968.26

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968.26 John Doe proceeding.

968.26(2)

(2)

968.26(1)

(1) 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)(a)

(a) Except in para. (am), in this subsection, “district attorney” includes a prosecutor to whom the judge has referred the complaint under para. (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 § 978.045.

968.26(2)(b)

(b) If a district attorney receives a referral under para. (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 para. (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 para. (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 para. (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) The extent to which the judge may proceed in an examination under sub. (1) or (2) is within the judge’s discretion. The examination may be adjourned and may be secret. 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. Subject to § 971.23, if the proceeding is secret, the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney unless it is used by the prosecution at the preliminary hearing or the trial of the accused and then only to the extent that it is so used. A court, on the motion of a district attorney, may compel a person to testify or produce evidence under § 972.08 (1). The person is immune from prosecution as provided in § 972.08 (1), subject to the restrictions under § 972.085.