AB721: Bill Text

LRB-3240/1

JEO:skg:jlb

1995 - 1996 LEGISLATURE

1995 Assembly BILL 721

December 6, 1995 - Introduced by Representatives Huber, Klusman, Murat, Green, Goetsch, Grobschmidt, Ladwig, Duff, Springer, Dobyns, Freese, Hanson, Walker, Schneiders, Plache, F. Lasee, Brandemuehl, Ainsworth, Olsen, Gunderson, Otte, Lehman, Nass, Lazich and Powers, cosponsored by Senators Burke, Darling, Buettner and Decker. Referred to Committee on Judiciary.

AB721,1,8 An Act to repeal 971.23 (2) (title), 971.23 (4), 971.23 (9) (title), 971.24 (title) and (1) and 971.25 (title); to renumber and amend 971.23 (1), 971.23 (2), 971.23 (3) (a), 971.23 (9), 971.24 (2), 971.24 (3), 971.25 (1) and 971.25 (2); to amend 48.293 (2), 165.79 (1), 908.08 (6), 967.08 (3) (c), 971.23 (5), 971.23 (6), 971.23 (7), 971.23 (8) (a), 971.23 (8) (d), 971.31 (5) (b) and 972.10 (5); to repeal and recreate 971.23 (1) (title) and 971.23 (3) (title); and to create 304.06 (3d), 971.23 (1) (g) and (h), 971.23 (2m), 971.23 (3) (am), 971.23 (6m) (title), 971.23 (8) (e) and 973.10 (2g) of the statutes; relating to: discovery in criminal cases.

Analysis by the Legislative Reference Bureau

This bill makes various changes in current law governing discovery in criminal cases. The provisions of current law and the changes made by this bill are as follows:

Current law

1. Under current law, a prosecutor in a criminal case must, at the request of the defendant in the case, disclose to the defendant certain information concerning the case, or allow the defendant to inspect and copy or photograph certain information and items relating to the case, if the information or item is in the possession, custody or control of the state. Specifically, under current law the prosecutor must disclose or provide access to the following information or items:

a) Any written or recorded statement concerning the alleged crime made by the defendant.

b) A written summary of all oral statements of the defendant which the prosecutor plans to use during the trial.

c) The names of witnesses to the written and oral statements which the prosecutor plans to use during the trial.

d) A copy of the defendant's criminal record and the criminal record of a prosecution witness that is known to the prosecutor.

e) Evidence obtained from a one-party consent recording that the prosecutor intends to use at trial.

Also, under case law interpreting constitutional provisions relating to criminal cases, a prosecutor must also disclose evidence in his or her possession that is favorable to the defendant.

2. Under current law, both the prosecutor and the defendant or defense attorney must make reciprocal disclosures of information or allow reciprocal access to certain information or items as follows:

a) Before a witness other than the defendant testifies at trial, a party must provide to the other party any written or phonographically recorded statements of the witness.

b) On the motion of a party, all parties must produce, at a reasonable time and place designated by the court, all physical evidence which each party intends to introduce in evidence at the trial.

c) On the motion of a party, a court may order that any item of physical evidence a party intends to introduce at the trial be produced for scientific analysis. The court may also order the production of reports or results of any scientific tests or experiments made by any party relating to evidence intended to be introduced at the trial.

3. Under current law, if a defendant offers to provide the prosecutor with a list of witnesses whom he or she intends to call at trial, the prosecutor must provide to the defendant a list of witnesses whom the prosecutor intends to call at trial. After receiving the prosecutor's witness list, the defendant must provide his or her witness list to the prosecutor.

4. Under current law, if a defendant intends to rely on an alibi as a defense, he or she must provide the prosecutor with a notice of alibi at least 15 days before trial. The notice of alibi must specify where the defendant claims to have been at the time the crime was committed and list the witnesses, if known, to the defendant's alibi. Within 10 days of receiving a notice of alibi, the prosecutor must provide the defendant with a list of witnesses whom the prosecutor intends to offer in rebuttal to discredit the defendant's alibi.

5. Under current law, a defense attorney must, at the request of the prosecutor, disclose to the prosecutor the criminal record of a defense witness, other than the defendant, that is known to the defense attorney.

6. Finally, under current law, if, after complying with a requirement concerning disclosure and discovery, a party discovers additional material or the names of additional witnesses that are subject to discovery, inspection or production, the party must promptly notify the other party of the existence of the additional material or names.

Changes made by this bill

This bill expands the discovery and disclosure requirements that apply to both the prosecutor and the defendant by doing all of the following:

1. The bill eliminates the procedure under current law concerning the exchange of witness lists (described in item 3, above) and instead requires both the prosecutor and the defendant or defense attorney to provide, at the request of the other party, a list of witnesses whom he or she intends to call at trial, with the exception that the defendant is not required to list himself or herself on the witness list provided to the prosecutor.

