Chapter 971

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.

971.23 Annotation Sub. (8) (a), by its plain language, only bars a prosecutor from commenting on missing alibi witnesses whom the defendant has named in the notice of alibi. State v. Saunders, 2011 WI App 156, 338 Wis. 2d 160, 807 N.W.2d 679, 10-2393.

971.23 Annotation Fingerprint evidence excluded from the case-in-chief due to a discovery sanction under sub. (7m) may later be used to challenge the defendant’s testimony in rebuttal. Under Konkol, 2002 WI App 174, bona fide rebuttal evidence is admissible despite the absence of any disclosure by the state. The test for excluding testimony for impeachment purposes when the defendant takes the stand is untrustworthiness. Here, expert witness and fingerprint evidence were excluded by the trial court due to a statutory discovery violation, not due to the untrustworthiness or unreliability of the evidence. State v. Novy, 2012 WI App 10, 338 Wis. 2d 439, 809 N.W.2d 889, 11-0407.

971.23 Annotation While sub. (5) gives a defendant the right to inspect reports of the results of blood tests, it does not provide for inspection or testing if the blood itself is not going to be introduced into evidence. No statute or case law requires production of the sample, and consequently, no duty devolves upon the district attorney to preserve or maintain a quantity of a blood sample in order that a defendant may retest the blood. State v. Weissinger, 2014 WI App 73, 355 Wis. 2d 546, 851 N.W.2d 780, 13-0218.

971.23 Annotation Affirmed on other grounds. 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, 13-0218.

971.23 Annotation A witness list was not provided within a reasonable time when submission by the district attorney violated two court orders setting the time for submitting the list. Those court orders established a “reasonable time before trial” for the parties to list their witnesses. The burden was on the district attorney’s office to show that it had good cause for this violation, not on the defendant to show that the defendant was prejudiced. There is no exception for a district attorney’s discovery violation so that the significant consequences of the court’s order will not be borne by the “blameless public.” State v. Prieto, 2016 WI App 15, 366 Wis. 2d 794, 876 N.W.2d 154, 15-0279.

971.23 Annotation The state unconstitutionally excluded the defendant’s alibi testimony for failure to comply with this section, but the error was harmless. Alicea v. Gagnon, 675 F.2d 913 (1982).

971.23 Annotation Criminal Discovery—Comparison of Federal Discovery and the ABA Standards With the New Statutory Provisions in Wisconsin. 1971 WLR 614.

971.26 971.26 Formal defects. No indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant.

971.26 Annotation The fact that the information alleged the wrong date for the offense was not prejudicial when the complaint stated the correct date and there was no evidence that the defendant was misled. A charge of the violation of s. “946.42 (2) (a) (c)” was a technical defect of language when both paragraphs applied. Burkhalter v. State, 52 Wis. 2d 413, 190 N.W.2d 502 (1971).

971.26 Annotation The failure to cite in the information and certificate of conviction the correct statutory subsections violated was immaterial when the defendant could not show that the defendant was misled. Craig v. State, 55 Wis. 2d 489, 198 N.W.2d 609 (1972).

971.26 Annotation A lack of prejudice to the defendant, notwithstanding technical defects in the information, was made patent by defense counsel’s concession that the defendant knew precisely what crime the defendant was charged with having committed, and the absence in the record of any such claim asserted during the case, which was vigorously tried. Clark v. State, 62 Wis. 2d 194, 214 N.W.2d 450 (1974).

971.26 Annotation Failure to allege lack of consent was not a fatal jurisdictional defect of an information charging burglary. Schleiss v. State, 71 Wis. 2d 733, 239 N.W.2d 68 (1976).

971.26 Annotation No statute authorizes a clerk of court’s office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk’s office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, 98-2263.

