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Discovery – Witness List Violation

State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney

Issue: Whether the trial court properly excluded a defense witness who had not been timely named as a witness.

Holding:

¶22 The record supports the trial court’s discretionary decision to exclude Rosado’s testimony. Guzman was aware of this witness from the date of the incident. Counsel spoke with Rosado at least two weeks before notice of his testimony was provided to the State. Under these circumstances, it was reasonable for the trial court to exclude Rosado’s testimony based on the fact that he was not disclosed as a potential witness until the third day of the second trial. ‘Wisconsin has abandoned the concept of ‘trial by ambush’ where neither side of the lawsuit knows until the actual day of trial what the other side will reveal in the way of witnesses or facts.’ Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175, 180, 311 N.W.2d 673 (Ct. App. 1981). The purpose of the rule is to avoid unfair surprise. A party who fails to timely disclose witnesses risks the consequence imposed here: exclusion of that witness’s testimony.

 

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