Section 968.01. Complaint.

 

(1)  In this section:

(a) “Electronic" has the meaning given in s. 137.11 (5) .

(b) “Electronic signature" has the meaning given in s. 801.17 (1) (e) [ s. 801.18 (1) (f) ].

(c) “Facsimile machine" has the meaning given in s. 134.72 (1) (a) .

(2)  The complaint is a written statement of the essential facts constituting the offense charged. A person may make a complaint on information and belief. Except as provided in sub. (3) or (4) , the complaint shall be made upon oath before a district attorney or judge as provided in this chapter.

(3)  A person may comply with sub. (2) if he or she makes the oath by telephone contact with the district attorney or judge, signs the statement and immediately thereafter transmits a copy of the signed statement to the district attorney or judge using a facsimile machine. The person shall also transmit the original signed statement, without using a facsimile machine, to the district attorney or judge. If the complaint is filed, both the original and the copy shall be filed under s. 968.02 (2) .

(4)  A person may comply with sub. (2) if he or she makes the oath by telephone contact with the district attorney or judge and immediately thereafter electronically transmits the statement, accompanied by the person's electronic signature, to the district attorney or judge. If the complaint is filed, the electronically transmitted statement shall be incorporated into a criminal complaint filed in either an electronic or paper format under s. 968.02 (2) .

To be constitutionally sufficient to support the issuance of an arrest warrant and to show probable cause, a complaint must contain the essential facts constituting the offense charged. A complaint was fatally defective in merely repeating the language of the statute allegedly violated. State v. Williams, 47 Wis. 2d 242 , 177 N.W.2d 611 (1970).

For a charge of resisting arrest, a complaint stated in statutory language was sufficient and no further facts were necessary. State v. Smith, 50 Wis. 2d 460 , 184 N.W.2d 889 (1971).

A complaint is sufficient as to reliability of hearsay information if the officer making it states that it is based on a written statement of the minor victim of the offense charged. State v. Knudson, 51 Wis. 2d 270 , 187 N.W.2d 321 (1971).

A disorderly conduct complaint, which alleged that the defendant at a stated time and place violated s. 947.01 (1) by interfering with the police officer-complainant while he was taking another person into custody and that the charge was based on the complainant's personal observations, met the test of legal sufficiency and did not lack specificity so as to invalidate a conviction. State v. Becker, 51 Wis. 2d 659 , 188 N.W.2d 449 (1971).

A defendant waives objections to the sufficiency of a complaint by not objecting before or at the time of pleading to the information. Day v. State, 52 Wis. 2d 122 , 187 N.W.2d 790 (1971).

A complaint is a self-contained charge, and it alone can be considered in determining probable cause. Facts that would lead a reasonable person to conclude that a crime was committed by the defendant must appear within the 4 corners of the document. State v. Haugen, 52 Wis. 2d 791 , 191 N.W.2d 12 (1971).

A complaint is not defective because, based on statements to an officer that cannot be admitted at the trial, Miranda warnings were not given. Such an objection is waived if not raised prior to trial. Gelhaar v. State, 58 Wis. 2d 547 , 207 N.W.2d 88 (1973).

To charge a defendant with the possession or sale of obscene materials, the complaint must allege that the defendant knew the nature of the materials; a charge of acting “feloniously" is insufficient to charge scienter. State v. Schneider, 60 Wis. 2d 563 , 211 N.W.2d 630 (1973).

A complaint based on a police officer's sworn statement of what the alleged victim described as having actually happened met the test of reliability of the informer and constituted probable cause for a magistrate to issue a warrant for the arrest of the defendant. Allison v. State, 62 Wis. 2d 14 , 214 N.W.2d 437 (1974).

An absolute privilege attached to alleged defamatory statements made by the defendant about the plaintiff to an assistant district attorney in seeking the issuance of a criminal complaint. Bergman v. Hupy, 64 Wis. 2d 747 , 221 N.W.2d 898 (1974).

A criminal complaint sufficiently alleges probable cause that the defendant has committed the alleged offense when it recites that a participant in the crime has admitted his own participation and implicates the defendant, since an inference may be reasonably drawn that the participant is telling the truth. Ruff v. State, 65 Wis. 2d 713 , 223 N.W.2d 446 (1974).

