968.29 Authorization for disclosure and use of intercepted wire, electronic or oral communications. (1) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer only to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure. (2) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use the contents only to the extent the use is appropriate to the proper performance of the officer’s official duties. (3) (a) Any person who has received, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520 or by a like statute of any other state, any information concerning a wire, electronic or oral communication or evidence derived therefrom intercepted in accordance with ss. 968.28 to 968.37, may disclose the contents of that communication or that derivative evidence only while giving testimony under oath or affirmation in any proceeding in any court or before any magistrate or grand jury in this state, or in any court of the United States or of any state, or in any federal or state grand jury proceeding. (b) In addition to the disclosure provisions of par. (a), any person who has received, in the manner described under s. 968.31 (2) (b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while
Updated 23-24 Wis. Stats.
18
giving testimony under oath or affirmation in any proceeding described in par. (a) in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording. (4) No otherwise privileged wire, electronic or oral communication intercepted in accordance with, or in violation of, ss. 968.28 to 968.37 or 18 USC 2510 to 2520, may lose its privileged character. (5) When an investigative or law enforcement officer, while engaged in intercepting wire, electronic or oral communications in the manner authorized, intercepts wire, electronic or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subs. (1) and (2). The contents and any evidence derived therefrom may be used under sub. (3) when authorized or approved by the judge who acted on the original application where the judge finds on subsequent application, made as soon as practicable but no later than 48 hours, that the contents were otherwise intercepted in accordance with ss. 968.28 to 968.37 or 18 USC 2510 to 2520 or by a like statute. History: 1971 c. 40 ss. 91, 93; 1987 a. 399; 1989 a. 121, 359; 1993 a. 98; 1995 a. 30. Evidence of intercepted oral or wire communications can be introduced only if the interception was authorized under s. 968.30; consent by one party to the communication is not sufficient. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N.W.2d 354 (1971). Although one-party consent tapes are lawful, they are not authorized by ss. 968.28 to 968.33, and therefore the contents cannot be admitted as evidence in chief, but sub. (3) does not prohibit giving such tapes to the state. State v. Waste Management of Wisconsin, Inc., 81 Wis. 2d 555, 261 N.W.2d 147 (1978). Although a taped telephone conversation was obtained without a court order, the defendant opened the door to the tape’s admission by extensive reference to the tape transcript during the defendant’s case-in-chief. State v. Albrecht, 184 Wis. 2d 287, 516 N.W.2d 776 (Ct. App. 1994). Sub. (2) authorizes prosecutors to include intercepted communications in a criminal complaint. A prosecutor is a law enforcement officer under sub. (2), and preparation of complaints is within the prosecutor’s official duties. State v. Gilmore, 193 Wis. 2d 403, 535 N.W.2d 21 (Ct. App. 1995). The state may incorporate intercepted communications in a criminal complaint if the complaint is filed under seal. Unilateral public disclosure of such communications in a complaint while not authorized does not subject the communication to suppression, but may entitle the defendant to remedies under s. 968.31. State v. Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), 94-0123. The state may use one-party consent recordings of criminal activity, the disclosure of which is not authorized under sub. (3) (b), if the evidence inadvertently falls within the “plain hearing” of law enforcement officers conducting authorized surveillance. State v. Gil, 208 Wis. 2d 531, 561 N.W.2d 760 (Ct. App. 1997), 95-3347. Since interception by government agents of an informant’s telephone call was exclusively done by federal agents and was lawful under federal law, Wisconsin law did not govern its admissibility into evidence in a federal prosecution, notwithstanding that the telephone call may have been a privileged communication under Wisconsin law. United States v. Beni, 397 F. Supp. 1086 (1975).
968.30 Procedure for interception of wire, electronic or oral communications. (1) Each application for an order authorizing or approving the interception of a wire, electronic or oral communication shall be made in writing upon oath or affirmation to the court and shall state the applicant’s authority to make the application and may be upon personal knowledge or information and belief. Each application shall include the following information: (a) The identity of the investigative or law enforcement officer making the application, and the officers authorizing the application. (b) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify the applicant’s belief that an order should be issued, including: 1. Details of the particular offense that has been, is being, or is about to be committed; 2. A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
May 22, 2026, are designated by NOTES. (Published 5-22-26)
19
Updated 23-24 Wis. Stats.
