Chapter 971

971.23 971.23 Discovery and inspection.

971.23(1) (1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:

971.23(1)(a) (a) Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under s. 968.26 or before a grand jury, and the names of witnesses to the defendant’s written statements.

971.23(1)(b) (b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant’s oral statements.

971.23(1)(bm) (bm) Evidence obtained in the manner described under s. 968.31 (2) (b), if the district attorney intends to use the evidence at trial.

971.23(1)(c) (c) A copy of the defendant’s criminal record.

971.23(1)(d) (d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

971.23(1)(e) (e) Any relevant written or recorded statements of a witness named on a list under par. (d), including any audiovisual recording of an oral statement of a child under s. 908.08, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert’s findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.

971.23(1)(f) (f) The criminal record of a prosecution witness which is known to the district attorney.

971.23(1)(g) (g) Any physical evidence that the district attorney intends to offer in evidence at the trial.

971.23(1)(h) (h) Any exculpatory evidence.

971.23(2m) (2m) What a defendant must disclose to the district attorney. Upon demand, the defendant or his or her attorney shall, within a reasonable time before trial, disclose to the district attorney and permit the district attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the defendant:

971.23(2m)(a) (a) A list of all witnesses, other than the defendant, whom the defendant intends to call at trial, together with their addresses. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

971.23(2m)(am) (am) Any relevant written or recorded statements of a witness named on a list under par. (a), including any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert’s findings or the subject matter of his or her testimony, and including the results of any physical or mental examination, scientific test, experiment or comparison that the defendant intends to offer in evidence at trial.

971.23(2m)(b) (b) The criminal record of a defense witness, other than the defendant, which is known to the defense attorney.

971.23(2m)(c) (c) Any physical evidence that the defendant intends to offer in evidence at the trial.

971.23(3) (3) Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial shall be made or given if the sole basis for such comment or instruction is the fact the name of the witness appears upon a list furnished pursuant to this section.

971.23(5) (5) Scientific testing. On motion of a party subject to s. 971.31 (5), the court may order the production of any item of physical evidence which is intended to be introduced at the trial for scientific analysis under such terms and conditions as the court prescribes.

971.23(5c) (5c) Psychiatric testing of victims or witnesses. In a prosecution of s. 940.225, 948.02, or 948.025 or of any other crime if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), the court may not order any witness or victim, as a condition of allowing testimony, to submit to a psychiatric or psychological examination to assess his or her credibility.

971.23(6) (6) Protective order. Upon motion of a party, the court may at any time order that discovery, inspection or the listing of witnesses required under this section be denied, restricted or deferred, or make other appropriate orders. If the district attorney or defense counsel certifies that to list a witness may subject the witness or others to physical or economic harm or coercion, the court may order that the deposition of the witness be taken pursuant to s. 967.04 (2) to (6). The name of the witness need not be divulged prior to the taking of such deposition. If the witness becomes unavailable or changes his or her testimony, the deposition shall be admissible at trial as substantive evidence.

971.23(6c) (6c) Interviews of victims by defense. Except as provided in s. 967.04, the defendant or his or her attorney may not compel a victim of a crime to submit to a pretrial interview or deposition.

971.23(6m) (6m) In camera proceedings. Either party may move for an in camera inspection by the court of any document required to be disclosed under sub. (1) or (2m) for the purpose of masking or deleting any material which is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

971.23(7) (7) Continuing duty to disclose. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which are subject to discovery, inspection or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.

971.23(7m) (7m) Sanctions for failure to comply.

971.23(7m)(a) (a) The court shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.

971.23(7m)(b) (b) In addition to or in lieu of any sanction specified in par. (a), a court may, subject to sub. (3), advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (1) or (2m), or of any untimely disclosure of material or information required to be disclosed under sub. (1) or (2m).

971.23(8) (8) Notice of alibi.

971.23(8)(a) (a) If the defendant intends to rely upon an alibi as a defense, the defendant shall give notice to the district attorney at the arraignment or at least 30 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known. If at the close of the state’s case the defendant withdraws the alibi or if at the close of the defendant’s case the defendant does not call some or any of the alibi witnesses, the state shall not comment on the defendant’s withdrawal or on the failure to call some or any of the alibi witnesses. The state shall not call any alibi witnesses not called by the defendant for the purpose of impeaching the defendant’s credibility with regard to the alibi notice. Nothing in this section may prohibit the state from calling said alibi witnesses for any other purpose.

971.23(8)(b) (b) In default of such notice, no evidence of the alibi shall be received unless the court, for cause, orders otherwise.

