S t a t e  o f  W i s c o n s i n
Office of The State Public Defender
Wisconsin Forward Award Mastery Recipient
SEXUALLY VIOLENT PERSONS COMMITMENT
(ch. 980) CASE OUTLINE 
Indexed as follows (last modified 12/24/03):
I.  Constitutionality of Ch. 980
A. Double Jeopardy/Ex Post Facto (Punitive Nature)
B. Due Process/Vagueness
C. Equal Protection		 V.   Disposition
II.   Definitions
A.  General
B.  "Substantial Probability"
C.  "Mental Disorder"
D.  "Serious Difficulty Controlling Behavior"
E.  "Sexually Violent Offense"		 VI.   Post-Disposition
A.  Right to Treatment
B.  Reexamination
C.  Petition for Supervised Release
D.  Petition for Discharge
      1. Probable Cause "Paper Review"
      2. Right to Counsel
      3. Additional Petitions
E.  Conditions of Confinement
F.  Revocation of Release
III.   Pretrial
A.  Petition
      1. Who May File
      2. Timing
      3. Requisites
      4. Service
      5. Claim/Issue Preclusion
      6. Venue
B. Rights
      1. Silence
C.  Probable Cause Hearing
D.  Judicial Substitution
E.  Discovery		 VII.   Appeal
A.  Procedure
B.  Standard of Review
C.  Sufficiency of Evidence
D.  Ineffective Assistance
E.  Harmless Error
F.  Waiver of Issue
G.  Collateral Attack
IV.  Trial
A.  Timing
B.  Competency of Respondent
C.  Evidence
      1. Silence
      2. Confrontation
      3. Hearsay
      4. Expert Testimony
           a. General
           b. Actuarials
           c. Lay Experts
           d. Reliance on Hearsay
      5. Privilege/Confidentiality
      6. Relevance/Prejudice
      7. Other-Acts
D.  Proof
E.  Jury Instructions
F.  Jury Waiver
G.  Plea-Taking Authority
H.  Jury Selection
I.   Closure of Proceedings		 VIII.   Open Records
All published ch. 980 cases are collected below. Because most 980 cases turn on statutory construction, summaries are keyed largely to statutes. Foreign authority is also cited, but no attempt has been made to comprehensively canvass non-Wisconsin case law. Some summaries discuss statutes that have since been amended or repealed. Effort has been made to draw attention to such circumstances, but the reader is cautioned to carefully compare any statute mentioned in a summarized case to its current version. 
Significant amendments are contained in 1999 Wis. Act 9 whose most drastic impact abolishes supervisory release as an option of the original commitment under § 980.06. (1999 Wis. Act 9 is a very large download; the current version of Ch. 980 may be downloaded here, as a pdf file.) 
Hyperlinks are provided to available material, usually appellate decisions and current statutes in Wis. Stat. Ch. 980. Hyperlinks are also provided to principal briefs, where available (typically, SPD staff cases), filed on behalf of the alleged SVP. Every effort has been made to ensure the accuracy of each link, but no guarantee can be made. The outline topics are also bookmarked and linked to the index for ease of navigation between the two.
Material on this site is the work product solely of the Wisconsin Office of the State Public Defender. Nothing on this site may be construed to establish an attorney-client relationship, or as providing legal advice. The State Public Defender sponsors this site as an educational and informational service. If you have a legal question, you should contact an attorney.
The SPD also sponsors a Ch. 980 listserv, whose primary purposes are discussion of litigation-related issues and timely dissemination of SVP case developments. To subscribe, contact: Joe Ehmann
I.  CONSTITUTIONALITY of Ch. 980
A.  DOUBLE JEOPARDY/ EX POST FACTO (PUNITIVE NATURE)
State v.  Samuel E. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), cert. denied, Post v. Wisconsin, 138 L.Ed.2d 1011 (1997). 
Ch. 980 commitment procedure doesn't violate equal protection or substantive due process. 
State v. William Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), cert. denied, Schmidt v. Wisconsin, 138 L.Ed.2d 1011 (1997). 
Ch. 980 creates civil commitment procedure that doesn't provide for penalty and therefore doesn't violate ex post facto or double jeopardy principles. 
State v. Tory L. Rachel, 2002 WI 81, on certification
Wis. Stat. Ch. 980 (1999-2000), as amended by 1999 Wis. Act 9 (automatic, secure initial confinement for 18 months), doesn't violate Double Jeopardy or Ex Post Facto Clauses of the Wisconsin and United States Constitutions. Ch. 980 also survives Double Jeopardy and Ex Post Facto analysis in light of post-Carpenter case developments.
Similar results, other jurisdictions:
Kansas v. Hendricks, 521 U.S. 346 (1997);
Martin v. Reinstein, 987 P.2d 779 (Ariz. App. 1999);
In re Detention of Garren, 620 N.W.2d 275 (Iowa 2000);
Westerheide v. State, 831 So.2d 93 (Fl. 2002);
In re Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001);
In re Detention of Samuelson, 189 Ill.2d 548, 727 N.E.2d 228 (2000).
See also Seling v. Young, 531 U.S. 250 (2000) ("An Act, found to be civil, cannot be deemed punitive 'as applied' to a single individual in violation of Double Jeopardy and Ex Post Facto Clauses and provide cause for release."), decision on appeal following remand, Young v. Weston, 344 F.3d 973 (9th Cir. 2003) ("The Act's civil nature therefore precludes Young's claims that the Act violates the ex post faccto and double jeopardy claims [sic, clauses]."). 

Cf. In re Detention of Turay, 139 Wn.2d 379, 986 P.2d 790 (1999) (inadequate treatment plan should be subject of remedial litigation, not cause for release from commitment); In the Matter of Care and Treatment of McCracken, 346 S.C. 87, 551 S.E.2d 235 (2001) ("If these requirements are not honored by the custodian, then relief lies with an action brought against that individual, and not with a facial challenge to the statute which does not prescribe the terms of confinement").

See also State v. Ruven Seibert, 220 Wis. 2d 308, 582 N.W.2d 745 (Ct. App. 1998), § VI.A., below).  A supreme court case raising a similar issue -- State v. Schulpius, 2001 WI 69 ("Does the secured detention of a person committed under Wis. Stat. Chap. 980, but ordered placed in supervised release over four years ago, render Chap. 980 unconstitutional?") -- split 3-3 on procedural grounds. Go to Brief
B. DUE PROCESS/VAGUENESS
See Kansas v. Crane, 534 U.S. 407 (2002), vacating and remanding In the Matter of the Care and Treatment of Michael T. Crane, 269 Kan. 578, 7 P. 3d 285 (2000) (due process does not require total inability to control behavior, but does require "that there must be proof of serious difficulty in controlling behavior"; lower court had held that SVP commitment is unconstitutional absent finding of volitional impairment making respondent dangerous beyond his or her control, and that personality disorder in and of itself doesn't establish such impairment. (Criticized, as offering "little guidance," Hamilton, "The Blurry Line Between 'Mad' and 'Bad': Is 'Lack-of-Control' a Workable Standard for Sexually Violent Predators?," 36 U. Rich. L. Rev. 481, 503 (2002).) 
Court expressly declines to reach issue "whether confinement based solely on 'emotional' abnormality would be constitutional."
( Transcript of oral argument here.)
(Amicus brief in support of Crane here) 
State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision, cert. denied 1/13/03
Ch. 980 constitutional because it implicitly satisfies substantive due process requirement (articulated by Crane) of serious difficulty in controlling behavior, through nexus between person's mental disorder and substantial probability of reoffending. ¶¶22-23.
Accord, State v. Shawn Virlee, 2003 WI App 4, ¶8. See also State v. James Lalor, 2003 WI App 268, ¶¶26-30, PFR filed 4/15/03 (following Laxton: trial court, sitting as trier of fact, need not make express finding of serious difficulty controlling behavior)
(See also § IV. E., Jury Instructions, below, re: need to instruct jury on serious difficulty in controlling behavior.) Go to brief

