WBA NewsroomEditor’s Note, September 2015: Legislation is pending which would exempt elected officials from John Doe probes. This page will be updated if such legislation passes and is signed into law.
A John Doe investigation begins when a complaint is filed with a judge alleging there is reason to believe a crime has been committed. John Doe investigations are filed in state court and may or may not lead to criminal charges.
They are similar in some ways to a federal grand jury proceeding, but there are differences. In a John Doe probe, the judge is present for witness testimony; the witness’s lawyer can be present during testimony; but any felony charges arising from the proceeding must still be “tested” in a preliminary hearing before anyone is bound over for trial.
In a federal grand jury proceeding, the judge and witness attorneys are not present, and the grand jury can return a federal indictment based on their belief that there is enough evidence to take the case to trial.
Often, as in the case with the two recent John Doe Investigations in campaign activities of Governor Scott Walker, the procedure begins with the request of a district attorney (in the Walker probes, five DA’s made the request). Often the DA has some information about an alleged crime and wishes to question people under oath. The identity of the suspect(s) may or may not be known; often they are not named publicly, hence the name “John Doe” Investigation. In many cases, as in the two involving Governor Walker, the identity of the suspect is known, but it’s still called a John Doe proceeding.
Sometimes the only way a DA can get more information about an alleged crime is to question people under oath, and the witness can request, but is not always granted immunity from prosecution by the John Doe judge.
This is where John Doe probes sometimes get complicated: when a witness in the John Doe refuses to give evidence or testimony based on their Constitutional right against self-incrimination, the DA can request the judge to issue an order requiring the witness to testify or face jail time. This is called “compelled testimony”, and it may not be used in a later proceeding against that witness – but – the testimony may be used later in proceedings against others in the probe.
The judge in the John Doe proceeding can issue subpoenas ordering people to appear and give testimony, and to produce possible evidence of the alleged crime, such as computers, e-mail records, and so on. At the end of the proceeding, a criminal complaint may be issued. In some cases, the proceedings can be continued if other persons or alleged crimes are still under investigation as part of the overall probe.