COMMENCEMENT OF CRIMINAL PROCEEDINGS
3. A particular description of the type of communications sought to be intercepted; and 4. The identity of the person, if known, committing the offense and whose communications are to be intercepted. (c) A full and complete statement whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. (d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been obtained, a particular description of facts establishing probable cause to believe that additional communications for the same type will occur thereafter. (e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any court for authorization to intercept, or for approval of interceptions of, wire, electronic or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the court on each such application; and (f) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results. (2) The court may require the applicant to furnish additional testimony or documentary evidence under oath or affirmation in support of the application. Oral testimony shall be reduced to writing. (3) Upon the application the court may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, electronic or oral communications, if the court determines on the basis of the facts submitted by the applicant that all of the following exist: (a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s. 968.28. (b) There is probable cause for belief that particular communications concerning that offense will be obtained through such interception. (c) Other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. (d) There is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person. (4) Each order authorizing or approving the interception of any wire, electronic or oral communication shall specify: (a) The identity of the person, if known, whose communications are to be intercepted; (b) The nature and location of the communications facilities which, or the place where authority to intercept is granted and the means by which such interceptions shall be made; (c) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates; (d) The identity of the agency authorized to intercept the communications and of the person authorizing the application; and (e) The period of time during which such interception is authorized, including a statement whether or not the interception
968.30
shall automatically terminate when the described communication has been first obtained. (5) No order entered under this section may authorize or approve the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. The 30-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or 10 days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with sub. (1) and the court making the findings required by sub. (3). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event be for longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception. (6) Whenever an order authorizing interception is entered pursuant to ss. 968.28 to 968.33, the order may require reports to be made to the court which issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the court requires. (7) (a) The contents of any wire, electronic or oral communication intercepted by any means authorized by ss. 968.28 to 968.37 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order or extensions thereof all such recordings and records of an intercepted wire, electronic or oral communication shall be filed with the court issuing the order and the court shall order the same to be sealed. Custody of the recordings and records shall be wherever the judge handling the application shall order. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be properly kept and preserved for 10 years. Duplicate recordings and other records may be made for use or disclosure pursuant to the provisions for investigations under s. 968.29 (1) and (2). The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under s. 968.29 (3). (b) Applications made and orders granted under ss. 968.28 to 968.33 together with all other papers and records in connection therewith shall be ordered sealed by the court. Custody of the applications, orders and other papers and records shall be wherever the judge shall order. Such applications and orders shall be disclosed only upon a showing of good cause before the judge and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years. (c) Any violation of this subsection may be punished as contempt of court. (d) Within a reasonable time but not later than 90 days after the filing of an application for an order of approval under par. (b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be
May 22, 2026, are designated by NOTES. (Published 5-22-26)
968.30
COMMENCEMENT OF CRIMINAL PROCEEDINGS
served on the persons named in the order or the application and such other parties to intercepted communications as the judge determines is in the interest of justice, an inventory which shall include notice of: 1. The fact of the entry of the order or the application. 2. The date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application. 3. The fact that during the period wire, electronic or oral communications were or were not intercepted. (e) The judge may, upon the filing of a motion, make available to such person or the person’s counsel for inspection in the manner provided in ss. 19.35 and 19.36 such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to the issuing judge the serving of the inventory required by this subsection may be postponed. The judge shall review such postponement at the end of 60 days and good cause shall be shown prior to further postponement. (8) The contents of any intercepted wire, electronic or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court of this state unless each party, not less than 10 days before the trial, hearing or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving the information. (9) (a) Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of this state, or a political subdivision thereof, may move before the trial court or the court granting the original warrant to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval. The motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, electronic or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of ss. 968.28 to 968.37. The judge may, upon the filing of the motion by the aggrieved person, make available to the aggrieved person or his or her counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interest of justice. (b) In addition to any other right to appeal, the state shall have the right to appeal: 1. From an order granting a motion to suppress made under par. (a) if the attorney general or district attorney certifies to the judge or other official granting such motion that the appeal is not entered for purposes of delay and shall be diligently prosecuted as in the case of other interlocutory appeals or under such rules as the supreme court adopts; or 2. From an order denying an application for an order of authorization or approval, and such an appeal shall be ex parte and shall be in camera in preference to all other pending appeals in accordance with rules promulgated by the supreme court. (10) Nothing in ss. 968.28 to 968.375 shall be construed to
Updated 23-24 Wis. Stats.
20
allow the interception of any wire, electronic, or oral communication between an attorney and a client. History: 1971 c. 40 s. 93; 1981 c. 335 s. 26; 1987 a. 399; 1993 a. 486; 2009 a. 349. Although a taped telephone conversation was obtained without a court order, the defendant opened the door to the tape’s admission by extensive reference to the tape transcript during the defendant’s case-in-chief. State v. Albrecht, 184 Wis. 2d 287, 516 N.W.2d 776 (Ct. App. 1994). The state may incorporate intercepted communications in a criminal complaint if the complaint is filed under seal. Unilateral public disclosure of such communications in a complaint while not authorized does not subject the communication to suppression, but may entitle the defendant to remedies under s. 968.31. State v. Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), 94-0123. Suppression of wire communications is reserved for those that are illegally intercepted and does not apply to legally intercepted communications that are improperly disclosed. State v. Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), 94-0123. Not every failure to follow wiretapping statutes makes an interception unlawful such that suppression is required. Whether a violation of the wiretapping statutes requires suppression depends upon whether the statutory purpose has been achieved despite the violation. The authorization of a wiretap for offenses not enumerated in this section did not warrant suppression of the evidence obtained from the wiretap when the order included both enumerated and non-enumerated offenses, it contained sufficient probable cause for the enumerated offenses, the evidence obtained by wiretap was for enumerated offenses, and charges were brought only for enumerated offenses. State v. House, 2007 WI 79, 302 Wis. 2d 1, 734 N.W.2d 140, 052202. Sub. (10) does not require that all intercepts by a county jail are unlawful because the telephone intercept system has the potential to record inmates’ calls to their attorneys. State v. Christensen, 2007 WI App 170, 304 Wis. 2d 147, 737 N.W.2d 38, 06-1565. Communications Privacy: A legislative perspective. Kastenmeier, Leavy, & Beier. 1989 WLR 715.
968.31 Interception and disclosure of wire, electronic or oral communications prohibited. (1) Except as otherwise specifically provided in ss. 196.63 or 968.28 to 968.30, whoever commits any of the acts enumerated in this section is guilty of a Class H felony: (a) Intentionally intercepts, attempts to intercept or procures any other person to intercept or attempt to intercept, any wire, electronic or oral communication. (b) Intentionally uses, attempts to use or procures any other person to use or attempt to use any electronic, mechanical or other device to intercept any oral communication. (c) Discloses, or attempts to disclose, to any other person the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this section or under circumstances constituting violation of this section. (d) Uses, or attempts to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this section or under circumstances constituting violation of this section. (e) Intentionally discloses the contents of any oral, electronic or wire communication obtained by authority of ss. 968.28, 968.29 and 968.30, except as therein provided. (f) Intentionally alters any wire, electronic or oral communication intercepted on tape, wire or other device. (2) It is not unlawful under ss. 968.28 to 968.37: (a) For an operator of a switchboard, or an officer, employee or agent of any provider of a wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication to intercept, disclose or use that communication in the normal course of his or her employment while engaged in any activity which is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the provider of that service, except that a provider of a wire or electronic communication service shall not utilize service observing or random monitoring except for mechanical or service quality control checks. (b) For a person acting under color of law to intercept a wire,
May 22, 2026, are designated by NOTES. (Published 5-22-26)
21
Updated 23-24 Wis. Stats.