Other jurisdictions:
Post-Crane decisions uphold constitutionality of SVP legislation (the adequacy of jury instructions is something else):

In re Matter of Leon G., 59 P.3d 779 ¶¶18-21 (AZ. 2002) (express statutory language re: serious difficulty controlling behavior not necessary; legislature has "autonomy to determine how the state must prove the requisite lack of control," ¶21, with court stressing that Arizona's "statutory language does embody the functional equivalent of that phrase," ¶29), prior history: In re Matter of Leon G., 26 P. 3d 481 ¶12 (AZ. 2001) (separate finding of volitional impairment not required: "if the state establishes not only that a person is dangerous, but also that a mental illness or abnormality caused the dangerousness, the state has met its burden to show a lack of control"), vacated and remanded for reconsideration in light of Crane, __ U.S. __; In Re the Detention of Wilber W., 203 Ariz. 301, 53 P.3d 1145 ¶¶20-22 (Ariz. App. 2002) (AZ. App. 2002) (¶¶12-19, to effect that Arizona Act implicitly requires finding of serious difficulty controlling behavior, citing Laxton), reversed and remanded, 204 Az.200, 62 P.3d 126, "for further proceedings consistent with In re Leon G.";
In re Dutil, 437 Mass. 9, 768 N.E.2d 1055 (2002);
Commitment of W.Z., 173 N.J. 109, 801 A.2d 205 (2002);
People v. Wollschlager, 99 Cal. App. 4th 1303,  122 Cal. Rptr. 171 (2002);
In the Matter of Treatment Care of Luckabaugh, 568 S.E.2d 338 (S.C. 2002) (separate lack-of-control finding unnecessary: "Inherent within the mental abnormality prong of the Act is a lack of control determination");
In Matter of Commitment of Ramey, 648 N.W.2d 260 (Minn. App. 2002) ("Crane adds to Hendricks the affirmative duty to make a lack of control determination, which is already a requirement under the Minnesota standard"). Cf. In the Matter of Detention of Martinelli, 649 N.W.2d 886 (Minn. App. 2002) ("lack of adequate control," required by Minnesota caselaw, satisfies "serious difficulty" standard under Crane, but must be linked to mental abnormality or personality disorder: "It is essential, under Crane, that there be a judicial finding of  'lack of control' based on expert testimony tying that 'lack of control' to a properly diagnosed mental abnormality or personality disorder before civil commitment may occur.").  Federal habeas challenge to the Minnesota Act was rejected, in Linehan v. Milczark, 315 F.3d 920 (8th Cir. 2003), (access Linehan's brief here, arguing that Minnesota applies a "lack of adequate control" standard that falls short of due process).
See also, State v. Hudson, 825 So.2d 460 (Fla. App. 2002) (while asserting that causal connection between mental abnormality and likelihood of future sexual violence necessarily establishes difficulty controlling behavior, court nonetheless interprets Crane as imposing additional proof-requirement of serious difficulty controlling behavior). But cf. Westerheide v. State, 831 So.2d 93 (Fl. 2002), upholding Florida SVP legislation against due process-vagueness challenge, and might be said to have overruled Hudson on this point, except that this result commands only a plurality of votes and therefore isn't binding, see State v. Gray, 854 So.2d 287 (Fla. App. 2003) certifying to Fl. sup. ct. issue of whether commitment is permissible "in the absence of a jury instruction that the state must prove that the individual has serious difficulty in controlling his or her dangerous behavior"; and Lee v. State, 854 So.2d 709 (Fla. App. 2003) (same).
Pre-Crane decisions derived somewhat inconsistent conclusions, not necessarily reconcilable with Crane:
State v. Springett, 641 N.W.2d 547 (Iowa App. 2001) (must be link between dangerousness and mental disorder of some kind, but: "We do not believe, however, the causal link can only involve a 'volitional impairment.'");
In re Detention of Varner, 759 N.E.2d 560, 564-65 (Ill. 2001) ("the mental condition required in Illinois must be one which affects an individual's ability to control his conduct"; under jury instructions, conclusion that respondent is sexually violent person embodies finding that he suffers from mental disorder and obviates need for additional findings on his ability to control behavior)"), vacated and remanded for reconsideration in light of Crane, __ U.S. __, 10/7/02; State v. Tittlebach, 324 Ill. App. 3d 6, 14 (2001) (same: "Here, the trier of fact found respondent to be dangerous because he suffered from a mental disorder that made it substantially probable that he would engage in acts of sexual abuse. Such a finding necessarily encompasses the conclusion that respondent lacked volitional control."); but see In re Detention of Traynoff, 338 Ill. App.3d 949, 789 N.E.2d 865 (2003) (to effect that Supreme Court vacating order means that Varner is no longer settled law.... [I]t is unclear at this point how Crane will be interpreted by our supreme court");
In re Detention of Gordon, 10 P.3d 500, 503 (Wash. App. 2000) ("Hendricks does not require a jury to make a specific finding that the mental abnormality or personality disorder makes it impossible, or at least difficult, for an individual to control his dangerous behavior"). 
Reuben Adams v. Bartow, 330 F.3d 957 (7th Cir. 2003), denying habeas relief in State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998)
No controlling Supreme Court precedent clearly establishes that it is a violation of due process to civilly commit based on antisocial personality disorder alone. Any implication to that effect in Foucha v. Louisiana, 504 U.S. 71 (1992) is at most dicta.
State v. Shawn Virlee, 2003 WI App 4
Failure to allow for pretrial release doesn't violate due process.  ¶14.
State v. Tory L. Rachel, 2002 WI 81
1999 Wis Act 9 amendments (automatic 18-month initial confinement coupled with restrictions on supervised release/discharge) don't violate due process. Court interprets Post's emphasis on custody "in the least restrictive manner" to be recognition of linkage between physical confinement and dangerousness, not personal ability to seek release. ¶¶65-68. 
State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
Automatic commitment to secure setting, § 980.06, does not violate substantive due process (court relying heavily on analogy to NGI procedure, § 971.17(1), State v. Field, 118 Wis. 2d 269, 379-82, 347 N.W.2d 365 (1984)). Go to Brief
See also State v. Isaac H. Williams, State v. Willie Hogan, 2001 WI App 263 
Waiting period of 18 months, following automatic, initial secure confinement doesn't substantive violate due process. 
State v. Joseph A. Lombard, 2003 WI App 163, ¶12, PFR granted 10/21/03 (same) and id., ¶14 (nor does this procedure violate separation of powers).
State v. Matthew A.B., 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999). 
"Conduct disorder" not constitutionally imprecise: "Matthew's conduct disorder, standing alone, may not fulfill the definition of a sexually violent person, but his conduct disorder in combination with any evidence that would satisfy the additional criteria of § 980.01(7) could support the finding that he is a sexually violent person." ¶31. (Additional evidence supplied by juvenile adjudication for sexually violent offense, along with expert testimony.) Go To Brief
State v. Matthew A.B., 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999). 
Predicting sexual dangerousness in juveniles doesn't violate due process. ¶33. Go To Brief
But see Commitment of J.P., 339 N.J. Super. 443, 772 A.2d 54 (2001) (Juvenile entitled to hearing on reliability of actuarial instruments, including MnSOST-R, used to predict dangerousness).
State v. Frank Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999). 
Definition of proof-requirement that subject be "substantially probable" to reoffend not unconstitutionally vague (see also § II.B . below). 
State v. Harry S. Bernstein, 231 Wis. 2d 392, 605 N.W.2d 555 (Ct. App. 1999) (same).
Go to Brief
State v. Reuben Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998), affirmed on habeas review, Adams v. Bartow, 330 F.3d 957 (7th Cir. 2003). 
"[I]nclusion of 'antisocial personality disorder' as, potentially, a 'condition' qualifying as a 'mental disorder' under the statute does not render the statute unconstitutionally imprecise." (But, as in Matthew A.B., court suggests that this diagnosis alone, without other diagnosis or evidence, would not support SVP finding. Note, however, that the 7th Circuit decision expresses doubt that due process requires more than a diagnosis of antisocial personality disorder.) Go To Brief
State v. Peter Kienitz, 221 Wis. 2d 275, 585 N.W.2d 609 (Ct. App. 1998), affirmed, State v. Peter Kienitz, 227 Wis. 2d 423, 597 N.W.2d 712 (1999). 
Use of "clinical judgment" in risk assessment doesn't make the standard for reoffending ("substantially probable") unconstitutionally vague or otherwise violative of due process. Go To Brief
State v. Heriberto Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996), petition for review dismissed, 213 Wis. 2d 488, 570 N.W.2d 44 (1997). 
Plea agreement to 980 petition enforceable as matter of due process. 
State v. August T. Krueger, 2001 WI App 76. 
Giving up jury trial and ancillary rights on petition for discharge in exchange for state's stipulation to supervised release, "was akin to a plea agreement," ¶56, and therefore respondent "is entitled to the same due process rights as a criminal defendant who has entered a plea agreement," ¶58. Go To Brief
State v. Ronald J. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). 
Prosecution of 980 petition did not violate plea agreement in prior criminal case, court stressing that agreement was silent as to future 980 proceeding: "Thus, the record does not reflect that Zanelli bargained for the State's promise to forego a future ch. 980 proceeding."

