971.23(7m)(b)
(b) In addition to or in lieu of any sanction specified in
par. (a), a court may, subject to
sub. (3), advise the jury of any failure or refusal to disclose material or information required to be disclosed under
sub. (1) or
(2m), or of any untimely disclosure of material or information required to be disclosed under
sub. (1) or
(2m).
971.23(8)(a)(a) If the defendant intends to rely upon an alibi as a defense, the defendant shall give notice to the district attorney at the arraignment or at least 15 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known. If at the close of the state's case the defendant withdraws the alibi or if at the close of the defendant's case the defendant does not call some or any of the alibi witnesses, the state shall not comment on the defendant's withdrawal or on the failure to call some or any of the alibi witnesses. The state shall not call any alibi witnesses not called by the defendant for the purpose of impeaching the defendant's credibility with regard to the alibi notice. Nothing in this section may prohibit the state from calling said alibi witnesses for any other purpose.
971.23(8)(b)
(b) In default of such notice, no evidence of the alibi shall be received unless the court, for cause, orders otherwise.
971.23(8)(c)
(c) The court may enlarge the time for filing a notice of alibi as provided in
par. (a) for cause.
971.23(8)(d)
(d) Within 10 days after receipt of the notice of alibi, or such other time as the court orders, the district attorney shall furnish the defendant notice in writing of the names and addresses, if known, of any witnesses whom the state proposes to offer in rebuttal to discredit the defendant's alibi. In default of such notice, no rebuttal evidence on the alibi issue shall be received unless the court, for cause, orders otherwise.
971.23(8)(e)
(e) A witness list required under
par. (a) or
(d) shall be provided in addition to a witness list required under
sub. (1) (d) or
(2m) (a), and a witness disclosed on a list under
sub. (1) (d) or
(2m) (a) shall be included on a list under
par. (a) or
(d) if the witness is required to be disclosed under
par. (a) or
(d).
971.23(10)
(10) Payment of photocopy costs in cases involving indigent defendants. When the state public defender or a private attorney appointed under
s. 977.08 requests photocopies of any item that is discoverable under this section, the state public defender shall pay any fee charged for the photocopies from the appropriation under
s. 20.550 (1) (a). If the person providing photocopies under this section charges the state public defender a fee for the photocopies, the fee may not exceed the actual, necessary and direct cost of photocopying.
971.23 Annotation
Inadequate preparation for trial which resulted 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 W (2d) 344, 204 NW (2d) 482.
971.23 Annotation
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 W (2d) 311, 210 NW (2d) 755.
971.23 Annotation
The last sentence of (3) (a) providing "This section shall not apply to rebuttal witnesses or those called for impeachment only." is stricken as unconstitutional. Sub. (8), stats. 1973, is constitutional because after notice of alibi is given the state would have a duty to submit a list of rebuttal witnesses under (3) (a). This satisfies the due process requirement of reciprocity. Allison v. State, 62 W (2d) 14, 214 NW (2d) 437. [But see Tucker v. State, 84 W (2d) 630 (1978), for discussion of reciprocity provision in (8) (d) added to this section by ch. 196, laws of 1973.]
971.23 Annotation
When a party successfully moves under former s. 971.24 (2) 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 the aid of the supreme court upon appellate review. State v. Van Ark, 62 W (2d) 155, 215 NW (2d) 41.
971.23 Annotation
Retroactive effect of ruling in Allison as to (3) (a) denied where defendant not prejudiced by operation of alibi statute. Rohl v. State, 65 W (2d) 683, 223 NW (2d) 567.
971.23 Annotation
Under both the statutory discovery provisions of this section and the constitutional duty of the state to disclose to a criminal defendant evidence exculpatory in nature, there is no requirement to provide exculpatory evidence which is not within the exclusive possession of the state and does not surprise or prejudice the defendant. State v. Calhoun, 67 W (2d) 204, 226 NW (2d) 504.
971.23 Annotation
The calling of a rebuttal witness not included in the state's witness list, as allowed by (3) (a), was not unconstitutional. 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 W (2d) 102, 230 NW (2d) 139.
971.23 Annotation
The prosecutor's duty under former s. 971.25 (1) does not ordinarily extend to discovery of criminal records from other jurisdictions. The prosecutor must make good-faith efforts to obtain such records from other jurisdictions specifically requested by the defense. Jones v. State, 69 W (2d) 337, 230 NW (2d) 677.