971.23(8)(c) (c) The court may enlarge the time for filing a notice of alibi as provided in par. (a) for cause.

971.23(8)(d) (d) Within 20 days after receipt of the notice of alibi, or such other time as the court orders, the district attorney shall furnish the defendant notice in writing of the names and addresses, if known, of any witnesses whom the state proposes to offer in rebuttal to discredit the defendant’s alibi. In default of such notice, no rebuttal evidence on the alibi issue shall be received unless the court, for cause, orders otherwise.

971.23(8)(e) (e) A witness list required under par. (a) or (d) shall be provided in addition to a witness list required under sub. (1) (d) or (2m) (a), and a witness disclosed on a list under sub. (1) (d) or (2m) (a) shall be included on a list under par. (a) or (d) if the witness is required to be disclosed under par. (a) or (d).

971.23(9) (9) Deoxyribonucleic acid evidence.

971.23(9)(a) (a) In this subsection “deoxyribonucleic acid profile” has the meaning given in s. 939.74 (2d) (a).

971.23(9)(b) (b) Notwithstanding sub. (1) (e) or (2m) (am), if either party intends to submit deoxyribonucleic acid profile evidence at a trial to prove or disprove the identity of a person, the party seeking to introduce the evidence shall notify the other party of the intent to introduce the evidence in writing by mail at least 45 days before the date set for trial; and shall provide the other party, within 15 days of request, the material identified under sub. (1) (e) or (2m) (am), whichever is appropriate, that relates to the evidence.

971.23(9)(c) (c) The court shall exclude deoxyribonucleic acid profile evidence at trial, if the notice and production deadlines under par. (b) are not met, except the court may waive the 45 day notice requirement or may extend the 15 day production requirement upon stipulation of the parties, or for good cause, if the court finds that no party will be prejudiced by the waiver or extension. The court may in appropriate cases grant the opposing party a recess or continuance.

971.23(10) (10) Payment of copying costs in cases involving indigent defendants. When the state public defender or a private attorney appointed under s. 977.08 requests copies, in any format, of any item that is discoverable under this section, the state public defender shall pay any fee charged for the copies from the appropriation account under s. 20.550 (1) (a). If the person providing copies under this section charges the state public defender a fee for the copies, the fee may not exceed the applicable maximum fee for copies of discoverable materials that is established by rule under s. 977.02 (9).

971.23(11) (11) Child pornography recordings.

971.23(11)(a) (a) In this subsection:

971.23(11)(a)1. 1. “Defense” means the defendant, his or her attorney, and any individual retained by the defendant or his or her attorney for the purpose of providing testimony if the testimony is expert testimony that relates to an item or material included under par. (b).

971.23(11)(a)2. 2. “Reasonably available” means sufficient opportunity for inspection, viewing, and examination at a law enforcement or government facility.

971.23(11)(a)3. 3. “Sexually explicit conduct” has the meaning given in s. 948.01 (7).

971.23(11)(b) (b) Any undeveloped film, photographic negative, photograph, motion picture, videotape, or recording, which includes any item or material that would be included under s. 948.01 (3r), or any copy of the foregoing, that is of a person who has not attained the age of 18 and who is engaged in sexually explicit conduct and that is in the possession, custody, and control of the state shall remain in the possession, custody, and control of a law enforcement agency or a court but shall be made reasonably available to the defense.

971.23(11)(c) (c)

971.23(11)(c)1. 1. Notwithstanding sub. (1) (e) and (g), a court shall deny any request by the defense to provide, and a district attorney or law enforcement agency may not provide to the defense, any item or material required in par. (b) to remain in the possession, custody, and control of a law enforcement agency or court, except that a court may order that a copy of an item or material included under par. (b) be provided to the defense if that court finds that a copy of the item or material has not been made reasonably available to the defense. The defense shall have the burden to establish that the item or material has not been made reasonably available.

971.23(11)(c)2. 2. If a court orders under subd. 1. a copy of an item or material included under par. (b) to be provided to the defense, the court shall enter a protective order under sub. (6) that includes an order that the copy provided to the defense may not be copied, printed, or disseminated by the defense and shall be returned to the court or law enforcement agency, whichever is appropriate, at the completion of the trial.

971.23(11)(d) (d) Any item or material that is required under par. (b) to remain in possession, custody, and control of a law enforcement agency or court is not subject to the right of inspection or copying under s. 19.35 (1).