Other jurisdictions:
Compare Harris v. State, 826 So.2d 340 (Fl. App. 2002) (state estopped from pursuing commitment, where criminal-case plea bargain term included provision that respondent would be placed on probation with SOTP), with Murray v. Regier, SC01-100, SC01-174 (Fla. 12/5/02) (though Harris purported to distinguish the then-pending Murray, it would seem to be overruled by the latter case: "any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment"), and Marsh v. State, 849 So.2s 1178 (Fl. App. 2003) (same). See also, In the Matter of Commitment of P.C., 349 N.J. Super. 569, 794 A.2d 211 (2002) ("A plea agreement by a county prosecutor which operates as an impediment to a valid civil commitment of a sexual predator is void as against public policy.")

And other jurisdictions upholding SVP procedure on due process grounds, in general:
In re Linehan, 594 N.W.2d 867 (Minn. 1999); Grosinger v. M.D., 1999 ND 160, 598 N.W.2d 799.
But see, In re Detention of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (Wash. 2002) (due process requires proof of "recent overt act" when the respondent was not under "total confinement" before SVP proceeding commenced). 
C. EQUAL PROTECTION
State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
"¶33. Although persons committed under chapter 980 are similarly situated to those committed under chapter 51, there is a rational basis for the legislature's distinction with respect to the confidentiality of proceedings under the two chapters...."
State v. Shawn Virlee, 2003 WI App 4
Failure to allow for pretrial release doesn't violate equal protection.  ¶14.
State v. Isaac H. Williams, State v. Willie Hogan , 2001 WI App 263
Expansion (to 18 months) of minimum period on initial commitment before requesting supervised release doesn't violate equal protection, in comparison to Ch. 51 (mental commitment) and § 971.17 (NGI commitment) procedures.
Followed, State v. Steven J. Burgess, 2003 WI 71, ¶¶36-37, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81; and, State v. Shawn Virlee, 2003 WI App 4, ¶12.

Other jurisdictions:
In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003) (differential handling of involuntary mental commitment and SVP rational), overruling In re Detention of Brooks, 145 Wn. 275, 36 P.3d 1034 (2001) ("The equal protection clauses of the federal and state constitutions require that less restrictive alternatives (LRAs) to confinement be considered at the commitment trials of those committed under chapter 71.09 RCW, the sexually violent predator (SVP) statute, just as LRAs are considered at the trials of persons committed under chapter 71.05 RCW, the mental illness statute."); In the Matter of Treatment Care of Luckabaugh, 568 S.E.2d 338 (S.C. 2002) ("The potential danger to the community provides a rational reason why sexually violent predators should be treated differently than other committed patients"); State v. Hudson, 825 So.2d 460 (Fla. App. 2002) (differences between SVP and mental health commitment procedures supported by rational basis).
State v. Frank Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999). 
Standard of proof -- likelihood that Ch. 980 subject will reoffend -- is same as Ch. 51 subject, therefore no equal protection problem (see also § II.B., below). 
State v. Samuel E. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), cert. denied, Post v. Wisconsin, 138 L.Ed.2d 1011 (1997). 
Ch. 980 doesn't violate equal protection in comparison to Ch. 51 civil commitments. Court stresses, in part, Ch. 980 right to petition for release every six months as justifying absence of automatic expiration of commitment. However, equal protection does require jury trials at discharge hearings. 
State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
Right to confidentiality (in form of right to closed proceedings) in ch. 51 but not 980 doesn't violate equal protection, because 980 respondents are deemed more dangerous, hence disclosure advances goal of protecting public. ¶34-35.
But see, Grant H. Morris, "The Evil That Men Do: Perverting Justice to Punish Themselves," 2000 Ill. L. Rev., No. 4 (Author concludes that although Hendricks didn't resolve equal protection challenge, such a challenge is likely to fail if based on claimed similarity between SVPs and other civilly committed patients. [Indeed, Post rejected just such a claim.] Author asserts, though, that properly framed equal protection claim could, and should, succeed: SVP legislation impermissibly discriminates against sentence-expiring convicts, incompetent criminal defendants, and nondangerous insanity acquittees by exempting from SVP commitment other individuals who are equally mentally disordered and dangerous.)
II. DEFINITIONS
State v. William L. Morford, 2004 WI 5, on review of unpublished opinion
980 proceeding is civil action, ¶22 (and cites, id. nn.19-20).
State v. Richard Brown, 215 Wis. 2d 716, 573 N.W.2d 884 (Ct. App. 1997). 
980 proceeding is civil, therefore "the provisions of Chapter 801 to 847" apply, unless legislature has prescribed different procedure. (But note that constitutional rights available to criminal defendant at trial apply, under § 980.05(1m).) 
State v. Tory L. Rachel, 224 Wis. 2d 571, 591 N.W.2d 920 (Ct. App. 1999) . Go To Brief
Same.
State v. Dennis R. Thiel (II), 2001 WI App 52, 241 Wis. 2d 439. 
For purposes of retroactive application of caselaw, civil rather than criminal law retroactivity principles apply. 
B. "SUBSTANTIAL PROBABILITY" § 980.01(7) (See also § IV.E., below, on defining this phrase in jury instructions.)
State v. Frank Curiel, 227 Wis. 2d 389, 597 N.W.2d 712 (1999). 
"Given the common and appropriate usage of the term, we interpret 'substantially probable' as meaning 'much more likely than not,' and as so construed, find that the sections in which this term is found to be unambiguous. The legislature intended that the State prove beyond a reasonable doubt that the person subject to the commitment proceedings is dangerous because his or her mental disorder makes it 'much more likely than not' that the person will engage in future acts of sexual violence." ¶30. 
See also Wis JI-Criminal No. 2502 (2002), defining "substantial probability" as "much more likely than not," and citing Curiel; and State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision ("It is settled law that 'substantially probable' means 'much more likely than not,'" ¶23).
State v. Peter Kienitz, 227 Wis. 2d 423, 597 N.W. 712 (1999) (same, ¶23), affirming State v. Peter Kienitz, 221 Wis. 2d 275, 585 N.W.2d 609 (Ct. App. 1998) 
"Substantially probable" means "considerably more likely to occur than not" (a definition between "extremely likely" as advocated by Kienitz, and merely likely as advocated by the AG). Go To Brief

Other jurisdictions: A number of other states use the term "likely." For a collection of cases that define "likely" to mean better than 50-50 or "highly likely," see People v. Ghilotti, 44 P.3d 949, __ n. 14 (Cal. 2002), and In re Matter of Leon G., 59 P.3d 779 ¶27 n.8 (AZ. 2002). And for a somewhat extreme holding that "likely" "need not be established to a mathematical certainty above fifty per cent," that is, "more likely than not," see Commonwealth v. Boucher, 438 Mass. 274, 780 N.E.2d 47 (2002); to similar effect, see People v. Roberge, 29 Cal.4th 979 (2003) ("likely" doesn't require "better than even" chance of re-offending, though does require finding of "substantial danger, that is, a serious and well-founded risk").

