Updated 8/26/09

Charging Instrument (Complaint, Information)


John Doe

Preliminary Hearings


Bindover – Charging Instrument -- Information -- “Transactionally Related” Count, Generally
State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly
¶11      Once a defendant has been properly bound over on one count, the prosecutor has the authority to include additional charges in the information “so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary.” Id. at 528 (citing Bailey, 65 Wis. 2d at 341). Charges are “not wholly unrelated,” meaning they are transactionally related, when they are related in terms of “the affinity of parties and witnesses, the charges’ geographical and temporal proximity, the physical evidence required for conviction, and the defendant’s motive and intent.” State v. Richer, 174 Wis. 2d 231, 239, 254, 496 N.W.2d 66 (1993). The supreme court has explained that using these seven factors to determine when counts may be added in the information are “indicative of [the] court’s continuing efforts to further the underlying legislative and constitutional goals [6] of the preliminary hearing while also affording prosecutors increasing flexibility in their charging decisions.” Richer, 174 Wis. 2d at 246 (footnote added).
Bindover – Charging Instrument -- Information -- Count “Transactionally Related” May be Raised, Though Prosecutor Successfully Objected to Questions Relevant to Count
State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly
Issue/Holding: Given that probable cause on one count was established and, further that a second count raised in the information was transactionally related to the first count, the state successful objections at the preliminary hearing to questions relevant to the second count don’t create a judicial estoppel bar:
¶16      The State’s position at the preliminary hearing—that the questions about ownership and tenancy were not relevant to the delivery charge—is not “clearly inconsistent” with its subsequent position that it may add the drug-house charge in the information because it is transactionally related to the delivery charge. Case law establishes that the prosecutor may choose after the preliminary hearing to add transactionally related charges in the information. See, e.g., Williams, 198 Wis. 2d at 528; Bailey, 65 Wis. 2d at 341. Nothing in the case law suggests that the scope of the cross-examination at the preliminary hearing is affected by what the prosecutor’s intent might be in this regard or what the prosecutor might later decide to do.
We have submitted this passage to our proprietary Judicial Opinion Translation Service™, which supplies the following rendition: “Judicial estoppel is an equitable rule that bars a party from adopting inconsistent positions in legal proceedings, State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996), and that aims to preserve the integrity of the judicial system and prevent litigants from playing ‘fast and loose’ with the courts, State v. English-Lancaster, 2002 WI App 74, ¶18, 252 Wis. 2d 388, 642 N.W.2d 627. However, the rubber-stamp nature of bindover proceedings functionally immunizes the state from estoppel-like considerations. In other words, the state can’t play fast and loose with the court because it’s entitled to do pretty much what it wants anyway.”
Complaint – Charging Decision – Overlapping Statutes – Prosecutorial Discretion to Choose Charge
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue: Whether a prosecutor has discretion to charge the more general offense of felony theft by fraud, § 943.20(1)(d), when the allegations fit the more specific misdemeanor offense of manipulation of quality of milk samples, § 98.15(1).
¶13   Both the United States Supreme Court and our supreme court have held prosecutors have the freedom to choose which statutes to charge, as long as the choice is not based “upon an unjustifiable standard such as race, religion, or other arbitrary classification.” State v. Cissell, 127 Wis. 2d 205, 215, 378 N.W.2d 691 (1985); Batchelder, 442 U.S. at 125 n.9. In Wisconsin, prosecutors enjoy “broad discretion in determining whether to charge an accused, which offenses to charge [and] under which statute to charge.” State v. Krueger, 224 Wis. 2d 59, 67, 588 N.W.2d 921 (1999) (footnotes omitted); see also State v. Lindsey, 203 Wis. 2d 423, 440, 554 N.W.2d 215 (Ct. App. 1996).

¶14   Ploeckelman does not argue that double jeopardy attaches or that the State inappropriately charged him based on race, religion, or another arbitrary classification. Thus, as an exercise of prosecutorial discretion, the State could charge Ploeckelman under the general theft statute as it was not restricted to charging him only under the misdemeanor statute.

Complaint – Sufficiency – DNA Complaint (PCR)
State v. Lonnie C. Davis, 2005 WI App 98
For Davis: Pamela Moorshead
Issue/Holding: The procedure approved in State v. Dabney, 2003 WI App 108, ¶15, 264 Wis. 2d 843, 663 N.W.2d 366 (complaint which identifies defendant only by DNA profile tolls statute of limitations) also allows complaint to be initially based on RFLP technology and later amended to reflect newer technology of PCR-based profile, ¶¶29-34:
¶34      The DNA was the same.  Both the RFLP-DNA profile and the PCR-DNA profile contained Davis’s DNA exclusively. His argument elevates form over substance. The State specifically identified Davis’s DNA in a complaint before the statute of limitations expired. The fact that the type of DNA analysis technology changed does not somehow alter the accuracy of the identification. The person with the DNA in the original complaint was the same person with the DNA in the amended complaint— Davis. Thus, his claim that the analysis was different is of no consequence. His DNA did not change, but remained the same. Thus, it satisfied the reasonable certainty requirements for an arrest warrant and answered the “who is charged” question required for a sufficient complaint. Id. Thus, the trial court did not err in finding that the complaint was sufficient.
Criminal Complaint – Sufficiency Test
State v. Brent R. Reed, 2005 WI 53, affirming as modified 2004 WI App 98, and overruling State v. Joseph M. Espinoza, 2002 WI App 51
For Reed: David H. Weber
¶12 We look within the four corners of the complaint to see whether there are facts or reasonable inferences set forth that are sufficient to allow a reasonable person to conclude that a crime was probably committed and that the defendant probably committed it. State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 12 (1971). A complaint is sufficient if it answers the following questions: "(1) Who is charged?; (2) What is the person charged with?; (3) When and where did the alleged offense take place?; (4) Why is this particular person being charged?; and (5) Who says so? or how reliable is the informant?" State v. White, 97 Wis. 2d 193, 203, 295 N.W.2d 346 (1980); see State ex rel. Evanow v. Seraphim, 40 Wis. 2d 223, 229-30, 161 N.W.2d 369 (1968). Only the fourth question is at issue in this case.
Complaint – Prosecutorial Discretion, Generally
State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke
¶31 We have in prior cases referred to American Bar Association Criminal Justice Standard 3.9 pertaining to the exercise of charging discretion, identifying two circumstances in which prosecutorial charging discretion may be abused: "[t]his standard makes it abundantly clear that . . . it is an abuse of discretion to charge when the evidence is clearly insufficient to support a conviction. It is also an abuse of discretion for a prosecutor to bring charges on counts of doubtful merit for the purpose of coercing a defendant to plead guilty to a less serious offense." Thompson, 61 Wis. 2d at 329- 30; Karpinski, 92 Wis. 2d at 609-10. A district attorney generally should not bring a charge unless he or she believes the evidence can sustain a finding of guilt beyond a reasonable doubt. Not all the guilty are convictable; moreover, convicting all the guilty may not be desirable. Full enforcement of the criminal laws "is neither possible nor desirable." 4 Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure § 13.2(d), at 22-23 (1999).

¶32 Accordingly, ABA Standard 3.9 specifies a number of discretionary factors beyond the question of the suspect's guilt that may legitimately be taken into consideration in the charging decision. These include the extent of harm caused by the offense; the threat posed to the public by the suspect; the ability and willingness of the victim to participate; the disproportion between the authorized punishment and the particular offense or offender; possible improper motives of a complainant; cooperation of the suspect with the arrest/prosecution of others; the possibility or likelihood of prosecution by another jurisdiction. American Bar Association Standards for Criminal Justice, Vol. 1, Standard 3-3.9 (2d ed. 1980); see also Karpinski, 92 Wis. 2d at 608-09; Thompson, 61 Wis. 2d at 329-30. There may well be other legitimate discretionary charging factors relating to the particular circumstances of each individual complaint.

Duplicity -- Continuing Offense Charged as Single Count
State v. Anthony M. Glenn, 199 Wis. 2d 575, 545 N.W.2d 230 (1996)
For Glenn: Wm. J. Tyroler, SPD, Milwaukee Appellate
Like Giwosky, there was evidence presented at trial in this case, when viewed most favorably to Glenn's one-crime theory, that the encounter on the pier was a short, continuous event. The chase followed immediately after the beating; there was no "break in the action." According to some witnesses, the incident lasted only a few minutes, with the battery and chase confined to the narrow pier until Massaro jumped from the pier to his death. Therefore, we conclude that the incident here may properly be viewed as a single continuous criminal event.

This court has recognized that when charging a defendant who has engaged in a series of separate offenses which may properly beviewed as one continuing offense, "it is within the State's discretion to elect whether to charge 'one continuous offense or a single offense or series of single offenses.'" State v. Lomagro, 113 Wis. 2d 582, 587, 335 N.W.2d 583 (1983), quoting State v. George, 69 Wis. 2d 92, 100, 230 N.W.2d 253 (1975). See also State v. Chambers, 173 Wis. 2d 237, 250, 496 N.W.2d 191 (Ct. App. 1992). Accordingly, we conclude that the State properly exercised its discretion in issuing one charge of intermediate aggravated battery.4

Duplicity -- Remedy
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue/Holding: The remedy for a duplicitous charge (disjunctively charging distinct offenses in the same count) is election by the state of the single alternative, rather than dismissal of the charge. This election may occur on pretrial appeal as well as at the trial level. ¶15.
Charging Instrument -- “DNA Complaint” – Sufficiency, § 968.04(3)(a)4
State v. Bobby R. Dabney, 2003 WI App 108, PFR filed 5/23/03
For Dabney: Lynn E. Hackbarth 

¶15. Here, the complaint and arrest warrant identified the suspect as "John Doe" and set forth a specific DNA profile. We conclude that for purposes of identifying "a particular person" as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible. "A genetic code describes a person with far greater precision than a physical description or a name." Meredith A. Bieber, Comment, Meeting the Statute or Beating It: Using "John Doe" Indictments Based on DNA to Meet the Statute of Limitations, 150 U. Pa. L. Rev. 1079, 1085 (2002). Thus, we agree with the State's arguments that the DNA profile satisfies the "reasonable certainty" requirements for an arrest warrant and answers the "who is charged" question for a complaint.

¶16. We are, however, persuaded by Dabney's suggestion that in addition to the DNA profile, the particular physical characteristics known to police would have further enhanced the completeness of the complaint and warrant. As Dabney points out, an individual would not necessarily recognize the DNA profile as his own. Thus, although the DNA profile satisfies the particularity requirements in identifying a suspect whose name is not known, it would be helpful, for notice purposes, to also include any known physical appearance characteristics. The lack of a more particular physical description in this case, however, does not defeat the State's argument.

Charging Instrument -- Document Attached to Complaint in Support of Probable Cause
State v. Michael A. Smaxwell, 2000 WI App 112, 235 Wis.2d 230, 612 N.W.2d 756
For Smaxwell: Michael Rudolph
Issue: May a document be used to support probable cause of the complaint to which it is attached, where the complaint indicates that the document is "attached" but fails to expressly assert that it is "incorporated by reference" into the complaint.
Holding: Although "some statement in the body of the complaint must indicate that another document, outside the four corners of the complaint itself, is intended to be included in the complaint," ¶7, the use of the term "attached" satisfies that requirement, ¶6.
Charging Instrument -- Information -- Count not "Wholly Unrelated to Preliminary Hearing Facts.
State v. Joseph P. Bury, 2001 WI App 37, 241 Wis. 2d 261, 624 N.W.2d 395
For Bury: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether the information was properly amended to include a count naming another sexual assault victim about whom no evidence was introduced at the preliminary hearing.
¶10 .... The supreme court has clarified that for a charge to not be "wholly unrelated to the transactions or facts considered or testified to" at a preliminary hearing, it "must be 'related in terms of parties involved, witnesses involved, geographical proximity, time, physical evidence, motive and intent.'" Burke, 153 Wis. 2d at 457. All seven factors need not be satisfied; instead, they "form a general framework for determining whether counts can be added to the information and yet meet the goals of the preliminary hearing." Richer, 174 Wis. 2d at 239-40. The second count in the instant case, however, satisfied all seven criteria.

¶11 Except for the difference between the victims, the counts were closely related in every way. The parties involved were related, literally and legally. That is, Alicia and Aaron were related to each other and to their step-grandfather; and their assaults were related to each other, occurring at approximately the same time and location, and under the same circumstances. Further, the witnesses and physical evidence were the same, and Bury's motive and intent for both assaults were indistinguishable. Accordingly, we conclude that the trial court was correct in denying Bury's motion to dismiss the second count of the amended information.

Charging Instrument -- Non-eyewitness Complainant in Support of Probable Cause.
State v. Michael A. Smaxwell, 2000 WI App 112, 235 Wis.2d 230, 612 N.W.2d 756
For Smaxwell: Michael Rudolph
Issue: Whether a non-eyewitness complainant may swear to the truthfulness and reliability of an eyewitness's unsworn statement for purposes of showing probable cause in a complaint.
Holding: Yes, "provided the complainant can establish the personal and observational reliability of the eyewitness." ¶9.
Notice of Charge -- Vague Charging Period
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim's youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions, which allowed the defendant to considerably narrow the time frame, ¶¶32-36.
Notice of Charge -- Amendment of Information at Close of Case
State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place "which is resorted to by persons using controlled substances" to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).
Holding: An amendment to the charge must satisfy two tests: it must not be "wholly unrelated" to the facts at the preliminary hearing; and it must not violate right to notice of the charge. ¶26. Both tests are satisfied here: the added charge was covered by the same statute; Malcom's statement to the police supported the new charge; the evidence relied on by the state to prove the original charge was the same evidence that supported the added charge; both charges covered the same witnesses, same location, and same physical evidence; Malcom made no showing that he would have presented different witnesses to the added charge. ¶28.

