Section 980.05. Trial.

 

(1)  A trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person shall commence no later than 90 days after the date of the probable cause hearing under s. 980.04 (2) (a) . The court may grant one or more continuances of the trial date for good cause upon its own motion, the motion of any party or the stipulation of the parties.

(2)  The person who is the subject of the petition, the person's attorney, or the petitioner may request that a trial under this section be to a jury of 12. A request for a jury trial under this subsection shall be made within 10 days after the probable cause hearing under s. 980.04 (2) (a) . If no request is made, the trial shall be to the court. The person, the person's attorney, or the petitioner may withdraw his, her, or its request for a jury trial if the 2 persons who did not make the request consent to the withdrawal.

(2m)  

(a) At a jury trial under this section, juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court, except that, notwithstanding s. 805.08 (3) , each party shall be entitled to 4 peremptory challenges or, if the court orders additional jurors to be selected under s. 805.08 (2) , to 5 peremptory challenges. A party may waive in advance any or all of its peremptory challenges and the number of jurors called under par. (b) shall be reduced by this number.

(b) The number of jurors selected shall be the number prescribed in sub. (2) , unless a lesser number has been stipulated to and approved under par. (c) or the court orders that additional jurors be selected. That number of jurors, plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

(c) At any time before the verdict in a jury trial under this section, the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than the number prescribed in sub. (2) .

(3)  

(a) At a trial on a petition under this chapter, the petitioner has the burden of proving beyond a reasonable doubt that the person who is the subject of the petition is a sexually violent person.

(b) If the state alleges that the sexually violent offense or act that forms the basis for the petition was an act that was sexually motivated as provided in s. 980.01 (6) (b) or (bm) , the state is required to prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.

(4)  Evidence that the person who is the subject of a petition under s. 980.02 was convicted for or committed sexually violent offenses before committing the offense or act on which the petition is based is not sufficient to establish beyond a reasonable doubt that the person has a mental disorder.

(5)  If the court or jury determines that the person who is the subject of a petition under s. 980.02 is a sexually violent person, the court shall enter a judgment on that finding and shall commit the person as provided under s. 980.06 . If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent person, the court shall dismiss the petition and direct that the person be released unless he or she is under some other lawful restriction.