State v. Reuben Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998), affirmed on other grounds on habeas review, Adams v. Bartow, 330 F.3d 957 (7th Cir. 2003).
"Substantial probability" of re-offending means considerably more likely than not. Go To Brief
C. "MENTAL DISORDER"§ 980.01(2) 
State v. Matthew A.B., 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999).
"Conduct disorder" diagnosis may satisfy requirement that person be diagnosed with disorder predisposing him/her to sexual violence.
State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998), affirmed on habeas review, Adams v. Bartow, 330 F.3d 957 (7th Cir. 2003). 
"(U)nder ch.980, a person who has the mental disorder of 'antisocial personality disorder,' uncoupled with any other mental disorder, may be found to be a 'sexually violent person." Nor does inclusion of this condition as basis for commitment render statute constitutionally imprecise.
Cf. In the Matter of the Care and Treatment of Michael T. Crane, 269 Kan. 578, 7 P. 3d 285 (2000), vacated and remanded, Kansas v. Crane, 534 U.S. 407 (2002) 
Due process requires finding, not supplied by diagnosis of personality disorder alone, that respondent can't control his/her dangerous behavior. It's not clear whether this holding survives the Supreme Court decision remanding the case; it might be that diagnosis of personality disorder alone can't satisfy the now-settled standard of "serious difficulty in controlling behavior." 
State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision, cert. denied 1/13/03
Pattern jury instructions (since amended) upheld, as requiring necessary proof that subject's mental order causes serious difficulty controlling behavior. Go to brief  (Laxton's cert. petition may be obtained by clicking here; the brief in opposition to cert. may be found here.)
D.  "SERIOUS DIFFICULTY CONTROLLING BEHAVIOR" (Kansas v. Crane, 534 U.S. 407 (2002))
This phrase is not explicitly part of SVP legislation, but state must prove it as matter of due process. (Crane.) Other than saying what the phrase is not -- lack of control need not be total -- Crane doesn't really say what it is. Nor is phrase defined in Wis JI-Crim No. 2502. See, however, Commitment of W.Z., 173 N.J. 109, 801 A.2d 205 (2002) (phrase means "a substantial inability to control conduct"). Also see § I.B., above, and § IV.E., below. 
State v. Ray A. Schiller, 2003 WI App 195
"'(A) serious difficulty in controlling behavior' is not about whether a person has the ability to make choices…. (W)e must not only consider whether the person has the ability to make choices, but the degree to which those choices are driven by a mental disorder." ¶11-12. ("(P)edophilia is a mental disorder that by definition includes a diagnosis of lack of control." ¶13.)
E.  "SEXUALLY VIOLENT OFFENSE"§ 980.01(6)
State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
State jurisdiction over ch. 980 not impaired by principles of federal preemption or tribal self-government; jurisdiction attaches where qualifying conviction was committed on reservation, by tribal resident. ¶¶13-20.
State v. Aaron K. Gibbs, 2001 WI App 83. 
Delinquency adjudication under former Wis. Stat. Ch. 48 (1993-94) supports Ch. 980 petition: "(T)he applicability section, WIS. STAT. § 980.13, demonstrates that the legislature intended ch. 980 to be applied to sexually violent persons who had been adjudicated delinquent for offenses prior to or after June 2, 1994. Therefore, it is no stretch to hold that ch. 980 applies to persons adjudicated delinquent under both the former WIS. STAT. § 48.34 (1993-94) as well as the present WIS. STAT. § 938.34." ¶16
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. 
"(T)he legislature clearly intended to include, within the definition of 'sexually violent offense,' the conduct prohibited under a previous version of a statute enumerated in Wis. Stat. § 980.01(6), as long as the conduct prohibited under the predecessor statutes remains prohibited under the current enumerated statute." ¶19. Because the conduct Pharm was convicted of under a repealed statute, indecent behavior with a child, § 944.13 (1973-74), remains prohibited under current statutes, he was convicted of a 980-eligible offense. Id. Go To Brief
State v. Robert C. Irish, 210 Wis. 2d 107, 565 N.W.2d 161 (Ct. App. 1997). 
Conviction for "sexually violent offense" includes now-repealed child enticement, § 944.12, because it has been recreated as a qualifying offense, § 948.07. 
III. PRETRIAL
A. PETITION
1. Who May File § 980.02(1)
State v. Harris D. Byers, 2003 WI 86, reversing unpublished opinion
¶43. In sum, we conclude that, under § 980.02(1), a request from the agency with jurisdiction and a subsequent decision by the DOJ not to file are prerequisites to a district attorney's authority to file a Chapter 980 petition. Because those prerequisites were not met in this case, we determine that the petition was not properly filed. Accordingly, we reverse the court of appeals and remand the matter to the circuit court for dismissal of the petition." See also ¶25, to effect that "legislature decided to place the district attorney's authority as secondary to the DOJ's authority and to place the agency with jurisdiction as a 'gatekeeper' that limits the authority of both the DOJ and the district attorneys." (And for additional authority re: importance of department's "gatekeeper" role relative to statutory construction, see also State v. William L. Morford, 2004 WI 5, ¶¶38, et seq.) Go To COA Brief

State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. 
Failure to object to prosecutor's failure to go through DOJ before filing petition waived issue. ¶9. Go To Brief

