Wis. Stat. § 971.23
Inadequate preparation for trial that results in a district attorney's failure to disclose all scientific reports does not constitute good cause for the failure if the defense is misled, but this is subject to the harmless error rule. Wold v. State, 57 Wis. 2d 344, 204 N.W.2d 482 (1973). When a prosecutor submitted a list of 97 witnesses he intended to call, the court should have required him to be more specific as to those he really intended to call. Irby v. State, 60 Wis. 2d 311, 210 N.W.2d 755 (1973). When a party successfully moves to have material masked or deleted from a discovery document, the proper procedure to be pursued is to place it in a sealed envelope or container, if necessary, so that it may be preserved for appellate review. State v. Van Ark, 62 Wis. 2d 155, 215 N.W.2d 41 (1974). Under both the provisions of this section and the constitutional duty of the state to disclose to a criminal defendant evidence that is exculpatory in nature, there is no requirement to provide exculpatory evidence that is not within the exclusive possession of the state and does not surprise or prejudice the defendant. State v. Calhoun, 67 Wis. 2d 204, 226 N.W.2d 504 (1975). Although substantial evidence indicates that the state had subpoenaed its "rebuttal" witness at least 2 weeks before he was called to testify and deliberately held him back for "dramatic" effect, no objection or motion to suppress was made on the proper ground that the witness was not a bona fide rebuttal witness hence objection to the witness' testimony was waived. Caccitolo v. State, 69 Wis. 2d 102, 230 N.W.2d 139 (1975). The prosecutor's duty to disclose does not ordinarily extend to discovery of criminal records from other jurisdictions. The prosecutor must make good faith efforts to obtain records from other jurisdictions specifically requested by the defense. Jones v. State, 69 Wis. 2d 337, 230 N.W.2d 677 (1975). Police officers' "memo books" and reports were within the rule requiring production of witness statements, since the books and reports were written by the officers, the reports signed by them, and both officers testified as to the incident preceding defendant's arrest. State v. Groh, 69 Wis. 2d 481, 230 N.W.2d 745 (1975). When the state calls a witness not included in its list of witnesses, the preferable procedure is not to strike the witness but to allow a defendant, who makes a timely showing of surprise and prejudice, a continuance sufficient to interview the witness. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750 (1975). The written summary, under sub. (1), of all oral statements made by the defendant that the state intends to introduce at trial is not limited to statements to the police. Incriminating statements made by the defendant to 2 witnesses were within the scope of the disclosure statute. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750 (1975). All statements, whether possessed by direct-examining counsel or cross-examining counsel, must be produced; mere notes need not be produced. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976). When the defendant relied solely on an alibi defense and on the day of trial the complaining witness changed her mind as to the date of the occurrence, a request for a continuance based on surprise was properly denied because the defendant failed to show prejudice from the unexpected testimony. Angus v. State, 76 Wis. 2d 191, 251 N.W.2d 28 (1977). A generalized inspection of prosecution files by defense counsel prior to a preliminary hearing is so inherently harmful to the orderly administration of justice that the trial court may not confer such a right. Matter of State ex rel. Lynch v. County Ct. 82 Wis. 2d 454, 262 N.W.2d 773 (1978). Under sub. (8) (d), the state must provide the names of all people who will testify at any time during the trial that the defendant was at the scene of the crime. Tucker v. State, 84 Wis. 2d 630, 267 N.W.2d 630 (1978). The trial court erred in ordering the defense to turn over "transcripts" of interviews between defense counsel, the defendant, and alibi witnesses, when oral statements were not recorded verbatim. Pohl v. State, 96 Wis. 2d 290, 291 N.W.2d 554 (1980). The prosecutor's repeated failure to disclose prior statements of witnesses was not prosecutorial overreaching that would bar reprosecution after the defendant moved for a mistrial. State v. Copening, 100 Wis. 2d 700, 303 N.W.2d 821 (1981). Under the facts of the case, the victim's medical records were not reports required to be disclosed under sub. (5). State v. Moriarty, 107 Wis. 2d 622, 321 N.W.2d 324 (Ct. App. 1982). When the defendant was not relying on an alibi defense and did not file a notice of alibi, the court did not abuse its discretion in barring alibi testimony. State v. Burroughs, 117 Wis. 2d 293, 344 N.W.2d 149 (1984). There are 3 different situations of prosecutorial nondisclosure, each with a different standard: 1) when the undisclosed evidence shows the prosecutor's case included perjury; 2) when the defense made a pretrial request for specific evidence; and 3) when the defense made no request or a general request for exculpatory evidence. State v. Ruiz, 118 Wis. 2d 177, 347 N.W.2d 352 (1984). A defendant charged as a "party to a crime" for conspiratorial planning of a robbery was not required to give an alibi notice regarding testimony concerning the defendant's whereabouts during planning sessions, as an alibi is a denial of being present at the scene of the crime when it was committed. State v. Horenberger, 