971.26 Annotation Section 971.08 (2), requiring vacation of judgment and permission to withdraw a plea in the event of improper notice of the consequences of the plea on immigration and naturalization is subject to harmless error analysis under this section and s. 805.18. Douangmala, 2002 WI 62, was objectively wrong because it failed to properly consider this section and s. 805.18 and is thus overruled. The mandatory “shall” in s. 971.08 (2) did not control when both of the harmless error savings statutes also use the mandatory “shall” language. This section and ss. 805.18 and 971.08 (2) are most comprehensibly harmonized by applying harmless error analysis. All of the relevant statutes use “shall,” and, accordingly, none is “more mandatory” than any other. State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773, 15-2041.

971.27 971.27 Lost information, complaint or indictment. In the case of the loss or destruction of an information or complaint, the district attorney may file a copy, and the prosecution shall proceed without delay from that cause. In the case of the loss or destruction of an indictment, an information may be filed.

971.28 971.28 Pleading judgment. In pleading a judgment or other determination of or proceeding before any court or officer, it shall be sufficient to state that the judgment or determination was duly rendered or made or the proceeding duly had.

971.29 971.29 Amending the charge.

971.29(1) (1) A complaint or information may be amended at any time prior to arraignment without leave of the court.

971.29(2) (2) At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.

971.29(3) (3) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.

971.29 Annotation When there is evidence that a jury could believe proved guilt, the trial court cannot sua sponte set aside the verdict, amend the information, and find the defendant guilty on a lesser charge. State v. Helnik, 47 Wis. 2d 720, 177 N.W.2d 881 (1970).

971.29 Annotation Since theft is an included crime of robbery, the amendment of the information from robbery to theft did not materially prejudice the defendant. All of the elements of theft are included in the elements of robbery. Of necessity, then, the defendant had notice and opportunity to prepare a defense to the elements of theft as well as to the additional elements that comprise the crime of robbery. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972).

971.29 Annotation Sub. (2), in regard to amendments after verdict, applies only to technical variances in the complaint, not material to the merits of the action. It may not be used to substitute a new charge. State v. Duda, 60 Wis. 2d 431, 210 N.W.2d 763 (1973).

971.29 Annotation The refusal of a proposed amendment of an information has no effect on the original information. An amendment to charge a violation of a substantive section as well as a separate penalty section is not prejudicial to a defendant. Wagner v. State, 60 Wis. 2d 722, 211 N.W.2d 449 (1973).

971.29 Annotation Sub. (1) does not prohibit amendment of the information with leave of the court after arraignment, but before trial, provided that the defendant’s rights are not prejudiced. Whitaker v. State, 83 Wis. 2d 368, 265 N.W.2d 575 (1978).

971.29 Annotation Notice of the nature and cause of the accusations is a key factor in determining whether an amendment at trial has prejudiced a defendant. The inquiry is whether the new charge is so related to the transaction and facts adduced at the preliminary hearing that a defendant cannot be surprised by the new charge since the preparation for the new charge would be no different than the preparation for the old charge. State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992).

971.29 Annotation Failure of the state to obtain court permission to file a post-arraignment amended information did not deprive the court of subject matter jurisdiction. State v. Webster, 196 Wis. 2d 308, 538 N.W.2d 810 (Ct. App. 1995), 93-3217.

971.29 Annotation That the court’s jurisdiction is invoked by the commencement of a case and that the legislature has granted prosecutors sole discretion to amend a charge only prior to arraignment means that the prosecutor’s unchecked discretion stops at the point of arraignment. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, 797 N.W.2d 341, 08-0755.

971.29 Annotation The trial court cannot after trial amend a charge of sexual intercourse with a child to one of contributing to the delinquency of a minor since the offenses require proof of different facts and the defendant is entitled to notice of the charge against the defendant. LaFond v. Quatsoe, 325 F. Supp. 1010 (1971).

971.30 971.30 Motion defined.

971.30(1) (1) ‘‘Motion” means an application for an order.

971.30(2) (2) Unless otherwise provided or ordered by the court, all motions shall meet the following criteria:

971.30(2)(a) (a) Be in writing.

971.30(2)(b) (b) Contain a caption setting forth the name of the court, the venue, the title of the action, the file number, a denomination of the party seeking the order or relief and a brief description of the type of order or relief sought.