State v. Richard Bollig, 222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App. 1998), 
Ch. 980 petition must be filed either by DOJ or a local prosecutor, § 980.02(1), but this requirement fulfilled by court-appointed special prosecutor (appointment here technically improper, because not made under § 978.045(1r), upheld nonetheless because no showing of "actual prejudice"). Go To Brief
2. Timing § 980.02(ag) (See also § IV.D., below, on proof requirement)
State v. Shawn Virlee, 2003 WI App 4
Post-petition grant of jail credit didn't render petition untimely where filed within 90 days of of pre-grant release date. ¶¶17-18.
State v. Thomas Treadway, 2002 WI App 195
Petition timely where filed within 90 days of release on non-SVP-qualifying offense being served concurrently with shorter sentence for conviction that was SVP-qualifying. (State v. Ronald Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997) (petition timely filed where respondent serving consecutive sentences) thus extended to concurrent sentences.)
State v. David J. Wolfe, 2001 WI App 136
"¶10 ... We read § 980.02(2)(ag) to say that a ch. 980 petition should be filed within ninety days of discharge from a sexually violent offense delinquency adjudication if the person was placed in a secure correctional facility on the basis of that offense" -- even if juvenile is at the time being held on, and not subject to release under, separate, non-SVP qualifying adjudication. 
State v. Wilbert L. Thomas (II), 2000 WI App 162, 238 Wis. 2d 216, 617 N.W.2d 230. 
Because "an offender cannot be detained beyond his or her maximum discharge date in order to file a ch. 980 petition," ¶1, court lacked competency to proceed where petition filed after Thomas' discharge date, though he remained in custody. Go To Brief
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. 
Although "(f)ailure to comply with the ninety-day time limit contained in Wis. Stat. § 980.02(2)(ag) affects the trial court's competency to proceed," a petition filed on the respondent's MR date is timely. ¶11. Go To Brief Pharm seems to overrule sub silentio the holding of Bollig, discussed immediately below, that the expected release date is excluded from the computation. Keep in mind, too, that § 980.02(1)(a) explicitly requires that DOJ file the petition "before the date of release or discharge." Pharm's petition was filed by the DA, not DOJ, and the court therefore didn't apply or discuss this statute, which clearly requires filing before, not on, MR. Pharm, then, isn't controlling relative to a DOJ-filed case. Note also that by operation of statute, "releases from prison shall be on the Tuesday or Wednesday preceding the release date." § 302.11(6). In other words, actual release is mandated before MR, and a 980 petition filed on the MR date would be untimely, Pharm notwithstanding -- an argument not discussed by Pharm. Note further, however, that an unpublished decision rejects the argument, on the following reasoning: "The plain meaning of the statute compels us to conclude that the petition was timely filed because Wiedenhoeft was in custody on the day the petition was filed, and he had not yet been discharged." ¶6. State v. Alan Michael Wiedenhoeft, unpublished, No. 99-2379, 1/17/01. Go To Brief But Thomas II (immediately above) shows that you can't make a petition timely merely by holding someone past the time s/he was entitled to be let go, and Wiedenhoeft was not within 90 days of discharge. And Bollig, discussed immediately below, defines the event as the "expected date of release from" prison -- which by operation of statute is the Tuesday or Wednesday before the actual parole date. The court's conclusion, then, is less than convincing. 
State v. Richard Bollig, 222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App. 1998). 
Petition must allege that subject is within 90 days of release or discharge, § 980.02(2)(ag). By operation of § 990.001(4)(d), "the day on which (the) event took place shall be excluded in the computation of such time" (the 90-day filing deadline). Therefore, Bollig's expected date of release is excluded from the computation. COA reserves "the question of whether a petition that was untimely in regard to the expected date of release from a secured facility, but timely under a maximum discharge date, meets the criteria of § 980.02(2)(ag), Stats." Fn. 9. (See also § IV.D., below, as to requiring proof respondent within 90 days of release/discharge.) Go To Brief
State v. Ronald Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997). 
Filing petition just prior to release from non-sexually violent sentence running consecutive to sexually violent sentence upheld, given principle that consecutive sentences are treated as one continuous sentence: "[A] commitment petition must be filed within ninety days of release from continuous term of incarceration, any part of which was imposed for a sexually violent offense."  (Juvenile commitments distinguishable, on theory that juvenile code makes no provision for consecutive commitments. State v. David J. Wolfe, 2001 WI App 136.)
State v. Ronald J. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). 
Petition timely when filed within 90 days of release from prison on 1st sentence, to be followed by consecutive term of probation. 
3. Requisites
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. 
"As long as the court conducting the proceedings follows the rules of civil procedure ... it is immaterial whether the petition is filed with a civil or criminal case number, or whether a judge currently assigned to the civil or criminal branch presides over the proceedings." ¶24. Go To Brief
State v. Ronald J. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). 
Petition need not be sworn. 
Arreola v. State, 199 Wis. 2d 426, 544 N.W.2d 611 (Ct. App. 1996). 
Notice that potential subject may be eligible for ch. 980 commitment proceeding is served on "appropriate" district attorney, § 980.015, which is "the district attorney in the county of conviction or the county to which the prison authorities propose to release the person." 
4. Service
State v. David J. Wolfe, 2001 WI App 136
Personal service requirements of civil proceedings inapplicable: "¶48 WISCONSIN STAT. ch. 980 provides its own procedures for commencing a ch. 980 action; thus, the provisions of WIS. STAT. chs. 801 and 802 are inapplicable."
5. Claim/Issue Preclusion
State v. Kenneth Parrish, 2002 WI App 263
Because of the "dynamic nature" of mental condition and dangerousness, dismissal of an SVP petition for insufficient proof didn't bar subsequent petition, more than one year later, after revocation of parole and return to prison. ¶¶22-23.
6. Venue
State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
Circuit court has 980 jurisdiction over enrolled tribal member who has committed sexually violent offense on Indian reservation. ¶¶11-21.
State v. Bernard G. Tainter, 2002 WI App 296
Trial may be venued in any of several counties: where the person committed the predicate offense, where the person is to reside on discharge, where the person is incarcerated, or Dane County. ¶¶14-15.
B. RIGHTS § 980.03(2)
1. Silence
State v. Ronald J. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). 
§ 980.03(2)(b), which grants right to remain silent to "the subject of the petition," doesn't cover Zanelli's pre-petition refusal to talk to a psychologist. (But a different section does protect this right at trial, see § IV.C.1., below.)
Followed, State v. Joseph A. Lombard, 2003 WI App 163, ¶¶27-29 ("We conclude today that the State may use at a ch. 980 trial any statements made by the respondent to a pre-petition State examiner that could not subject the respondent to future criminal prosecution, regardless of whether the respondent was warned that the State may use those statements at a ch. 980 trial."), PFR granted 10/21/03.
See also Allen v. Illinois, 478 U.S. 364, 374-75 (1986) (construing Illinois' Sexually Dangerous Persons procedure: "For the reasons stated, we conclude that the Illinois proceedings here considered were not 'criminal' within the meaning of the Fifth Amendment to the United States Constitution, and that due process does not independently require application of the privilege.") However, this holding is premised on the idea that the state was prohibited from using any compelled answers against Allen in any future criminal proceeding. Id., at 368. A guarantee of immunity, then, resolves the fifth amendment problem; otherwise, the issue of the amendment's protection remains viable, though its exact reach remains subject to doubt. The prevalence of SOTP prison regimens, requiring sexual-assault admissions almost guarantees that this will be a recurring problem, see generally, McKune v. Lile, 536 US 24 (2002) (taken together, dissent and concurrence represent majority on point that fifth amendment analysis applies to compelled treatment/admissions within prison setting; but compulsion to talk found inadequate on particular facts). Lile also stresses that immunity wasn't offered, but had it been, "the self-incrimination privilege would not be implicated." See also Bender v. New Jersey DOC, 356 N.J. Super. 432, 812 A.2d 1154 (2003), unavailable on-line (McKune prohibits State from extracting information from inmate about past criminal history under penalty of lost good-time, unless use immunity is provided).

Other jurisdictions:
 In re Detention of Tiney-Bey, 302 Ill. App. 3d 396, 707 N.E.2d 751 (1999) (no right to silence at pretrial psychological evaluation, though Illinois statute grants limited right to silence at hearings under SVP Act; "a respondent has the power, but not the right, to refuse to comply with an evaluation");
cf. State ex rel. Romley v. Gaines, 67 P.3d 734 (AZ. 2003) (under state statutory scheme, information obtained during prison SOTP not deemed confidential and could be used at subsequent SVP proceeding; no constitutional argument raised or discussed).
C. PROBABLE CAUSE HEARING § 980.04(2)
State v. Deryl B. Beyer, 2001 WI App 167
72-hour time limit for probable cause hearing is directory, rather than mandatory. ¶11. Delay is bounded by due process, ¶¶13-14; here, two-month delay justified by "extraordinary" situation, namely last-minute judicial substitution, in county where single judge sits, ¶16. Go to Brief
State v. Matthew A.B., 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999). 
Probable cause hearing must be held within 72 hours of petition's filing, excluding weekends and legal holidays, if subject in custody. Finding timely hearing, COA declines to reach issue of whether violation of this requirement causes loss of trial court competency. ¶;17, n. 2. Go To Brief
State v. Frederick J. Brissette, 230 Wis. 2d 82, 601 N.W.2d 678 (Ct. App. 1999) 
Ch. 980 probable cause hearing likened to preliminary hearing in criminal case: "The purpose behind the probable cause hearing in ch. 980, Stats., and the preliminary hearing at issue in Horton is the same: both procedures are in place to ensure that people are not held for unreasonably long periods of time where the possibility exists that the State cannot muster even minimal proof in support of the allegations set out in the petition or complaint." Go To Brief
State v. Frederick J. Brissette, 230 Wis. 2d 82, 601 N.W.2d 678 (Ct. App. 1999) 
"We conclude that the phrase 'in custody' in § 980.04(2) means in custody pursuant to ch. 980, Stats. Therefore, because Brissette was in custody pursuant to a prison sentence when the petition was filed, not pursuant to ch. 980, the seventy-two hour timeline did not apply to him." Go To Brief
State v. John J. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999). 
Probable cause hearing is summary proceeding at which state must establish plausible account on each required element, based on all reasonable inferences that can be drawn from facts. ¶97. Analogy drawn to preliminary examination in felony. ¶¶85-97. ("(W)e conclude that the rules governing preliminary hearings in felony prosecutions also apply to probable cause hearings under Chapter 980." ¶85.) 
State v. John J. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999). 
Rules of evidence apply to probable cause hearings. ¶86. 
State v.  John J. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999). 
Expert opinion based solely on inadmissible hearsay does not constitute probable cause. ¶90. 
D. JUDICIAL SUBSTITUTION
State v. Richard Brown, 215 Wis. 2d 716, 573 N.W.2d 884 (Ct. App. 1997). 
Ch. 980 subject has right of judicial substitution under § 801.58.
E. DISCOVERY
State v. Eric Pletz, 2000 WI App 221, 239 Wis. 2d 49, 619 N.W.2d 97 
Any discovery violation waived by failure to promptly object at trial. ¶26. There was no violation in any event, because the material at issue (a scientific study) didn't become available until after the discovery process. ¶¶24-25. The appropriate remedy for a discovery violation is adjournment. ¶26 n. 3. 
State v. Tory L. Rachel, 224 Wis. 2d 571, 591 N.W.2d 920 (Ct. App. 1999). 
"Tory L. Rachel appeals a nonfinal order of the trial court ruling that the findings and conclusions of a court-appointed expert are subject to discovery in a ch. 980, Stats., proceeding. Because the rules of civil procedure, chs. 801 to 847, Stats., govern procedure in ch. 980 proceedings, § 804.01, Stats., applies in this case. Under that section, the report of an expert is not discoverable unless that expert will be called as a witness at trial. See § 804.01(2)(d). Here, it was not clear whether Rachel would call the expert at trial. Thus, the trial court's order allowing discovery was erroneous. We reverse and remand."  The court explicitly rejects the idea "that the criminal rules of discovery should apply": "when the legislature intended for criminal safeguards to apply to ch. 980 proceedings it said so. It has not said so with regard to rules of procedure." Go To Brief