COMMENCEMENT OF CRIMINAL PROCEEDINGS
electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception. (c) For a person not acting under color of law to intercept a wire, electronic or oral communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act. (d) For any person to intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public. (e) For any person to intercept any radio communication that is transmitted: 1. By any station for the use of the general public, or that relates to ships, aircraft, vehicles or persons in distress; 2. By any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, readily accessible to the general public; 3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band or general mobile radio services; or 4. By any marine or aeronautical communications system. (f) For any person to engage in any conduct that: 1. Is prohibited by section 633 of the communications act of 1934; or 2. Is excepted from the application of section 705 (a) of the communications act of 1934 by section 705 (b) of that act. (g) For any person to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference. (h) For users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted. (i) To use a pen register or a trap and trace device as authorized under ss. 968.34 to 968.37; or (j) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of the service. (2m) Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of ss. 968.28 to 968.37 shall have a civil cause of action against any person who intercepts, discloses or uses, or procures any other person to intercept, disclose, or use, the communication, and shall be entitled to recover from any such person: (a) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (b) Punitive damages; and (c) A reasonable attorney’s fee and other litigation costs reasonably incurred. (3) Good faith reliance on a court order or on s. 968.30 (7)
968.34
shall constitute a complete defense to any civil or criminal action brought under ss. 968.28 to 968.37. History: 1971 c. 40 ss. 92, 93; 1977 c. 272; 1985 a. 297; 1987 a. 399; 1989 a. 56; 1991 a. 294; 1997 a. 283; 2001 a. 109. The testimony of an undercover police officer who was carrying a concealed eavesdropping device under sub. (2) is not the product of the eavesdropping and is admissible even assuming the eavesdropping was unconstitutional. State v. Smith, 72 Wis. 2d 711, 242 N.W.2d 184 (1976). An individual who volunteers to aid the authorities in a lawful, albeit surreptitious, investigation does not commit an injury against the investigated party under sub. (2) (c) simply by participation. Undercover informants must surely realize that evidence they receive may be potentially harmful to the target of the investigation, but this is not the type of injurious act contemplated by the statute. State v. Maloney, 2005 WI 74, 281 Wis. 2d 595, 698 N.W.2d 583, 03-2180. Consent under sub. (2) (b) may be express or implied in fact from surrounding circumstances indicating that the person knowingly agrees to the surveillance. In the prison setting, an inmate has given implied consent to electronic surveillance when the inmate has meaningful notice that a telephone call is subject to monitoring and recording and nonetheless proceeds with the call. State v. Riley, 2005 WI App 203, 287 Wis. 2d 244, 704 N.W.2d 635, 04-2321. If a warrantless intercept complies with sub. (2) (b), commonly referred to as the one-party consent exception, the contents of the intercept may be disclosed in a felony proceeding. The phrase “person acting under color of law” does not exclude law enforcement officers. State v. Ohlinger, 2009 WI App 44, 317 Wis. 2d 445, 767 N.W.2d 336, 08-0135. When determining whether a minor has the capacity to consent to “color-of-law surveillance” under sub. (2) (b), courts should consider the totality of the circumstances to determine whether consent is voluntarily given. The court should consider the minor’s knowledge, intelligence, and maturity. It is also appropriate to consider the minor’s education and state of mind, the demeanor and tone of voice of the officers requesting consent, the location at which consent is given, and the duration of the encounter. The court should also consider the police tactics used to elicit consent and any other relevant circumstances. State v. Turner, 2014 WI App 93, 356 Wis. 2d 759, 854 N.W.2d 865, 13-2101. The use of the “called party control device” by the communications common carrier to trace bomb scares and other harassing telephone calls would not violate any law if used with the consent of the receiving party. 60 Atty. Gen. 90.
968.32 Forfeiture of contraband devices. Any electronic, mechanical, or other intercepting device used in violation of s. 968.31 (1) may be seized as contraband by any peace officer and forfeited to this state in an action by the department of justice under ch. 778. History: 1979 c. 32 s. 92 (8).
968.33 Reports concerning intercepted wire or oral communications. In January of each year, the department of justice shall report to the administrative office of the United States courts such information as is required to be filed by 18 USC 2519. A duplicate copy of the reports shall be filed, at the same time, with the office of the director of state courts. History: 1973 c. 12 s. 37; 1977 c. 187 s. 135; Sup. Ct. Order, 88 Wis. 2d xiii (1979).
968.34 Use of pen register or trap and trace device restricted. (1) Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under s. 968.36 or 18 USC 3123 or 50 USC 1801 to 1811. (2) The prohibition of sub. (1) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service: (a) Relating to the operation, maintenance and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service; (b) To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or (c) Where the consent of the user of that service has been obtained. (2m) The prohibition of sub. (1) does not apply to a telephone caller identification service authorized under s. 196.207 (2).
May 22, 2026, are designated by NOTES. (Published 5-22-26)
968.34
COMMENCEMENT OF CRIMINAL PROCEEDINGS
(3) Whoever knowingly violates sub. (1) may be fined not more than $10,000 or imprisoned for not more than 9 months or both. History: 1987 a. 399; 1991 a. 268, 269; 1997 a. 283; 2001 a. 109.
968.35 Application for an order for a pen register or a trap and trace device. (1) The attorney general or a district attorney may make application for an order or an extension of an order under s. 968.36 authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or equivalent affirmation, to a circuit court for the county where the device is to be located. (2) An application under sub. (1) shall include all of the following: (a) The identity of the person making the application and the identity of the law enforcement agency conducting the investigation. (b) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. History: 1987 a. 399.
