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.
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.
Psychiatric testing of victims or witnesses.
In a prosecution of s. 940.225
, 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.
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)
. 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.
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.
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)
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.
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.
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.
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 of any untimely disclosure of material or information required to be disclosed under sub. (1)
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.
In default of such notice, no evidence of the alibi shall be received unless the court, for cause, orders otherwise.
The court may enlarge the time for filing a notice of alibi as provided in par. (a)
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.
A witness list required under par. (a)
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)
if the witness is required to be disclosed under par. (a)
Deoxyribonucleic acid evidence. 971.23(9)(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.
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.
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)
“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)
“Reasonably available" means sufficient opportunity for inspection, viewing, and examination at a law enforcement or government facility.
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.
Notwithstanding sub. (1) (e)
, 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.
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.
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)
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
When a prosecutor submitted a list of 97 witnesses he intended to call, the court should have required him to be more specific as to those he really intended to call. Irby v. State, 60 Wis. 2d 311
, 210 N.W.2d 755
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
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
Although substantial evidence indicates that the state had subpoenaed its “rebuttal" witness at least 2 weeks before he was called to testify and deliberately held him 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' testimony was waived. Caccitolo v. State, 69 Wis. 2d 102
, 230 N.W.2d 139
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
Police officers' “memo books" and reports were within the rule requiring production of witness statements, since the books and reports were written by the officers, the reports signed by them, and both officers testified as to the incident preceding defendant's arrest. State v. Groh, 69 Wis. 2d 481
, 230 N.W.2d 745
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
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 2 witnesses were within the scope of the disclosure statute. Kutchera v. State, 69 Wis. 2d 534
, 230 N.W.2d 750
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
When the defendant relied solely on an alibi defense and on the day of trial the complaining witness changed her 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
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. Matter of State ex rel. Lynch v. County Ct. 82 Wis. 2d 454
, 262 N.W.2d 773
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
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
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
Under the facts of the 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).
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
There are 3 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
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
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 subs. (4) [now sub. (1) (g)] or (5). State v. Ehlen, 119 Wis. 2d 451
, 351 N.W.2d 503
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).
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).
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).
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).
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).
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
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
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
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 him or her. State v. Oswald, 2000 WI App 3
, 232 Wis. 2d 103
, 606 N.W.2d 238
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
“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
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
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 his or her testimony. State v. White, 2004 WI App 78
, 271 Wis. 2d 742
, 680 N.W.2d 362
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
Sub. (7m) (a) does not prevent the prosecution, whose evidence was 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 was 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
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 her 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
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
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
The 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
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
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
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
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
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
A witness list was not provided within a reasonable time when submission by the district attorney violated 2 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 she 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
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
Comparison of federal discovery and the ABA standards with the Wisconsin statute. 1971 WLR 614.
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.
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
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 he was misled. Craig v. State, 55 Wis. 2d 489
, 198 N.W.2d 609
A lack of prejudice to the defendant, notwithstanding technical defects in the information, was made patent by defense counsel's concession that his client knew precisely what crime he 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
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
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
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. State v. 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. Sections 805.18 and 971.08(2) and this section 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
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.
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.