.

968.27(14)(c) (c) Carried on a subcarrier or other signal subsidiary to a radio transmission.