968.36 Issuance of an order for a pen register or a trap and trace device. (1) Upon an application made under s. 968.35, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the applicant has certified to the court that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation. (2) An order issued under this section shall do all of the following: (a) Specify the identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached. (b) Specify the identity, if known, of the person who is the subject of the criminal investigation. (c) Specify the number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order. (d) Provide a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates. (e) Direct, upon the request of the applicant, the furnishing of information, facilities and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under s. 968.37. (3) An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed 60 days. (4) Extensions of the order may be granted, but only upon an application for an order under s. 968.35 and upon the judicial finding required by sub. (1). The period of extension shall be for a period not to exceed 60 days. (5) An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that: (a) The order be sealed until otherwise ordered by the court; and (b) The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or
Updated 23-24 Wis. Stats.
22
the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court. History: 1987 a. 399.
968.37 Assistance in the installation and use of a pen register or trap and trace device. (1) Upon the request of the attorney general, a district attorney or an officer of a law enforcement agency authorized to install and use a pen register under ss. 968.28 to 968.37, a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the investigative or law enforcement officer forthwith all information, facilities and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the assistance is directed by a court order under s. 968.36 (5) (b). (2) Upon the request of the attorney general, a district attorney or an officer of a law enforcement agency authorized to receive the results of a trap and trace device under ss. 968.28 to 968.37, a provider of a wire or electronic communication service, landlord, custodian or other person shall install the device forthwith on the appropriate line and shall furnish the investigative or law enforcement officer all additional information, facilities and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by a court order under s. 968.36 (5) (b). Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the officer of a law enforcement agency, designated by the court, at reasonable intervals during regular business hours for the duration of the order. (3) A provider of a wire or electronic communication service, landlord, custodian or other person who furnishes facilities or technical assistance under this section shall be reasonably compensated for the reasonable expenses incurred in providing the facilities and assistance. (4) No cause of action may lie in any court against any provider of a wire or electronic communication service, its officers, employees or agents or other specified persons for providing information, facilities or assistance in accordance with the terms of a court order under s. 968.36. (5) A good faith reliance on a court order, a legislative authorization or a statutory authorization is a complete defense against any civil or criminal action brought under ss. 968.28 to 968.37. History: 1987 a. 399.
968.373 Warrant to track a communications device. (1) DEFINITION. In this section, “communications device” includes any wireless or mobile device that transmits wire or electronic communications. (2) PROHIBITION. Except as provided in sub. (8), no investigative or law enforcement officer may identify or track the location of a communications device without first obtaining a warrant under sub. (4). (3) APPLICATION FOR WARRANT. Upon the request of a district attorney or the attorney general, an investigative or law enforcement officer may apply to a judge for a warrant to authorize a person to identify or track the location of a communications device. The application shall be under oath or affirmation, may be in writing or oral, and may be based upon personal knowledge or information and belief. In the application, the investigative or law enforcement officer shall do all of the following: (a) Identify the communications device.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
23
Updated 23-24 Wis. Stats.
COMMENCEMENT OF CRIMINAL PROCEEDINGS
(b) Identify, if known, the owners or possessors of the communications device. (c) Identify, if known, the person who is the subject of the investigation. (d) Provide a statement of the criminal offense to which the information likely to be obtained relates. (e) Provide a statement that sets forth facts and circumstances that provide probable cause to believe the criminal activity has been, is, or will be in progress and that identifying or tracking the communications device will yield information relevant to an ongoing criminal investigation. (4) WARRANT. A judge shall issue a warrant authorizing a person to identify or track the location of a communications device if the judge finds that the application satisfies the requirements under sub. (3). A warrant issued under this subsection may not authorize the action for a period that exceeds 60 days. A judge may extend the authorized period upon the request of the attorney general or a district attorney if the request satisfies the requirements under sub. (3). Each extension may not exceed 60 days but there is no limit on the number of extensions a judge may grant. (4m) SECRECY. A warrant under sub. (4) shall be issued with all practicable secrecy and the request, application, or other information upon which the warrant is based may not be filed with the clerk or made public until the warrant has been executed and returned to the court. The judge may issue an order sealing the application, request, or other information upon which the warrant is based. The judge may issue an order prohibiting any person who has been ordered by the judge to provide assistance to the applicant from disclosing the existence of the warrant or of the investigation to any other person unless ordered by a judge. (5) ASSISTANCE. Upon the request of the attorney general, a district attorney, or a law enforcement agency authorized by a warrant issued under sub. (4) to track or identify the location of a communications device, the court shall order a provider of electronic communication service or other person to provide to an investigative or law enforcement officer information, facilities, and technical assistance to identify or track the location of the communications device. A person who is ordered under this subsection to provide assistance shall be compensated for the reasonable expenses incurred. (6) CONFIDENTIALITY OF INFORMATION. (a) Information obtained under this section regarding the location of a communications device is not subject to the right of inspection and copying under s. 19.35 (1). (b) The attorney general, a law enforcement agency, or a district attorney that obtains under this section information regarding the location of a communications device, or evidence derived from the information, shall destroy any information or evidence derived from it if the trial court reaches final disposition for all charges in connection with the investigation that was the subject of the warrant under sub. (4) and no person was adjudged guilty of a crime in connection with the investigation. (c) Information regarding the location of a communications device that is obtained under this section may be disclosed to other investigative or law enforcement officers. (6m) RETURN. A warrant issued under sub. (4) shall be returned, including in the form of a summary description of the information received, to the court not later than 5 days after the records or information described in the warrant are received by the attorney general, district attorney, or law enforcement agency, whichever is designated in the warrant. (7) DEFENSE AND IMMUNITY. (a) A person on whom a warrant issued under sub. (4) is served is immune from civil or criminal liability for acts or omissions in providing records or infor-
