Wisconsin Statutes 938.299 – Procedures at hearings
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Terms Used In Wisconsin Statutes 938.299
- Adult: means a person who has attained the age of 18 years, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, "adult" means a person who has attained the age of 17 years. See Wisconsin Statutes 990.01
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Continuance: Putting off of a hearing ot trial until a later time.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Hearsay: Statements by a witness who did not see or hear the incident in question but heard about it from someone else. Hearsay is usually not admissible as evidence in court.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Officers: when applied to corporations include directors and trustees. See Wisconsin Statutes 990.01
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
- Qualified: when applied to any person elected or appointed to office, means that such person has done those things which the person was by law required to do before entering upon the duties of the person's office. See Wisconsin Statutes 990.01
- Reporter: Makes a record of court proceedings and prepares a transcript, and also publishes the court's opinions or decisions (in the courts of appeals).
- State: when applied to states of the United States, includes the District of Columbia, the commonwealth of Puerto Rico and the several territories organized by Congress. See Wisconsin Statutes 990.01
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Year: means a calendar year, unless otherwise expressed; "year" alone means "year of our Lord". See Wisconsin Statutes 990.01
(1) Closed hearings; exceptions.
(a) Except as provided in par. (ar), the general public shall be excluded from hearings under this chapter unless a public fact-finding hearing is demanded by a juvenile through his or her counsel. The court shall refuse to grant the public hearing, however, if the victim of an alleged sexual assault objects or, in a nondelinquency proceeding, if a parent or guardian objects. If a public hearing is not held, only the parties, their counsel, witnesses, a representative of the news media who wishes to attend the hearing for the purpose of reporting news without revealing the identity of the juvenile involved and other persons requested by a party and approved by the court may be present. Any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar or a person engaged in the bona fide research, monitoring, or evaluation of activities conducted under 42 U.S. Code § 629h, as determined by the director of state courts, may be admitted by the court.
(ag) If a public hearing is not held, in addition to persons permitted to attend under par. (a), the juvenile’s foster parent or other physical custodian described in s. 48.62 (2) may be present, except that the court may exclude a foster parent or other physical custodian described in s. 48.62 (2) from any portion of the hearing if that portion of the hearing deals with sensitive personal information of the juvenile or the juvenile’s family or if the court determines that excluding the foster parent or other physical custodian would be in the best interests of the juvenile.
(am) Subject to s. 906.15, if a public hearing is not held, in addition to persons permitted to attend under par. (a), a victim of a juvenile’s act or alleged act may attend any hearing under this chapter based upon the act or alleged act, except that the court may exclude a victim from any portion of a hearing that deals with sensitive personal matters of the juvenile or the juvenile’s family and that does not directly relate to the act or alleged act committed against the victim. A member of the victim’s family and, at the request of the victim, a representative of an organization providing support services to the victim, may attend the hearing under this subsection.
(ar)
1. Notwithstanding par. (a) and except as provided under subd. 2., the general public may attend any hearing under this chapter relating to a juvenile who has been alleged to be delinquent for committing a violation that would be a felony if committed by an adult if the juvenile has been adjudicated delinquent previously and that previous adjudication remains of record and unreversed or relating to a juvenile who has been alleged to be delinquent for committing a violation specified in s. 938.34 (4h) (a).
2. The court shall exclude the general public from a hearing if the victim of a sexual assault objects and may, in its discretion, exclude the general public from any portion of a hearing that deals with sensitive personal matters of the juvenile or the juvenile’s family and that does not relate to the act or alleged act committed by the juvenile or from any other hearing described in this paragraph. If the court excludes the general public from a hearing described in this paragraph, only those persons who are permitted under par. (a) or (am) to attend a hearing from which the general public is excluded may attend.
(av) If a public hearing is held under par. (a) or (ar), any person may disclose to anyone any information obtained as a result of that hearing.
(b) Except as provided in par. (av) and s. 938.396, any person who divulges any information that would identify the juvenile or the family involved in any proceeding under this chapter is subject to ch. 785. This paragraph does not preclude a victim of the juvenile’s act from commencing a civil action based upon the juvenile’s act.