Charging Instrument – Notice -- “DNA Complaint”

State v. Bobby R. Dabney, 2003 WI App 108, PFR filed 5/23/03
For Dabney: Lynn E. Hackbarth

¶28. First, the fact that the original complaint and arrest warrant were issued as "John Doe" and contained only a DNA profile does not create any lack of "notice" issues. A defendant is not entitled to specific notice that the state is issuing a complaint and seeking an arrest warrant. "[A]n arrest warrant issues when it is signed by a judge with intent that it be executed and the warrant leaves the possession of the judge." State v. Mueller, 201 Wis. 2d 121, 129, 549 N.W.2d 455 (Ct. App. 1996). Thus, the warrant is issued without any involvement from the defendant and the defendant is not provided with any notice of the underlying charge until the warrant is executed. Here, the warrant was not executed until Dabney's name was substituted for "John Doe." Thus, whether or not Dabney knew his specific DNA profile is irrelevant.

Probable Cause -- Attempted Sexual Assault -- Initiated Over Internet
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
¶25 Lastly, Brienzo raises the same challenge to the sufficiency of the complaint as he did with regard to the child enticement charge—that the complaint fails to establish probable cause that he attempted to sexually assault a child. The facts alleged and their reasonable inferences permit the conclusion that Brienzo intended to have sexual contact with a person he believed to be under the age of sixteen. Arranging a time and a place to meet that person, arriving at that place at the assigned time, and getting out of the car and entering the restaurant that was the agreed-upon meeting place are acts in furtherance of that criminal objective. It is reasonable to infer from those acts, in light of the preceding Internet communications, that Brienzo would have committed the crime except for the intervention of the extraneous factor that the person with whom Brienzo communicated was an adult law enforcement officer rather than an actual fourteen-year-old boy. More specifically, the facts alleged and their reasonable inferences show that, had a fourteen-year-old boy rather than a law enforcement officer met Brienzo at the McDonald’s, Brienzo would have had sexual contact with the boy. We therefore conclude that the facts alleged in the criminal complaint and their reasonable inferences establish probable cause that Brienzo attempted to sexually assault a child under the age of sixteen.
Probable Cause -- Attempted Child Enticement -- Initiated Over Internet
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue/Holding: The complaint established probable cause for attempted enticement; State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 followed:
¶17 We reach the same conclusion in this case. The complaint alleges that Brienzo communicated via the Internet with “Alex,” a person he believed to be a fourteen-year-old boy. During these communications, Brienzo expressed an interest in having sexual contact with Alex and suggested that they go to a hotel. Brienzo and Alex agreed to meet at a fast food restaurant on January 19, 2001, and Brienzo noted that there were hotels in the area. Brienzo drove to the restaurant at the agreed upon meeting time and was arrested when he entered the restaurant. While the agent posing as a minor conducted much of the discussions regarding the putative sexual activity, Brienzo’s appearance at the prearranged site signals probable cause to believe that he had the intent to proceed with the criminal sexual activity discussed between the two and that he would have proceeded except for the intervention of the police. Therefore, none of Brienzo’s alternative arguments prevent us from reversing the circuit court’s ruling. We order that the circuit court, on remand, reinstate the charge of attempted child enticement.
Charging Instrument -- Probable Cause -- Child Enticement
State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue/Holding: The allegations -- "that the defendant engaged in sexually-explicit online 'chats' and e-mails with a person he thought was a 13-year-old boy, for the express purpose of illegally soliciting that boy for sex; that he arranged a meeting time and place to effectuate that purpose; and that he traveled to and arrived at the agreed-upon meeting place, where he was arrested" -- support probable cause at both complaint and bindover stages. ¶38.
Charging Instrument -- Probable Cause -- Attempted Child Enticement
State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand
Issue/Holding: The facts in the complaint support probable cause for attempted enticement: the fictitious online victim made a comment that he was too young to drive, allowing an inference that Grimm believed him to be under 16; and Grimm set up a meeting at a hotel, showing his intent to entice the "child" into a building, etc., for sex. Meeting at the planned time and place is a sufficient unequivocal act in furtherance of the criminal objective of enticement, for attempt. ¶¶19-20.
Charging Instrument -- Probable Cause -- Attempted Second-degree Sexual Assault of Child
State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand
¶20. Turning to the charge of attempted second-degree sexual assault of a child, we conclude the allegations of the complaint are sufficient to show probable cause for this crime as well. As we have already explained, the facts alleged and their reasonable inferences permit the conclusion that Grimm intended to have sexual contact with a person he believed to be under sixteen. Arranging a time and place to meet that person, arriving at that place at the assigned time, and getting out of the car and talking to the person are acts in furtherance of that criminal objective; and it is reasonable to infer from these acts, in light of the preceding conversations, that Grimm would have committed the crime except for the intervention of another person or some extraneous factor. More specifically, the facts alleged and their reasonable inferences are sufficient to show that, had a fourteen-year-old boy rather than a law enforcement officer met Grimm at the McDonald's parking lot, Grimm would have had sexual contact with the boy. Again, we disagree with the circuit court that the complaint was deficient because it did not allege acts more specifically related to sexual contact. Even if it were reasonable to infer from the complaint that Grimm might not have had sexual contact with the fourteen-year-old boy he expected to meet, it is equally reasonable, if not more so, to infer that Grimm would have done so.
(Lhost v. State, 85 Wis. 2d 620, 271 N.W.2d 121 (1978); Adams v. State, 57 Wis. 2d 515, 204 N.W.2d 657 (1973); and Oakley v. State, 22 Wis. 2d 298, 309, 125 N.W.2d 657 (1964), distinguished, on ground that they involve prior statute which required intent to overcome the victim's "utmost resistance" no such intent is required for attempted second-degree sexual assault of a child. ¶¶21-22.)
Discovery – Protective Order, § 971.23(6) – Standard of Review on Appeal
State v. Ronald W. Bowser, 2009 WI App 114
For Bowser: Jefren E. Olsen, SPD, Madison Appellate
¶9        A circuit court’s decision whether to grant a motion for a protective order under Wis. Stat. § 971.23(6) is reviewed under the erroneous exercise of discretion standard. See State v. Beloit Concrete Stone Co., 103 Wis.  2d 506, 511, 309 N.W.2d 28 (Ct. App. 1981). A proper exercise of discretion requires that the court rest its decision on the relevant facts, apply the proper standard of law, and arrive at a reasonable conclusion using a demonstrated rational process. Hegarty v. Beauchaine, 2006 WI App 248, ¶37, 297 Wis.  2d 70, 727 N.W.2d 857.

¶10      Good cause must be established before a protective order may be issued pursuant to Wis. Stat. § 971.23(6). The burden for establishing good cause lies with the party seeking a protective order under the statute. See § 971.23(6); cf. Boyd, 159 P.3d at 59.

Discovery – Protective Order, § 971.23(6) – Child Pornography, Restricted Access under DCI Protocol
State v. Ronald W. Bowser, 2009 WI App 114
For Bowser: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The Division of Criminal Investigation has devised a protocol for restricting pretrial discovery by the defense to child pornography stored on a computer. Copies of the forensic images, and access to and testing of the computer in a private work space, are provided to the defense; but the times during which the work may be performed are limited, and copying of the hard drive is absolutely prohibited, ¶3 n. 3. This protocol’s adoption by the trial court is upheld as an appropriate exercise of discretion, largely on the need to minimize risk of further dissemination of the images:
¶16      We begin with the proposition that it is reasonable for a court to seek to minimize, within its discretion under Wis. Stat. § 971.23(1) and (6), the risk of distribution of the type of harmful material at issue here. The serious harms associated with the distribution of child pornography are well known. …

¶17     We agree with Bowser that there is no reason to think that the members of the defense team were any less trustworthy than the members of the prosecution team. Still, we disagree with Bowser that the State must produce evidence that one or more members of a defense team are not trustworthy to show good cause for an order that limits the risk of dissemination of the evidence. The circuit court could have reasonably concluded that the risk of improper use and dissemination increases when more persons possess copies of the child pornography—whether they are government employees or members of a defense team. It follows that it is reasonable to limit the number of persons who possess a copy of the illegal material.

¶18      Bowser complains that his ability to mount an adequate defense will be hampered if his defense team is not provided a copy of the hard drive. He asserts that requiring his expert to perform his examination of the hard drive at the DCI facility during normal business hours will place undue burdens on his expert and significantly increase the cost of the analysis. This contention, however, is not supported by the record. Bowser’s expert testified that he would be able to perform the necessary analysis of the evidence at the facility and in accordance with the DCI protocol, although it might require him to move most of his office to the DCI facility. Thus, although the expert will be inconvenienced, he did not testify that he would be unable to perform the necessary analysis.

¶19      Moreover, the circuit court determined that the DCI protocol would provide Bowser “generous” and “largely unfettered” access to the material, and that the “roadblocks and concerns raised by [Bowser] are, in effect, inconveniences, and not impediments to the process of discovery.” To the extent these determinations were factual findings, we conclude that they are not clearly erroneous.  

The court cautions that it is not creating a rule that requires trial courts to issue such protective orders in child pornography cases, ¶¶21-22. No, it’s just hard to imagine that a trial court now would decline to issue one, given the court of appeals’ pronouncement that giving the hard drive to the defense necessarily increases the risk that child pornography will be disseminated. The dissent is withering (“The majority is mathematically correct that adding three or four people to one-and-one-half billion people poses an additional risk. But it is equally true that pouring a gallon of water in Lake Mendota will raise that lake’s level, and increase the risk of flooding by the amount of rise. This may be judicial reasoning, but in the real world of logic and reality, increases such as those feared by the majority are ignored, or dismissed as foolish,” ¶29). But it is the dissent. Unless the decision is overturned, case-by-case attention will have to be focused on showing, if possible, that “ability to mount an adequate defense would be hampered by the protective order, ¶23, and id., n. 5.
Discovery – Rebuttal Witness – Test for “Bona Fide” Rebuttal
State v. Juan M. Sandoval, 2009 WI App 61, PFR filed 5/6/09
For Sandoval: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The State need not disclose bona fide rebuttal evidence, the test for which turns on whether the evidence “only became necessary at rebuttal” (as opposed to whether it would have been admissible or useful in the State’s case-in-chief), ¶¶30-34.
¶33   We are convinced that the State satisfied the law of Wisconsin in this case. Vela’s testimony was bona fide rebuttal evidence because it directly answered an issue introduced by Sandoval’s defense: that Sandoval did not have a gun in the car. Specifically, Sandoval offered Gryczawski’s testimony that she was in the car with Sandoval on the way to the party on Thor Avenue and no one in the car had a gun, and that specifically, she did not see a gun on Juan Sandoval. Sandoval himself testified that he had “never seen” a gun before; that the “[f]irst time” he saw or held a gun was after they exited the car and went into the party. It should have come as no surprise to Sandoval that the State would seek to defuse his proffered evidence that he did not have a gun in the car before the party. See id. Athough the specifics of the State’s evidence—Vela’s testimony that he saw Sandoval with a gun in his possession in the car before the party—may have been a surprise, it directly rebutted Sandoval’s own evidence: Gryczawski’s testimony that no one in the car had a gun and specifically, she did not see a gun on Sandoval; Sandoval’s testimony that his very first contact with a gun was in the Thor Avenue house when he grabbed and held one momentarily before relinquishing it. This is not trial by ambush; it is simply the State’s response to an issue Sandoval raised in his defense. See id. The fact that Vela’s testimony would have been useful in the case-in-chief does not preclude its use in rebuttal. See id.
In terms of the larger principle involved, the court largely reaffirms its prior holding in State v. Richard N. Konkol, 2002 WI App 174, ¶1 (“To put it bluntly, 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 § 971.23(1)(d).”). More particularly, the court rejects a test proffered by Sandoval, based on Wright v. State, 708 A.2d 316 (Md. 1998), which is whether the supposed rebuttal would have been inadmissible in the case-in-chief as irrelevant. Instead, per Konkol, the test is as noted above whether the evidence “only became necessary at rebuttal.” It may be worth recalling, if for no other reason than that Konkol stresses the point, ¶19 n. 7, that disclosure of the defendant’s statements is entirely something else.
Discovery – Reports of Unsuccessful Police Efforts to Obtain Fingerprints from Plastic Baggie Containing Controlled Substance
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis
Issue/Holding: The prosecution was obligated to disclose reports of unsuccessful efforts to obtain prints off a plastic baggie violated discovery statutes:
¶31      State Violated Criminal Discovery Statute. We agree with the State that the prosecutor had a duty under Wis. Stat. § 971.23(1)(e) and (h) to disclose the two reports regarding the State's unsuccessful attempt to obtain identifiable fingerprints from the plastic baggie. [7]

¶32      The reports at issue clearly fall within the scope of Wis. Stat. § 971.23(1)(e). Each report was authored by one of the State's witnesses; the State intended to call the witnesses. Each report therefore qualifies as a "relevant written . . . statement[] of" a witness whom the district attorney intended to call at trial.