971.23 Annotation
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 W (2d) 481, 230 NW (2d) 745.
971.23 Annotation
Where the state calls a witness not included in its list of witnesses exchanged under (3), 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 W (2d) 534, 230 NW (2d) 750.
971.23 Annotation
The written summary of all oral statements made by defendant which the state intends to introduce at trial and which must be provided to defendant under (1), upon request is not limited to statements to police; hence, incriminating statements made by defendant to 2 witnesses were within the scope of the disclosure statute. Kutchera v. State, 69 W (2d) 534, 230 NW (2d) 750.
971.23 Annotation
All statements, whether possessed by direct-examining counsel or cross-examining counsel, must be produced; mere notes need not be produced. State v. Lenarchick, 74 W (2d) 425, 247 NW (2d) 80.
971.23 Annotation
Where defendant relies solely on defense of alibi and on day of trial complaining witness changes mind as to date of occurrence, request for continuance based on surprise was properly denied because defendant failed to show prejudicial effect of unexpected testimony. See note to 971.10, citing Angus v. State, 76 W (2d) 191, 251 NW (2d) 28.
971.23 Annotation
Generalized inspection of prosecution files by defense counsel prior to preliminary hearing is so inherently harmful to orderly administration of justice that trial court may not confer such right. Matter of State ex rel. Lynch v. County Ct. 82 W (2d) 454, 262 NW (2d) 773.
971.23 Annotation
Under (8) (d), state must provide names of all people who will testify at any time during trial that defendant was at scene of crime. Tucker v. State, 84 W (2d) 630, 267 NW (2d) 630 (1978).
971.23 Annotation
Trial court erred in ordering defense to turn over "transcripts" of interviews between defense counsel, defendant and alibi witnesses, where oral statements were not recorded verbatim. Pohl v. State, 96 W (2d) 290, 291 NW (2d) 554 (1980).
971.23 Annotation
See note to art. I, sec. 8, citing State v. Copening, 100 W (2d) 700, 303 NW (2d) 821 (1981).
971.23 Annotation
Under facts of case, victim's medical records were not reports required to be disclosed under (5). State v. Moriarty, 107 W (2d) 622, 321 NW (2d) 324 (Ct. App. 1982).
971.23 Annotation
Where defendant was not relying on alibi defense and did not file notice of alibi, judge did not abuse discretion in barring alibi testimony. State v. Burroughs, 117 W (2d) 293, 344 NW (2d) 149 (1984).
971.23 Annotation
Disclosure of exculpatory evidence discussed. State v. Ruiz, 118 W (2d) 177, 347 NW (2d) 352 (1984).
971.23 Annotation
Where defendant was charged under "party to a crime" statute for conspiratorial planning of robbery, alibi notice was required only regarding defendant's whereabouts during the robbery, not during the planning sessions. State v. Horenberger, 119 W (2d) 237, 349 NW (2d) 692 (1984).
971.23 Annotation
See note to 345.421, citing State v. Ehlen, 119 W (2d) 451, 351 NW (2d) 503 (1984).
971.23 Annotation
Sub. (7) requires determination by trial court whether noncompliance was for good cause; if it was not, exclusion is mandatory. If it was, sanction is discretionary. State v. Wild, 146 W (2d) 18, 429 NW (2d) 105 (Ct. App. 1988).
971.23 Annotation
Criminal defendant is not required to comply with rules of criminal procedure to obtain a record available under the open records law. State ex rel. Young v. Shaw, 165 W (2d) 276, 477 NW (2d) 340 (Ct. App. 1991).
971.23 Annotation
Where 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 where the court determined that the records contained nothing which was material to the fairness of the trial. State v. Mainiero, 189 W (2d) 80, 525 NW (2d) 304 (Ct. App. 1994).
971.23 Annotation
Although of public record, it is an intolerable burden on a defendant to be required to continually comb criminal records to determine if any of the state's witnesses are subject to criminal penalty. The burden is on the state to provide this information, particularly in light of a discovery request for the criminal records of the state's witnesses. State v. Randall, 197 W (2d) 29, 539 NW (2d) 708 (Ct. App. 1995).
971.23 Annotation
State unconstitutionally excluded defendant's alibi testimony for failure to comply with this section, but error was harmless. Alicea v. Gagnon, 675 F (2d) 913 (1982).