119 Wis. 2d 237, 349 N.W.2d 692 (1984). When blood alcohol content is tested under statutory procedures, results of the test are mandatorily admissible. The physical sample tested is not evidence intended, required, or even susceptible of being produced by the state under subs. (4) [now sub. (1) (g)] or (5). State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984). When the state impounded a vehicle but released it to a scrap dealer before the defendant's expert could examine it, the charge was properly dismissed for destruction of exculpatory evidence. State v. Hahn, 132 Wis. 2d 351, 392 N.W.2d 464 (Ct. App. 1986). Sub. (7) requires determination by the trial court of whether noncompliance was for good cause. If it was not, exclusion is mandatory; if it was, sanction is discretionary. State v. Wild, 146 Wis. 2d 18, 429 N.W.2d 105 (Ct. App. 1988). Criminal defendants are not required to comply with the rules of criminal procedure to obtain a record available under the open records law. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991). When the state inferred that a complainant sought psychological treatment as the result of a sexual assault by the defendant but did not offer the psychological records or opinions of the therapist as evidence, it was not improper to deny the defendant access to the records when the court determined that the records contained nothing that was material to the fairness of the trial. State v. Mainiero, 189 Wis. 2d 80, 525 N.W.2d 304 (Ct. App. 1994). Although of public record, it is an intolerable burden on a defendant to be required to continually comb criminal records to determine if any of the state's witnesses are subject to criminal penalty. The burden is on the state to provide this information, particularly in light of a discovery request for the criminal records of the state's witnesses. State v. Randall, 197 Wis. 2d 29, 539 N.W.2d 708 (Ct. App. 1995). Sub. (2m) requires disclosure of relevant substantive information that a defense expert is expected to present at trial whether as to findings, test results, or a description of proposed testimony. The privilege against self-incrimination and the right to present a defense are not violated by the requirement. State v. Revels, 221 Wis. 2d 315, 585 N.W.2d 602 (Ct. App. 1998), 97-3148. This section does not provide for postconviction discovery, but a defendant has a right to postconviction discovery when the sought-after evidence is relevant to an issue of consequence. State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), 96-3028. The state's failure to disclose that it took samples but failed to have them analyzed affected the defendant's right to a fair trial, because it prevented the defendant from raising the issue of the reliability of the investigation and from challenging the credibility of a witness who testified that the test had not been performed. State v. DelReal, 225 Wis. 2d 565, 593 N.W.2d 461 (Ct. App.1999), 97-1480. When an indigent defendant requests the state to furnish a free transcript of a separate trial of a codefendant, the defendant must show that the transcript will be valuable to him or her. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219. Sub. (2m) (am) requires that any statement made by a witness named in a list under sub. (2m) (a) must be disclosed. Once a party is included on the list of witnesses under sub. (2m) (a), statements by the witness must be disclosed. State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488, 00-1821. "Plans to use" in sub. (1) (b) embodies an objective standard what a reasonable prosecutor should have known and would have done under the circumstances of the case. The issue is whether a reasonable prosecutor, exercising due diligence, should have known of the defendant's statements before trial, and if so, would have planned to use them in the course of trial. The knowledge of law enforcement officers may in some cases be imputed to the prosecutor. Good faith alone does not constitute good cause for failing to disclose under sub. (7m). State v. DeLao, 2002 WI 49, 252 Wis. 2d 289, 643 N.W.2d 480, 00-1638. A prosecutor has no duty to list a rebuttal witness if it is anticipated before trial that the witness will be called. The defense takes its chances when offering a theory of defense and the state can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating sub. (1) (d). State v. Konkol, 2002 WI App 174, 256 Wis. 2d 725, 649 N.W.2d 300, 01-2126. A witness's probationary status was relevant and should have been disclosed by the prosecution under sub. (7). That the defendant disclosed to the jury that the witness had been convicted of a crime did not obviate the requirement that the status be disclosed. A witness's probationary status is relevant because it and the fear of possible revocation are pertinent to the material issue of whether the witness has ulterior motives to shape his or her testimony. State v. White, 2004 WI App 78, 271 Wis. 2d 742, 680 N.W.2d 362, 03-1132. Due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain. However, a defendant making a statutory discovery demand may be entitled to material exculpatory impeachment evidence before entering into a plea bargain if the plea bargain is entered into within the time frame when the prosecutor would have been statutorily required to disclose the information. A defendant may withdraw a guilty plea on nonconstitutional grounds after demonstrating that withdrawal is necessary to avoid a manifest injustice. State v. Harris, 2004 WI 64, 272 Wis. 2d 80, 