Other jurisdictions:
In re Detention of Petersen, 145 Wn. 789, 42 P.3d 952 (2002) (right of discovery applied to post-commitment, release/discharge proceeding).
See also, In re Detention of Williams, 147 Wn.2d 476, 55 P.3d 597 (2002) (although SVP action is civil in nature, its special provisions -- principally: allowance for post-commitment, but not pretrial, evaluations -- show legislative intent to disallow such evaluations before trial, unlike the ordinary civil matter.)

IV. TRIAL § 980.05
A. TIMING § 980.05(1)
State v. Matthew A.B., 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999). 
Trial must be held within 45 days of bindover, though time may be extended for good cause, on motion or stipulation. Go To Brief
B. COMPETENCY OF RESPONDENT § 980.05(1m)
State v. Giles L. Smith, 229 Wis. 2d 720, 600 N.W.2d 258 (Ct. App. 1999). 
"[W]e determine that § 980.05(1m), Stats., provides a respondent with a statutory right to be competent at his trial. We also determine that the procedure to be used to effect that right should adhere to §§ 971.13 and 971.14, Stats., to the extent practicable. Because Smith is incompetent and unlikely to become competent, we reverse the court's order requiring him to proceed with his ch. 980 trial." (This right is purely statutory, not constitutional.)

Other jurisdictions:
State ex rel. Nixon v. Kinder, Mo. App. #WD62363, 8/5/03 (no constitutional right to be competent at SVP trial); State v. Cubbage, Iowa No. 71 / 02-0850 (11/13/03) (same).