971.23 Annotation
Comparison of federal discovery and the ABA standards with the Wisconsin statute. 1971 WLR 614.
971.26
971.26
Formal defects. No indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant.
971.26 Annotation
The fact that the information alleged the wrong date for the offense is not prejudicial where the complaint stated the correct date and there was no evidence defendant was misled. A charge of violation of 946.42 (2) (a) (c) is a technical defect of language in a case where both paragraphs applied. Burkhalter v. State, 52 W (2d) 413, 190 NW (2d) 502.
971.26 Annotation
The failure to cite the correct statutory subsections violated in the information and certificate of conviction is immaterial where defendant cannot show he was misled. Craig v. State, 55 W (2d) 489, 198 NW (2d) 609.
971.26 Annotation
Lack of prejudice to defendant, notwithstanding technical defects in the information, is made patent by his counsel's concession that his client knew precisely what crime he was charged with having committed, and the absence in the record of any such claim asserted during the case, which was vigorously tried. Clark v. State, 62 W (2d) 194, 214 NW (2d) 450.
971.26 Annotation
Failure to allege lack of consent was not fatal jurisdictional defect of information charging burglary. Schleiss v. State, 71 W (2d) 733, 239 NW (2d) 68.
971.27
971.27
Lost information, complaint or indictment. In the case of the loss or destruction of an information or complaint, the district attorney may file a copy, and the prosecution shall proceed without delay from that cause. In the case of the loss or destruction of an indictment, an information may be filed.
971.28
971.28
Pleading judgment. In pleading a judgment or other determination of or proceeding before any court or officer, it shall be sufficient to state that the judgment or determination was duly rendered or made or the proceeding duly had.
971.29
971.29
Amending the charge. 971.29(1)(1) A complaint or information may be amended at any time prior to arraignment without leave of the court.
971.29(2)
(2) At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.
971.29(3)
(3) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.
971.29 Annotation
Where there was evidence which a jury could believe proved guilt, the trial court cannot sua sponte set aside the verdict, amend the information, and find defendant guilty on a lesser charge. State v. Helnik, 47 W (2d) 720, 177 NW (2d) 881.
971.29 Annotation
The variance is not material where the court amended the charge against the defendant to charge a lesser included crime. Moore v. State, 55 W (2d) 1, 197 NW (2d) 820.
971.29 Annotation
Sub. (2), in regard to amendments after verdict, applies only to technical variances in the complaint, not material to the merits of the action. It may not be used to substitute a new charge. State v. Duda, 60 W (2d) 431, 210 NW (2d) 763.
971.29 Annotation
The refusal of a proposed amendment of an information has no effect on the original information. An amendment to charge a violation of a substantive section as well as a separate penalty section is not prejudicial to a defendant. Wagner v. State, 60 W (2d) 722, 211 NW (2d) 449.
971.29 Annotation
Sub. (1) does not prohibit amendment of the information with leave of court after arraignment but before trial provided defendant's rights are not prejudiced. Whitaker v. State, 83 W (2d) 368, 265 NW (2d) 575 (1978).
971.29 Annotation
Failure of the state to obtain court permission to file a post-arraignment amended information did not deprive the court of subject matter jurisdiction. State v. Webster, 196 W (2d) 308, 538 NW (2d) 810 (Ct. App. 1995).
971.29 Annotation
The trial court cannot after trial amend a charge of sexual intercourse with a child to one of contributing to the delinquency of a minor since the offenses require proof of different facts and defendant is entitled to notice of the charge against him. LaFond v. Quatsoe, 325 F Supp. 1010.
971.30(1)(1) ``Motion" means an application for an order.
971.30(2)
(2) Unless otherwise provided or ordered by the court, all motions shall meet the following criteria:
971.30(2)(b)
(b) Contain a caption setting forth the name of the court, the venue, the title of the action, the file number, a denomination of the party seeking the order or relief and a brief description of the type of order or relief sought.
971.30(2)(c)
(c) State with particularity the grounds for the motion and the order or relief sought.
971.30 History
History: Sup. Ct. Order, 171 W (2d) xix (1992).
971.31
971.31
Motions before trial. 971.31(1)
(1) Any motion which is capable of determination without the trial of the general issue may be made before trial.
971.31(2)
(2) Except as provided in
sub. (5), defenses and objections based on defects in the institution of the proceedings, insufficiency of the complaint, information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence shall be raised before trial by motion or be deemed waived. The court may, however, entertain such motion at the trial, in which case the defendant waives any jeopardy that may have attached. The motion to suppress evidence shall be so entertained with waiver of jeopardy when it appears that the defendant is surprised by the state's possession of such evidence.
