Under Investigation but Not Charged in Wisconsin

Nothing has been filed, and that is the whole point

An officer left a card. A detective called and said it would be easier if you came in. A federal agent showed up at your accountant’s office. Or you simply found out, the way people usually do, from someone who was interviewed about you.

Nobody has charged you. That fact is doing more work than you think. It is also the fact that most people waste.

We are Cafferty, Scheidegger & Johnson, S.C. We have defended people in Racine, Kenosha and Walworth County since 1994, and our line is (262) 632-5000. This page sets out what Wisconsin law actually says about the period before a charge exists, with the official source next to each point.

What “under investigation” means here

In Wisconsin there is a specific moment when a criminal case starts, and it is not the moment police begin looking at you.

§ 968.02(1):

“a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed. A complaint is issued when it is approved for filing by the district attorney.”

§ 968.02(2) then says the complaint is filed with a judge and “Such filing commences the action.”

So there are two separate people involved and two separate steps. An officer investigates and submits. A district attorney approves or does not. Until the approval, no case exists, and Wisconsin even contemplates the negative outcome explicitly: under § 971.095(4), if a person is arrested but the district attorney “decides not to charge,” the district attorney must make a reasonable attempt to inform the victims of that. Declining to charge is a real, named event in the statutes.

How long can this last? There is no deadline on deciding. There is a limitations period on prosecuting. § 939.74(1):

“prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.”

§ 939.74(2) then sets much longer periods, and none at all, for a list of serious offenses. The practical translation is unwelcome but true: months of silence tell you almost nothing.

You are not required to explain yourself

The constitutional provision is short. Article I, section 8 of the Wisconsin Constitution says no person “may be compelled in any criminal case to be a witness against himself or herself.”

Three Wisconsin specifics worth having straight.

An officer may ask, and in a stop may demand certain things. § 968.24 permits an officer who reasonably suspects a crime to stop a person in a public place “for a reasonable period of time” and to “demand the name and address of the person and an explanation of the person’s conduct.” That statute exists, and pretending it does not would be useless to you.

Lying is the thing with a statute attached to it. § 946.41(1) makes it a Class A misdemeanor to knowingly resist or obstruct an officer “while such officer is doing any act in an official capacity and with lawful authority,” and § 946.41(2)(a) defines obstructing to include “knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty.” Declining to be interviewed and inventing a story are not the same act, and only one of them appears in that statute.

Recording is state policy, and they do not have to tell you. § 968.073(2) says “It is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony” subject to listed conditions and good cause. § 968.073(3) is the part people find out afterwards: an officer “is not required to inform the subject of the interrogation that the officer or agent is making an audio or audio and visual recording of the interrogation.”

For how these interviews actually go, read why you should never talk to the police and can the police legally lie to you in Wisconsin.

Warrant, subpoena, or a knock: telling them apart

People use these words interchangeably and they should not. They mean different things about where the investigation is and what you can still do.

A search warrant

§ 968.12(1) defines it as “an order signed by a judge directing a law enforcement officer to conduct a search of a designated person, a designated object or a designated place for the purpose of seizing designated property or kinds of property,” issued when “probable cause is shown.”

Two features matter to you. It is directed at police, not at you, so it is not a request you negotiate at the door. And it is designated: it names what may be searched and what may be seized, which is exactly why you photograph it and why a lawyer wants to see it together with the affidavit behind it.

What may be taken is listed in § 968.13(1), and electronic material has its own paragraph. § 968.13(2) says “documents” includes “computer or electronic data,” and § 968.13(1)(d) allows seizure of documents only “if probable cause is shown that the documents are under the control of a person who is reasonably suspected to be concerned in the commission of that crime.” If a device was taken, see can police search your phone in Wisconsin.

A subpoena for documents

Different animal. § 968.135: on the request of the attorney general or a district attorney “and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents.” The two sentences that make it different from a warrant:

“The documents shall be returnable to the court which issued the subpoena. Motions to the court, including, but not limited to, motions to quash or limit the subpoena, shall be addressed to the court which issued the subpoena.”

A subpoena has a return date and a forum. That is a window, and windows close.

A subpoena or warrant your provider gets instead of you

§ 968.375 governs records and communications held by an electronic communication service or remote computing service. A judge-issued subpoena reaches subscriber records but § 968.375(2)(b) says it “may not require disclosure of the contents of communications”; a warrant under § 968.375(3) reaches content and device location.