C.  EVIDENCE
State v. Ronald G. Sorenson, 2002 WI 78, affirming, as modified, State v. Sorenson, 2001 WI App 251, 248 Wis. 2d 237, 635 N.W.2d 787
"¶19. Wisconsin Stat. § 980.05(1m) unambiguously provides ch. 980 respondents with the same constitutional protections afforded to criminal defendants."
1. Silence § 980.05(1m)
State v. Ronald J. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). 
§ 980.05(lm) -- which provides that a criminal defendant's constitutional rights are equally applicable to a person alleged to be a sexually violent person -- affords a right to remain silent. Therefore, Zanelli had a right to refuse a pre-petition interview by a psychologist without having that refusal admitted into evidence or commented on at trial (given, at least, that Zanelli didn't testify). 
State v. Reuben Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998), affirmed on other grounds on habeas review, Adams v. Bartow, 330 F.3d 957 (7th Cir. 2003).
Reaffirms right to remain silent during examination, per Zanelli (I), but Adams opened door to evidence of refusal to talk to evaluator by challenging propriety of reaching diagnosis without interviewing him. Go To Brief
State v. Ronald Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997). 
Keith opened door to evidence of his refusal to be interviewed by state's expert, by questioning quality of latter's opinion without examination. 
State v. Peter Kienitz, 221 Wis. 2d 275, 585 N.W.2d 609 (Ct. App. 1998), affirmed, 227 Wis. 2d 423, 597 N.W.2d 712 (1999). 
Comment by state's experts on failure to submit to interview waived by lack of objection (but court implies both that defense opened door to admissibility and that state didn't use evidence for impermissible purpose). Go To Brief
2. Confrontation/cross-examination
State v. Ronald J. Zanelli (II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998). 
Court rejects argument that subject had "no meaningful opportunity for cross-examination because the State's experts used purely subjective diagnostic criteria." 
State v. Ronald Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997). 
Challenge to trial court's refusal to allow cross-examination of expert as to whether his past predictions of future dangerousness had ever been tested for accuracy held waived by no offer of proof. 
3. Hearsay (the special problem presented by experts' reliance on hearsay is discussed below, in the section on Expert Testimony, § 4)
State v. Ronald Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997). 
State demonstrated unavailability of witness, necessary to admit prior testimony of witness, § 908.045(1), by having a detective run the name through department of transportation and local computer files without locating a current address. 
State v. Ronald Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997). 
Document (here, police report) independently admissible as past recollection recorded, § 908.03(5), only if it fails to refresh witness's recollection, otherwise only witness's testimony itself admissible. 
State v. Ronald Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997). 
"Probation and parole files compiled by the DOC fall within the definition of public records, an exception to hearsay under § 908.03(8), Stats. ... The only foundation required to introduce DOC records is that they be identified by a competent witness." 
State v. Ronald Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997). 
Admissibility of statements to psychologist for purpose of assisting diagnosis, § 908.03(4), waived by inadequate argument to trial court. 
Other jurisdictions:
The evidence code applies to ch. 980 proceedings. However, some jurisdictions specifically authorize the use of "reliable" hearsay, e.g., Lee v. State, 854 So.2d 709 (Fla. App. 2003), and caution therefore should be applied in researching hearsay issues in foreign SVP cases.
4.  Expert Testimony
a. General
State v. Larry J. Sprosty, 2001 WI App 231
Psychologist need not be licensed in Wisconsin in order to provide expert testimony. ¶27. Go to Brief
State v. Eric Pletz, 2000 WI App 221, 239 Wis. 2d 49, 619 N.W.2d 97. 
Letters authored by members of DSM-IV committee were isolated opinions given in response to hypothetical questions, and were therefore inadmissible because not of "a type reasonably relied upon by experts in the particular field." ¶29. 
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. 
Expert may explain facts and data upon which opinion based, including expert's belief that subject untruthful, without violating rule that one witness may not comment on credibility of another. ¶¶29-30. Go To Brief
State v. John J. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999). 
Clinical psychologist, qualified as expert, may testify to actor's "sexual motivation" in committing offense. ¶52. 
State v. Ronald J. Zanelli (II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998). 
Reliability of expert testimony that subject has pedophilia, based on DSM-IV criteria, is question for jury. 
State v. Ronald J. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). 
Expert testimony on issue of future dangerousness admissible. 
b. Actuarials
State v. Bernard G. Tainter, 2002 WI App 296
Actuarial instruments properly admitted into evidence, where of the type commonly relied on by experts; trial court has limited "gatekeeper" function relative to expert testimony: if the evidence is relevant and the witness qualified as an expert, the reliability is for the jury. ¶¶21-22.
Other jurisdictions:
Compare: State v. Daniel Holtz, 653 N.W.2d 613 (Iowa App 2002)
"(We) agree with the recent conclusion of the New Jersey Superior Court that '[o]ur research has revealed no state appellate court decision which has found actuarial instruments inadmissible at SVP proceedings.' In re Commitment of R.S., 773 A.2d 72, 96 (N.J. Super. 2001)." (Referenced cases collected id., n. 5.),
with:
 State v. Taylor, 335 Ill. App.3d 965, 782 N.E.2d 920 (2002) (no showing that actuarial instruments such as MnSOST, et al., have passed experimental stage into general scientific acceptance; collecting cases) and In re Detention of Traynoff, 338 Ill. App.3d 949 (2003) (remand for Frye hearing where experts expressed concerns about whether RRASOR, MnSost-R and Static 99 were reliable enough to have passed beyond experimental stage to general scientific acceptance -- keeping in mind that Wisconsin is not a Frye state, so that admissibility is generally assumed, reliability being for the jury; and:
Lee v. State, 854 So.2d 709 (Fl. App. 2003), concurrence (canvassing state of actuarial art).
See also Commitment of J.P., 339 N.J. Super. 443, 772 A.2d 54 (2001) (Juvenile entitled to hearing on reliability of actuarial instruments, including MnSOST-R, used to predict dangerousness)
c. Lay Experts
State v. Thomas Treadway, 2002 WI App 195
Expertise underlying opinion as to recidivism not limited to fields of psychology or mental health. Probation and parole agent may give opinion under § 907.02 regarding likelihood of respondent re-offending, given agent's experience supervising and monitoring sex offenders. ¶¶29-31. 
State v. Larry J. Sprosty, 2001 WI App 231
Because social worker had "expertise with respect to treating sex offenders ... she was qualified to give her opinion on the ultimate issue." ¶29. Go to Brief
d. Reliance on Hearsay
State v. John J. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999). 
Expert opinion may rely on presentence report which includes inadmissible hearsay. ¶66. See also ¶ 56: "This statute (§ 907.03) allows an expert to rely on inadmissible evidence if of a type reasonably relied upon by experts in the field in forming an opinion or inference."
But:
 "¶77 Wisconsin Stat. § 907.03 is not a hearsay exception.... ¶78 Section 907.03 does not transform inadmissible hearsay into admissible hearsay. It does not permit hearsay evidence to come in through the front door of direct examination."
Other jurisdictions:
 Commonwealth v. Boyer, 58 Mass. App. Ct. 662, 792 N.E.2d 677 (2003)
"Traditional rules of evidence apply" to hearsay statements within otherwise admissible parole report: "In sum, that hearsay contained in a report may be used for one purpose -- here, as a basis for the expert's opinion -- does not necessarily mean that it may be used for all substantive purposes by a factfinder who has to make a finding beyond a reasonable doubt. ... [I]f the admission of the totem pole hearsay contained in the report was for the purpose of ascertaining the basis of the examiners' opinions, and not for the substantive facts set forth, there is no error. ... However, it is error where, as here, the judge, over objection, relied upon the statement as proven and substantive. It was improper for the judge to consider it in the manner he did." Accord, Commonwealth v. Markvart, 437 Mass. 331, 771 N.E.2d 778 (2002).
Matter of Care and Treatment of Harvey,  355 S.C. 53, 584 S.E.2d 893 (2003)
Unsigned log, kept by group home for juveniles with sexually aggressive behavior and detailing various incidents, held inadmissible under business records exception. (Note: the South Carolina business record rule is worded differently from Wisconsin's; but the larger point is that even though a hearsay document (however defined) is relied upon by an expert it is nonetheless itself inadmissible as substantive evidence unless it satisfies a hearsay exception.)
5. Privilege/confidentiality
State v. Ronald J. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). 
Testimony "regarding his psychiatric condition" falls within the exception for mental illness hospitalization proceedings and therefore doesn't violate patient privilege, § 905.04(2). 
State v. Ronald J. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). 
Trial court has discretion under § 972.15(4) to allow revelation of otherwise confidential presentence report, both to evaluating personnel before trial and also to jury at trial (factors: relevancy of information; availability from other sources; probative value vs. unfair prejudice). 
State v. Ronald J. Zanelli (II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998). 
On remand from Zanelli (I), trial court exercised discretion in favor of PSI disclosure, but "failed to provide the reasons for its determinations." Court of appeals nonetheless upholds trial court. The PSI contained information about Zanelli's sexual contact with young boys, which the court deems highly relevant to whether he is a sexually violent person. 
State v. Matthew A.B., 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999). 
Juvenile delinquency adjudications admissible. Go To Brief
State v. David J. Wolfe, 2001 WI App 136
Evidence of juvenile adjudication and institutional adjustment admissible to show predisposition to commit acts of sexual violence.
6. Relevance/Prejudice
State v. Shawn Virlee, 2003 WI App 4
Evidence of post-petition grant of sentence credit irrelevant to whether petition filed within 90 days of release. ¶19.
State v. Ronald G. Sorenson, 2002 WI 78, affirming, as modified, State v. Sorenson, 2001 WI App 251, 248 Wis. 2d 237, 635 N.W.2d 787 