971.31(3)
(3) The admissibility of any statement of the defendant shall be determined at the trial by the court in an evidentiary hearing out of the presence of the jury, unless the defendant, by motion, challenges the admissibility of such statement before trial.
971.31(4)
(4) Except as provided in
sub. (3), a motion shall be determined before trial of the general issue unless the court orders that it be deferred for determination at the trial. All issues of fact arising out of such motion shall be tried by the court without a jury.
971.31(5)(a)(a) Motions before trial shall be served and filed within 10 days after the initial appearance of the defendant in a misdemeanor action or 10 days after arraignment in a felony action unless the court otherwise permits.
971.31(5)(b)
(b) In felony actions, motions to suppress evidence or motions under
s. 971.23 or objections to the admissibility of statements of a defendant shall not be made at a preliminary examination and not until an information has been filed.
971.31(5)(c)
(c) In felony actions, objections based on the insufficiency of the complaint shall be made prior to the preliminary examination or waiver thereof or be deemed waived.
971.31(6)
(6) If the court grants a motion to dismiss based upon a defect in the indictment, information or complaint, or in the institution of the proceedings, it may order that the defendant be held in custody or that the defendant's bail be continued for not more than 72 hours pending issuance of a new summons or warrant or the filing of a new indictment, information or complaint.
971.31(7)
(7) If the motion to dismiss is based upon a misnomer, the court shall forthwith amend the indictment, information or complaint in that respect, and require the defendant to plead thereto.
971.31(8)
(8) No complaint, indictment, information, process, return or other proceeding shall be dismissed or reversed for any error or mistake where the case and the identity of the defendant may be readily understood by the court; and the court may order an amendment curing such defects.
971.31(9)
(9) A motion required to be served on a defendant may be served upon the defendant's attorney of record.
971.31(10)
(10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.
971.31(11)
(11) In actions under
s. 940.225,
948.02,
948.025 or
948.095, evidence which is admissible under
s. 972.11 (2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial.
971.31(12)
(12) In actions under
s. 940.22, the court may determine the admissibility of evidence under
s. 972.11 only upon a pretrial motion.
971.31(13)(a)(a) A child over whom the court has jurisdiction under
s. 938.183 (1) (b) or
(c) on a misdemeanor action may make a motion before trial to transfer jurisdiction to the court assigned to exercise jurisdiction under
chs. 48 and
938.The motion may allege that the child did not commit the violation under the circumstances described in
s. 938.183 (1) (b) or
(c), whichever is applicable, or that transfer of jurisdiction would be appropriate because of all of the following:
971.31(13)(a)1.
1. If convicted, the child could not receive adequate treatment in the criminal justice system.
971.31(13)(a)2.
2. Transferring jurisdiction to the court assigned to exercise jurisdiction under
chs. 48 and
938 would not depreciate the seriousness of the offense.
971.31(13)(a)3.
3. Retaining jurisdiction is not necessary to deter the child or other children from committing the violation of which the child is accused under the circumstances specified in
s. 938.183 (1) (b) or
(c), whichever is applicable.
971.31(13)(b)
(b) The court shall retain jurisdiction unless the child proves by a preponderance of the evidence that he or she did not commit the violation under the circumstances described in
s. 938.183 (1) (b) or
(c) or that transfer would be appropriate because all of the factors specified in
par. (a) 1.,
2. and
3. are met.
971.31 Annotation
Where defendant made a pro se motion before trial to suppress evidence of identification at a lineup, but trial counsel refused to pursue the motion for strategic reasons, this amounts to a waiver of the motion. State v. McDonald, 50 W (2d) 534, 184 NW (2d) 886.
971.31 Annotation
A claim of illegal arrest for lack of probable cause must be raised by motion before trial. Lampkins v. State, 51 W (2d) 564, 187 NW (2d) 164.
971.31 Annotation
The waiver provision in sub. (2) is constitutional. Day v. State, 52 W (2d) 122, 187 NW (2d) 790.
971.31 Annotation
A defendant is not required to make a motion to withdraw his plea to preserve his right to a review of an alleged error of refusal to suppress evidence. State v. Meier, 60 W (2d) 452, 210 NW (2d) 685.
