972.08 Incriminating testimony compelled; immunity.

(1)

(a) Whenever any person refuses to testify or to produce books, papers or documents when required to do so before any grand jury, in a proceeding under s. 968.26 or at a preliminary examination, criminal hearing or trial for the reason that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a forfeiture or penalty, the person may nevertheless be compelled to testify or produce the evidence by order of the court on motion of the district attorney. No person who testifies or produces evidence in obedience to the command of the court in that case may be liable to any forfeiture or penalty for or on account of testifying or producing evidence, but no person may be exempted from prosecution and punishment for perjury or false swearing committed in so testifying.

(b) The immunity provided under par. (a) is subject to the restrictions under s. 972.085.

(2) Whenever a witness attending in any court trial or appearing before any grand jury or John Doe investigation under s. 968.26 fails or refuses without just cause to comply with an order of the court under this section to give testimony in response to a question or with respect to any matter, the court, upon such failure or refusal, or when such failure or refusal is duly brought to its attention, may summarily order the witness's confinement at a suitable place until such time as the witness is willing to give such testimony or until such trial, grand jury term, or John Doe investigation under s. 968.26 is concluded but in no case exceeding one year. No person confined under this section shall be admitted to bail pending the determination of an appeal taken by the person from the order of confinement.

History: 1979 c. 291; 1989 a. 122; 1993 a. 98, 486; 2009 a. 24.

Ordering a witness who has been granted immunity to answer questions does not violate the constitutional right against self incrimination. State v. Blake, 46 Wis. 2d 386, 175 N.W.2d 210 (1970).

The prosecutor is required to move that witnesses be granted immunity before the court can act. The trial court has no discretion to act without a motion and a defendant cannot invoke the statute. Elam v. State, 50 Wis. 2d 383, 184 N.W.2d 176 (1971).

An order by a judge to compel a witness in a John Doe proceeding to testify after a refusal on the ground of self-incrimination must be done in open court. State ex rel. Newspapers, Inc. v. Circuit Court, 65 Wis. 2d 66, 221 N.W.2d 894 (1974).

In considering whether to move for immunity for a witness, a prosecutor should consider the duty to not merely convict but to seek impartial justice and should not hesitate to move for immunity on the ground that the testimony thus elicited might exonerate the defendant. Peters v. State, 70 Wis. 2d 22, 233 N.W.2d 420 (1975).

Sub. (2) does not apply to preliminary proceedings. State v. Gonzales, 172 Wis. 2d 576, 493 N.W.2d 410 (Ct. App. 1992).

This section does not prevent a district attorney from entering into a nonprosecution agreement prior to filing charges in exchange for information in a criminal investigation. State v. Jones, 217 Wis. 2d 57, 576 N.W.2d 580 (Ct. App. 1998), 97-1806.

A defendant seeking review of prosecutor's immunization decision must make a substantial evidentiary showing that the government intended to distort the judicial fact-finding process. Stuart v. Gagnon, 614 F. Supp. 247 (1985).

NOTE: See also the notes to Article I, section 8 of the Wisconsin constitution.