968.373
mation, facilities, or assistance in accordance with the terms of the warrant. (b) A person who discloses the location of a communications device under sub. (8) (b) is immune from civil or criminal liability for the acts or omissions in making the disclosure in accordance with sub. (8) (b). (c) No cause of action or criminal action may arise against any provider of electronic communication service, or its officers, employees, or agents or other persons specified in the court order under sub. (5), for providing information, facilities, or assistance in accordance with the terms of a court order under sub. (5). (7m) TECHNICAL IRREGULARITIES. Evidence disclosed under a warrant issued under sub. (4) may not be suppressed because of technical irregularities or errors not affecting the substantial rights of the defendant. (8) EXCEPTION. (a) The prohibition in sub. (2) does not apply to an investigative or law enforcement officer who identifies or tracks the location of a communications device if any of the following applies: 1. The customer or subscriber provides consent for the action. 2. An emergency involving danger of death or serious physical injury to any person exists and identifying or tracking the location of the communications device is relevant to preventing the death or injury or to mitigating the injury. (b) A provider of electronic communication service shall disclose the location of a communications device without a warrant if any of the following applies: 1. The customer or subscriber provides consent for the particular disclosure. 2. The provider of electronic communication service believes in good faith that an emergency involving the danger of death or serious physical injury to any person exists and that disclosure of the location is relevant to preventing the death or injury or to mitigating the injury. 3. The provider of electronic communication service receives a written request from a law enforcement agency attesting that the disclosure of device location information is needed to allow a law enforcement agency to respond to a call for emergency services or to an emergency situation that involves the danger of death or serious physical injury to any person and disclosure of device location information is necessary to prevent or mitigate that danger. (c) If the location of a communications device is disclosed to a law enforcement agency under par. (b) 2. or 3., the provider of electronic communication services shall notify the customer or subscriber of the information disclosure within 30 days after the call for emergency services or the emergency situation, or when any case that resulted from the call for emergency services or the emergency situation has resolved, whichever is later. (8g) COURT REVIEW. If the location of a communications device is disclosed to a law enforcement agency under sub. (8) (b) 2. or 3. and evidence of criminal activity was obtained as a result of the disclosure, the law enforcement agency shall, within 3 days of the disclosure, apply to a judge for an order retroactively authorizing the emergency disclosure. The application under this subsection shall set forth the facts giving rise to the emergency disclosure, and the judge shall promptly issue an order determining whether the emergency disclosure was necessary. If the judge determines that the disclosure was not necessary, the judge shall order that the evidence be suppressed in any criminal proceeding on the grounds that the evidence was unlawfully obtained, and order immediate notification under sub. (8) (c). (8m) JURISDICTION. For purposes of this section, a person is
May 22, 2026, are designated by NOTES. (Published 5-22-26)
968.373
COMMENCEMENT OF CRIMINAL PROCEEDINGS
considered to be doing business in this state and is subject to service and execution of process from this state, if the person makes a contract with or engages in a terms of service agreement with any other person, whether or not the other person is a resident of this state, and any part of the performance of the contract or provision of service takes place within this state on any occasion. (8s) EMERGENCY CONTACT INFORMATION. Any provider of electronic communication services considered to be doing business in this state under sub. (8m) shall submit its emergency contact information to the department of justice to facilitate a request for information made by a law enforcement agency or tribal law enforcement agency under this section no later than May 28, 2024, annually by January 1 of each year thereafter, and as soon as possible any time a change occurs to the emergency contact information most recently submitted to the department of justice. (9) SEIZURE. Any device used in violation of sub. (2) may be seized as contraband by any law enforcement officer and forfeited to this state in an action under s. 973.075. History: 2013 a. 375; 2023 a. 232.
968.375 Subpoenas and warrants for records or communications of customers of an electronic communication service or remote computing service provider. (1) JURISDICTION. For purposes of this section, a person is considered to be doing business in this state and is subject to service and execution of process from this state, if the person makes a contract with or engages in a terms of service agreement with any other person, whether or not the other person is a resident of this state, and any part of the performance of the contract or provision of service takes place within this state on any occasion. (2) SUBPOENA. (a) Upon the request of the attorney general or a district attorney and upon a showing of probable cause, a judge may issue a subpoena requiring a person who provides electronic communication service or remote computing service to disclose within a reasonable time that is established in the subpoena a record or other information pertaining to a subscriber or customer of the service, including any of the following relating to the subscriber or customer: 1. Name. 2. Address. 3. Local and long distance telephone connection records, or records of session times and durations. 4. Length of service, including start date, and types of service utilized. 5. Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address. 6. Means and source of payment for the electronic communication service or remote computing service, including any credit card or bank account number. (b) A subpoena under this subsection may not require disclosure of the contents of communications. (3) WARRANT. Upon the request of the attorney general or a district attorney and upon a showing of probable cause, a judge may issue a warrant requiring a person who provides electronic communication service or remote computing service to disclose within a reasonable time that is established in the warrant any of the following: (a) The content of a wire or electronic communication that is in electronic storage in an electronic communications system or held or maintained by a provider of remote computing service. (b) A record or information described under sub. (2) (a). (c) A record or information that identifies the location of a device used to transmit electronic or wire communications.
Updated 23-24 Wis. Stats.