¶33      The reports also fall within Wis. Stat. § 971.23(1)(h). As the circuit court explained in its decision denying the defendant's motion for a new trial, the information contained in the reports "is exculpatory because it could raise a question with a juror as to why testing would be attempted if law enforcement was certain that the Defendant was the one who had possessed the crack cocaine in question."

Discovery – Timeliness: Disclosure of Reports during Trial Untimely
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis
¶34      The State argues, however, that the disclosure was timely. The State urges that the prosecutor met his statutory obligation by disclosing the reports on the day of trial. The State reasons that the reports were promptly turned over to the defense as soon as the prosecutor found them. …

¶35      We disagree with the State's assertion that the State was timely in disclosing the reports. Section 971.23(1) requires the district attorney to disclose, "within a reasonable time before trial," exculpatory evidence if such evidence "is within the possession, custody or control of the state." The State does not dispute that long before the defendant's trial, the State possessed and controlled the reports in question. …

¶36      The State did not have good cause for failing to disclose the two reports. We understand that many district attorneys' offices are short-staffed and the workload is heavy. [10] Nevertheless, accuseds whose lives and liberty are at stake have statutory and constitutional rights to information in the district attorney's possession to enable them to prepare adequately for trial. …

¶37      The prosecutor has a special role in the federal and Wisconsin criminal justice systems. …

¶39      It is of no moment under the criminal discovery statute that the State was unaware until the day before the trial or during the trial that it possessed the reports in question when the information was in the district attorney's files and could have been located before trial had the files been examined with reasonable diligence. The prosecutor's belated discovery of the evidence in his possession did not absolve the prosecutor of his duty under Wis. Stat. § 971.23(1) to reveal the evidence within a reasonable time before trial. The prosecutor's duty is to seek to know of the existence of reports that should be disclosed. [15] 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." [16]

The court subsequently stresses that discovery violations are distinct from Brady-exculpatory evidence violations, ¶¶60-64. Brady does not, unlike discovery statutes, necessarily require pretrial disclosure, only disclosure “in time for its effective use,” ¶63. Further, to be “exculpatory,” evidence must be “material” to guilt or punishment: in this evidence the belated disclosure didn’t impact the defense strategy or otherwise prejudice the defendant, and therefore wasn’t “material” within the meaning of Brady, ¶64. Note, however, that the court did explicitly hold that the reports were indeed exculpatory within the meaning of § 971.23(1)(h), ¶33. Hard to believe that the court means to draw a distinction between constitutional and statutory “exculpatory” evidence; nor is it apparent just how a distinction could be made. The court separately determines that the failure to disclose was harmless, ¶¶41-59, and perhaps the court simply meant to collapse the tests for harmless error and exculpatory evidence materiality.
Discovery – Sanction for Violating Duty to Disclose: Inform Jury of Dereliction
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis
Issue/Holding: The trial court under the circumstances should have, as a sanction against the State for its violation of its duty under discovery statutes to timely disclose reports, informed the jury of the violation:
¶105    … The State erred in not complying with timely disclosure of the reports as statutorily required. Although the effect of the State's failure to adhere to the criminal discovery statute on the defendant's trial strategy was not great and the admission of the evidence was not prejudicial, defense counsel was caught by surprise. A defendant should not be surprised by two unproduced reports that were requested, were subject to discovery, and were in the prosecutor's possession. Under the circumstances of the present case, we agree with the defendant that the circuit court should have exercised its discretion to mitigate the effect, if any, of the State's failure to fulfill its statutory discovery obligations by advising the jury pursuant to § 971.23(7m)(b).

¶106    For the reasons set forth, we conclude that the circuit court erroneously exercised its discretion in failing to advise the jury that the State had failed to make timely disclosure of the 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.

Interesting. Apparently the court is quite serious about strict compliance with discovery obligations -- serious enough to impress upon counsel the prospect of having to sit, red-eared, through an instruction informing the jury of dereliction of statutory duty. And: where the court instructs, argument is sure to follow in its wake; counsel’s closing will be certain to remind the jury of his or her opposing colleague’s egregious misstep. But don’t strain too hard to place yourself in the prosecutor’s shoes. Discovery is reciprocal. There’s no reason to think that this sanction won’t also be reciprocal if you violate a discovery obligation.
Discovery – Prosecutorial Failure to Disclose Witness – Good Cause Shown
State v. Paul T. Rice, 2008 WI App 10
For Rice: Michael K. Gould, SPD, Milwaukee Appellate
¶16      Whether good cause exists is an objective inquiry. DeLao, 252 Wis.  2d 289, ¶52. We first determine whether the State acted in good faith. Id., ¶53. In addition to good faith, the State has the burden of establishing good cause by providing a specific reason for the lack of disclosure. Id., ¶¶55-56.

¶17      Here, the prosecutor told the court the only mention of LeFevre in documents from the police investigation was that he sold a van to Rice. The day before trial, the prosecutor was preparing the case for trial and realized Rice had purchased the van shortly after the Ostrand burglary. Because $2,600 in cash was taken in the Ostrand burglary, the prosecutor realized the van might have been purchased with the Ostrand burglary proceeds. By that time, the officer assigned to the case was already gone for the day, so the prosecutor asked him to call LeFevre at work the next morning, the first morning of trial. It was only after the officer talked to LeFevre that the prosecutor learned LeFevre’s testimony would be useful at trial.

¶18      This explanation established both good faith and a specific, reasonable explanation for the late notice. See id., ¶¶53, 56. This case involved three separate burglaries, all proven through numerous pieces of circumstantial evidence. The State ultimately called thirteen witnesses in addition to LeFevre, many of whom testified to only a small piece of the overall picture. In view of the complexity of the case, it is understandable that the potential significance of LeFevre’s testimony was overlooked during the initial investigation, and only uncovered while the prosecutor was preparing the case for trial. The State therefore met its burden of proving just cause, and the court properly admitted the evidence subject to conditions designed to ameliorate the effects of the late notice on Rice. See id., ¶51.

Discovery – Prosecutorial Failure to Disclose Criminal Record of Witness – Harmless Error
State v. Paul T. Rice, 2008 WI App 10
For Rice: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Conceded prosecutorial error in failing to disclose a witness’s criminal record was harmless:
¶21      First, we have no quarrel with Rice’s position that LeFevre’s testimony was important in the context of the entire case. LeFevre was unconnected to any of the defendants, had no way of knowing the significance of his testimony, and yet provided a simple fact that tied in with the prosecution’s theory. While LeFevre’s testimony was by no means the only evidence tying Rice to the burglaries, we agree it was an important piece of the State’s circumstantial case.

¶22      However, the same things that made LeFevre’s testimony so important also made his criminal convictions relatively unimportant. LeFevre was involved in the case simply by happenstance and, as the circuit court noted, he testified to facts that “were only significant in the context of other evidence….” As a result, LeFevre did not have the knowledge, motive, or opportunity to fabricate his testimony. While LeFevre’s criminal convictions might have established an above average willingness to lie, a jury would not conclude he was actually lying without some indication he had the knowledge, motive or opportunity to do so.

Although appellate courts have gone back and forth over the correct articulation of the harmless error test, the opinion seems to commit the court to the formulation in State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985), which the court states as whether there is a “reasonable possibility” that the violation contributed to the conviction, ¶19 and id., n. 6. That’s certainly well and good, but keep in mind that Dyess provides this favorable bit of embellishment, 124 Wis. 2d at 543: “The state’s burden, then, is to establish that there is no reasonable possibility that the error contributed to the conviction.”
Discovery – Prosecutorial Obligation: No Requirement to Reveal Prior (Unrecorded, Oral) Statement
State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg

¶37      We are satisfied that the State complied with its discovery obligations under Wis. Stat. § 971.23. We agree with the State's argument that it was not required by § 971.23 to disclose or to summarize the oral statements of Steve Stone. The only oral statements that the prosecutor was required to summarize and disclose to the defense were the oral statements of the defendant himself, and the names of witnesses to such oral statements. See Wis. Stat. § 971.23(1)(b). That discovery statute also requires that the prosecutor disclose "[a]ny relevant written or recorded statements" of a witness it plans to call at trial. Wis. Stat. § 971.23(1)(e). The oral statements of Steve Stone to Police Chief Stone obviously were not written, nor were they recorded.

¶38      Furthermore, Nelis was put on notice of the fact that there would be trial testimony about what Steve Stone saw and heard in regard to the alleged sexual assault incident. …

¶40      … We are satisfied that, under such circumstances, the State complied with its discovery obligations under Wis. Stat. § 971.23.

Discovery -- § 971.23(1), State’s Failure to List Witness Whose Testimony Isn’t Reasonably Anticipated
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue/Holding: The State’s failure to list a potential witness whose testimony wasn’t reasonably anticipated to be necessary didn’t bar that witness from testifying, ¶¶33-40.
Coompliance With § 971.23(1)(e), Summary of Expert's Findings
State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs
Issue/Holding: State’s “motion in limine motion in limine alerting both Anderson ’s attorney and the court that such a witness would be called, and in the motion, the State outlined the type of expertise that would be elicited from the witness. … complied with the requirement of Wis. Stat. § 971.23(1)(e) that a written summary of an expert’s findings be made available to the defense. Further, while the witness’s name was not on the witness list, the State complied with the intent behind the discovery statutes that the opposition not be faced with surprise witnesses at trial.” ¶25.
Discovery Sanctions, § 971.23(7m)(a) – Reissuance of Charge After Exclusion of Evidence Due to Discovery Violation
State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth
¶10. The first sentence of Wis. Stat. § 971.23(7m)(a) plainly requires the court to exclude evidence not presented as required by the section if good cause is not shown. See State v. DeLao, 2002 WI 49, ¶51, 252 Wis. 2d 289, 643 N.W.2d 480. If good cause is shown, the court may exclude the evidence but it is not required to do so; it may instead grant the opposing party a recess or continuance, as provided in the second sentence. Id. (citing State v. Wild, 146 Wis. 2d 18, 28, 429 N.W.2d 105 (Ct. App. 1988)). There is nothing in the paragraph to suggest that the legislature intended to prevent the offending party from introducing the same evidence in a subsequent proceeding if there was no violation in that proceeding of the party's obligations under § 971.23. Similarly, there is nothing in this paragraph to suggest that the State may not obtain a dismissal of charges after evidence is excluded under this paragraph and then refile the charges.

¶11. We therefore reject Miller's argument that the State acted contrary to the statute by asking for a dismissal after Judge Krueger excluded the State's expert's testimony and then refiling charges.

Discovery Sanctions, § 971.23(7m)(a) – Dismissal and Reissuance of Charge, as Means of Avoiding Sanction -- No Violation of Equal Protection
State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth
Issue/Holding: Reissuance of charge, following sanction based on dilatory compliance with discovery, as means to avoid sanction doesn’t violate equal protection:
¶15. Miller argues that, although both the State and defendants have obligations to provide discovery and both are subject to the sanctions in Wis. Stat. § 971.23(7m) for not doing so, only the State has the option of dismissing the case and refiling it, thus avoiding the sanction. However, this difference is not the result of any classification made by the legislature in this statute. Both the State and defendants are subject to the sanctions and remedies of § 971.23(7m) if they do not meet their statutory obligations, and, under our construction of this paragraph, neither a defendant nor the State is precluded in a subsequent case from using evidence previously excluded under § 971.23(7m) if the statutory disclosure requirements are met in the later case.
Discovery – Notice of Alibi, § 971.23(8) – Definition of “Alibi,” Generally
State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
¶15      The statute does not define “alibi.” The state supreme court offered the following definition of the term in State v. Shaw, 58 Wis. 2d 25, 30, 205 N.W.2d 132 (1973), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 505, 451 N.W.2d 752 (1990): “The word, ‘alibi,’ is merely a short-hand method of describing a defense based on the fact that the accused was elsewhere at the time the alleged incident took place. The word, ‘alibi,’ is simply the Latin word for ‘elsewhere.’”
Discovery – Notice of Alibi, § 971.23(8) – Necessity of Notice
State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
¶21      We agree with Harp that Stahl did not give alibi testimony under Wisconsin law.  Stahl’s testimony on direct examination included nothing about Stahl’s recollections about Harp’s location on May 16. Stahl testified only that she had been paired with Harp until Memorial Day of that month; that they worked together on the dementia end of the hallway; and that Parker was in the mixed end of the hallway. Her testimony thus impeached Kleist’s testimony that Harp was her partner on May 16, 2003 , and that Parker was in the section for which Harp was responsible. Only upon the prosecutor’s repeated questions to Stahl about her recollections of May 16 did Harp’s testimony begin to veer toward alibi territory. The State should have asked for a ruling of the court if it believed that Harp’s direct examination of Stahl had poisoned the well; instead, its cross-examination of Stahl ensured the lethality of the water. [5]

¶22      Regardless, Stahl’s testimony did not constitute an alibi because it placed Harp in the same building and in the same hallway of the crime scene. Her testimony not only did not indicate that it was physically impossible for Harp to have committed the offense, it placed her “in the immediate vicinity of the crime.” Shaw, 58 Wis. 2d at 31. Such testimony is not an alibi under Shaw. “[I]n raising an alibi the defendant is in effect denying that he was present at the scene of the crime at the time it was committed.” State v. Horenberger, 119 Wis. 2d 237, 242-43, 349 N.W.2d 692 (1984). [6]

A very fact-intensive holding. Harp, a nurse, was charged with abusing a patient on two specific dates. Defense witness Stahl testified that she was paired with Harp, and the thrust of her testimony on direct was that Harp would not have been responsible for the victim’s care through the earlier date (May 16); critically, the defense asked no questions regarding Harp’s “whereabouts” on May 16. As the passage quoted above suggests, Stahl’s purpose was not that it was “physically impossible for Harp to have committed the crime but, rather, to impeach a State witness’s claim that she was paired with Harp.
Discovery -- Compelled Psychological Examination of Defendant
State v. Glenn E. Davis, 2002 WI 75, reversing and remanding 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922
For Davis: James M. Shellow
Issue: "¶27.... (W)hether a defendant who intends to introduce Richard A.P. evidence may be compelled to undergo an examination from a state-selected expert without violating the defendant's right against self-incrimination."
¶40. A defendant who seeks to introduce Richard A.P. evidence must notify the court and the state that he or she intends to introduce this evidence at trial and precisely identify the exact testimony that the expert will provide at trial and the bases for the expert's opinion. Upon this disclosure, the state may then bring a motion requesting the court to compel the defendant to undergo an examination by an expert from the state. On this motion, the circuit court must then carefully examine the defendant's disclosure regarding his or her expert's testimony and the expert's basis for his or her opinion. If this disclosure statement shows that the expert will either explicitly or implicitly provide testimony regarding relevant facts surrounding the alleged crime that amounts to the defendant's own denial of the crime, the court may then order the defendant to undergo a reciprocal examination from the state based on the fact that the defendant has waived his or her right against self-incrimination. In this way, the defendant is permitted to introduce expert opinion testimony pursuant to Richard A.P., but restricted from introducing statements that amount to nothing more than the defendant's own statements on the crime.