680 N.W.2d 737, 02-2433. Sub. (7m) (a) does not prevent the prosecution, whose evidence was excluded for violation of this section, from moving for dismissal without prejudice and refiling the charges and introducing the same evidence in a subsequent proceeding if there was no violation of this section in the subsequent proceeding. State v. Miller, 2004 WI App 117, 274 Wis. 2d 471, 683 N.W.2d 485, 03-1747. Of necessity, the defense of alibi involves presence of the defendant at a place other than the scene of the crime, at the time the crime was committed. Since an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused's guilt, a purported alibi that leaves it possible for the accused to be the guilty person is no alibi at all. In this case, testimony did not constitute an alibi because it placed the defendant in the same hallway as the crime scene and did not indicate that it was physically impossible for the defendant to have committed the offense, but placed her in the immediate vicinity of the crime. Therefore, notice of an alibi witness under sub. (8) was not required. State v. Harp, 2005 WI App 250, 288 Wis. 2d 441, 707 N.W.2d 304, 04-3240. The test of whether evidence should be disclosed is not whether in fact the prosecutor knows of its existence but, rather, whether by the exercise of due diligence the prosecutor should have discovered it. State v. Harris, 2008 WI 15, 307 Wis. 2d 555, 745 N.W.2d 397, 06-0882. The circuit court erroneously exercised its discretion in failing to advise the jury that the state had failed to make timely disclosure of reports to the defendant under the criminal discovery statute, even though the state's failure to abide by the criminal discovery statute was not prejudicial error. However, this error was also subject to the harmless error test and was also not prejudicial. State v. Harris, 2008 WI 15, 307 Wis. 2d 555, 745 N.W.2d 397, 06-0882. The defendant has no statutory subpoena right to obtain and copy police investigation reports and nonprivileged materials prior to a preliminary examination. Section 972.11 does not allow a criminal defendant access to the civil subpoena duces tecum power embodied in s. 805.07(2). State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826. Whether evidence could have been admitted in the state's case is not the test of admissibility of rebuttal evidence. The evidence may well have been admissible or "appropriate" in the plaintiff/state's case-in-chief, but only became necessary at rebuttal. State v. Sandoval, 2009 WI App 61, 318 Wis. 2d 126, 767 N.W.2d 291, 08-0482. The circuit court properly exercised its discretion under sub. (6) in granting the state's motion for a protective order allowing the defense access at a state facility to a computer hard drive allegedly containing child pornography evidence, but prohibiting the defense from obtaining a copy of the hard drive. In light of the serious harms associated with child pornography and the ease with which electronically-stored files are widely disseminated, the court reasonably exercised its direction in granting the motion. State v. Bowser, 2009 WI App 114, 321 Wis. 2d 221, 772 N.W.2d 666, 08-0206. Sub, (8) (a), by its plain language, only bars a prosecutor from commenting on missing alibi witnesses whom the defendant has named in the notice of alibi. State v. Saunders, 2011 WI App 156, 338 Wis. 2d 160, 807 N.W.2d 679, 10-2393. Fingerprint evidence excluded from the case-in-chief due to a discovery sanction under sub. (7m) may later be used to challenge the defendant's testimony in rebuttal. Under bona fide rebuttal evidence is admissible despite the absence of any disclosure by the state. The test for excluding testimony for impeachment purposes when the defendant takes the stand is untrustworthiness. Here, expert witness and fingerprint evidence were excluded by the trial court due to a statutory discovery violation, not due to the untrustworthiness or unreliability of the evidence. State v. Novy, 2012 WI App 10, 338 Wis. 2d 439, 809 N.W.2d 889, 11-0407. While sub. (5) gives a defendant the right to inspect reports of the results of blood tests, it does not provide for inspection or testing if the blood itself is not going to be introduced into evidence. No statute or case law requires production of the sample, and consequently, no duty devolves upon the district attorney to preserve or maintain a quantity of a blood sample in order that a defendant may retest the blood. State v. Weissinger, 2014 WI App 73, 355 Wis. 2d 546, 851 N.W.2d 780, 13-0218. Affirmed on other grounds. 2015 WI 42 362 Wis. 2d 1, 863 N.W.2d 592, 13-0218. A witness list was not provided within a reasonable time when submission by the district attorney violated 2 court orders setting the time for submitting the list. Those court orders established a "reasonable time before trial" for the parties to list their witnesses. The burden was on the district attorney's office to show that it had good cause for this violation, not on the defendant to show that she was prejudiced. There is no exception for a district attorney's discovery violation so that the significant consequences of the court's order will not be borne by the "blameless public." State v. Prieto, 2016 WI App 15, 366 Wis. 2d 794, 876 N.W.2d 154, 15-0279. The state unconstitutionally excluded the defendant's alibi testimony for failure to comply with this section, but the error was harmless. Alicea v. Gagnon, 675 F.2d 913 (1982). Comparison of federal discovery and the ABA standards with the Wisconsin statute. 1971 WLR 614.