24
(4) BASIS, APPLICATION FOR, AND ISSUANCE OF SUBPOENA OR WARRANT. Section 968.12 (2) and (3) applies to the basis and application for, and issuance of, a subpoena under sub. (2) or a warrant under sub. (3) as it applies to the basis and application for, and issuance of, a search warrant under s. 968.12. (5) MANNER OF SERVICE. A subpoena or warrant issued under this section may be served in the manner provided for serving a summons under s. 801.11 (5) or, if delivery can reasonably be proved, by United States mail, delivery service, telephone facsimile, or electronic transmission. (6) TIME FOR SERVICE. A subpoena or warrant issued under this section shall be served not more than 5 days after the date of issuance. (7) MOTION TO QUASH. The person on whom a subpoena or warrant issued under this section is served may file a motion to quash the subpoena or warrant with the judge who issued the subpoena or warrant. If the person files the motion within the time for production of records or information, the judge shall hear and decide the motion within 8 days after the motion is filed. (8) LAW ENFORCEMENT PRESENCE NOT REQUIRED. The presence of a law enforcement officer is not required for service or execution of a subpoena or warrant issued under this section. (9) RETURN. A subpoena or warrant issued under this section shall be returned to the court not later than 5 days after the records or information described in the subpoena or warrant are received by the attorney general, district attorney, or law enforcement agency, whichever is designated in the subpoena or warrant. (10) SECRECY. A subpoena or warrant issued under this section shall be issued with all practicable secrecy and the request, complaint, affidavit, or testimony upon which it is based may not be filed with the clerk or made public until the subpoena or warrant has been executed and returned to the court. The judge may issue an order sealing the subpoena or warrant and the request, complaint, affidavit, or testimony upon which it is based. The judge may issue an order prohibiting the person on whom the subpoena or warrant is served from disclosing the existence of the subpoena or warrant to the customer or subscriber unless the judge subsequently authorizes such disclosure. (11) IMMUNITY. A person on whom a subpoena or warrant issued under this section is served is immune from civil liability for acts or omissions in providing records or information, facilities, or assistance in accordance with the terms of the subpoena or warrant. (12) TECHNICAL IRREGULARITIES. Evidence disclosed under a subpoena or warrant issued under this section shall not be suppressed because of technical irregularities or errors not affecting the substantial rights of the defendant. (13) DISCLOSURE WITHOUT SUBPOENA OR WARRANT. A provider of electronic communication or remote computing service may disclose records or information described under sub. (2) (a) of a customer or subscriber or the content of communications of a customer or subscriber described under sub. (3) without a subpoena or warrant if any of the following applies: (a) The customer or subscriber provides consent for the particular disclosure. (b) The provider of electronic communication or remote computing service believes in good faith that an emergency involving the danger of death or serious physical injury to any person exists and that disclosure of the information is required to prevent the death or injury or to mitigate the injury. History: 2009 a. 349; 2011 a. 260 s. 81; 2013 a. 167, 375; 2015 a. 195 s. 82.
968.38 Testing for HIV infection and certain diseases. (1) In this section:
May 22, 2026, are designated by NOTES. (Published 5-22-26)
25
Updated 23-24 Wis. Stats.
COMMENCEMENT OF CRIMINAL PROCEEDINGS
(ag) “Correctional staff member” has the meaning given in s. 940.225 (5) (ad). (ar) “Health care professional” means a physician or a registered nurse or licensed practical nurse who is licensed under ch. 441. (b) “HIV” means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome. (bc) “HIV test” has the meaning given in s. 252.01 (2m). (bm) “Physician” has the meaning given in s. 448.01 (5). (br) “Prosecutor” has the meaning given in s. 941.375 (1) (am). (bv) “Public safety worker” has the meaning given in s. 941.375 (1) (b). (c) “Sexually transmitted disease” has the meaning given in s. 252.11 (1). (d) “Significant exposure” has the meaning given in s. 252.15 (1) (em). (2) In a criminal action under s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095, if all of the following apply, the district attorney shall apply to the circuit court for his or her county to order the defendant to submit to an HIV test and to a test or a series of tests to detect the presence of a sexually transmitted disease, each of which tests shall be administered by a health care professional, and to disclose the results of the test or tests as specified in sub. (4) (a) to (c): (a) The district attorney has probable cause to believe that the alleged victim or victim has had contact with body fluid of the defendant that constitutes a significant exposure. If the defendant is convicted or found not guilty by reason of mental disease or defect, this paragraph does not apply. (b) The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to so apply for an order. (2m) Except as provided in sub. (6), in a criminal action under s. 941.375 (2) or 946.43 (2m), the district attorney shall apply to the circuit court for his or her county for an order requiring the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a) to (c), if all of the following apply: (a) The district attorney has probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 941.375 (2) or 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant. (b) The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to apply for an order. (3) The district attorney may apply under sub. (2) or (2m) for an order at any of the following times, and, within those times, shall do so as soon as possible so as to enable the court to provide timely notice: (a) At or after the initial appearance and prior to the preliminary examination. (b) If the defendant waives the preliminary examination, at any time after the court binds the defendant over for trial and before a verdict is rendered. (c) At any time after the defendant is convicted or is found not guilty by reason of mental disease or defect. (d) If the court has determined that the defendant is not competent to proceed under s. 971.14 (4) and suspended the criminal proceedings, at any time after the determination that the defendant is not competent to proceed.