971.23 History History: 1973 c. 196; 1975 c. 378, 421; 1989 a. 121; 1991 a. 223; 1993 a. 16, 486; 1995 a. 27, 387; 2001 a. 16; 2005 a. 42, 279; 2007 a. 20; 2009 a. 28, 138, 276; 2011 a. 284; 2017 a. 59.

971.23 Annotation Inadequate preparation for trial that results in a district attorney’s failure to disclose all scientific reports does not constitute good cause for the failure if the defense is misled, but this is subject to the harmless error rule. Wold v. State, 57 Wis. 2d 344, 204 N.W.2d 482 (1973).

971.23 Annotation When a prosecutor submitted a list of 97 witnesses the prosecutor intended to call, the court should have required the prosecutor to be more specific as to those the prosecutor really intended to call. Irby v. State, 60 Wis. 2d 311, 210 N.W.2d 755 (1973).

971.23 Annotation When a party successfully moves to have material masked or deleted from a discovery document, the proper procedure to be pursued is to place it in a sealed envelope or container, if necessary, so that it may be preserved for appellate review. State v. Van Ark, 62 Wis. 2d 155, 215 N.W.2d 41 (1974).

971.23 Annotation Under both the provisions of this section and the constitutional duty of the state to disclose to a criminal defendant evidence that is exculpatory in nature, there is no requirement to provide exculpatory evidence that is not within the exclusive possession of the state and does not surprise or prejudice the defendant. State v. Calhoun, 67 Wis. 2d 204, 226 N.W.2d 504 (1975).

971.23 Annotation Although substantial evidence indicated that the state had subpoenaed its “rebuttal” witness at least two weeks before the witness was called to testify and deliberately held the witness back for “dramatic” effect, no objection or motion to suppress was made on the proper ground that the witness was not a bona fide rebuttal witness; hence objection to the witness’s testimony was waived. Caccitolo v. State, 69 Wis. 2d 102, 230 N.W.2d 139 (1975).

971.23 Annotation The prosecutor’s duty to disclose does not ordinarily extend to discovery of criminal records from other jurisdictions. The prosecutor must make good faith efforts to obtain records from other jurisdictions specifically requested by the defense. Jones v. State, 69 Wis. 2d 337, 230 N.W.2d 677 (1975).

971.23 Annotation Police officers’ “memo books” and reports were within the rule requiring production of witness statements because the books and reports were written by the officers, the reports were signed by them, and both officers testified as to the incident preceding the defendant’s arrest. State v. Groh, 69 Wis. 2d 481, 230 N.W.2d 745 (1975).

971.23 Annotation When the state calls a witness not included in its list of witnesses, the preferable procedure is not to strike the witness but to allow a defendant, who makes a timely showing of surprise and prejudice, a continuance sufficient to interview the witness. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750 (1975).

971.23 Annotation The written summary, under sub. (1), of all oral statements made by the defendant that the state intends to introduce at trial is not limited to statements to the police. Incriminating statements made by the defendant to two witnesses were within the scope of the disclosure statute. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750 (1975).

971.23 Annotation All statements, whether possessed by direct-examining counsel or cross-examining counsel, must be produced; mere notes need not be produced. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976).

971.23 Annotation When the defendant relied solely on an alibi defense and on the day of trial the complaining witness changed the witness's mind as to the date of the occurrence, a request for a continuance based on surprise was properly denied because the defendant failed to show prejudice from the unexpected testimony. Angus v. State, 76 Wis. 2d 191, 251 N.W.2d 28 (1977).

971.23 Annotation A generalized inspection of prosecution files by defense counsel prior to a preliminary hearing is so inherently harmful to the orderly administration of justice that the trial court may not confer such a right. Cleveland v. Circuit Court, 82 Wis. 2d 454, 262 N.W.2d 773 (1978).

971.23 Annotation Under sub. (8) (d), the state must provide the names of all people who will testify at any time during the trial that the defendant was at the scene of the crime. Tucker v. State, 84 Wis. 2d 630, 267 N.W.2d 630 (1978).

971.23 Annotation The trial court erred in ordering the defense to turn over “transcripts” of interviews between defense counsel, the defendant, and alibi witnesses, when oral statements were not recorded verbatim. Pohl v. State, 96 Wis. 2d 290, 291 N.W.2d 554 (1980).

971.23 Annotation The prosecutor’s repeated failure to disclose prior statements of witnesses was not prosecutorial overreaching that would bar reprosecution after the defendant moved for a mistrial. State v. Copening, 100 Wis. 2d 700, 303 N.W.2d 821 (1981).