¶41. In his reply brief, Davis asserted that he did not intend on using the opinions of Levin as a mechanism to present his version of the facts of the alleged offense before the jury. Levin, Davis contends, would only testify to the results of psychological tests and to his opinions based on the results of these tests; Levin would not be used as a conduit. To the extent that Levin will testify that he used only standardized tests that did not require Levin to inquire into the relevant facts surrounding the case, we conclude that no waiver of the right against self-incrimination would have occurred and the State is not entitled to a reciprocal examination of the defendant. However, as he concedes, Davis must disclose all results of Levin's tests to the State if he introduces testimony from Levin. The State may then have its own expert examine these tests and testify to rebut any testimony from Levin. The State, we conclude, is not unfairly prejudiced by this result. The State is afforded sufficient means to question this evidence through cross-examination and through rebuttal expert testimony.

Discovery -- Defendant's Oral Statement
State v. Media DeLao, 2002 WI 49, affirming 2001 WI App 132, 246 Wis. 2d 304, 629 N.W.2d 825
For Delao: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether police failure to tell the prosecutor about defendant's oral statement provided good cause for not disclosing it before trial.
Holding: Under certain circumstances, information in possession of law enforecment may be imputed to the prosecution. ¶21. "The State is charged with knowledge of material and information in the possession or control of others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecutor's office. Jones, 69 Wis. 2d at 349; Wold, 57 Wis. 2d at 349 n.4." ¶24.
Issue: Whether the prosecution's obligation under § 971.23(1)(b) to disclose before trial the defendant's statements it "plans to use" is tested objectively or subjectively.
¶30 ... An objective standard is consistent with the due diligence-imputed knowledge rule under Wold and its progeny.

¶31. In contrast, a subjective standard would be difficult if not impossible to reconcile with the rule that a prosecutor is responsible for exercising due diligence in obtaining statements of which she does not know. The State's theory in this case illustrates this problem. Under that theory, the State could escape its obligation to disclose under § 971.23(1)(b) in every case where the prosecutor failed to exercise due diligence by asserting that the prosecutor, not knowing of the evidence, could not have planned to use it.

Issue: "(W)hether a reasonable prosecutor, exercising due diligence, should have known of DeLao's statements before trial, and if so, whether a reasonable prosecutor would have planned to use them in the course of trial." ¶33.
Holding: The theory of defense -- which the undisclosed statement addressed was manifest from the very onset of the case; therefore, the prosecutor reasonably should have known of, and planned to use, the statement. ¶43. State v. Maass, 178 Wis. 2d 63, 502 N.W.2d 913 (Ct. App. 1993), distinguished. (Court stresses, ¶46, "that the question of whether the prosecutor has exercised due diligence, though ultimately a question of law, will be highly fact-dependent"). Court also underscores that prosection does not have duty to consult every officer who conceivably has information in case. In this instance, the statement was made to one officer, who shared it with the officer who had a "pivotal role in the case" -- largely because that "pivotal" officer knew of the statement before trial, the prosecution is charged with knowledge of the statement. ¶47 and id. n. 8.
Issue/Holding: "(W)e reject the court of appeals' discussion to the extent it can be read to suggest that absent an objection, the State is required to provide materials requested by the defendant that fall outside the scope of statutory or constitutional discovery requirements." ¶50.
Issue/Holding: Mere assertion of prosecutorial "good faith" is insufficient as matter of law to establish "good cause" for violating discovery requirement to disclose defendant's statement before trial. ¶¶54-55, adopting State v. Martinez, 166 Wis. 2d 250, 258, 479 N.W.2d 224 (Ct. App. 1991):
¶58. Under Martinez, some explanation in addition to good faith is necessary, and the State has been unable to provide that explanation here. As we have already determined using the objective standard embodied in § 971.23(1)(b), the fact that the prosecutor in DeLao's case did not actually know of the evidence is no explanation at all. In short, the State has failed to demonstrate good cause for its violation of the discovery statute. Therefore, DeLao's statements should have been excluded."
Issue: Whether the discovery violation was prejudicial, requiring new trial.
¶61. We agree with the court of appeals that the State's failure to comply with § 971.23 placed DeLao on the horns of a dilemma from which no judicial remedy other than a new trial could save her. DeLao's own statements were used against her, and those statements were relevant not just as impeachment evidence but as relating to her entire defense. Thus, the State's discovery violation went to the core of her trial preparation and strategy.
Go To (COA) Brief
Discovery -- Defendant's Statement
State v. Ondra Bond, 2000 WI App 118, 237 Wis. 2d 633, 614 NW2d 552, affirmed by equally divided vote, State v. Bond, 2001 WI 56.
For Bond: William Coleman Janet Barnes, Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Reference in the complaint to the defendant's statement does not, alone, satisfy the prosecutorial duty to inform the defense of intent to use the statement in the case-in-chief, so as to avert the need for a Miranda-Goodchild hearing. 2000 WI App 118 ¶7, n.6
Discovery – Exculpatory Evidence, § 971.23(1)(h), Suppression
State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch
¶27 … (B)oth parties agree that at a minimum, § 971.23(1)(h) requires that a prosecutor disclose the type of information required under Brady. See Sturgeon, 231 Wis. 2d at 497 n.4. In other words § 971.23(1)(h) requires, at a minimum, that the prosecutor disclose evidence that is favorable to the accused if nondisclosure of the evidence undermines confidence in the outcome of the judicial proceeding.

¶28 … The State primarily argues that the undisclosed information is not material because it would not have been admissible, as it does not meet the Pulizzano exception to the rape shield law.

¶30 We agree with Harris that here, the undisclosed information is favorable to the accused because it casts doubt on the credibility of the State's primary witnesses and may have supported an inference that B.M.M. was projecting her grandfather's assaults onto Harris. … Thus, the undisclosed information constitutes exculpatory impeachment evidence because it is relevant to B.M.M.'s credibility and that of any expert the State may have called to provide evidence under State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988), as it may have provided an alternate source for B.M.M.'s sexual knowledge and may have created the inference that B.M.M. projected the assaults perpetrated by her grandfather onto Harris. Because this evidence could have undermined the credibility of the State's most influential witnesses, this is one of those situations in which fundamental fairness dictates that the evidence should have been disclosed.

¶31 … While the State argues at length that the undisclosed evidence is not material because it does not meet the Pulizzano test, we find this argument to be unpersuasive because the State never afforded Harris the opportunity to bring a Pulizzano motion in the first place. … By failing to disclose B.M.M.'s prior allegation, the State denied Harris the opportunity to further investigate B.M.M.'s allegations and bring a Pulizzano motion. As the resolution of any Pulizzano motion would have required the circuit court to balance the competing interests involved, the prosecutor here should have disclosed the evidence and let the circuit court determine its admissibility. As the United States Supreme Court has stated, "[b]ecause we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure." Agurs, 427 U.S. at 108. Further, Wisconsin courts have recognized that "[i]mpeachment evidence casting doubt on a witness's credibility is material and subject to disclosure." DelReal, 225 Wis. 2d at 571. See also Tucker v. State, 84 Wis. 2d 630, 641, 267 N.W.2d 630 (1978); Loveday v. State, 74 Wis. 2d 503, 516, 247 N.W.2d 116 (1976).

¶33 In the interests of a fair proceeding, Harris was entitled to the opportunity to bring a Pulizzano motion to challenge the reliability of the State's expert witness and challenge the credibility of the victim. As the State failed to disclose B.M.M.'s allegation regarding her grandfather, Harris was never given the opportunity to make use of this exculpatory impeachment evidence. By failing to disclose this evidence, the State denied him a fair judicial proceeding.

The court goes on to hold that the statutory mandate of disclosure “within a reasonable time before trial,” § 971.23(1), is broader than Brady’s mandate, and therefore by statute in Wisconsin Brady material “must,” upon demand, “be disclosed within a sufficient time for its effective use.” ¶37. Harris satisfied that standard, where his jury trial was set for August 8, his discovery demand was made May 30, and he pleaded guilty July 25: he required the suppressed evidence not only to bring a Pulizzano motion, but to secure his own experts. ¶38.
Discovery -- Rebuttal Witness
State v. Richard N. Konkol, 2002 WI App 174
For Konkol: Brian Hough
¶1. In this OWI case, the State anticipated before trial what the theory of the defense would be and planned to rebut the theory by use of expert witness testimony. The issue we face on appeal, one of first impression in Wisconsin, is whether the State was required to disclose a known and anticipated rebuttal witness regardless of the statement in Wis. Stat. § 971.23(1)(d) (1999-2000) that the duty to disclose expert witnesses" does not apply to rebuttal witnesses or those called for impeachment only." We determine that the discovery statute places no duty on a prosecutor to list a rebuttal witness even if he or she knows before trial that the witness will be called. To put it bluntly, 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 § 971.23(1)(d).
The court in effect explains "(t)he well-established rule in Wisconsin ... that the State has no duty to provide the names of bona fide rebuttal witnesses regardless of any demand by the defendant. Lunde v. State, 85 Wis. 2d 80, 91, 270 N.W.2d 180 (1978)." ¶11. The focus, that is, isn't on what the prosecutor knew, "but on whether the proffered testimony is bona fide rebuttal testimony." ¶15. The defense isn't obligated to reveal the details of its case, and if it does, it simply runs the risk the state will rebut with its own evidence. ¶17. State v. DeLao, 2002 WI 49, distinguished as involving § 971.23(b), not subs.(d). ¶19 n. 7. (Note: A discussion that the court itself concedes is dicta says a blood alcohol chart outside discovery requirements because it is deemed not to be "physical evidence." ¶9 n. 2.)
Discovery -- Remedy for Violation -- Failure to Name Witness
State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe
¶33 WISCONSIN STAT. § 971.23(7m)(a) provides that as a sanction for
noncompliance with the duty to disclose, the court "shall exclude any witness not
listed ... unless good cause is shown for failure to comply." Under this provision,
the court may grant the opposing party a recess or continuance. If good cause is
not shown, exclusion of the witness is mandatory. See State v. DeLao, 2001 WI
App 132, ¶28, 246 Wis. 2d 304, 629 N.W.2d 825, review granted, 2001 WI 114,
246 Wis. 2d 171, 634 N.W.2d 318 (Wis. July 20, 2001) (No. 00-1638-CR). The
burden to show good cause rests with the State and whether it has satisfied this
burden is a question of law that we review de novo. Id. at ¶23.
¶35 Under the facts of this case, we determine that the State has met its
burden to show good cause why it failed to place Williams on its witness list. The
State had been investigating a substantial number of witnesses on an ongoing basis
and had regularly provided the defense with the names of witnesses as it learned
them. At some point, Williams¹ name must have surfaced during the investigation
because Warmington testified that he had known Williams was "Prume" for about
one year and that police had been trying to locate him. However, Williams, as he
testified at trial, had avoided police because he did not want to become involved or
testify in the case. Without being able to interview Williams, the State could not
determine what value he had, if any, as a potential witness.
Discovery -- Privilege -- State Crime Lab, § 161.19(1)
State v. Keith A. Franszczak, 2002 WI App 141, PFR filed 5/31/02
For Franszczak: Martin E. Kohler, et al
Issue/Holding: Defense not entitled to examine a state crime analyst before trial, on a theory that the tested item was suppressible due to chain-of-custody problems. § 165.79(1) creates a pretrial privilege for tested items, subject to certain exceptions, including exculpatory evidence. ¶¶4, 20. Those exceptions don't apply here. ¶21. (The fact that the evidence was "gratuitously" provided to Franszczak, and that his testing put an "exculpatory spin" on it didn't make it exculpatory for purposes of the pretrial privilege exception. ¶23.)
Discovery -- Remedy for Violation
State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
Issue/Holding: “¶10. Wisconsin Stat. § 971.23(7) requires the trial court to exclude evidence that is not produced pursuant to a discovery demand unless ‘good cause is shown for failure to comply.’ State v. Martinez, 166 Wis. 2d 250, 257, 479 N.W.2d 224 (Ct. App. 1991). ...
Discovery - expert's report.
State v. Tory L. Rachel, 224 Wis.2d 571, 591 N.W.2d 920 (Ct. App. 1999).
For Rachel: Donald T. Lang, SPD, Madison Appellate.
Holding:: "Tory L. Rachel appeals a nonfinal order of the trial court ruling that the findings and conclusions of a court-appointed expert are subject to discovery in a ch. 980, STATS., proceeding. Because the rules of civil procedure, chs. 801 to 847, STATS., govern procedure in ch. 980 proceedings, § 804.01, STATS., applies in this case. Under that section, the report of an expert is not discoverable unless that expert will be called as a witness at trial. See § 804.01(2)(d). Here, it was not clear whether Rachel would call the expert at trial. Thus, the trial court's order allowing discovery was erroneous. We reverse and remand." The court explicitly rejects the idea "that the criminal rules of discovery should apply." "(W)hen the legislature intended for criminal safeguards to apply to ch. 980 proceedings it said so. It has not said so with regard to rules of procedure."
Go To Brief
Discovery -- Impeachment/Rebuttal Statements
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue:Whether defense failure to turn over to the prosecution, pursuant to discovery demand, a witness’s pretrial statement violated § 971.23(2m) and justified the trial court’s refusal to allow that statement into evidence.
Holding: Because the defense placed the witness on its witness list, disclosure of the witness’s statement was required. ¶26. Disclosure is not required for rebuttal/impeachment witnesses, “but if the defendant wants the option of calling a witness for other than those purposes, the witness must be on the list under para. (a) and relevant written or recorded statements of that witness must be provided under para. (am).” ¶27. Violation of this discovery requirement mandates exclusion of the evidence absent a finding of “good cause.” Exclusion here is upheld as a proper exercise of discretion. ¶¶28-35. (State v. Wild, 146 Wis. 2d 18, 429 N.W.2d 105 (Ct. App. 1988) distinguished.)
Discovery -- Summary of Expert's Findings.
State v. Keith Schroeder, 2000 WI App 128, 237 Wis.2d 575, 613 N.W.2d 911
For Schroeder: Kevin D. Musolf
Issue: Whether the state's written summary of an expert's findings satisfied § 971.23(1)(e) despite failing to explicate references to a technical term upon which the expert relied.
Holding: Disclosure was adequate: though the summary did not explain the technical term used by the expert, "it was not the State's responsibility to educate him on the subject." The purpose of discovery is to enable defendants to prepare for trial, "not to do their preparation for them." Thus, "the onus was on Schroeder to investigate the Tanner method." ¶9.
Discovery -- Sanction for Violation --Discretion of Court
State v. Lester E. Hahn, 221 Wis. 2d 670, 586 N.W.2d 5 (Ct. App. 1998)
For Hahn: Bruce Elbert
Issue/Holding: It was within the discretion of the trial court to grant an adjournment and to limit testimony rather than exclude witnesses altogether for the State's late compliance with discovery
Discovery - § 971.23: No Reciprocal Discovery Obligation to Provide Details of Self-Defense Claim
State v. Jason L. McClaren, 2008 WI App 118, (AG’s) PFR filed 7/16/08
For McClaren: Susan V. Happ
¶1        Jason McClaren is charged with aggravated battery, attempted first-degree intentional homicide and first-degree reckless injury. The State has conceded that a factual basis exists for him to raise a claim of perfect self-defense. He appeals the circuit court’s pretrial order requiring him to disclose, prior to trial, a summary of the evidence he intends to offer in furtherance of his defense regarding what he believed to be the violent character of the victim. In particular, the order requires disclosure of a summary of all specific instances of the victim’s violent conduct of which McClaren is aware and intends to introduce at trial, including witnesses to the conduct and the relevant dates and locations of the conduct. We conclude that under the rule articulated in , 35 Wis. 2d 454, 478, 151 N.W.2d 157 (1967), the circuit court’s order exceeds its authority under Wis. Stat. § 971.23(2m) (2005-06) [1] governing pretrial discovery in criminal matters. We also conclude that the court’s general authority under Wis. Stat. § 906.11 to exercise control over the mode and order of presenting evidence cannot be read to permit it to require pretrial discovery that it would otherwise not be permitted to require under § 971.23(2m) and the rule in Miller. Accordingly, we reverse the circuit court’s order.