971.30(2)(c) (c) State with particularity the grounds for the motion and the order or relief sought.

971.30 History History: Sup. Ct. Order, 171 Wis. 2d xix (1992).

971.31 971.31 Motions before trial.

971.31(1) (1) Any motion which is capable of determination without the trial of the general issue may be made before trial.

971.31(2) (2) Except as provided in sub. (5), defenses and objections based on defects in the institution of the proceedings, insufficiency of the complaint, information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence shall be raised before trial by motion or be deemed waived. The court may, however, entertain such motion at the trial, in which case the defendant waives any jeopardy that may have attached. The motion to suppress evidence shall be so entertained with waiver of jeopardy when it appears that the defendant is surprised by the state’s possession of such evidence.

971.31(3) (3) The admissibility of any statement of the defendant shall be determined at the trial by the court in an evidentiary hearing out of the presence of the jury, unless the defendant, by motion, challenges the admissibility of such statement before trial.

971.31(4) (4) Except as provided in sub. (3), a motion shall be determined before trial of the general issue unless the court orders that it be deferred for determination at the trial. All issues of fact arising out of such motion shall be tried by the court without a jury.

971.31(5) (5) 

971.31(5)(a) (a) Motions before trial shall be served and filed within 10 days after the initial appearance of the defendant in a misdemeanor action or 10 days after arraignment in a felony action unless the court otherwise permits.

971.31(5)(b) (b) In felony actions, motions to suppress evidence or motions under s. 971.23 or objections to the admissibility of statements of a defendant shall not be made at a preliminary examination and not until an information has been filed.

971.31(5)(c) (c) In felony actions, objections based on the insufficiency of the complaint shall be made prior to the preliminary examination or waiver thereof or be deemed waived.

971.31(6) (6) If the court grants a motion to dismiss based upon a defect in the indictment, information or complaint, or in the institution of the proceedings, it may order that the defendant be held in custody or that the defendant’s bail be continued for not more than 72 hours pending issuance of a new summons or warrant or the filing of a new indictment, information or complaint.

971.31(7) (7) If the motion to dismiss is based upon a misnomer, the court shall forthwith amend the indictment, information or complaint in that respect, and require the defendant to plead thereto.

971.31(8) (8) No complaint, indictment, information, process, return or other proceeding shall be dismissed or reversed for any error or mistake where the case and the identity of the defendant may be readily understood by the court; and the court may order an amendment curing such defects.

971.31(9) (9) A motion required to be served on a defendant may be served upon the defendant’s attorney of record.

971.31(10) (10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty or no contest to the information or criminal complaint.

971.31(11) (11) In actions under s. 940.225, 948.02, 948.025, 948.051, 948.085, or 948.095, or under s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5), evidence which is admissible under s. 972.11 (2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial.

971.31(12) (12) In actions under s. 940.22, the court may determine the admissibility of evidence under s. 972.11 only upon a pretrial motion.

971.31(13) (13) 

971.31(13)(a) (a) A juvenile over whom the court has jurisdiction under s. 938.183 (1) (b) or (c) on a misdemeanor action may make a motion before trial to transfer jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938. The motion may allege that the juvenile did not commit the violation under the circumstances described in s. 938.183 (1) (b) or (c), whichever is applicable, or that transfer of jurisdiction would be appropriate because of all of the following:

971.31(13)(a)1. 1. If convicted, the juvenile could not receive adequate treatment in the criminal justice system.

971.31(13)(a)2. 2. Transferring jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 would not depreciate the seriousness of the offense.

971.31(13)(a)3. 3. Retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in s. 938.183 (1) (b) or (c), whichever is applicable.

971.31(13)(b) (b) The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence that he or she did not commit the violation under the circumstances described in s. 938.183 (1) (b) or (c), whichever is applicable, or that transfer would be appropriate because all of the factors specified in par. (a) 1., 2. and 3. are met.