971.23 Annotation Under the facts of this case, the victim’s medical records were not reports required to be disclosed under sub. (5). State v. Moriarty, 107 Wis. 2d 622, 321 N.W.2d 324 (Ct. App. 1982).

971.23 Annotation When the defendant was not relying on an alibi defense and did not file a notice of alibi, the court did not abuse its discretion in barring alibi testimony. State v. Burroughs, 117 Wis. 2d 293, 344 N.W.2d 149 (1984).

971.23 Annotation There are three different situations of prosecutorial nondisclosure, each with a different standard: 1) when the undisclosed evidence shows the prosecutor’s case included perjury; 2) when the defense made a pretrial request for specific evidence; and 3) when the defense made no request or a general request for exculpatory evidence. State v. Ruiz, 118 Wis. 2d 177, 347 N.W.2d 352 (1984).

971.23 Annotation A defendant charged as a “party to a crime” for conspiratorial planning of a robbery was not required to give an alibi notice regarding testimony concerning the defendant’s whereabouts during planning sessions, as an alibi is a denial of being present at the scene of the crime when it was committed. State v. Horenberger, 119 Wis. 2d 237, 349 N.W.2d 692 (1984).

971.23 Annotation When blood alcohol content is tested under statutory procedures, results of the test are mandatorily admissible. The physical sample tested is not evidence intended, required, or even susceptible of being produced by the state under sub. (4) [now sub. (1) (g)] or sub. (5). State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984).

971.23 Annotation When the state impounded a vehicle but released it to a scrap dealer before the defendant’s expert could examine it, the charge was properly dismissed for destruction of exculpatory evidence. State v. Hahn, 132 Wis. 2d 351, 392 N.W.2d 464 (Ct. App. 1986).

971.23 Annotation Sub. (7) requires determination by the trial court of whether noncompliance was for good cause. If it was not, exclusion is mandatory; if it was, sanction is discretionary. State v. Wild, 146 Wis. 2d 18, 429 N.W.2d 105 (Ct. App. 1988).

971.23 Annotation Criminal defendants are not required to comply with the rules of criminal procedure to obtain a record available under the open records law. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991).

971.23 Annotation When the state inferred that a complainant sought psychological treatment as the result of a sexual assault by the defendant but did not offer the psychological records or opinions of the therapist as evidence, it was not improper to deny the defendant access to the records when the court determined that the records contained nothing that was material to the fairness of the trial. State v. Mainiero, 189 Wis. 2d 80, 525 N.W.2d 304 (Ct. App. 1994).

971.23 Annotation Although of public record, it is an intolerable burden on a defendant to be required to continually comb criminal records to determine if any of the state’s witnesses are subject to criminal penalty. The burden is on the state to provide this information, particularly in light of a discovery request for the criminal records of the state’s witnesses. State v. Randall, 197 Wis. 2d 29, 539 N.W.2d 708 (Ct. App. 1995).

971.23 Annotation Sub. (2m) requires disclosure of relevant substantive information that a defense expert is expected to present at trial whether as to findings, test results, or a description of proposed testimony. The privilege against self-incrimination and the right to present a defense are not violated by the requirement. State v. Revels, 221 Wis. 2d 315, 585 N.W.2d 602 (Ct. App. 1998), 97-3148.

971.23 Annotation This section does not provide for postconviction discovery, but a defendant has a right to postconviction discovery when the sought-after evidence is relevant to an issue of consequence. State v. O’Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), 96-3028.

971.23 Annotation The state’s failure to disclose that it took samples but failed to have them analyzed affected the defendant’s right to a fair trial because it prevented the defendant from raising the issue of the reliability of the investigation and from challenging the credibility of a witness who testified that the test had not been performed. State v. DelReal, 225 Wis. 2d 565, 593 N.W.2d 461 (Ct. App. 1999), 97-1480.

971.23 Annotation When an indigent defendant requests the state to furnish a free transcript of a separate trial of a codefendant, the defendant must show that the transcript will be valuable to the defendant. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219.

971.23 Annotation Sub. (2m) (am) requires that any statement made by a witness named in a list under sub. (2m) (a) must be disclosed. Once a party is included on the list of witnesses under sub. (2m) (a), statements by the witness must be disclosed. State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488, 00-1821.

