RECIPROCAL DISCOVERY

Wis.Stat. § 971.23

  • What a district attorney must disclose to the defense

  • What the defense must disclose to the district attorney

  • Sanctions

DA to DEFENSE:

  • Any written or recorded statement concerning alleged crime made by defendant, including witnesses to defendant’s statement

  • A written summary of all oral statements made by defendant that the district attorney plans to use at trial, including witnesses to defendant’s oral statement

  • Evidence obtained by electronic intercept, if the district attorney plans to use at trial

  • Defendant’s criminal record

  • A list of all witnesses, and their addresses, whom the district attorney plans to call at trial

  • Any relevant or recorded statement of a witness on the district attorney’s list of witnesses, including recording of an oral statement made by child witness

  • Criminal record of prosecution witnesses

  • Results of any physical or mental examination, scientific testing, experiment or comparison (mandatory)

  • Any reports / statements of experts. Written summary of expert’s findings, or subject matter of his/her testimony, if no report prepared

  • Physical evidence the district attorney intends to offer at trial (mandatory)

  • Exculpatory (tends to establish innocence) evidence (mandatory)

DEFENSE to DA

  • A list of all witness (excluding defendant and rebuttal or impeachment witnesses) and their addresses

  • Any relevant written or recorded statement of a witness on this list

  • Any reports / statements of experts. Written summary of expert’s findings, or subject matter of his/her testimony, if no report prepared

  • Results of any physical or mental examination, scientific testing, experiment or comparison

  • Criminal record of defense witnesses (excluding defendant), known to defense attorney

  • Physical evidence the defense intends to offer at trial

  • Notice of alibi (must be given at least 30 days before trial), stating particularly where the defendant claims to have been when the crime is alleged to have occurred

  • Names and addresses of all alibi witnesses (must be given at least 30 days before trial) who will testify

WHAT STATEMENTSAREDISCOVERABLE?

o “Relevant written or recorded statements"

o Does not include attorney notes, investigator notes, or summaries of what a witness told the investigator

EXCEPT …

o If the investigator takes the stand to impeach a witness, the investigator’s report, and memo book, becomes discoverable

o If the investigator reads back his/her notes to the witness and has the witness acknowledge the notes are accurate, the notes become discoverable

o If the investigator has the witness sign the notes, the notes become discoverable

o If the investigator takes a written or recorded statement from the witness, this statement is discoverable

o If a witness is questioned in court about his/her statement (recorded or not), the statement must be disclosed to the district attorney, upon the district attorney’s request

SANCTIONS / CONSEQUENCES FOR DISCOVERY VIOLATIONS:

  • Court may exclude witness’ testimony if the witness’ statement was not turned over in discovery

  • Court may exclude any evidence not turned over in discovery

  • Court may grant a continuance, adjournment or mistrial

  • Court may instruct the jury on a party’s failure to comply with discovery

  • Court may impose contempt sanctions against offending attorney

OTHER MEANS OF OBTAINING EVIDENCE:

  • Motion for exculpatory evidence

  • Open records request

  • Subpoena Duces Tecum(orders witness to appear, bring documents)