And then the subsection that explains why you may hear nothing at all, § 968.375(10): a judge “may issue an order prohibiting the person on whom the subpoena or warrant is served from disclosing the existence of the subpoena or warrant to the customer or subscriber unless the judge subsequently authorizes such disclosure.”

One more thing in that statute is worth knowing: § 968.375(13)(a) allows a provider to disclose without any subpoena or warrant where “the customer or subscriber provides consent for the particular disclosure.”

A John Doe proceeding

Wisconsin has a judicial investigative proceeding under § 968.26, available for the categories of offence the statute lists. The discovery statute describes it plainly: § 971.23(1)(a) speaks of testimony “in a secret proceeding under s. 968.26.” If that phrase has turned up in a document you were handed, it is not a routine hearing and it should not be walked into alone.

Why this window is worth more than any later one

Everything after a charge is a defence of a decision that has already been made. Everything before it happens while the decision is still open. Two structural reasons, and neither is a promise of any result.

Some evidence has a shelf life. Store and doorbell video is often overwritten in days. Subscriber and connection records covered by § 968.375(2)(a) do not exist forever. Witnesses forget in a specific order: they forget the details that would have helped you first, because those are the ones nobody is asking them about. Preservation is a thing that can be done now and cannot be done retroactively.

Nothing has been said on the record yet. Once there is a recorded interview, that recording is a fixed object in the case for the rest of its life. Right now, the file has no version of your account in it. That is a position of some strength, and it is the one people give away first, usually within a day of the phone call, usually while trying to be helpful.

The reason so much of this window gets wasted is not stupidity. It is that nothing appears to be happening, so waiting feels free. It is not free. It is just quiet.

What a lawyer can actually do before charges

Written as verbs, not as outcomes. Nobody can promise you a result, and Wisconsin lawyers are not allowed to.

• Take over contact. Further questioning is routed through counsel instead of through you, and the interview stops being something you have to survive alone.
• Read the warrant and the affidavit that supports it, while the scene and the inventory are fresh.
• Preserve what decays, including video, records, receipts and location data.
• Answer a § 968.135 subpoena on time, and move to quash or limit it in the issuing court where there are grounds to do so.
• Present information to the district attorney before the § 968.02(1) approval happens. This is possible, it is ordinary practice, and it is almost never done by someone representing themselves.
• Plan the mechanics if charges do come, including arranging a surrender rather than an arrest at your workplace, and preparing for the ten day pretrial motion clock in § 971.31(5)(a).
• Protect the parts of your life the charge would reach, including a professional licence and immigration status.

If it is federal

Label this section clearly, because the rules are not Wisconsin’s. Federal practice uses different vocabulary, and the Department of Justice publishes its own definitions in the Justice Manual at JM 9-11.151:

“A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

“A ‘subject’ of an investigation is a person whose conduct is within the scope of the grand jury’s investigation.”

The Manual states that it is Department policy that an “Advice of Rights” form be appended to grand jury subpoenas served on any target or subject, and prints the text. Part of it reads:

“You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding.”

JM 9-11.153 adds that where a target is not called to testify, “the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury,” subject to listed exceptions. That is the origin of the document people call a target letter: a policy of the prosecuting agency, not a right you can demand.

If a letter, a grand jury subpoena, or a document request to your accountant has arrived, see federal defense, white collar charges, and what to do when accused of a white collar crime.

The one thing you can still do wrong

Do not decide on your own what to do with your devices, your files, or your messages.

We are not going to hand you a statute we have not verified. What we can tell you is what is in the text: § 946.41(2)(a) defines obstructing an officer to include “knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty,” and § 968.375 means the state can go to a provider rather than to your device, so material you believe is gone may not be. Ask a lawyer before you touch anything. That is a ten minute phone call, and it is the cheapest ten minutes in this whole process.

Where we are

Our Racine office is at 840 Lake Avenue and our Kenosha office is at 7001 30th Avenue, Kenosha, WI 53142. We appear regularly in Walworth County court, though we do not keep an office there. The first conversation costs nothing: contact us or call (262) 632-5000.

If the investigation is an OWI matter, the licence-side clocks run separately and are covered at racineowi.com. If it started with a traffic citation, see racineticket.com. If someone has already been taken into custody, go to someone you love was just arrested. And if an offer arrives after charges are filed, read the first plea offer in a Wisconsin case before you answer it.

This page is plain-English legal information about Wisconsin procedure, with one clearly labelled section on federal practice. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts. Statutes change; confirm current text at docs.legis.wisconsin.gov. The federal material is published by the U.S. Department of Justice at justice.gov.