971.23 Annotation “Plans to use” in sub. (1) (b) embodies an objective standard—what a reasonable prosecutor should have known and would have done under the circumstances of the case. The issue is whether a reasonable prosecutor, exercising due diligence, should have known of the defendant’s statements before trial and, if so, would have planned to use them in the course of trial. The knowledge of law enforcement officers may in some cases be imputed to the prosecutor. Good faith alone does not constitute good cause for failing to disclose under sub. (7m). State v. DeLao, 2002 WI 49, 252 Wis. 2d 289, 643 N.W.2d 480, 00-1638.

971.23 Annotation A prosecutor has no duty to list a rebuttal witness if it is anticipated before trial that the witness will be called. The defense takes its chances when offering a theory of defense, and the state can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating sub. (1) (d). State v. Konkol, 2002 WI App 174, 256 Wis. 2d 725, 649 N.W.2d 300, 01-2126.

971.23 Annotation A witness’s probationary status was relevant and should have been disclosed by the prosecution under sub. (7). That the defendant disclosed to the jury that the witness had been convicted of a crime did not obviate the requirement that the status be disclosed. A witness’s probationary status is relevant because it and the fear of possible revocation are pertinent to the material issue of whether the witness has ulterior motives to shape the witness’s testimony. State v. White, 2004 WI App 78, 271 Wis. 2d 742, 680 N.W.2d 362, 03-1132.

971.23 Annotation Due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain. However, a defendant making a statutory discovery demand may be entitled to material exculpatory impeachment evidence before entering into a plea bargain if the plea bargain is entered into within the time frame when the prosecutor would have been statutorily required to disclose the information. A defendant may withdraw a guilty plea on nonconstitutional grounds after demonstrating that withdrawal is necessary to avoid a manifest injustice. State v. Harris, 2004 WI 64, 272 Wis. 2d 80, 680 N.W.2d 737, 02-2433.

971.23 Annotation Sub. (7m) (a) does not prevent the prosecution, whose evidence is excluded for violation of this section, from moving for dismissal without prejudice and refiling the charges and introducing the same evidence in a subsequent proceeding if there is no violation of this section in the subsequent proceeding. State v. Miller, 2004 WI App 117, 274 Wis. 2d 471, 683 N.W.2d 485, 03-1747.

971.23 Annotation Of necessity, the defense of alibi involves presence of the defendant at a place other than the scene of the crime at the time the crime was committed. Since an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused’s guilt, a purported alibi that leaves it possible for the accused to be the guilty person is no alibi at all. In this case, testimony did not constitute an alibi because it placed the defendant in the same hallway as the crime scene and did not indicate that it was physically impossible for the defendant to have committed the offense, but placed the defendant in the immediate vicinity of the crime. Therefore, notice of an alibi witness under sub. (8) was not required. State v. Harp, 2005 WI App 250, 288 Wis. 2d 441, 707 N.W.2d 304, 04-3240.

971.23 Annotation The test of whether evidence should be disclosed is not whether in fact the prosecutor knows of its existence but, rather, whether by the exercise of due diligence the prosecutor should have discovered it. State v. Harris, 2008 WI 15, 307 Wis. 2d 555, 745 N.W.2d 397, 06-0882.

971.23 Annotation The circuit court erroneously exercised its discretion in failing to advise the jury that the state had failed to make timely disclosure of reports to the defendant under the criminal discovery statute, even though the state’s failure to abide by the criminal discovery statute was not prejudicial error. However, this error was also subject to the harmless error test and was also not prejudicial. State v. Harris, 2008 WI 15, 307 Wis. 2d 555, 745 N.W.2d 397, 06-0882.

971.23 Annotation A defendant has no statutory subpoena right to obtain and copy police investigation reports and nonprivileged materials prior to a preliminary examination. Section 972.11 does not allow a criminal defendant access to the civil subpoena duces tecum power embodied in s. 805.07 (2). State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826.

971.23 Annotation Whether evidence could have been admitted in the state’s case is not the test of admissibility of rebuttal evidence. The evidence may well have been admissible or “appropriate” in the plaintiff/state’s case-in-chief, but only became necessary at rebuttal. State v. Sandoval, 2009 WI App 61, 318 Wis. 2d 126, 767 N.W.2d 291, 08-0482.

971.23 Annotation The circuit court properly exercised its discretion under sub. (6) in granting the state’s motion for a protective order allowing the defense access at a state facility to a computer hard drive allegedly containing child pornography evidence, but prohibiting the defense from obtaining a copy of the hard drive. In light of the serious harms associated with child pornography and the ease with which electronically-stored files are widely disseminated, the court reasonably exercised its direction in granting the motion. State v. Bowser, 2009 WI App 114, 321 Wis. 2d 221, 772 N.W.2d 666, 08-0206.