A complaint, alleging that the defendant burglarized a trailer at a construction site, based in part upon the hearsay statements of the construction foreman that tools found in the defendant's automobile had been locked in the trailer, was sufficient to satisfy the two-pronged test of Aguilar . Anderson v. State, 66 Wis. 2d 233 , 223 N.W.2d 879 (1974).

In determining the sufficiency of a complaint, the credibility of informants or witnesses is adequately tested by the 2-pronged Aguilar standard. State v. Marshall, 92 Wis. 2d 101 , 284 N.W.2d 592 (1979).

A criminal complaint may be attacked when there has been an omission of critical material when inclusion is necessary for an impartial judge to determine probable cause. State v. Mann, 123 Wis. 2d 375 , 367 N.W.2d 209 (1985).

Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following a mistrial resulting from a hung jury, the prosecutor filed increased charges and then offered to accept a plea bargain requiring a guilty plea to the original charges. Adding additional charges to obtain a guilty plea does no more than present the defendant with the alternative of forgoing trial or facing charges on which the defendant is subject to prosecution. State v. Johnson, 2000 WI 12 , 232 Wis. 2d 679 , 605 N.W.2d 846 , 97-1360 .

The test of a complaint is of minimal adequacy in setting forth the essential facts establishing probable cause through a common sense, and not hypertechnical, evaluation. Only affidavits specifically incorporated into the complaint may be used to show probable cause, but the legal term of art, “incorporated by reference," need not be used; the term “attached" was sufficient. State v. Smaxwell, 2000 WI App 112 , 235 Wis. 2d 230 , 612 N.W.2d 756 , 99-2261 .

A prosecutor has great discretion in charging decisions and generally answers to the public, not the courts, for those decisions. As such, courts review the prosecutor's charging decisions for an erroneous exercise of discretion. If there is a reasonable likelihood that a prosecutor's decision to bring additional charges was rooted in prosecutorial vindictiveness, a rebuttable presumption of vindictiveness applies. If there is no presumption of vindictiveness, the defendant must establish actual prosecutorial vindictiveness. The filing of additional charges during the give-and-take of pretrial plea negotiations does not warrant a presumption of vindictiveness. State v. Cameron, 2012 WI App 93 , 344 Wis. 2d 101 , 820 N.W.2d 433 , 11-1368 .

The state has discretion to charge a defendant with one continuing offense based on multiple criminal acts when the separately chargeable offenses are committed by the same person at substantially the same time and relating to one continued transaction. In that situation, the nature of the charge is a matter of election on the part of the state. Moreover, in s. 971.36 (3) (a) the legislature has explicitly provided prosecutors with discretion to charge multiple thefts as a single crime when the property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme. State v. Jacobsen, 2014 WI App 13 , 352 Wis. 2d 409 , 842 N.W.2d 365 , 13-0830 .

Multiplicity arises when the defendant is charged in more than one count for a single offense. Challenges may arise when a single course of conduct is charged in multiple counts of the same statutory offense. Multiplicity claims are examined using a two-part test: 1) whether the charged offenses are identical in law and in fact, and 2) whether the legislature intended to authorize multiple punishments. If the first part of the test reveals that the charged offenses are not identical in law and in fact, a presumption arises that the legislature did not intend to preclude cumulative punishments. State v. Jacobsen, 2014 WI App 13 , 352 Wis. 2d 409 , 842 N.W.2d 365 , 13-0830 .

While citation to a specific statute may be the preferred practice, failure to specifically cite to a statute in the information and complaint is harmless error when there is no prejudice to the defendant. State v. Elverman, 2015 WI App 91 , 366 Wis. 2d 169 , 873 N.W.2d 528 , 14-0354 .

Forms similar to the uniform traffic citations that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases are sufficient to confer subject matter jurisdiction on the court, but any conviction that results from their use in the manner described in the opinion is null and void; this section and ss. 968.02, 968.04, 971.01, 971.04, 971.05 and 971.08 are discussed. 63 Atty. Gen. 540.