2. The bill changes current law concerning notice of alibi (described in item 4, above) by requiring the defendant to provide a notice of alibi at least 30 days before trial and by requiring the prosecutor to provide a list of alibi rebuttal witnesses within 15 days of receiving the defendant's alibi notice. The bill also provides that any witness who will testify about the alibi must be disclosed as part of the notice of alibi procedure even if that witness must also be disclosed on the witness lists that the parties must exchange under the bill.

3. The bill eliminates the provisions of current law that require a motion by a party to produce physical evidence for inspection. Instead, the bill requires the following: a) the prosecutor must, at the request of the defendant or defense counsel, disclose and make available for inspection all relevant physical evidence seized or obtained as a part of the investigation of the offense charged; and b) the defendant or defense counsel must, at the request of the prosecutor, disclose and make available for inspection any physical evidence that the defendant intends to offer in evidence at the trial. The bill does not change current law provisions concerning the production of physical evidence for scientific testing.

4. The bill eliminates the provision of current law that requires a court to order production of reports or results of any scientific test or experiments relating to evidence intended to be introduced at trial. Instead, the bill requires both a prosecutor and a defendant or defense counsel to disclose, at the request of the other party, and make available for inspection any relevant written or recorded statements of a witness who is on a witness list required under the bill, including any reports or statements of an expert witness made concerning the case and the results of any physical or mental examination, scientific test, experiment or comparison that the party calling the witness intends to offer in evidence at trial.

5. The bill codifies the requirement established in case law that a prosecutor must disclose and allow inspection and copying of any evidence that is favorable to the defendant.

6. The bill permits a judge to advise a jury that a prosecutor or defendant or defense attorney failed or refused to disclose, or disclosed in an untimely manner, any information required to be disclosed under the bill.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB721, s. 1 Section 1. 48.293 (2) of the statutes is amended to read:

AB721,4,11 48.293 (2) All records relating to a child which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party, upon demand and upon presentation of releases where necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with permission of the court. The court may instruct counsel not to disclose specified items in the materials to the child or the parent if the court reasonably believes that the disclosure would be harmful to the interests of the child. Sections 971.23 to 971.25 and 972.11 (5) shall be applicable in all delinquency proceedings under this chapter except the court shall establish the timetable for the disclosures required under ss. 971.23 (3), (1), (2m) and (8) and (9) and 972.11 (5).

AB721, s. 2 Section 2. 165.79 (1) of the statutes is amended to read:

AB721,5,4 165.79 (1) Evidence, information and analyses of evidence obtained from law enforcement officers by the laboratories is privileged and not available to persons other than law enforcement officers nor is the defendant entitled to an inspection of information and evidence submitted to the laboratories by the state or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the state at a preliminary hearing and except as provided in s. 971.23. Upon request of a defendant in a felony action, approved by the presiding judge, the laboratories shall conduct analyses of evidence on behalf of the defendant. No prosecuting officer is entitled to an inspection of information and evidence submitted to the laboratories by the defendant, or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the accused at a preliminary hearing and except as provided in s. 971.23. Employes who made examinations or analyses of evidence shall attend the criminal trial as witnesses, without subpoena, upon reasonable written notice from either party requesting the attendance. Nothing in this section limits the right of a court to order the production of evidence or reports under s. 971.23 prior to trial.

AB721, s. 3 Section 3. 304.06 (3d) of the statutes is created to read:

AB721,5,14 304.06 (3d) Upon demand prior to a revocation hearing under sub. (3), the district attorney shall disclose to a defendant the existence of any videotaped oral statement of a child under s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the videotaped statement. If, subsequent to compliance with this subsection, the state obtains possession, custody or control of such a videotaped statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the videotaped statement.

AB721, s. 4 Section 4. 908.08 (6) of the statutes is amended to read:

AB721,5,18 908.08 (6) Videotaped oral statements of children under this section in the possession, custody or control of the state are discoverable under ss. 48.293 (3) and 971.24 (3), 304.06 (3d), 971.23 (1) (e) and 973.10 (2g).

AB721, s. 5 Section 5. 967.08 (3) (c) of the statutes is amended to read:

AB721,5,21 967.08 (3) (c) Motions for inspection or testing of physical evidence under s. 971.23 (4) or (5) or for protective orders under s. 971.23 (6).

AB721, s. 6 Section 6. 971.23 (1) (title) of the statutes is repealed and recreated to read:

AB721,5,23 971.23 (1) (title) What a district attorney must disclose to a defendant.

AB721, s. 7 Section 7. 971.23 (1) of the statutes is renumbered 971.23 (1) (intro.) and amended to read:

AB721,6,5 971.23 (1) (intro.) Upon demand, the district attorney shall disclose to the defendant or his or her attorney and shall permit the defendant within a reasonable time before trial or his or her attorney to inspect and copy or photograph any all of the following materials and information, if it is within the possession, custody or control of the state:

AB721,6,10 (a) Any written or recorded statement concerning the alleged crime made by the defendant which is within the possession, custody or control of the state, including the testimony of the defendant in an s. 968.26 a secret proceeding under s. 968.26 or before a grand jury. Upon demand, the district attorney shall furnish the defendant with a, and the names of witnesses to the defendant's written statements.