(2m) ? Use of restraints.
938.299(2m)(a) (a) In this subsection, “restraints” means leather, canvas, rubber, Velcro, or plastic restraints; handcuffs, waist belts, or leg chains; a wheel chair; an electric immobilization device; or any other device used to securely limit the movement of a juvenile’s body.
(b) Restraints may not be used on a juvenile during a court proceeding and shall be removed prior to the juvenile being brought into the courtroom and appearing before the court unless the court finds all of the following:
1. The use of restraints is necessary due to any of the following factors:
a. Restraints are necessary to prevent physical harm to the juvenile or another person.
b. The juvenile has a history of disruptive courtroom behavior that has placed others in potentially harmful situations, or the juvenile presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior.
c. There is a founded belief that the juvenile presents a substantial risk of flight from the courtroom.
2. There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the juvenile or another person, including the presence of court personnel, law enforcement officers, or bailiffs.
(c) The court shall provide the juvenile’s counsel an opportunity to be heard before the court orders the use of restraints. If the juvenile’s counsel informs the court that the juvenile wishes to be present, the court may order telephone or videoconference hearing pursuant to sub. (5). If restraints are ordered, the court shall make findings of fact in support of the order.
(d) Any restraints shall allow the juvenile limited movement of the hands to read and handle documents and writings necessary to the hearing. Under no circumstances may a juvenile be restrained using restraints that are fixed to a wall, floor, or furniture.
(4) Evidentiary rules at hearings.
938.299(4)(a) (a) Chapters 901 to 911 govern the presentation of evidence at the fact-finding hearing under s. 938.31.
(b) Except as provided in s. 901.05, common law and statutory rules of evidence are not binding at a waiver hearing under s. 938.18, a hearing for a juvenile held in custody under s. 938.21, a hearing under s. 938.296 (4) for a juvenile who is alleged to have violated s. 940.225, 948.02, 948.025, 948.05, 948.06, or 948.085 (2), a hearing under s. 938.296 (5) for a juvenile who is alleged to have violated s. 946.43 (2m), a dispositional hearing, or any postdispositional hearing under this chapter. At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant, or unduly repetitious testimony, or evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality, and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.
(5) Telephone or live audiovisual hearings.
938.299(5)(a) (a) The court may, upon the motion of the juvenile or the prosecutor or upon its own motion, conduct any hearing under this chapter on the record by telephone or live audiovisual means, if available. If the proceeding is required to be reported under SCR 71.01 (2), the proceeding 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 a proceeding conducted by telephone or live audiovisual means, any plea, waiver, stipulation, motion, objection, decision, order, or other action taken by the court or any party shall have the same effect as if made in open court. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker, live audiovisual means, or, upon request to the court, by allowing a person entitled to attend to listen to or view the proceedings without charge.
(b) If the juvenile or the prosecutor objects to the use of telephone or live audiovisual means for a critical stage of the proceedings, the court shall sustain the objection. For all other such objections, the court shall consider the factors outlined in s. 885.56 in determining whether to sustain or overrule the objection.
(6) Establishment of paternity when man alleges paternity. If a man who has been given notice under s. 938.27 (3) (b) 1. appears at any hearing for which he received the notice, alleges that he is the father of the juvenile and states that he wishes to establish the paternity of the juvenile, all of the following apply:
(a) The court shall refer the matter to the state or to the attorney responsible for support enforcement under s. 59.53 (6) (a) for a determination, under s. 767.80, of whether an action should be brought for the purpose of determining the paternity of the juvenile.
(b) The state or the attorney responsible for support enforcement who receives a referral under par. (a) shall perform the duties specified under s. 767.80 (5) (c) and (6r).
(c) The court having jurisdiction over actions affecting the family shall give priority under s. 767.82 (7m) to an action brought under s. 767.80 whenever the petition filed under s. 767.80 indicates that the matter was referred by the court under par. (a).