¶18      Wisconsin Stat. § 971.23 does not require a criminal defendant to give pretrial notice of any specific theory of defense that the defendant intends to present at trial, other than a notice of “alibi.” See Wis. Stat. § 971.23(8). In addition, the discovery statute does not require a defendant to divulge the details of his or her own case. See State v. Konkol, 2002 WI App 174, ¶17, 256 Wis. 2d 725, 649 N.W.2d 300. Thus, the discovery statute does not require McClaren to give pretrial notice of a claim of self-defense or of intended evidence to support such a claim.

Discovery - § 971.23(2m)(am), Reciprocal Discovery: Expert's Reports / Statements
State v. Rory D. Revels, 221 Wis. 2d 315, 585 N.W.2d 602 (Ct. App. 1998)
For Revels: Fred D. Hollenbeck, Rebecca M. Richards-Bria, Paul S. Curran
Issue/Holding: The reciprocal discovery obligation of the defendant to provide the prosecution with either the report or the written summary of findings of any expert intended to be called as a witness, is constitutional.
Compare, Hayden v. State, Miss SCt 2006-KA-00854-SCT, 11/15/07 (attorney who provided documents to State pursuant to discovery could be made to testify that that had been given to him by client).

John Doe Proceeding - Judge’s Authority to Limit Questioning, Subpoena Power
Ira B. Robins v. The Hon. Patrick J. Madden, 2009 WI 46, affirming summary order
For Robins: Joseph F. Owens
Issue: Whether a John Doe judge is required under Wis. Stat. § 968.26 either to examine all witnesses the complainant produces or issue subpoenas to all witnesses the complainant wants produced.
Holding: A John Doe judge need not examine all, and may reject subpoenas of, such witnesses.
¶23      The goal of a John Doe hearing is to allow the judge to determine whether "it appears probable from the testimony given that a crime has been committed and who committed it," and then whether to file a complaint. See Wis. Stat. § 968.26. The whole of the hearing must be seen in this light. See Washington, 83 Wis.  2d at 823 ("The John Doe judge should act with a view toward issuing a complaint or determining that no crime has occurred."). As we have previously said, the John Doe hearing is primarily an investigative device, the scope of which "is essentially limited to the subject matter of the complaint." Id. at 822. The John Doe judge has a mandate, and he or she is to exercise his or her discretion toward this end. Requiring the judge to call all produced witnesses to the stand, without regard to the competence, relevance, or repetitive nature of the witness's testimony, does not advance this goal.

¶27      A judge is to oversee a John Doe hearing in such a way as "to ensure that the proceeding is conducted in an orderly and expeditious manner." Id. The only way the judge can do this is to limit not only the scope of an individual witness's examination, but also which witnesses may testify. Wisconsin Stat. § 968.26 cannot be reasonably interpreted otherwise. John Doe judges must not be shackled to a process that frustrates the goal of ascertaining probable cause in an expeditious manner. The statute, then, is susceptible to but one reasonable construction: Wis. Stat. § 968.26 when read as a whole preserves the circuit court's discretion as to which witnesses it will examine in a John Doe proceeding.

¶28      In response to our request, the parties addressed the question of whether a John Doe judge must issue subpoenas for all witnesses a complainant wishes to produce. Both parties agree that a judge retains discretionary authority as to the issuance of such subpoenas. We conclude that a John Doe judge need not issue subpoenas for every witness a complainant wishes to produce. Those same factors which lead us to conclude a John Doe judge need not examine each witness produced by a complainant compel a symmetrical result as to the issuance of subpoenas. Indeed, it would be even more wasteful to compel a John Doe judge to issue subpoenas for incompetent, cumulative, unnecessary, or irrelevant witnesses than it would be to force the judge to examine them.

In addition to a general discussion of John Doe procedure, the court withdraws certain language from State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 614, 571 N.W.2d 385 (1997), to the effect that once the judge finds reason to believe a crime has been committed examination of the complainant is required, but not all witnesses produced by the complainant, ¶15 n. 8.
John Doe Proceeding -- Right to Subpoena Witnesses
State ex rel. Adrian T. Hipp v. Murray, reconsideration denied, 2008 WI 118; affirming as modified 2007 WI App 202
For Hipp: Colleen D. Ball
Issue:  Whether the judge has exclusive authority to subpoena witnesses in a John Doe proceeding, as opposed to the complainant utilizing the subpoena procedure of § 885.01.
¶35  The cases demonstrate that John Doe proceedings are conducted through the authority of the presiding judge. Allowing that subpoenas may be issued by the clerk of court would confer authority on someone other than the judge, who has historically had the authority associated with such proceedings. It would in essence dilute the John Doe judge's power. 

¶36  This view also appears to comport with the practice in Wisconsin. A treatise on Wisconsin criminal practice and procedure notes that John Doe proceedings are advantageous to law enforcement officials insofar as they gain access to authority via the judge that is otherwise unavailable. Invoking a John Doe proceeding is usually advantageous to law enforcement officials because, through the presiding judge, they may avail themselves of powers not otherwise available to them. These include: "the power to subpoena witnesses, take testimony under oath and to compel the testimony of a reluctant witness." 9 Christine M. Wiseman, Nicholas L. Chiarkas, & Daniel D. Blinka, Wisconsin Practice: Criminal Practice and Procedure § 9.11, at 219 (1996)(quoting Washington, 83 Wis.  2d at 823 n.9) (emphasis added). In other words, the powers conferred in a John Doe proceeding——including the power to subpoena witnesses and compel testimony——derive from the judge, and are otherwise unavailable, including via the subpoena power conferred to clerks of court pursuant to § 885.01(1). See Wis. JI——Criminal, SM-12 ("Only a judge may conduct a John Doe Proceeding. The judge has the power to subpoena and examine witnesses and to determine the extent of the examination."); see also 1 Wisconsin Judicial Bench Book, CR 48 (2007).

¶37  Thus, the history and current practice of John Doe proceedings support the view that judges have exclusive authority to issue subpoenas in John Doe proceedings. That interpretation is further supported by principles of statutory construction.

On the particular facts, the judge did not properly advise Hipp that he, the judge, indeed had such exclusive authority and that Hipp could request him to exercise it, ¶46-48; Hipp is therefore entitled to have the subpoenas issued on remand.

What standards must the judge use? The court doesn’t say. Instead, it leaves open the possibility that the Doe judge must subpoena all witnesses upon request, ¶20 (“We save that issue for another day”). The court suggests -- no more than that -- that the judge should be inclined toward acceding to a subpoena request, ¶43. Review of the judge’s refusal to issue a subpoena is via supervisory writ, ¶44. The court also notes that a judge may deny the Doe petition without subpoenaing witnesses upon a proper determination that the alleged crime falls within a statute of limitations bar, ¶49 and id., n. 8.

Prohibition -- John Doe Proceeding
State ex rel. Individual v. Davis, 2005 WI 70, on certification
For Subpoenaed Individual: Stephen P. Hurley, Marcus J. Berghahn, Hal Harlowe
Issue/Holding: Where the John Doe judge has already issued a secrecy order, requiring the subpoenaed witness’s counsel to take a secrecy oath is unwarranted and exceeds the judge’s authority, ¶¶18-34.
Court stresses that counsel agreed to abide by the secrecy order; therefore, the oath would have simply been redundant. This is distinguished from State ex rel Unnamed Persons v. State, 2003 WI 30, which recognized a John Doe judge’s inherent authority to disqualify a law firm from securing conflict-of-interest waivers because under the secrecy order the attorneys were unable to disclose one client’s name to another client.
John Doe Proceeding, § 968.26 – General
Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65
¶8. The purpose of a John Doe proceeding is to ascertain if a crime has been committed and who likely committed it. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 22, 260 Wis. 2d 653, 660 N.W.2d 260; State ex. rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 621, 571 N.W.2d 385 (1997); Wolke v. Fleming, 24 Wis. 2d 606, 613, 129 N.W.2d 841 (1964), cert. denied, 380 U.S. 912 (1965); Wisconsin Family Counseling Servs., Inc. v. State, 95 Wis. 2d 670, 676, 291 N.W.2d 631 (Ct. App. 1980). Though it involves the investigation of a crime, a John Doe proceeding need not be initiated on probable cause. Wisconsin Family Counseling Servs., 95 Wis. 2d at 674-75. However, the complainant must have "reason to believe" a crime has been committed, and must allege "objective, factual assertions sufficient to support a reasonable belief" that a crime has been committed, though the complainant does not have to name a particular accused. Reimann, 214 Wis. 2d at 623-24. The result of a John Doe proceeding may be a written complaint that is subject to the test of probable cause. Doe, 78 Wis. 2d at 165.

¶9. We have held that witnesses in John Doe proceedings need not be apprised of the scope of the investigation….

¶10. A John Doe judge has broad, but not unlimited, powers….

