971.22 Annotation
The timing, specificity, inflammatory nature, and degree of permeation of publicity is extremely important in determining the likelihood of prejudice in the community. State ex rel. Hussong v. Froelich,
62 Wis. 2d 577,
215 N.W.2d 390 (1974).
971.22 Annotation
When news stories concerning the crime were accurate informational articles of a nature that would not cause prejudice and 4 months had elapsed between the publication of the news stories and the trial, it tended to indicate little or no prejudice against the defendant. Jones v. State,
66 Wis. 2d 105,
223 N.W.2d 889 91974).
971.22 Annotation
There was no abuse of discretion in not changing the venue of a prosecution for 1st-degree murder when the transcript of the hearing on the issuance of the arrest warrant was sealed, the preliminary examination and other hearings were closed to the public and press, the police and prosecutor refused to divulge any facts to the public and press, and press reports were generally free from the details of incriminating evidence, straightforward, and not incendiary. State v. Dean,
67 Wis. 2d 513,
227 N.W.2d 712 (1975).
971.22 Annotation
Only the defendant may waive the right to venue where the crime was committed. State v. Mendoza,
80 Wis. 2d 122,
258 N.W.2d 260 (1977).
971.22 Annotation
The right to venue where the crime occurred is not a fundamental right of a criminal defendant. The decision to move for a change of venue is a tactical judgment delegated to counsel that does not require the defendant's personal concurrence. State v. Hereford,
224 Wis. 2d 605,
592 N.W.2d 247 (Ct. App. 1999).
971.225
971.225
Jury from another county. 971.225(1)
(1) In lieu of changing the place of trial under
s. 971.22 (3), the court may require the selection of a jury under
sub. (2) if:
971.225(1)(a)
(a) The court has decided to sequester the jurors after the commencement of the trial, as provided in
s. 972.12;
971.225(1)(c)
(c) The estimated costs to the county appear to be less using the procedure under this section than using the procedure for holding the trial in another county.
971.225(2)
(2) If the court decides to proceed under this section it shall follow the procedure under
s. 971.22 until the jury is chosen in the 2nd county. At that time, the proceedings shall return to the original county using the jurors selected in the 2nd county. The original county shall reimburse the 2nd county for all applicable costs under
s. 814.22.
971.225 History
History: 1981 c. 115;
1991 a. 39.
971.23
971.23
Discovery and inspection. 971.23(1)
(1)
What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her 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 state:
971.23(1)(a)
(a) Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under
s. 968.26 or before a grand jury, and the names of witnesses to the defendant's written statements.
971.23(1)(b)
(b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements.
971.23(1)(bm)
(bm) Evidence obtained in the manner described under
s. 968.31 (2) (b), if the district attorney intends to use the evidence at trial.
971.23(1)(d)
(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
971.23(1)(e)
(e) Any relevant written or recorded statements of a witness named on a list under
par. (d), including any videotaped oral statement of a child under
s. 908.08, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.
971.23(1)(f)
(f) The criminal record of a prosecution witness which is known to the district attorney.
971.23(1)(g)
(g) Any physical evidence that the district attorney intends to offer in evidence at the trial.
971.23(2m)
(2m) What a defendant must disclose to the district attorney. Upon demand, the defendant or his or her attorney shall, within a reasonable time before trial, disclose to the district attorney and 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:
971.23(2m)(a)
(a) A list of all witnesses, other than the defendant, whom the defendant intends to call at trial, together with their addresses. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
971.23(2m)(am)
(am) Any relevant written or recorded statements of a witness named on a list under
par. (a), including any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, 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.
971.23(2m)(b)
(b) The criminal record of a defense witness, other than the defendant, which is known to the defense attorney.
971.23(2m)(c)
(c) Any physical evidence that the defendant intends to offer in evidence at the trial.
971.23(3)
(3) Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial shall be made or given if the sole basis for such comment or instruction is the fact the name of the witness appears upon a list furnished pursuant to this section.
971.23(5)
(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.
971.23(6)
(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.
971.23(6m)
(6m) In camera proceedings. Either party may move for an in camera inspection by the court of 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.
971.23(7)
(7) Continuing duty to disclose. 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 under this section, the party shall promptly notify the other party of the existence of the additional material or names.
971.23(7m)(a)(a) 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.
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(9)
(9) Deoxyribonucleic acid evidence. 971.23(9)(b)
(b) Notwithstanding
sub. (1) (e) or
(2m) (am), if either party intends to submit deoxyribonucleic acid profile evidence at a trial to prove or disprove the identity of a person, the party seeking to introduce the evidence shall notify the other party of the intent to introduce the evidence in writing by mail at least 45 days before the date set for trial; and shall provide the other party, within 15 days of request, the material identified under
sub. (1) (e), or par.
(2m) (am), whichever is appropriate, that relates to the evidence.
971.23(9)(c)
(c) The court shall exclude deoxyribonucleic acid profile evidence at trial, if the notice and production deadlines under
par. (b) are not met, except the court may waive the 45 day notice requirement or may extend the 15 day production requirement upon stipulation of the parties, or for good cause, if the court finds that no party will be prejudiced by the waiver or extension. The court may in appropriate cases grant the opposing party a recess or continuance.
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) (f). 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 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).
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 Wis. 2d 311,
210 N.W.2d 755 (1973).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
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 Wis. 2d 481,
230 N.W.2d 745 (1975).
971.23 Annotation
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).
971.23 Annotation
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).
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 Wis. 2d 425,
247 N.W.2d 80 (1976).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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 ss. 971.23 (4) and (5). State v. Ehlen,
119 Wis. 2d 451,
351 N.W.2d 503 (1984).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
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 Wis. 2d 29,
539 N.W.2d 708 (Ct. App. 1995).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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).
971.23 Annotation
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.
971.23 Annotation
Sub. (2m) (am) requires that any statement made by a witness named in a list under par. (a) must be disclosed. Once a party is included on the list of witnesses under par. (a), statements by the witness must be disclosed. State v. Gribble, 2001 WI App 227,
248 Wis. 2d 409,
636 N.W.2d 488.
971.23 Annotation
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,___ Wis. 2d ___,
649 N.W.2d 300.
971.23 Annotation
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).
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 was not prejudicial when the complaint stated the correct date and there was no evidence that the defendant was misled. A charge of the violation of s. "946.42 (2) (a) (c)" was a technical defect of language when both paragraphs applied. Burkhalter v. State,
52 Wis. 2d 413,
190 N.W.2d 502 (1971).
971.26 Annotation
The failure to cite in the information and certificate of conviction the correct statutory subsections violated was immaterial when defendant the could not show that he was misled. Craig v. State,
55 Wis. 2d 489,
198 N.W.2d 609 (1972).
971.26 Annotation
A lack of prejudice to the defendant, notwithstanding technical defects in the information, was made patent by defense 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 Wis. 2d 194,
214 N.W.2d 450 (1974).
971.26 Annotation
Failure to allege lack of consent was not a fatal jurisdictional defect of an information charging burglary. Schleiss v. State,
71 Wis. 2d 733,
239 N.W.2d 68 (1976).
971.26 Annotation
No statute authorizes a clerk of court's office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk's office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123,
239 Wis. 2d 244,
618 N.W.2d 857.
971.26 Annotation
"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.
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.
