938.31 Fact-finding hearing.

(1) Definition. In this section, “fact-finding hearing" means a hearing to determine if the allegations of a petition under s. 938.12 or 938.13 (12) are supported beyond a reasonable doubt or a hearing to determine if the allegations in a petition or citation under s. 938.125 or 938.13 (4), (6), (6m), (7) or (14) are proved by clear and convincing evidence.

(2) Hearing to the court; procedures. The hearing shall be to the court. If the hearing involves a child victim, as defined in s. 938.02 (20m) (a) 1., or a child witness, as defined in s. 950.02 (5), the court may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s. 971.105. At the conclusion of the hearing, the court shall make a determination of the facts. If the court finds that the juvenile is not within the jurisdiction of the court or the court finds that the facts alleged in the petition or citation have not been proved, the court shall dismiss the petition or citation with prejudice.

(3) Admissibility of custodial interrogations.

(a) In this subsection:

1. “Custodial interrogation" has the meaning given in s. 968.073 (1) (a).

2. “Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

3. “Law enforcement officer" has the meaning given in s. 165.85 (2) (c).

4. “Statement" has the meaning given in s. 972.115 (1) (d).

(b) Except as provided under par. (c), a statement made by the juvenile during a custodial interrogation is not admissible in evidence against the juvenile in any court proceeding alleging the juvenile to be delinquent unless an audio or audio and visual recording of the interrogation was made as required under s. 938.195 (2) and is available.

(c) A juvenile's statement is not inadmissible in evidence under par. (b) if any of the following applies or if other good cause exists for not suppressing a juvenile's statement under par. (b):

1. The juvenile refused to respond or cooperate in the custodial interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the juvenile's refusal.

2. The statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody.

3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating.

4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.

5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.

(d) Notwithstanding ss. 968.28 to 968.37, a juvenile's lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the juvenile during the interrogation.

(4) Findings by court. The court shall make findings of fact and conclusions of law relating to the allegations of a petition under s. 938.12, 938.125 or 938.13. In cases alleging a juvenile to be delinquent or in need of protection or services under s. 938.13 (12), the court shall make findings relating to the proof of the violation of law and to the proof that the juvenile named in the petition committed the violation alleged.

(5) If the juvenile is an Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7), the court shall also determine at the fact-finding hearing whether continued custody of the Indian juvenile by the Indian juvenile's parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian juvenile under s. 938.028 (4) (d) 1. and whether active efforts under s. 938.028 (4) (d) 2. have been made to prevent the breakup of the Indian juvenile's family and whether those efforts have proved unsuccessful, unless partial summary judgment on the allegations under s. 938.13 (4), (6), (6m), or (7) is granted, in which case the court shall make those determinations at the dispositional hearing.

(7) Date for dispositional hearing.

(a) At the close of the fact-finding hearing, the court, subject to s. 938.299 (10), shall set a date for the dispositional hearing that allows a reasonable time for the parties to prepare but is no more than 10 days after the fact-finding hearing for a juvenile in secure custody and no more than 30 days after the fact-finding hearing for a juvenile not held in secure custody. Subject to s. 938.299 (10), if all parties consent, the court may immediately proceed with a dispositional hearing.

(b) If it appears to the court that disposition of the case may include placement of the juvenile outside the juvenile's home, the court shall order the juvenile's parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and the juvenile's parent, to the court or the designated agency under s. 938.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide the statement a document setting forth the percentage standard established by the department of children and families under s. 49.22 (9) and the manner of its application established by the department of corrections under s. 301.12 (14) (g) and listing the factors under s. 301.12 (14) (c).

(c) If the court orders the juvenile's parent to provide a statement of the income, assets, debts, and living expenses of the juvenile and juvenile's parent to the court or if the court orders the juvenile's parent to provide the statement to the designated agency under s. 938.33 (1) and the designated agency is not the county department, the court shall also order the juvenile's parent to provide the statement to the county department at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The county department shall provide, without charge, to the parent a form on which to provide the statement, and the parent shall provide the statement on the form. The county department shall use the information provided in the statement to determine whether the department may claim federal foster care and adoption assistance reimbursement under 42 USC 670 to 679a for the cost of providing care for the juvenile.

History: 1995 a. 27 s. 9126 (19); 1995 a. 77; 1997 a. 27, 35, 181, 237, 252; 1999 a. 32, 103; 2001 a. 38; 2005 a. 42, 60, 344; 2007 a. 20, 97; 2009 a. 94; 2015 a. 55; 2015 a. 197 s. 51; 2015 a. 373.

A fact-finding hearing under sub. (1) was not closed until the court ruled on a motion to set aside the verdict. In Interest of C.M.L. 157 Wis. 2d 152, 458 N.W.2d 573 (Ct. App. 1990).

Under the facts of this case, an officer's decision to question an injured juvenile suspect in the back of an ambulance when recording the interview was not feasible was reasonably prompted by a concern for the public safety and within the sub. (3) (c) 5. “exigent public safety circumstances" exception to the requirement that a juvenile's statement must be recorded to be admissible. State v. Joel I.-N, 2014 WI App 119, 358 Wis. 2d 404, 856 N.W.2d 654, 14-0610.

A suspect who “refuse[s] to respond or cooperate" under sub. (3) (c) 1. must do more than request or express a preference that a recording device be turned off. Rather, the plain meaning of the statute is that the recording device may be turned off only when the suspect expresses or shows that he or she will no longer participate in the interrogation unless the recording device is turned off. A refusal must be affirmative; it is not enough for officers to assume that the interrogation will yield better results if the recording device is turned off. It was therefore a violation of s. 938.195, which requires recording custodial interrogations, for police to cease recording the interrogation in this case. Nevertheless, the error, if any, in not suppressing some of the defendant's statements, was harmless. State v. Moore, 2015 WI 54, 363 Wis. 2d 376, 864 N.W.2d 827, 13-0127.

A jury trial is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. McKeiver v. Pennsylvania, 403 U.S. 528.

The Right to a Juvenile Jury Trial in Wisconsin: Rebalancing the Balanced Approach. Preciado. 1999 WLR 571.

Instituting Innocence Reform: Wisconsin's New Government Experiment. Kruse. 2006 WLR 645.