John Doe -- Examination by Non-Lawyer
State v. Debra Noble, 2002 WI 64, reversing   2001 WI App 145, 246 Wis. 2d 533, 629 N.W.2d 31
For Noble: Thomas H. Boyd
Issue: Whether, assuming that a detective's examining defendant at a John Doe proceeding amounted to violation of the unauthorized practice of law statute, the defendant's answers should be suppressed at a criminal proceeding for perjury based on those answers.
Holding: Noble's constitutional rights weren't violated: she was questioned only briefly, and wasn't made a target of the Doe proceeding, ¶¶21-23; the detective's particpation wasn't a "drastic step beyond his permissible duties" and didn't make the proceeding "particularly unfair and oppressive," ¶24; there's no showing that the judge "acted partially" in permitting the detetctive to quesiton Noble, ¶26. Further, there is no John Doe-related exception to the general rule that in the absence of statutory mandate, a constitutional violation is required for suppression. ¶28.
John Doe Proceeding, § 968.26
State ex rel Unnamed Persons v. State, 2003 WI 30
For Unnamed Persons: Franklyn M. Gimbel, et al.
Issue/Holding: Witnesses and person under investigation at a John Doe proceeding have substantial rights and protections, including argument by counsel when necessary to ensure procedural fairness. ¶51. But John Doe judges have the power to disqualify counsel for conflict of interest. ¶55. When this power is exercised, the judge “must create a record for possible review.” ¶57.

Preliminary Hearings: Right to Police Reports Beforehand
State v. Ronald Schaefer, 2008 WI 25, on certification
For Schaefer: Kathleen B. Stilling
Amici: Marla J. Stephens, Appellate Director, SPD; Keith A. Findley, et al., Wis. Innocence Project, UW Law School
Issue: Whether a criminal defendant has a (statutory or constitutional) right to subpoena police reports prior to the preliminary hearing.
Holding: Nope.
OK, there’s a bit more to it than that. In fact, there’s 46 (pdf slip op.) pages of the 4-vote majority's musings and 24 pages of the 3-vote concurrence largely chastising the majority for running off the rails, “developing law about preliminary examinations and discovery (both before and after an information is filed) [rather] than … answering the question of law posed by the instant case” (conc. ¶99). Read it for yourself, but you can also leave the driving to Case Summaries, lean back and enjoy a tour d’horizon of prelims and discovery.

Start at the beginning. Schaefer’s charged by complaint with a 16-year old sexual assault. Schaefer issued a subpoena to the local police department demanding all reports, etc., returnable one week prior to the scheduled prelim. The subpoena was quashed, Schaefer obtained leave to appeal the non-final order, the court of appeals certified the issue, and here we are.

The majority begins strongly, with a concise description of the holding:

¶3        We conclude that a criminal defendant does not have a statutory or constitutional right to compel production of police investigation reports and other nonprivileged materials by subpoena duces tecum prior to the preliminary examination. A criminal defendant who employs the subpoena power in this manner is attempting to engage in discovery without authority in either civil or criminal procedure statutes and in conflict with the criminal discovery statutes. Although a reasonable argument can be made for prosecutors to open their files to defendants at an early point in criminal prosecutions, this argument does not translate into an enforceable right to subpoena police investigation reports and nonprivileged materials before a preliminary examination. Consequently, we affirm the order of the circuit court granting the State's motion to quash Schaefer's subpoena duces tecum.
That’s just a warm-up, though. The court construes Schaefer’s argument as seeking “subpoena power to effect discovery in a criminal case prior to the preliminary hearing,” ¶18. Discovery is designed to assure a fair trial, and a prelim isn’t a trial, ¶¶23-24. The conclusion may be ineluctable from that point, but many pages elapse first. A prelim is, as the court has said before, “a summary proceeding,” and “not a mini-trial on the facts,” ¶34. But, a defendant is entitled to present evidence at this stage, and compulsory process is available to that end, ¶35. Why, then, can’t a pre-prelim subpoena be yoked to that purpose? Because the defendant’s right to present evidence at the prelim “is not boundless,” but is instead limited to “essential facts” related to probable guilt, ¶36-37. In other words, the defendant has to show relevance to that limited purpose, else the subpoena may be quashed; it follows that seeking all investigatory material is a fishing expedition and therefore not supportable, ¶38.
¶40      To summarize, we conclude that the purpose of a preliminary examination is limited to an expeditious determination of whether probable cause exists for the state to proceed with felony charges against a defendant. The limited purpose of the preliminary examination does not permit a criminal defendant to compel discovery in anticipation of the hearing. Schaefer's subpoena duces tecum in the instant case is an effort to effect discovery.
The concurrence agrees (making it unanimous) that “no subpoena statute authorizes Schaefer’s action” (conc. ¶112). “Nevertheless, the majority opinion marches on” (conc. ¶113). On to subpoena power and discovery (¶¶45-59). (Didn’t we just cover those subjects? Not, apparently, in sufficient detail.) Subpoena power is found in various statutes, and civil statutes are absorbed within criminal statutes by dint of § 972.11(1) unless a different construction is “manifestly require(d).” Schaefer argues the subpoena power under § 805.07(2) and § 885.01, independent of discovery rules. However, the court deems his subpoena indistinguishable from a § 971.23(1) discovery demand – and such a demand runs afoul of the express exclusion in § 971.31(5)(b) (§ 971.23 not applicable at prelim stage).

More problematically, as the concurrence points out (¶114), “the defendant lays no claim to a discovery right”—which makes the majority’s decision dicta. That might not be so bad, except that, as the concurrence notes (¶101), the majority misreads open records analysis. But perhaps the tour guide is getting a bit ahead of the itinerary. The majority enumerates various methods for acquiring information (whether meant to be an illustrative or exclusive list isn’t made clear):

¶21      There are several ways for a criminal defendant to gather information and evidence that may be used in his defense. First, a defendant may request information from the state and other sources on a voluntary basis. A criminal defendant will often be given information voluntarily when the custodian has no objection to its release. Second, a defendant may conduct his own investigation of the case through interviews, record and data collection, and other lawful investigatory techniques. In some situations, a person's investigation will begin even before the person is charged with a crime. Third, a person may use information-gathering techniques such as open records requests that are available to non-litigants. A person is not disqualified from using these familiar procedures simply because he becomes a criminal defendant. [4] Fourth, a defendant may employ the subpoena power at pretrial hearings to litigate specific issues, such as the suppression of evidence, and may also use the subpoena power at trial. Pretrial hearings will have a narrow focus; thus, the evidence sought must be relevant to the issue being litigated and is not likely to be admitted if it fails this test. Finally, a defendant may exercise his discovery rights under the Wisconsin Statutes.
Open records? Did anyone say anything about that subject? Not Schaefer, to be sure. The court of appeals recently did, though, in the separate case of Portage Daily Register v. Columbia Co. Sh. Dept., 2008 WI App 30 (mere fact that a law enforcement agency has transmitted its report to the prosecutor in an ongoing investigation is not enough, categorically, for the agency to resist an open records request for that report). Sounds promising, no? Footnote 4, however, suggests a “privilege to refuse to disclose investigatory files, reports and returns for law enforcement purposes.” The concurrence argues (¶101) that the majority thus misreads the privilege, essentially inverting its significance relative to the Open Records law; which is neither here nor there, the larger point being that this discussion isn’t linked to the parties’ argumentation anyway. In any event, the analytical relationship of privilege to Open Records law will probably be resolved by Michael J. Watton v. Nanette H. Hegerty, 2007 WI App 267, PFR granted 1/22/08.

OK, there’s no statutory right, but what about a constitutional right to pre-prelim disclosure of police reports? Compulsory process is a trial-level right, ¶65, so it’s out. The court has reserves, and continues to pay lip service, to disclosure where there’s a “particularized need,” and Schaefer posits such a need given the age of the charge: “…in Schaefer's case, the criminal complaint is sufficiently detailed to allow him to identify the complainant [15] and the alleged circumstances of the charges and to prepare to rebut the plausibility of the complainant's accusations and probable cause. The lengthy span of time since the alleged offenses will not incapacitate this defendant from preparing for the preliminary examination, and it does not justify the unbridled access to police investigatory materials that the defendant seeks,” ¶71. That should settle it … but not quite. Having set forth the test for compulsory process as evidence necessary to the defense at trial, the court “conclude(s) a fortiori that the compulsory process rights of a criminal defendant at a preliminary stage of the criminal proceedings also must be subject to reasonable restrictions,” ¶75. And just what reasonable restrictions might those be? An absolute ban, that’s what: “Therefore, we decline to expand a criminal defendant's compulsory process rights to encompass a right to subpoena police reports and other non-privileged investigatory materials for examination and copying in anticipation of a preliminary hearing,” id. Still more discussion follows, including nods to U.S. v. Burr and U.S. v. Nixon, to the effect that you can’t use subpoena power to effect a fishing expedition. Who knew?

¶82      Accordingly, we hold that Schaefer has no right to subpoena police reports and other non-privileged investigatory materials prior to his preliminary hearing under either the Compulsory Process Clause of the Sixth Amendment to the United States Constitution or Article 1, Section 7 of the Wisconsin Constitution.
Keep in mind, nonetheless, that this relates to constitutional compulsory process. The court elsewhere affirms that under statutory subpoena power you do have the right to pretrial disclosures if relevant to the narrow issue at hand (e.g., ¶21).
Sufficiency of Bindover Proof, Theft by Contractor, §§ 779.02(5), 943.20(1)(b)
State v. Angela A. Keyes / Matthew E. Keyes, 2007 WI App 163, PFR granted
For both Keyes: Michael J. Devanie

¶35   Keeping in mind the legal standard the circuit court must apply in determining the appropriateness of bindover, see Dunn, 121 Wis. 2d at 397-98, we conclude that the circuit court’s factual findings are not clearly erroneous and that this evidence supports the court’s probable cause findings. Jones’ testimony regarding Angela’s pattern of “recycling money or generating invoices to match a cashier check so she could say that she was entitled to this money” supports a reasonable inference that the Keyes were aware that the Wettsteins did not consent to the Keyes’ profit-keeping without first paying the subcontractors in full or proportionally. In addition, it can be reasonably inferred that the Wettsteins did not consent to the Keyes paying themselves a profit first before paying the subcontractors for labor and materials because by so consenting, the Wettsteins would unreasonably expose themselves to the subcontractors executing their lien rights.

Interlocutory Appeal -- Review in Circuit Court of Bindover by Court Commissioner, by Motion to Dismiss
State v. Eric D. Gillespie, 2001 WI App 35, PFR filed 2/1/05
For Gillespie: John Anthony Ward
Issue: Whether, following bindover by court commissioner under § 757.69(1)(b), a defendant may obtain a “preliminary hearing de novo” (i.e., a second preliminary hearing) in circuit court under § 757.69(8).
¶7 The State contends that WIS. STAT. § 970.04 precludes Gillespie’s request for a second preliminary hearing. The statute states:
Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence.

¶8 We agree with the State. … While the factual scenario set forth in § 970.04, one in which the defendant has been discharged and a new complaint filed, is different from that presented in Gillespie’s case, it nevertheless reveals that the legislature had the opportunity to address a second examination in Gillespie’s situation and chose not to do so. See A. and A.P. v. Racine County, 119 Wis. 2d 349, 354, 349 N.W.2d 743 (Ct. App. 1984).

¶9 We also observe that the Wisconsin Supreme Court has decreed that a motion to dismiss is the proper procedure for obtaining circuit court review of a court commissioner’s bindover ruling and that such review is limited to a transcript of the preliminary examination. State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994)....

Preliminary Hearings – Proof: Battery to, and Intimidation of a Witness, § 940.201(2)(a) and (b)

State v. Anthony M. Cotton, 2003 WI App 154

For Cotton: Timothy T. Kay


¶22. The facts adduced at the preliminary hearing in this case are undisputed. In that situation, the question of probable cause sufficient for a bindover presents a question of law. Dunn, 121 Wis. 2d at 398-99. There is nothing in the evidence identified by the State or in the record of the preliminary hearing that establishes Cotton's knowledge that Paikowski was likely to be a witness in an action or proceeding. Paikowski testified that Cotton expressed his anger with the service of the subpoenas on his family, claiming that the service had been invalid and that it had ruined his family. However, there is no indication that Cotton believed Paikowski might be a potential witness either in any case against him or in the homicide case pending against his cousin. Nowhere in the exchange between Paikowski and Cotton did Cotton make any reference that could be construed as evidence that he knew Paikowski was likely to be a witness. Evidence limited to the mere fact that Cotton was angry with Paikowski, without more, does not establish that he threatened Paikowski and Paikowski's family because he knew that Paikowski was likely to be a witness for the State.


¶23. Because there was no evidence at the preliminary hearing that Cotton knew or had reason to know that Paikowski was likely to be a witness in any proceeding, we conclude that the evidence did not demonstrate a believable or plausible account of Cotton's commission of a felony. See id. at 393. As such, the evidence was insufficient to support a reasonable inference that Cotton committed a felony. See id. (a defendant may be bound over for trial when the evidence presented at the preliminary hearing is sufficient to support a reasonable inference that the defendant probably committed a felony).

