10. Consequences in Other Courts
A. Adult Criminal Court and Sentencing
A. Adult Criminal Court and Sentencing
Wis. Stat. § 938.35 states a general rule that “the disposition of a juvenile, and any record of evidence given in a hearing in court, is not admissible against the juvenile in any case or proceeding,” but also makes exceptions to that general rule.
In adult criminal court, juvenile adjudications can be considered in setting bail. Wis. Stat. §§ 969.01(4), 938.35(1)(cm). Also, people who testify in a criminal (or civil) court may be impeached with evidence of delinquency adjudications. Wis. Stat. §§ 906.09, 938.35(1)(cm). Because criminal court is public, any mention of delinquency adjudications on the record will make the adjudication part of the public record.
Juvenile adjudications and court records can be used as substantive evidence in adult criminal cases, but only if the party wishing to present the evidence first obtains juvenile court approval for release of records for that purpose. In State v. Bellows, 218 Wis. 2d 614, 582 N.W.2d 53 (Ct. App. 1998), the court held that the trial court erred by admitting a CHIPS petition and juvenile court minutes as evidence that the defendant was guilty of criminal child abuse. Further, it held that the criminal court had an obligation “to determine whether there is record support for a finding that the juvenile court complied with the statutory guidelines and the considerations outlined in Herget v. Circuit Court, 84 Wis. 2d 436, 448-451 (1978).”⁶⁸
Wisconsin’s various repeater statutes do not use delinquency adjudications as the basis for sentence enhancement or additional penalties. Wis. Stat. §§ 939.62(3)(a), 939.618, 939.619, 939.6195, 939.621. However, delinquency adjudications may be used in sentencing after conviction of a felony or misdemeanor, “only for the purpose of a presentence investigation.” Wis. Stat. § 938.35(1)(a). The sentencing recommendations of the parties and the court’s sentencing decision may be influenced by these delinquency adjudications. Additionally, while the presentence investigation report itself is treated as a confidential document, it accompanies the defendant to the DOC, where it is taken into consideration by the department “for correctional programming, parole consideration, or care and treatment of any person” in DOC control, including probation, parole, or extended supervision. Wis. Stat. § 972.15(5).
NOTE: DOC use of juvenile adjudications for correctional programming, as well as treatment, is particularly significant when an adjudication is for a sex offense. Even if a youth is convicted of a non-sex offense as an adult, DOC may apply the more stringent sex offender rules of probation or extended supervision to that youth. It may also require successful completion of sex offender treatment as a condition of probation or extended supervision.
Finally, delinquency adjudications can be the basis for subsequent criminal charges. A child on the sex offender registry can be charged in criminal court with failing to comply with the requirements of registration, pursuant to Wis. Stat. § 301.45(6). Similarly, a child who is prohibited from possessing a firearm based on a felony-level delinquency adjudication, can be charged with illegal possession of a firearm, pursuant to Wis. Stat. § 941.29(1m).
B. Family and Civil Courts
Anytime an adjudicated delinquent testifies in any court, the delinquency adjudication may be admissible for impeachment purposes. Wis. Stat. §§ 906.09, 938.35(1)(cm).
Children and their parents may also be sued in civil court for restitution, even when the underlying act was the subject of a delinquency proceeding. Whether juvenile police or court records can be admitted in evidence in that case, is a matter of discretion for the circuit court judge. State v. Herget, supra., 84 Wis. 2d 436.
Juvenile court adjudications are also admissible in family courts when the court is considering the custody of a child. Wis Stat. § 938.35(1)(c). The Wis. Stat. § 767.41(5) factors governing custody and physical placement in family court do not specifically reference delinquency adjudications but do include information that may be found in juvenile court records, such as whether a party, or person who resides with a party, has engaged in child abuse or neglect, domestic violence, or has a significant problem with alcohol or drug abuse. Again, case law suggests that the decision whether juvenile court records can be admitted into evidence in such a case, requires an exercise of discretion by the judge, applying the factors set forth in State v. Herget, supra., 84 Wis. 2d 436, State v. Bellows, supra, 218 Wis. 2d 614, Courtney F. v Ramiro M.C., 2004 WI App 36, 269 Wis 2d 709 (Ct. App., 2004).
Finally, children adjudicated delinquent for a “sexually violent offense,” as defined in Wis. Stat. § 980.01(6),⁶⁹ may become eligible for a Chapter 980 commitment as a Sexually Violent Person if they are confined in a correctional institution or secured residential care center as a disposition and are referred to prosecutors with allegations that they have a mental disorder and are dangerous to others. Wis. Stat. §§ 980.015(2)(b), 980.02(2)
⁶⁸ In Herget, the court held that the person seeking release of confidential information must provide 1) the type of information being sought, 2) the basis for the belief that the information is in juvenile records; 3) the relevance of the information to the cause of action; 4) the probable admissibility of the information; 5) efforts made to obtain the information from other sources; and 6) hardship that would result if the information is not released. The court must also give the child who is the subject of the records an opportunity to present her or her position on disclosing the records. 84 Wis. 2d at 452.
⁶⁹ “Sexually violent offense" means any of the following: (a) Any crime specified in s. 940.225 (1), (2), or (3), 948.02 (1) or (2), 948.025, 948.06, 948.07, or 948.085; (am) An offense that, prior to June 2, 1994, was a crime under the law of this state and that is comparable to any crime specified in par. (a); (b) Any crime specified in s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.19 (2), (4), (5), or (6), 940.195 (4) or (5), 940.198 (2) or (3), 940.30, 940.305, 940.31, 941.32, 943.10, 943.32, or 948.03 that is determined, in a proceeding under s. 980.05 (3) (b), to have been sexually motivated; (bm) An offense that, prior to June 2, 1994, was a crime under the law of this state, that is comparable to any crime specified in par. (b) and that is determined, in a proceeding under s. 980.05 (3) (b), to have been sexually motivated; (c) Any solicitation, conspiracy, or attempt to commit a crime under par. (a), (am), (b), or (bm).