1993 a. 479 ; 1999 a. 9 ; 2005 a. 434 . The trier of fact is free to weigh expert testimony that conflicts and decide which is more reliable, to accept or reject an expert's testimony, including accepting only parts of the testimony, and to consider all non-expert testimony. State v. Kienitz, 227 Wis. 2d 423 , 597 N.W.2d 712 (1999), 97-1460 . This section does not confine expert testimony to any specific standard nor mandate the type or character of relevant evidence that the state may choose to meet its burden of proof. State v. Zanelli, 223 Wis. 2d 545 , 589 N.W.2d 687 (Ct. App. 1998), 98-0733 . The standard of review for commitments under ch. 980 is the standard applicable to the review of criminal cases — whether the evidence could have led the trier of fact to find beyond a reasonable doubt that the person subject to commitment is a sexually violent person. State v. Curiel, 227 Wis. 2d 389 , 597 N.W.2d 697 (1999), 97-1337 . The right to a jury trial under ch. 980 is governed by sub. (2) rather than case law governing the right to a jury trial in criminal proceedings. State v. Bernstein, 231 Wis. 2d 392 , 605 N.W.2d 555 (1999), 98-2259 . The sub. (2) requirement that the 2 persons who did not request the withdrawal of a request for a jury trial consent to the withdrawal does not require a personal statement from the person subject to the commitment proceeding. Consent may be granted by defense counsel. State v. Bernstein, 231 Wis. 2d 392 , 605 N.W.2d 555 (1999), 98-2259 . To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B. 231 Wis. 2d 688 , 605 N.W.2d 598 (Ct. App. 1999), 98-0229 . Sub. (2) does not require that a respondent be advised by the court that a jury verdict must be unanimous in order for the withdrawal of a request for a jury trial to be valid. State v. Denman, 2001 WI App 96 , 243 Wis. 2d 14 , 626 N.W.2d 296 , 99-1829 . Chapter 980 respondents are afforded the same constitutional protections as criminal defendants. Although the doctrine of issue preclusion may generally apply in ch. 980 cases, application of the doctrine may be fundamentally unfair. When new evidence of victim recantation was offered at the ch. 980 trial, the defendant had a due process interest in gaining admission of the evidence to ensure accurate expert opinions on his mental disorder and future dangerousness when the experts' opinions presented were based heavily on the fact that the defendants committed the underlying crime. State v. Sorenson, 2002 WI 78 , 254 Wis. 2d 54 , 646 N.W.2d 354 , 98-3107 . A sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within 20 days of the commitment order. State v. Treadway, 2002 WI App 195 , 257 Wis. 2d. 467, 651 N.W.2d 334 , 00-2957 . A parole and probation agent who had been employed full-time in a specialized sex-offender unit for 3 years during which he had supervised hundreds of sex offenders was prepared by both training and experience to assess a sex offender, and was qualified to render an opinion on whether he would reoffend. That the agent did not provide the nexus to any mental disorder did not render his testimony inadmissible. State v. Treadway, 2002 WI App 195 , 257 Wis. 2d. 467, 651 N.W.2d 334 , 00-2957 . Neither ch. 980 nor ch. 51 grants persons being committed under ch. 980 the right to request confidential proceedings. That ch. 51 hearings are closed while ch. 980 hearings are not does not violate equal protection. State v. Burgess, 2002 WI App 264 , 258 Wis. 2d 548 , 654 N.W.2d 81 , 00-3074 . Affirmed. 2003 WI 71 , 262 WI 2 d 354, 665 N.W.2d 124 . See also Burgess v. Watters, 467 F.3d 676 (2007). Article I, section 7 does not prohibit the legislature from enacting statutes requiring that trials be held in certain counties. The legislature could properly provide in sub. (2) that ch. 980 proceedings be held in a county other than the one in which the predicate offense was committed. State v. Tainter, 2002 WI App 296 , 259 Wis. 2d 387 , 655 N.W.2d 538 , 01-2644 . During a commitment proceeding under ch. 980, s. 904.04 (2), relating to other crimes evidence, does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future, as required under [former] s. 980.01 (7). State v. Franklin, 2004 WI 38 , 270 Wis. 2d 271 , 677 N.W.2d 276 , 00-2426 . No error was found in giving a jury a general verdict form in a ch. 980 hearing when the defendant failed to establish that ch. 980 respondents are routinely deprived of special verdicts and that general verdicts are more likely to result in commitments. State v. Madison, 2004 WI App 46 , 271 Wis. 2d 218 , 678 N.W.2d 607 , 02-3099 . When a defendant seeks to exclude prior statements based upon his or her 5th amendment privilege, he or she must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. The mere fact that a statement is compelled does not require it to be excluded from a ch. 980 commitment trial. While an individual has a pre-petition or pre-arrest right against self-incrimination, that right is ordinarily not self-executing and must be invoked. State v. Mark, 2006 WI 78 , 292 Wis. 2d 1 , 718 N.W.2d 90 , 03-2068 . Under Mark , 2006 WI 78 , the respondent has the same 5th amendment privilege against self-incrimination as does a defendant at a criminal trial. Kastigar , 406 U.S. 441 , articulates the scope of the privilege in terms of the protection at trial when a criminal defendant has given an immunized statement, providing that immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords the protection of the 5th amendment privilege. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness. State v. Harrell, 2008 WI App 37 , 308 Wis. 2d 166 , 747 N.W.2d 770 , 05-2393 . Testimony referring to incidents revealed by the defendants compelled testimony and two experts' opinions that the defendant was much more likely than not to reoffend should have been excluded because that evidence was derived from compelled statements that were testimonial and incriminating. State v. Mark, 2008 WI App 44 , 308 Wis. 2d 191 , 747 N.W.2d 727 , 07-0522 . A person against whom a ch. 980 petition has been filed is not entitled to a competency evaluation under s. 971.14. Although the result of a successful ch. 980 petition is confinement, the confinement is for treatment not punishment and there is no criminal-law-based due-process right to a competency hearing in a ch. 980 proceeding. State v. Luttrell, 2008 WI App 93 , 312 Wis. 2d 695 , 754 N.W.2d 249 , 07-1840 . Section 904.04 (2) does not apply in ch. 980 commitment proceedings. The Franklin court discerned an unambiguous legislative intent to restrict the application of s. 904.04 (2) to analyzing evidence used to prove past acts. Future conduct is the relevant question in ch. 980 proceedings. The nature of ch. 980 hearings demands the jury consider evidence that would normally be barred in a traditional criminal trial. Although Franklin did not discuss the due process implications of its decision, the inapplicability of s. 904.04 (2) is consistent with the demands of due process under both the United States and Wisconsin constitutions. State v. Kaminski, 2009 WI App 175 , 322 Wis. 2d 653 , 777 N.W.2d 654 , 08-2439 .