968.38
(4) The court shall set a time for a hearing on the matter under sub. (2) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the victim or alleged victim has had contact with body fluid of the defendant that constitutes a significant exposure, the court shall order the defendant to submit to an HIV test and to a test or a series of tests to detect the presence of a sexually transmitted disease. The tests shall be performed by a health care professional. The court shall require the health care professional who performs the test to disclose the test results to the defendant, to refrain from making the test results part of the defendant’s permanent medical record, and to disclose the results of the test to any of the following: (a) The alleged victim or victim, if the alleged victim or victim is not a minor. (b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor. (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim. (5) The court shall set a time for a hearing on the matter under sub. (2m) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 941.375 (2) or 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the defendant. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain from making the test results part of the defendant’s permanent medical record and to disclose the results of the test to any of the following: (a) The alleged victim or victim, if the alleged victim or victim is not a minor. (b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor. (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim. (6) (a) Regardless of whether criminal proceedings have commenced, the district attorney may, at any time, apply to the
May 22, 2026, are designated by NOTES. (Published 5-22-26)
968.38
COMMENCEMENT OF CRIMINAL PROCEEDINGS
circuit court for his or her county for an order requiring a person to immediately submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in par. (b) if all of the following apply: 1. The district attorney has probable cause to believe that an act or alleged act of the person constitutes a crime, carried a potential for transmitting a communicable disease to a public safety worker, prosecutor, or correctional staff member, and involved the person’s blood, semen, vomit, saliva, urine, or feces or other bodily substance of the person. 2. The district attorney has probable cause to believe that requiring the person to submit to testing may prevent a public safety worker, prosecutor, or correctional staff member from experiencing bodily harm. 3. A public safety worker, prosecutor, or correctional staff member or a person who is authorized to make health care decisions on behalf of a public safety worker, prosecutor, or correctional staff member requests the district attorney to apply for an order. (b) The court shall immediately hear an application for an order under par. (a). If the court finds probable cause to believe that an act or alleged act of the person constitutes a crime, carried a potential for transmitting a communicable disease to a public safety worker, prosecutor, or correctional staff member, and involved the person’s blood, semen, vomit, saliva, urine, or feces or other bodily substance of the person and that requiring the person to submit to testing may prevent a public safety worker, prosecutor, or correctional staff member from experiencing bodily harm, the court shall order the person to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the person. The court shall require the health care professional who performs the test to immediately disclose the test results to the person. The court shall require the health care professional who performs the test to refrain from making the test results part of the person’s permanent medical record and to disclose the results of the test to any of the following: 1. A public safety worker, prosecutor, or correctional staff member who requested the test. 2. A person who is authorized to make health care decisions on behalf of a public safety worker, prosecutor, or correctional staff member who requested the test. 3. The health care professional who provides care to a public safety worker, prosecutor, or correctional staff member, upon request by the public safety worker, prosecutor, or correctional staff member or a person authorized to make health care decisions on behalf of a public safety worker, prosecutor, or correctional staff member. History: 1991 a. 269; 1993 a. 27, 32, 183, 227, 495; 1995 a. 456; 1997 a. 182; 1999 a. 188; 2005 a. 277; 2009 a. 209; 2021 a. 54; 2025 a. 107. Acquittal on a charge of sexual intercourse with a minor did not prevent an order for HIV testing following a conviction for sexual assault; the test is probable cause and is not governed by the outcome of the trial. State v. Parr, 182 Wis. 2d 349, 513 N.W.2d 647 (Ct. App. 1994).
968.40 Grand jury. (1) SELECTION OF GRAND JURY LIST. Any judge may, in writing, order the clerk of circuit court to select a grand jury list within a specified reasonable time. The clerk shall select from the prospective juror list for the county the names of not fewer than 75 nor more than 150 persons to constitute the prospective grand juror list. The list shall be kept secret. (3) EXAMINATION OF PROSPECTIVE JURORS. At the time set for the prospective grand jurors to appear, the judge shall and the district attorney or other prosecuting officer may examine the prospective jurors under oath or affirmation relative to their qualifications to serve as grand jurors and the judge shall excuse those
Updated 23-24 Wis. Stats.
26
who are disqualified, and may excuse others for any reason which seems proper to the judge. (4) ADDITIONAL GRAND JURORS. If after such examination fewer than 17 grand jurors remain, additional prospective jurors shall be selected, summoned and examined until there are at least 17 qualified jurors on the grand jury. (6) TIME GRAND JURORS TO SERVE. Grand jurors shall serve for a period of 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time. (7) ORDERS FILED WITH CLERK. All orders mentioned in this section shall be filed with the clerk of court. (8) INTERCOUNTY RACKETEERING AND CRIME. When a grand jury is convened pursuant to this section to investigate unlawful activity under s. 165.70, and such activity involves more than one county, including the county where the petition for such grand jury is filed, then if the attorney general approves, all expenses of such proceeding shall be charged to the appropriation under s. 20.455 (1) (d). History: 1971 c. 125 s. 522 (1); 1977 c. 29 s. 1656 (27); 1977 c. 187 ss. 95, 135; 1977 c. 318; 1977 c. 447 s. 210; 1977 c. 449; Stats. 1977 s. 756.10; 1991 a. 39; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.40. A claim of grand jury discrimination necessitates federal habeas corpus review. Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979). The Grand Jury in Wisconsin. Coffey & Richards. 58 MLR 517 (1975).
968.41 Oath or affirmation of grand jurors. Grand jurors shall, before they begin performance of their duties, solemnly swear or affirm that they will diligently inquire as to all matters and things which come before the grand jury; that they will keep all matters which come before the grand jury secret; that they will indict no person for envy, hatred or malice; that they will not leave any person unindicted for love, fear, favor, affection or hope of reward; and that they will indict truly, according to the best of their understanding. History: 1975 c. 94 s. 91 (12); 1977 c. 187 s. 95; Stats. 1977 s. 756.11; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.41.
968.42 Presiding juror and clerk. The grand jury shall select from their number a presiding juror and a clerk. The clerk shall preserve the minutes of the proceedings before them and all exhibits. History: 1977 c. 187 s. 95; Stats. 1977 s. 756.12; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.42.