971.31 History History: 1975 c. 184; 1985 a. 275; 1987 a. 332 s. 64; 1993 a. 227, 486; 1995 a. 352, 387, 456; 1997 a. 205; 2005 a. 277; 2007 a. 116; 2009 a. 27.

971.31 Annotation When defense counsel refused, for strategic reasons, to pursue a motion made pro se by the defendant before trial to suppress evidence of identification at a lineup, there was a waiver of the motion. State v. McDonald, 50 Wis. 2d 534, 184 N.W.2d 886 (1971).

971.31 Annotation A claim of illegal arrest for lack of probable cause must be raised by motion before trial. Lampkins v. State, 51 Wis. 2d 564, 187 N.W.2d 164 (1971).

971.31 Annotation The waiver provision in sub. (2) is constitutional. Day v. State, 52 Wis. 2d 122, 187 N.W.2d 790 (1971).

971.31 Annotation A defendant is not required to make a motion to withdraw the defendant’s plea to preserve the right to a review of an alleged error of refusal to suppress evidence. State v. Meier, 60 Wis. 2d 452, 210 N.W.2d 685 (1973).

971.31 Annotation A motion to suppress statements on the ground that they were products of an allegedly improper arrest was timely, notwithstanding failure to assert that challenge prior to arraignment, since it was made after the information was filed and prior to trial. Rinehart v. State, 63 Wis. 2d 760, 218 N.W.2d 323 (1974).

971.31 Annotation A request for a Goodchild hearing after direct testimony is concluded is not timely under sub. (2). Coleman v. State, 64 Wis. 2d 124, 218 N.W.2d 744 (1974).

971.31 Annotation The rule in sub. (2) does not apply to confessions because sub. (2) is qualified by subs. (3) and (4). Upchurch v. State, 64 Wis. 2d 553, 219 N.W.2d 363 (1974).

971.31 Annotation A challenge to the search of one’s person cannot be raised for the first time on appeal. Madison v. State, 64 Wis. 2d 564, 219 N.W.2d 259 (1974).

971.31 Annotation A defendant’s right to testify at a Goodchild, 27 Wis. 2d 244 (1965), hearing may be curtailed only for the most compelling reasons. Franklin v. State, 74 Wis. 2d 717, 247 N.W.2d 721 (1976).

971.31 Annotation When the state used a traffic citation to initiate legal proceedings and subsequently decided to prosecute the action as a crime, the trial court erred in not giving the defendant ten days from the date of the amended charge to object to the sufficiency of the complaint. State v. Mudgett, 99 Wis. 2d 525, 299 N.W.2d 621 (Ct. App. 1980).

971.31 Annotation Sub. (6) authorizes the court to hold a defendant in custody or on bail for 72 hours pending new proceedings. State ex rel. Brockway v. Milwaukee County Circuit Court, 105 Wis. 2d 341, 313 N.W.2d 845 (Ct. App. 1981).

971.31 Annotation Factors that a court should consider when a defendant requests to be tried after a codefendant in order to secure the testimony of the codefendant are: 1) the likelihood that the codefendant will testify; 2) the likelihood that the testimony will be significant and beneficial to the defendant; 3) whether the defendant diligently attempted to secure the evidence in time for trial; 4) the length of delay requested; and 5) the burden on the trial court and prosecution. State v. Anastas, 107 Wis. 2d 270, 320 N.W.2d 15 (Ct. App. 1982).

971.31 Annotation By pleading guilty, the defendant waived the right to appeal the trial court’s ruling on the admissibility of other crimes evidence. State v. Nelson, 108 Wis. 2d 698, 324 N.W.2d 292 (Ct. App. 1982).

971.31 Annotation A finding of not guilty by reason of mental disease or defect is a judgment of conviction under s. 972.13 (1), and thus sub. (10) is applicable. State v. Smith, 113 Wis. 2d 497, 335 N.W.2d 376 (1983).

971.31 Annotation Sub. (10) does not apply to civil forfeiture cases. County of Racine v. Smith, 122 Wis. 2d 431, 362 N.W.2d 439 (Ct. App. 1984).