Court assumes without deciding that issue preclusion -- which would prevent a respondent from impeaching the reliability of the qualifying conviction -- applies, ¶22. On the particular facts, Sorenson is entitled to hearing on whether recantation of complainant in qualifying conviction satisfies test of State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997), and therefore should be heard by jury. Court stresses that experts based opinions on Sorenson in fact having committed underlying crime; therefore, fundamental fairness requires that Sorenson be allowed to show that the recantation undermined the expert opinion. ¶¶23-33. (Court stresses that Sorenson not seeking to overturn prior conviction; rather, is seeking to undercut experts' evaluations. ¶37.)
State v. Ronald G. Sorenson, 2002 WI 78, affirming, as modified, State v. Sorenson, 2001 WI App 251, 248 Wis. 2d 237, 635 N.W.2d 787
Any potential jury confusion arising form attack on reliability of qualifying conviction may be lessened "through instruction and other means, that any recantation evidence introduced is appropriately applied toward the issues of mental disorder and dangerousness." ¶32.
Other jurisdictions:
People v. Yartz, 109 Cal. App. 4th 1660; 1 Cal. Rptr. 3d 306 (2003)
Under California statute (since-repealed), no contest plea and admissions taken during plea proceeding held inadmissible. (Under Wisconsin statute, § 904.10, no contest plea and statements made in court or to prosecutor in connection with plea, inadmissible.)
7. Other-Acts
State v. David J. Wolfe, 2001 WI App 136
Institutional misconduct and prior arson adjudication relevant as having "the tendency to make the statutory elements of a WIS. STAT. ch. 980 commitment more probable than not," namely, "to establish Wolfe’s diagnosed mental disorder, his dangerousness, and his risk of reoffending." ¶40.
State v. Gregory J. Franklin, 00-2426, review granted 9/12/03, unpublished decision
Issue on supreme court review: Determination of the applicable rule for admission of other acts evidence in ch. 980 cases
Other jurisdictions:
Lee v. State, 854 So.2d 709 (Fla. App. 2003) ("Courts in other states have held that evidence as to prior offenses is properly presented at a commitment proceeding because the evidence is directly relevant to and highly probative of the issues that are involved, and any prejudice does not outweigh the probative value of the evidence."), citing, In re Detention of Turay, 986 P.2d 790, 801-02 (Wash. 1999); In re Detention of Williams, 628 N.W.2d 447, 457 (Iowa 2001); and In re Hay, 953 P.2d 666, 677-78 (Kan. 1998).
D. PROOF
State v. Ronald G. Sorenson, 2002 WI 78, affirming, as modified, State v. Sorenson, 2001 WI App 251, 248 Wis. 2d 237, 635 N.W.2d 787
Per § 980.05(4), "the state must put forth expert evidence showing the respondent's mental disorder." ¶20; and id. n. 3 ("mental disorder must be proven through expert examination"), citing State v.  Post, 197 Wis. 2d 279, 306, 541 N.W.2d 115 (1995).
State v. Dennis R. Thiel (I), 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94. 
"We determine that in a commitment trial pursuant to Wis. Stat. ch. 980, the State must prove beyond a reasonable doubt that the subject of the petition is within 90 days of release or discharge from a sentence imposed on the basis of a sexually violent offense. Because the evidence on the record does not provide proof beyond a reasonable doubt that the State filed its petition within 90 days of Thiel's release, we reverse the circuit court and remand to the court of appeals to determine the appropriate remedy." ¶1. Go To Brief
Appeal after remand, State v. Dennis R. Thiel (II), 2001 WI App 52, 241 Wis. 2d 439. 
Proof requirement that respondent within 90 days of release/discharge partially retroactive, i.e., applicable "to all cases on direct appeal that have not been finalized as of the date of the release of Thiel, June 23, 2000." ¶19. Followed, State v. James Lalor, 2003 WI App 268, ¶35, PFR filed 4/15/03. See also § 7.C., below 
State v. Peter Kienitz, 227 Wis. 2d 389, 597 N.W.2d 712 (1999). 
"The trier of fact has the ability to accept so much of the testimony of a medical expert that it finds credible ... and it then weighs the evidence and resolves any conflicts in testimony. ... The trier of fact is not bound by the opinion of an expert; rather, it can accept or reject the expert's opinion" (which includes accepting certain portions of an opinion while rejecting other portions), ¶¶22-28. Go To Brief
State v. Matthew A.B., 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999). 
Criteria for predicting juvenile offender's future sexual violence supports commitment. Go To Brief
State v. Matthew A.B., 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999). 
"Matthew's conduct disorder, standing alone, may not fulfill the definition of a sexually violent person, but his conduct disorder in combination with any evidence that would satisfy the additional criteria of § 980.01(7) could support the finding that he is a sexually violent person." ¶31. Go To Brief
State v. Reuben Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998), affirmed on habeas review, Adams v. Bartow, 330 F.3d 957 (7th Cir. 2003). 
Same as Matthew A.B., relative to antisocial personality disorder. (Note, however, that 7th Circuit opinion expresses doubt that due process requires more than diagnosis of antisocial personality disorder.) Go To Brief
Cf. In the Matter of the Care and Treatment of Michael T. Crane, 269 Kan. 578, 7 P. 3d 285 (2000) (diagnosis of personality disorder alone can't supply required proof of inability to control dangerous behavior), vacated and remanded, Kansas v. Crane, 534 U.S. 407 (2002).
State v. Ronald J. Zanelli (II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998). 
State not required, as incident of "notice" requirement of due process, to prove all DSM-IV criteria of pedophilia. 
State v. Frank Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999). 
"Under Wis. Stat. § 980.05(3)(a), the State has the burden of proving beyond a reasonable doubt all of the allegations in the petition for commitment. The petition 'must allege that the person: (1) was convicted, found delinquent, or found not guilty by reason of mental disease or defect of a sexually violent offense; (2) is within 90 days of release from a sentence, commitment, or secured correctional facility arising from a sexually violent offense; (3) has a mental disorder; and (4) is dangerous because that mental disorder creates a substantial probability that he or she will engage in acts of sexual violence.' State v. Post, 197 Wis. 2d 279, 297-98, 541 N.W.2d 115 (1995) (footnotes omitted); Wis. Stat. § 980.02(2)." ¶9 n. 4. 
Cf. State v. Paul Matek, 223 Wis. 2d 611, 589 N.W.2d 441 (Ct. App. 1998). 
"Sexually violent person," § 980.01(7), contains three elements; 1) conviction or NGI for sexually violent offense; 2) mental disorder; 3) danger to substantial probability of reoffending.  (See also § IV.E., below.) 
State v. Peter Kienitz, 221 Wis. 2d 275, 585 N.W.2d 609 (Ct. App. 1998). 
Expert testimony not necessary to support commitment. (But on further review, supreme court decides issue need not be reached in this case. State v. Peter Kienitz, 227 Wis. 2d 423, 597 N.W.2d 712 (1999).) Go To Brief
State v. Peter Kienitz, 221 Wis. 2d 275, 585 N.W.2d 609 (Ct. App. 1998). 
Rejects argument "that, because the statute requires that reoffending be substantially probable, and there was expert testimony that the recidivism rate for sex offenders in Wisconsin is no more than 30%, only the actuarial method [of determining future violence] results in the necessary level of precision." (I.e., permissible to use "clinical judgment" to augment "actuarial data", even though testing has never verified the accuracy of this method.) Result affirmed on further review, though without discussing this particular point. State v. Peter Kienitz, 227 Wis. 2d 423, 597 N.W.2d 712 (1999). Go To Brief
Other jurisdictions:
See also, In re Personal Restraint of Young, 122 Wn.2d 1, 41-42, 857 P.2d 989 (1993), and In re Detention of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (Wash. 2002) (due process requires proof of "recent overt act" when the respondent was not under "total confinement" before SVP proceeding commenced; note that this is also a Washington statutory requirement, RCW 71.09.030(5), but the cited cases make clear that the overt act requirement is rooted in due process -- however, if the principle were to be recognized in Wisconsin the affected class would undoubtedly be small, in that almost all, if not all, respondents will be totally confined before the petition).
E. JURY INSTRUCTIONS
State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision, cert. denied 1/13/03
Subsequently-amended pattern instructions (tracking statutory language) satisfy substantive due process by imposing nexus between mental disorder and serious difficulty controlling behavior. This connection is an implicit one, deriving from the requirement that the mental disorder create a substantial probability of violence. ¶27. Go to brief  See also State v. Steven J. Burgess, 2003 WI 71, ¶¶28-29 (following Laxton),  affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81; and State v. Bernard G. Tainter, 2002 WI App 296 ¶¶9-10; State v. Shawn Virlee, 2003 WI App 4, ¶10 (same, following Laxton); State v. Joseph A. Lombard, 2003 WI App 163, ¶9 (same), PFR granted 10/21/03. (Note: Laxton's cert. petition may be obtained by clicking here; brief in opposition to cert. may be found here.)
(How different is Laxton's instruction from that in In the Matter of the Care and Treatment of Michael T. Crane, 269 Kan. 578, 7 P. 3d 285 (2000), namely, that Crane "suffers from a mental abnormality or personality disorder which makes the respondent likely to engage in future predatory acts of sexual violence, if not confined in a secure facility"? And if this instruction in fact created an adequate nexus, why didn't the Supreme Court simply uphold Crane's commitment instead of remanding? Kansas v. Crane, 534 U.S. 407 (2002). Note separately that the since-amended pattern instruction, Crim. No. 2502, now specifically requires a causal connection between mental disorder and serious difficulty controlling behavior. ¶24 n. 14.)

Other jurisdictions have reached differing results on this issue:

Compare,
Arizona: In re Matter of Leon G., 59 P.3d 779, ¶¶31-32 (Az. 2002) (though due process doesn't require specific "difficulty controlling behavior" instruction, court nonetheless finds Laxton dissent "persuasive," and adopts requirement as matter of Arizona practice); In Re the Detention of Wilber W., 203 Az. 301, 53 P.3d 1145 ¶¶20-22 (Ariz. App. 2002) (adopting dissent in Laxton; due process requires "specific" instruction on serious difficulty), reversed and remanded, 204 Az.200, 62 P.3d 126 (2003), "for further proceedings consistent with In re Leon G.";
Missouri: In the Matter of the Care and Treatment of Eddie J. Thomas, 74 S.W.3d 789 (Mo. 2002) ("to be constitutional under Crane, the instruction must require that the 'degree' to which the person cannot control his behavior is 'serious difficulty'");
Iowa: State v. Barnes, 658 N.W.2d 98 (Iowa 2003) (follows Thomas; because instructions didn't include explicit require