968.43 Reporter; salary; assistant. (1) Every grand jury shall when ordered by the judge ordering such grand jury, employ one or more reporters to attend their sessions and to make and transcribe a verbatim record of all proceedings had before them. (2) Before assuming the duties under this section, each reporter shall make and file an oath or affirmation faithfully to record and transcribe all of the proceedings before the grand jury and to keep secret the matters relative to the proceedings. Each reporter shall be paid out of the county treasury of the county in which the service is rendered such sum for compensation and expenses as shall be audited and allowed as reasonable by the court ordering the grand jury. Each reporter may employ on his or her own account a person to transcribe the testimony and proceedings of the grand jury, but before entering upon the duties under this subsection, the person shall be required to make and file an oath or affirmation similar to that required of each reporter. (3) Any person who violates an oath or affirmation required by sub. (2) is guilty of a Class H felony. History: 1977 c. 187 s. 95; Stats. 1977 s. 756.13; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.43.; 1997 a. 283; 2001 a. 109.
968.44 Witnesses. The presiding juror of every grand jury and the district attorney or other prosecuting officer who is before the grand jury may administer all oaths and affirmations in the
May 22, 2026, are designated by NOTES. (Published 5-22-26)
27
Updated 23-24 Wis. Stats.
COMMENCEMENT OF CRIMINAL PROCEEDINGS
manner prescribed by law to witnesses who appear before the jury for the purpose of testifying in any matter of which the witnesses have cognizance. At the request of the court, the presiding juror shall return to the court a list, under his or her hand, of all witnesses who are sworn before the grand jury. That list shall be filed by the clerk of circuit court. History: 1977 c. 187 s. 95; 1977 c. 449; Stats. 1977 s. 756.14; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.44.
968.45 Witness rights; transcripts. (1) Any witness appearing before a grand jury may have counsel present, but the counsel shall not be allowed to examine his or her client, crossexamine other witnesses or argue before the judge. Counsel may consult with his or her client while before a grand jury. If the prosecuting officer, attorney for a witness or a grand juror believes that a conflict of interest exists for an attorney or attorneys to represent more than one witness before a grand jury, the person so believing may make a motion before the presiding judge to disqualify the attorney from representing more than one witness before the grand jury. A hearing shall be held upon notice with the burden upon the moving party to establish the conflict. (2) No grand jury transcript may be made public until the trial of anyone indicted by the grand jury and then only that portion of the transcript that is relevant and material to the case at hand. This subsection does not limit the defendant’s rights to discovery under s. 971.23. History: 1979 c. 291; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.45.
968.46 Secrecy. Notwithstanding s. 757.14, all motions, including but not limited to those for immunity or a privilege, brought by a prosecuting officer or witness appearing before a grand jury shall be made, heard and decided in complete secrecy and not in open court if the prosecuting officer or witness bringing the motion or exercising the immunity or privilege so requests. History: 1979 c. 291; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.46.
968.47 District attorney, when to attend. Whenever required by the grand jury it shall be the duty of the district attorney of the county to attend them for the purpose of examining witnesses in their presence or of giving them advice upon any legal matter, and to issue subpoenas and other process to bring up witnesses.
968.53
968.49 Fine for nonattendance. Any person lawfully summoned to attend as a grand juror who fails to attend without any sufficient excuse shall pay a fine not exceeding $40, which shall be imposed by the court to which the person was summoned and shall be paid into the county treasury. History: Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).
968.50 Report progress and return indictments. A grand jury may report progress and return indictments to the court from time to time during its session and until discharged. History: 1977 c. 187 s. 95; Stats. 1977 s. 756.17; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.50. A grand jury performs a judicial rather than a legislative function; therefore, a progress report unconnected to an indictment may not be made public. State ex rel. Caledonia v. County Court, 78 Wis. 2d 429, 254 N.W.2d 317 (1977).
968.505 Procedure upon discharge of grand jury. When the grand jury is discharged the clerk shall collect all transcripts of testimony, minutes of proceedings, exhibits and other records of the grand jury, and deliver them as the jury directs either to the attorney general or to the district attorney, or upon approval of the court deliver them to the clerk of the court who shall impound them subject to the further order or orders of the court. History: 1977 c. 187 s. 95; Stats. 1977 s. 756.18; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.505; 1997 a. 35 s. 586.
968.51 Indictment not to be disclosed. No grand juror or officer of the court, if the court shall so order, shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on such indictment, until such person has been arrested. History: 1977 c. 187 s. 95; Stats. 1977 s. 756.19; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.51.
968.52 Votes not to be disclosed. No grand juror may be allowed to state or testify in any court in what manner he or she or any other member of the jury voted on any question before them, or what opinion was expressed by any juror in relation to the question. History: 1977 c. 187 s. 95; Stats. 1977 s. 756.20; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.52.
968.48 Attendance; absence; excuse; number required for grand jury session; number required to concur in indictment. Each grand juror shall attend every session of the grand jury unless excused by the presiding juror. The presiding juror may excuse a grand juror from attending a grand jury session only for a reason which appears to the presiding juror in his or her discretion as good and sufficient cause for the excuse. No business may be transacted at any session of the grand jury at which less than 14 members of the grand jury are in attendance and no indictment may be found by any grand jury unless at least 12 of their number shall concur in the indictment.
968.53 When testimony may be disclosed. Members of the grand jury and any grand jury reporter may be required by any court to testify whether the testimony of a witness examined before the jury is consistent with or different from the evidence given by the witness before the court; and they may also be required to disclose the testimony given before the grand jury by any person upon a complaint against the person for perjury, or upon trial for the offense. Any transcript of testimony taken before the grand jury and certified by a grand jury reporter to have been carefully compared by the reporter with his or her minutes of testimony so taken and to be a true and correct transcript of all or a specified portion of the transcript, may be received in evidence with the same effect as the oral testimony of the reporter to the facts so certified, but the reporter may be cross-examined by any party as to the matter.
History: 1977 c. 187 s. 95; Stats. 1977 s. 756.16; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.48.
History: 1977 c. 187 s. 95; Stats. 1977 s. 756.21; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.53.
History: 1977 c. 187 s. 95; Stats. 1977 s. 756.15; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.47.
May 22, 2026, are designated by NOTES. (Published 5-22-26)