Preliminary Hearings – Test: New Charges Added to Information

State v. Anthony M. Cotton, 2003 WI App 154

For Cotton: Timothy T. Kay

¶11. As a threshold issue, we address the proper test for a challenge to new charges filed in an information following a bindover when the original charge stated in the complaint is not repeated in the information. Our choices are: (1) the conventional sufficiency of evidence test where the charges stated in the complaint are the same; or (2) the "wholly unrelated" test, generally applied to charges added in an information when the original charge in the complaint is restated.…

¶15. An analysis of the case law persuades us that the "wholly unrelated" test is intended to apply to charges in the information which have been added to the original charge following a bindover at the preliminary hearing.4 In Burke, our supreme court held that "in a multiple-offense transaction case, once the defendant has been bound over for trial on at least one count relating to the transaction, the prosecutor may in the information charge additional counts not wholly unrelated." Burke, 153 Wis. 2d at 453 (citation omitted; emphasis added). We construe the supreme court's phrase "once the defendant has been bound over for trial" to assume a bindover that is supported by the evidence adduced at the preliminary hearing.…

¶16. Because this case involves a challenge to counts charged in an information that does not contain charges added to the original charge, but rather two completely new felony charges-neither of which was tested at the preliminary hearing-we conclude that the appropriate test for review of the new charges is the sufficiency of evidence test. As our ensuing discussion will reveal, were we to apply the "wholly unrelated" test, we would allow for the absurd result that the State could file new charges even where the evidence at the preliminary hearing failed to demonstrate probable cause that the defendant had committed any felony.

4 In State v. Burke, 153 Wis. 2d 445, 452, 451 N.W.2d 739 (1990), the supreme court recognized that early decisions which involved primarily single-offense transactions had held that a prosecutor was not bound in the information to charging the same offense charged in the complaint. See, e.g., Mark v. State, 228 Wis. 377, 384, 280 N.W. 299 (1938). However, the court went on to observe that later cases held that in a multiple-offense transaction case, charges may be added to an original charge if not wholly unrelated. Burke, 153 Wis. 2d at 453.
Preliminary Hearing Bindover - waiver of challenge.
State v. Gabriel DeRango, 229 Wis.2d 1, 599 N.W.2d 27 (Ct. App. 1999), affirmed on other grounds, State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833.
For DeRango: Robert G. LeBell.
Holding: By failing to challenge sufficiency of bindover proof before trial by interlocutory appeal, DeRango waived the issue.
Preliminary Hearing -- DOT Certified Abstract as Proof of Prior Driving Convictions
State v. Michael J. Lindholm, 2000 WI App 225, 239 Wis.2d 167, 619 N.W.2d 267
For Lindholm: Ralph A. Kalal
Issue: Whether the Department of Transportation's certified abstract of Lindholm's driving record admitted into evidence at his preliminary hearing as proof of prior convictions on a felony charge of operating while intoxicated adequately supported bindover.
Holding: A certified copy of the DOT abstract provides, as a matter of law, sufficient proof of the prior driving convictions and therefore supported Lindholm's bindover, even though the actual court records underlying his abstract had been destroyed. ¶10. ("(T)he destruction of the records underlying the abstract does not preclude cross-examination of the custodian of the record at sentencing about errors Lindholm's counsel says the abstract contains, such as his assertion that Lindholm did not have a driver's license in 1991. That fact might be proved by the driver's license number that was assigned to him, which appears on the face of the license." Id.) Note: The court stresses that OWI priors are not elements whose factual existence must be determined by a jury but, rather, a matter of sentence enhancement. Nonetheless, the number of such priors must be established at a prelim, on a felony OWI charge, "because it changed the status of the offense to that of a felony[.]" ¶6. Recall, in this regard, that the recent decision in Apprendi v. N.J., 147 L.Ed.2d 443 (2000) says (at the risk of oversimplifying) that any penalty-increasing fact that would increase the potential maximum must be submitted to the jury and found beyond a reasonable doubt except recidivist allegations.
Preliminary Hearings -- Sufficiency of Bindover Proo
State v. Bruce Phillips, 2000 WI App 184, 238 Wis.2d 279, 617 N.W.2d 522
For Phillips: Jorge A. Gomez; Mitchell W. Quick
Issue: Whether the evidence supports bindover.
Holding: The reviewing court examines only whether probable cause exists to support a felony, not whether each charged felony is supported. ¶37. Sufficient evidence was adduced to show probable cause that on one of the charged counts, felony theft, in that the defendant probably retained money without the owner's consent. ¶¶38-40.
Preliminary Hearings -- Timeliness of Information
State v. Bruce Phillips, 2000 WI App 184, 238 Wis.2d 279, 617 N.W.2d 522
For Phillips: Jorge A. Gomez; Mitchell W. Quick
Issue: Whether, for purposes of triggering the § 971.01(2) 30-day deadline for filing the information, a preliminary examination is complete upon close of testimony or bindover decision.
Holding: "The preliminary examination is … not complete until the court finishes scrutinizing the evidence and renders a decision on bindover. …The legislature thus intended that a district attorney have thirty days from the bindover decision to examine the facts and circumstances to determine what to charge in the information." ¶¶9, 10.
Preliminary Hearing -- second preliminary hearing, as supported by new and used evidence.
State v. Willie E. Johnson, 231 Wis.2d 58, 604 N.W.2d 902 (Ct. App. 1999).
For Johnson: Douglas I. Henderson.
Issue: Whether, after the charge was dismissed for lack of probable cause at the first preliminary hearing, the second preliminary hearing was adequately supported by new and unused evidence.
Holding: Applying a standard of de novo review, the court of appeals concludes that bindover was properly supported by evidence that had been "unused."

Evidentiary Hearing, in General

State v. John Allen, 2004 WI 106, affirming unpublished decision

For Allen: Michael J. Backes

¶11 When a motion is made before trial, the defendant likely has not fully developed the factual and legal issues involved in his or her case. Velez, 224 Wis. 2d at 13; State v. Garner, 207 Wis. 2d 520, 532-33, 558 N.W.2d 916 (Ct. App. 1996). As well, the defendant has the whole criminal process before him or her, and may make a motion at a later date. Therefore, even if the motion on its face does not allege facts to entitle the defendant to relief, a defendant generally is allowed an opportunity to develop the factual record. Velez, 224 Wis. 2d at 18; Garner, 207 Wis. 2d at 533-535. This safeguard protects a defendant's due process rights. Velez, 224 Wis. 2d at 14. We do not need to delve further into the sufficiency standard for pretrial motions as that issue is not directly before us today.5
5 State v. Velez, 224 Wis. 2d 1, 589 N.W.2d 9 (1999), contains a comprehensive discussion and application of the pretrial motion sufficiency standard.
Filing of “Private” Complaint, § 968.02(3): No Standing of Subject to Seek Reconsideration
State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke
Issue/Holding: Person who is subject of proposed prosecution lacks standing to seek reconsideration of decision to authorize filing of criminal under § 968.02(3) complaint, ¶19:
¶19 The statute expressly specifies an ex parte hearing and no right of cross-examination. If the Kalals have no right or standing to be heard at the hearing, they cannot claim a right or standing to be heard on a reconsideration motion.
Filing of “Private” Complaint, § 968.02(3): Review Mechanisms
State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke
Issue/Holding: Review of a judge’s decision to authorize a § 968.02(3) complaint is the same as a defendant challenging “the legal and factual sufficiency of” a complaint issued under § 968.02(1), and “includes, in felony prosecutions, the right to a preliminary hearing under Wis. Stat. § 970.03.” 20. Though there is no right of appeal of a § 968.02(3) authorization-deci¶sion, supervisory writ procedure may be appropriate “in limited circumstances.” ¶21. In this instance, no “plain duty” – necessary for writ jurisdiction – has been identified:
¶25 To the extent that a circuit judge's decision to permit the filing of a complaint under Wis. Stat. § 968.02(3) is legally or factually unsupported, the defendant named in the complaint may seek its dismissal in the circuit court after it has been filed, and may pursue standard appellate remedies thereafter. But the statutory prerequisite that the judge find a refusal to prosecute by the district attorney does not impose upon the circuit judge a plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ.
Filing of “Private” Complaint, § 968.02(3): District Attorney’s Prior Refusal to Issue Complaint
State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke
Issue/Holding: District attorney must first “refuse” (or be unavailable) to issue criminal complaint before private complaint may be authorized by judge pursuant to § 968.02(3) – such refusal need not be express:
¶55 … As with other elements of courtroom proof, a refusal under this statute may be proven directly or circumstantially, by inferences reasonably drawn from words and conduct. Thus, a refusal can be open and explicit, as in a statement to that effect, or it can be indirect and inferred, as in a long silence or period of inaction that, under the totality of circumstances, gives rise to a reasonable inference that the district attorney intends not to act. A period of inaction may well indicate an ongoing investigation or a pending charging decision by the district attorney; inaction alone will ordinarily not support an inference of a refusal to prosecute.

¶57 In this case, Tjader testified that she reported the alleged theft to the police in August 2001 and to the district attorney in November 2001, and that as of the date of the hearing, March 13, 2002, the district attorney had not filed charges, but, rather, had indicated to her that she was free to pursue whatever legal recourse she wished. Deputy District Attorney Hanson's statements were largely in agreement with Tjader's. While he admitted that his office had not affirmatively stated it would not prosecute, he made it clear that the district attorney's position was that the conduct of his office constituted a "refusal" under Wis. Stat. § 968.02(3) and that Tjader could pursue other remedies. Judge Finn's conclusion that these facts in their totality amounted to a refusal on the part of the district attorney is consistent with the plain-meaning interpretation of the statute. Accordingly, we affirm the decision of the court of appeals.

Pretrial Motions (In Limine) – Disclosure by Defense of “McMorris” Self-Defense Evidence
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding: A trial court has inherent and statutory authority (§ 906.11) to order that a defendant provide a pretrial summary of the specific “McMorris” evidence (violent acts of the alleged victim the defendant knew about, as relevant to self-defense) he or she wants to introduce at trial:
¶26      Given the limited nature of the evidence covered in this order——that is, the requirement that McClaren give notice of the specific McMorris evidence he wants to introduce and which he was aware of on the night of the incident——this order fits comfortably into Wis. Stat. § 906.11's description of the court's sphere of control.  The court is, in fact, required to "exercise reasonable control" over the "present[ation of] evidence" so that it can be done effectively and with minimal wasted time.  See State v. Wallerman, 203 Wis. 2d 158, 168, 552 N.W.2d 128 (Ct. App. 1996).  Both concerns were specifically mentioned by the circuit court with regard to this order.  This is precisely the type of admissibility of evidence questions that circuit courts should be attempting to resolve in advance of trial. [9]

¶28      Under the circumstances presented here, where McClaren seeks to introduce McMorris evidence in support of a self-defense claim, the circuit court has the authority under Wis. Stat. § 906.11, in conjunction with Wis. Stat. § 901.04(3)(d), to order the defendant to disclose prior to trial any specific acts that he knew about at the time of the incident and that he intends to offer as evidence so that admissibility determinations can be made prior to trial.

The disclosure order is constitutional: the court analogizes to alibi-disclosure, Williams v. Florida, 399 U.S. 78 (1970), ¶35, while stressing that the trial court’s order “absolutely required” reciprocal prosecutorial disclosure, ¶¶38-39. As for enforcement of the order, guidance is taken from Taylor v. Illinois, 484 U.S. 400 (1988):
¶43      We agree with the State.  The United States Supreme Court has established a test for excluding evidence and has said that under certain circumstances, exclusion of evidence does not violate a defendant's constitutional rights.  There are sanctions short of excluding evidence, of course.  The Court cited a case, for example, that "[gave] consideration to the effectiveness of less severe sanctions, the impact of preclusion on the evidence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful."  Taylor, 484 U.S. at 415 n.19 (citing Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir. 1983)).  However, as Taylor makes clear, even the sanction of excluding evidence against a defendant is constitutionally permissible in certain cases, such as where there have been willful violations "motivated by a desire to obtain a tactical advantage."  Taylor, 484 U.S. at 415.

¶44      As we noted above, Taylor states well the balancing of interests that goes into a court's oversight of a trial:

It is elementary, of course, that a trial court may not ignore the fundamental character of the defendant's right to offer the testimony of witnesses in his favor.  But the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests.  The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.
Id. at 414-15 (emphasis added).

¶45      Whether a violation merits the extreme sanction of exclusion must be determined by a circuit court after a violation has occurred, and under the parameters set forth by the United States Supreme Court in Taylor.

¶50      … It appears from the record that the circuit court intended to exclude from trial any evidence that McClaren attempted to offer at trial in violation of the order; we clarify here that while such a sanction may be permitted, lesser sanctions must be considered first, and that the extreme sanction of exclusion is permissible only after the circuit court has determined that the violation was "willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence," the test set forth in Taylor.

Potentially vast as the implications might be, it is probably wise to treat the holding as narrow, a mere matter of the timing of something that would have to be disclosed sooner or later anyway.
In Limine Motion
State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry
¶37. The purpose of the motion in limine is to obtain an advance ruling on admissibility of certain evidence. State v. Horn, 139 Wis. 2d 473, 488 n.8, 407 N.W.2d 854 (1987). The use of the motion in limine has expanded from its original use for suppressing prejudicial evidence to obtaining a ruling on admissibility generally. Although the Wisconsin Statutes do not expressly recognize the motion in limine, we judicially notice that its use is common in this state and in many jurisdictions. See id.


¶40. While the following list is not exhaustive, we view a motion in limine as proper where (1) the trial court has directed that the evidentiary issue be resolved before trial; (2) the evidentiary material is highly prejudicial or inflammatory and would risk a mistrial if not previously addressed by the trial court, id.; (3) the evidentiary issue is significant and unresolved under existing law; (4) the evidentiary issue involves a significant number of witnesses or a substantial volume of material making it more economical to have the issue resolved in advance of trial so as to save the time and resources of all concerned; or (5) a party does not wish to object to the evidence in the presence of the jury and thereby preserves the issue for appellate review by obtaining an unfavorable ruling via a pretrial motion in limine, see State v. Bergeron, 162 Wis. 2d 521, 528-29, 470 N.W.2d 322 (Ct. App. 1991)....

