AB721: Bill Text

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.

AB721,6,14 (b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial. The and the names of witnesses to the written and defendant's oral statements which the state plans to use in the course of the trial shall also be furnished.

AB721, s. 8 Section 8. 971.23 (1) (g) and (h) of the statutes are created to read:

AB721,6,17 971.23 (1) (g) All relevant physical evidence seized or obtained as a part of the investigation of the offenses charged.

AB721,6,18 (h) Any exculpatory evidence.

AB721, s. 9 Section 9. 971.23 (2) (title) of the statutes is repealed.

AB721, s. 10 Section 10. 971.23 (2) of the statutes is renumbered 971.23 (1) (c) and amended to read:

AB721,6,24 971.23 (1) (c) Upon demand prior to trial, the district attorney shall furnish the defendant a A copy of the defendant's criminal record which is within the possession, custody or control of the state.

AB721, s. 11 Section 11. 971.23 (2m) of the statutes is created to read:

AB721,7,5 971.23 (2m) What a defendant must disclose to the district attorney. Upon demand, the defendant or his or her attorney shall disclose to the district attorney and shall permit the district attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the defendant:

AB721,7,13 (a) A list of all witnesses, other than the defendant, whom the defendant intends to call at trial, together with their addresses and any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case and including the results of any physical or mental examination, scientific test, experiment or comparison that the defendant intends to offer in evidence at trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only or to reports subject to disclosure under s. 972.11 (5).

AB721,7,15 (c) Any physical evidence that the defendant intends to offer in evidence at the trial.

AB721, s. 12 Section 12. 971.23 (3) (title) of the statutes is repealed and recreated to read:

AB721,7,18 971.23 (3) (title) Comment or instruction on failure to disclose information or call witness.

AB721, s. 13 Section 13. 971.23 (3) (a) of the statutes is renumbered 971.23 (1) (d) and amended to read:

AB721,8,4 971.23 (1) (d) A defendant may, not less than 15 days nor more than 30 days before trial, serve upon the district attorney an offer in writing to furnish the state a list of all witnesses the defendant intends to call at the trial, whereupon within 5 days after the receipt of such offer, the district attorney shall furnish the defendant a list of all witnesses and their addresses whom the district attorney intends to call at the trial. Within 5 days after the district attorney furnishes such list, the defendant shall furnish the district attorney a list of all witnesses and their addresses whom the defendant intends to call at the trial. This section shall paragraph does not apply to rebuttal witnesses or those called for impeachment only.

AB721, s. 14 Section 14. 971.23 (3) (am) of the statutes is created to read:

AB721,8,9 971.23 (3) (am) A court may 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).

AB721, s. 15 Section 15. 971.23 (4) of the statutes is repealed.

AB721, s. 16 Section 16. 971.23 (5) of the statutes is amended to read:

AB721,8,17 971.23 (5) Scientific testing. On motion of a party subject to s. 971.31 (5), the court may order the production of any item of physical evidence which is intended to be introduced at the trial for scientific analysis under such terms and conditions as the court prescribes. Except as provided in s. 972.11 (5), 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.

AB721, s. 17 Section 17. 971.23 (6) of the statutes is amended to read:

AB721,9,2 971.23 (6) Protective order. Upon motion of a party, the court may at any time order that discovery, inspection or the listing of witnesses required under this section be denied, restricted or deferred, or make other appropriate orders. If the district attorney or defense counsel certifies that to list a witness may subject the witness or others to physical or economic harm or coercion, the court may order that the deposition of the witness be taken pursuant to s. 967.04 (2) to (6). The name of the witness need not be divulged prior to the taking of such deposition. If the witness becomes unavailable or changes his or her testimony, the deposition shall be admissible at trial as substantive evidence.

AB721, s. 18 Section 18. 971.23 (6m) (title) of the statutes is created to read:

AB721,9,4 971.23 (6m) (title) In camera proceedings.

AB721, s. 19 Section 19. 971.23 (7) of the statutes is amended to read:

AB721,9,14 971.23 (7) Continuing duty to disclose; failure to comply. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which are subject to discovery, inspection or production hereunder under this section, the party shall promptly notify the other party of the existence of the additional material or names. The court shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.

AB721, s. 20 Section 20. 971.23 (8) (a) of the statutes is amended to read:

AB721,9,25 971.23 (8) (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 30 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known. If at the close of the state's case the defendant withdraws the alibi or if at the close of the defendant's case the defendant does not call some or any of the alibi witnesses, the state shall not comment on the defendant's withdrawal or on the failure to call some or any of the alibi witnesses. The state shall not call any alibi witnesses not called by the defendant for the purpose of impeaching the defendant's credibility with regard to the alibi notice. Nothing in this section may prohibit the state from calling said alibi witnesses for any other purpose.

AB721, s. 21 Section 21. 971.23 (8) (d) of the statutes is amended to read:

AB721,10,9 971.23 (8) (d) Within 10 15 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.

AB721, s. 22 Section 22. 971.23 (8) (e) of the statutes is created to read:

AB721,10,14 971.23 (8) (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).

AB721, s. 23 Section 23. 971.23 (9) (title) of the statutes is repealed.

AB721, s. 24 Section 24. 971.23 (9) of the statutes is renumbered 971.23 (1) (bm) and amended to read:

AB721,10,22 971.23 (1) (bm) Notwithstanding sub. (1), if the district attorney intends to use evidence Evidence obtained in the manner described under s. 968.31 (2) (b), if the district attorney shall notify the defendant of that intention not less than 30 days before trial. The district attorney shall permit the defendant to inspect, listen to or copy the evidence upon demand intends to use the evidence at trial.

AB721, s. 25 Section 25. 971.24 (title) and (1) of the statutes are repealed.

AB721, s. 26 Section 26. 971.24 (2) of the statutes is renumbered 971.23 (6m) and amended to read:

AB721,11,5 971.23 (6m) Either party may move for an in camera inspection by the court of the documents referred to in sub. (1) any document required to be disclosed under sub. (1) or (2m) for the purpose of masking or deleting any material which is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

AB721, s. 27 Section 27. 971.24 (3) of the statutes is renumbered 971.23 (1) (e) and amended to read:

AB721,11,22 971.23 (1) (e) Upon demand prior to trial or revocation hearing under s. 304.06 (3) or 973.10 (2), the district attorney shall disclose to a defendant the existence of Any relevant written or recorded statements of a witness named on a list under par. (d) or reports of the statements of those witnesses, including any reports or statements of experts made in connection with the case, the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at the trial and 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. This paragraph does not apply to reports subject to disclosure under s. 972.11 (5).

AB721, s. 28 Section 28. 971.25 (title) of the statutes is repealed.

AB721, s. 29 Section 29. 971.25 (1) of the statutes is renumbered 971.23 (1) (f) and amended to read:

AB721,12,3 971.23 (1) (f) The district attorney shall disclose to the defendant, upon demand, the criminal record of a prosecution witness which is known to the district attorney.

AB721, s. 30 Section 30. 971.25 (2) of the statutes is renumbered 971.23 (2m) (b) and amended to read:

AB721,12,8 971.23 (2m) (b) The defense attorney shall disclose to the district attorney, upon demand, the criminal record of a defense witness, other than the defendant, which is known to the defense attorney.