(d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under subch. IX of ch. 767 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court’s disposition of the juvenile if the juvenile is found to be in need of protection or services or if the court determines or has reason to know that the paternity proceedings may result in a finding that the juvenile is an Indian juvenile and in a petition by the juvenile’s parent, Indian custodian, or tribe for transfer of the proceeding to the jurisdiction of the tribe.
(e)
1. In this paragraph, ” genetic test” means a test that examines genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability that a man who is alleged to be a juvenile’s father is the juvenile’s biological father.
2. The court shall, at the hearing, orally inform any man specified in sub. (6) (intro.) that he may be required to pay for any testing ordered by the court under this paragraph or under s. 885.23.
3. In addition to ordering testing as provided under s. 885.23, if the court determines that it would be in the best interests of the juvenile, the court may order any man specified in sub. (6) (intro.) to submit to one or more genetic tests which shall be performed by an expert qualified as an examiner of genetic markers present on the cells and of the specific body material to be used for the tests, as appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability that the man alleged to be the juvenile’s father is the juvenile’s biological father based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at any hearing. The court, upon request by a party, may order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body materials to be used for the tests.
4. If the genetic tests show that an alleged father is not excluded and that the statistical probability that the alleged father is the juvenile’s biological father is 99.0 percent or higher, the court may determine that for purposes of a proceeding under this chapter or ch. 48, other than a proceeding under subch. VIII of ch. 48, the man is the juvenile’s biological parent.
5. A determination by the court under subd. 4. is not a determination of paternity under s. 938.355 (4g) (a), a judgment of paternity under ch. 767, or an adjudication of paternity under subch. VIII of ch. 48.
(7) Establishment of paternity when no man alleges paternity. If a man who has been given notice under s. 938.27 (3) (b) 1. appears at any hearing for which he received the notice but does not allege that he is the father of the juvenile and state that he wishes to establish the paternity of the juvenile or if no man to whom such notice was given appears at a hearing, the court may refer the matter to the state or to the attorney responsible for support enforcement under s. 59.53 (6) (a) for a determination, under s. 767.80, of whether an action should be brought for the purpose of determining the paternity of the juvenile.
(8) Testimony of juvenile’s mother relating to paternity. As part of the proceedings under this chapter, the court may order that a record be made of any testimony of the juvenile’s mother relating to the juvenile’s paternity. A record made under this subsection is admissible in a proceeding to determine the juvenile’s paternity under subch. IX of ch. 767.
(9) Indian juvenile; tribal court involvement.
938.299(9)(a) (a) If a petition under s. 938.12 or 938.13 (12) includes the statement in s. 938.255 (1) (cr) 2. or if the court is informed during a proceeding under s. 938.12 or 938.13 (12) that a petition relating to the delinquent act has been filed in a tribal court with respect to a juvenile to whom the circumstances specified in s. 938.255 (1) (cr) 1. apply, the court shall stay the proceeding and communicate with the tribal court in which the other proceeding is or may be pending to discuss which court is the more appropriate forum.
(b) If the court and tribal court either mutually agree or agree under the terms of an established judicial protocol applicable to the court that the tribal court is the more appropriate forum, the court shall dismiss the petition without prejudice or stay the proceeding. The court’s decision shall be based on the best interests of the juvenile and of the public.
(c) If a stay is ordered under par. (b), jurisdiction of the court continues over the juvenile until one year has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the juvenile, the court may, on motion and notice to the parties, subsequently lift the stay order and take any further action in the proceeding as the interests of the juvenile and of the public require. When jurisdiction of the court over the juvenile terminates by reason of the lapse of the one year following the last order affecting the stay, the clerk of the court shall, without notice, enter an order dismissing the petition.
(10) Indian juvenile; notice. If at any point in a proceeding under s. 938.13 (4), (6), (6m), or (7) the court determines or has reason to know that the juvenile is an Indian juvenile, the court shall provide notice of the proceeding to the juvenile’s parent, Indian custodian, and tribe in the manner specified in s. 938.028 (4) (a). The next hearing in the proceeding may not be held until at least 10 days after receipt of the notice by the parent, Indian custodian, and tribe or, if the identity or location of the parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for that hearing.