Joinder -- Generally
State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach
¶13      “To be of the ‘same or similar character’ under sec. 971.12(1), Stats., crimes must be the same type of offenses occurring over a relatively short period of time and the evidence as to each must overlap.” State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988) (citing State v. Hoffman, 106 Wis. 2d 185, 208, 316 N.W.2d 143 (Ct. App. 1982)). “It is not sufficient that the offenses involve merely the same type of criminal charge.” Hamm, 146 Wis.  2d at 138. “Whether charges are properly joined in a criminal complaint is a question of law.” Id.

¶14      In Francis v. State, 86 Wis. 2d 554, 560-61, 273 N.W.2d 310 (1979), our supreme court approved of joinder where the charges “involved two or more incidents which exhibited the same modus operandi, were close in time, and occurred within the same geographic area, the acts were connected or constituted parts of a common scheme or plan which tended to establish the identity of the perpetrator.” Hamm, 146 Wis. 2d at 138-39 (citing Francis, 86 Wis.  2d at 560-61). There, the court held that because the evidence of each crime would be admissible in separate trials for each, joinder was proper under Wis. Stat. § 971.12(1). Francis, 86 Wis. 2d at 561.

Joinder -- Factually Dissimilar Crimes
State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach
¶16      The trial court’s assumption that the crimes all occurred in the same neighborhood was not entirely correct. While the burgled residences and the site of the armed robbery were all on the east side of Milwaukee, the Franklin Place address lies several blocks south of Brady Street, and is located on the other side of the Milwaukee River, some distance from the Riverwest neighborhood where one of the burglaries and the armed robbery occurred. The Newberry Boulevard burglary occurred in a different neighborhood altogether, approximately one mile from the Franklin Place burglary and across the river from the Riverwest neighborhood.

[And, the m.o. for the armed robbery “was quite distinct from that of the three burglaries,” ¶¶17-20.]

¶20      … Again, the trial court’s decision to join these two matters for trial was based on factual errors.  … [T]here is no evidence of a common scheme between the burglaries and the armed robbery charge. Cf. Francis, 86 Wis.  2d at 561. Moreover, given the correct facts, it is unlikely that the armed robbery would have been admissible as other acts evidence in a trial of the burglary charges. Consequently, the trial court’s decision to try these matters together rests on very shaky ground, as the actual facts were contrary to the trial court’s beliefs.

How do you establish that one neighborhood is “different altogether” from another? The court relied on its own, commonsensical perceptions in this instance, but that makes the result fact-specific. (Unless, of course, you have cause to argue that Newberry Blvd. is in an altogether different neighborhood from Franklin Place or (and?) Riverwest.) The City of Milwaukee seems to agree, at least if its Neighborhood Strategic Planning Boundaries are any indication. Newberry and Franklin are, as well, in different census tracts from both each other and also the Riverwest addresses. There are probably other ways than this very superficial effort to establish the point, but if nothing else it is plain that the court of appeals’ conclusion was correct, even if its methodology was left unexplained.
Joinder -- Harmless Error Analysis
State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach
Issue/Holding: Misjoined counts were harmful error, notwithstanding a curative instruction, where the only evidence connecting Davis to the crimes were eyewitnesses who, although they ID’ed Davis, gave “quite varied” descriptions to the police, ¶22.
Joinder & Severance -- Child Neglect and Animal Mistreatment -- Admissibility of CHIPS Petition
State v. Teresa L. Bellows, 218 Wis. 2d 614, 582 N.W.2d 53 (Ct. App. 1998)
For Bellows: Marha K. Askins, SPD, Madison Appellate
... Whether crimes are properly joined in a complaint is a question of law. See State v. Hoffman, 106 Wis.2d 185, 208, 316 N.W.2d 143, 156 (Ct. App. 1982). The joinder statute is to be broadly construed in favor of initial joinder. See id. Then if a motion for severance is made, a trial court must determine what, if any, prejudice would result in a trial on the joined charges; any potential prejudice must be weighed against the interests of the public in conducting a single trial on the multiple counts. See id. at 209, 316 N.W.2d at 157. "`This balancing of competing interests involves an exercise of discretion and a trial court's determination will not be disturbed on appeal in the absence of an abuse of that discretion.'" Id. (quoted source omitted).
... Based on our review of the evidence, it is apparent that both the animal mistreatment and child neglect charges were based on the same act or transaction-the evidence was all based upon a single visit to Bellows' home. Due to conditions in the home, her children were placed in protective custody and the animals were taken to an animal shelter. The charges and the evidence satisfy the requirements of § 971.12(1) for joinder.

... Having concluded that the charges met the statutory standard for joinder, we note that Bellows bears the burden of proof on the prejudice analysis. ...

We conclude, however, that apart from the evidence of the animals' fleas, numerous other conditions in the home formed the basis of the evidence for the child neglect charges and would have been admissible even if the charges had been severed.... All of the other evidence which was received pertained to the conditions under which the animals were kept and would have been admissible even if the charges were severed. Bellows has not carried her burden to show undue prejudice. ...

Shiffra Motion
State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau
Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.
Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession; disclosure isn’t limited to mental health records; and, § 971.23(1)(h) exculpatory evidence analysis isn’t relevant to the materiality inquiry.
¶¶9-10. Materiality in this case relates to supporting self-defense, in particular proof of the victim’s prior acts of violence within the defendant’s knowledge. ¶13. Navarro’s assertions, though general, sufficed to require an evidentiary hearing on materiality, as prelude to in camera inspection (though greater specificity will be required at the hearing). ¶¶13-17.
Shiffra Motion
Jessica J.L. v. State, 223 Wis.2d 622, 589 N.W.2d 660 (Ct. App. 1998).
For defendant: Patricia A. Barrett.
Holding: A nonparty can't intervene in a criminal case: "(T)he only attorneys who may prosecute a sexual assault on behalf of the State in circuit court are a district attorney or a special prosecutor … Therefore, we conclude that the circuit court was correct in concluding that a guardian ad litem or counsel for a victim in an alleged sexual assault may not participate in the criminal prosecution of the defendant." But this restriction, the court acknowledges, creates tension with the complainant's right to make an informed decision with respect to confidentiality of health records, which is resolved "by obligating the State to give notice to the victim, and to her parents if the victim is a minor, when a Shiffra motion seeking her health care records has been filed, and to provide a reasonable time for the victim to notify the district attorney that she does not object to the disclosure of those records." Absent consent, the DA cannot waive Shiffra's materiality requirement. See State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct. App. 1993).
Shiffra Hearing -- Preliminary Showing for In Camera Inspection
State v. Johnny L. Green, 2002 WI 68, affirming unpublished court of appeals opinion
For Green: Nicolas G. Griswold
Issue/Holding: The court modifies the threshold showing required for an in camera inspection, in favor of "a slightly higher standard," namely a "'reasonable likelihood' that the records will be necessary to a determination of guilt or innocence."¶32.
¶34. Based on the above considerations, we set forth the following standard: the preliminary showing for an in camera review requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant. We conclude that the information will be "necessary to a determination of guilt or innocence" if it "tends to create a reasonable doubt that might not otherwise exist." See Fuller, 667 N.E.2d at 855. This test essentially requires the court to look at the existing evidence in light of the request and determine, as the Shiffra court did, whether the records will likely contain evidence that is independently probative to the defense.
¶35. In creating this standard, we intend to place the burden on the defendant to reasonably investigate information related to the victim before setting forth an offer of proof and to clearly articulate how the information sought corresponds to his or her theory of defense. A good faith request will often require support through motion and affidavit from the defendant. Our standard is not intended, however, to be unduly high for the defendant before an in camera review is ordered by the circuit court. The defendant, of course, will most often be unable to determine the specific information in the records. Therefore, in cases where it is a close call, the circuit court should generally provide an in camera review. See Walther, 2001 WI App at ¶14. We have confidence in the circuit courts to then make a proper determination as to whether disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611. A circuit court may always defer ruling on such a request or require a defendant to bring a subsequent motion if the record has not had time to develop. A motion for seeking discovery for such privileged documents should be the last step in a defendant's pretrial discovery.
Green's showing falls short. He merely asserted that statements made in counseling might be inconsistent with other pretrial statements. ¶37.
Shiffra hearing.
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998).
For Richard: Robert Henak.
Holding:: Defendant met his burden of trial court in camera inspection of the complainant's mental health records. See State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct. App. 1993). (He produced testimony at a hearing that she had long been treated; that she has a multiple personality disorder diagnosis; and that she was both "paranoid" about anything sexual and was generally untruthful.)
Holding: Given the lateness of the request to enter the plea (three days before trial), along with insufficient evidence of a basis for the plea, the trial court properly exercised discretion. ¶¶48-50.
Shifra, Generally
State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998)
For Darcy K.: Kenneth L. Lund, SPD, Madison Appellate
Issue/Holding: Shifra applies only where the information is protected by statute and not in possession of the State. (Suppression of Shifra-type testimony is appropriate where the complainant then fails to consent to disclosure of material records.) Where the records at issue are already in possession of the State (here, because of various proceedings brought by the State against the complainant), Shifra isn't triggered. Thus, the trial court may order in camera inspection of records already in possession of the State without a preliminary showing of materiality.
Summary Judgment -- Applicability to Traffic Prosecution
State v. Casey J. Schneck, 2002 WI App 239
For Schneck: Mark A. Phillips
Issue: Whether summary judgment procedure in § 802.08 is permissible in traffic forfeiture prosecutions under ch. 345.
Holding: Although traffic forfeitures are civil actions, and nothing in ch. 345 expressly bars summary judgment, this doesn't go far enough:
¶7. ... (T)he test for the application of the civil rules of procedure is not only whether the statutes governing the instant proceeding are silent on the matter or otherwise set out a different procedure, but also whether the instant proceeding can be reconciled with the rules of civil procedure. This was the approach taken by the trial court when it concluded that a Wis. Stat. ch. 345 forfeiture prosecution could not be reconciled with the summary judgment procedure set out in Wis. Stat. § 802.08. We agree.
Summary judgment "contemplates a summons and complaint." But "there is nothing in ch. 345 that requires or contemplates the kind of responsive pleading that would enable a trial court to determine if a material issue of fact or law has been joined.... In short, a trial court cannot perform even the rudimentary initial steps of summary judgment methodology because the responses contemplated by these statutes are not the equivalent of an answer in a conventional civil action." ¶10.
(Note: § 972.11(1) imports civil rules into criminal practice except when manifestly inappropriate; the larger idea of this case is "that mere silence regarding a rule of civil procedure does not automatically mean that the procedure is permitted." ¶14.)
Suppression Motions -- relevance of statement's truthfulness to voluntariness.
State v. Lucian Agnello, 226 Wis.2d 164, 593 N.W.2d 427 (1999), reversing unpublished decision.
For Agnello: Jerome F. Buting & Pamela Moorshead, Buting & Williams.
Holding:At a suppression hearing on a statement's voluntariness, the prosecutor impermissibly inquired into the statement's truthfulness, and because this impermissible inquiry "played a sizable role in the circuit court's ruling," the remedy is to vacate the judgment of conviction and remand for a new suppression hearing.
Suppression Motions -- voluntariness - proved by preponderance of evidence.
State v. Lucian Agnello, 226 Wis.2d 164, 593 N.W.2d 427 (1999), reversing unpublished decision.
For Agnello: Jerome F. Buting & Pamela Moorshead, Buting & Williams.
Holding:The state's burden of proving voluntariness is preponderance of evidence, not beyond reasonable doubt.
Suppression Motion -- Involuntary Statement of Witness (Not Defendant) -- Procedure for Challenging
State v. Stanley A. Samuel, 2002 WI 34, reversing 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565
For Samuel: Robert A. Henak
¶35. Under Velez, first the defendant must bring a motion to suppress, alleging facts sufficient to show that a statement was involuntary under Clappes and that the police misconduct at issue is egregious such that it produces statements that are unreliable as a matter of law. See Velez, 224 Wis. 2d at 18. If the motion alleges facts which, if true, would entitle the defendant to relief, then the circuit court must hold an evidentiary hearing. Id.; see also State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). However, if the motion does not allege sufficient facts, the circuit court has the discretion to deny an evidentiary hearing upon a finding that any one of the following circumstances is present: (1) the defendant failed to allege sufficient facts in the motion to raise a question of material fact; (2) the defendant presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Velez, 224 Wis. 2d at 17-18.

¶36. Even where the defendant has not met this initial burden of production and the circuit court has the discretion to deny an evidentiary hearing, in order to properly exercise that discretion, it must 'carefully consider the record, the motion, counsels' arguments and/or offers of proof, and the law.' Velez, 224 Wis. 2d at 17 (quoting State v. Garner, 207 Wis. 2d 520, 534-35, 558 N.W.2d 916 (Ct. App. 1996)). Moreover, when there is a reasonable possibility that the defendant will establish the factual basis at an evidentiary hearing, the circuit court must provide the defendant with the opportunity to develop the record. Id. at 18.

¶37. In other words, there will be cases where the court cannot properly exercise its discretion in denying an evidentiary hearing without first holding a nonevidentiary hearing on the defendant's motion to suppress. See Velez, 224 Wis. 2d at 17. The facts that the defendant must establish and the determinations the circuit court must make will be informed by the standard and factors we have identified.

The state bears the burden of persuasion, by preponderance of the evidence. ¶39.