That sums up the court of appeals’ decision in this juvenile delinquency case. The State failed to timely provide the defense with a copy of L.C.’s recorded confession and a witness list before trial. The circuit court and court of appeals shrugged off these discovery violations.
Section 973.23(7m)(a) provides that: “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.” (Emphasis supplied) Given that “shall” is mandatory, it would seem that you don’t get to a recess or continuance unless and until good cause is shown.
On the first day of trial, the State admitted that it had not provided L.C. with a copy of her recorded confession. The State requested and received a continuance in order to remedy this discovery violation. The record for this case is confidential, but it seems the State didn’t offer “good cause” or any reason for its violation. In any event, the circuit court did not make a “good cause” finding. ¶11.
So you’d expect the court of appeals to consider whether the State had good cause or not, right? Well, it didn’t. It skipped right over that requirement and held that L.C. was not prejudiced because, at the beginning of her trial, the State requested a recess in order to remedy its violation. ¶11.
Even worse, the State never provided L.C. with a witness list. On appeal it admitted that it negligently violated §971.23(1)(d) and failed to show good cause. Again, the court of appeals came to the rescue. Turns out the statutorily-required witness list wasn’t necessary because all the witnesses the State called at trial were identified in the complaint and the incident report. Ergo no prejudice.
¶15 L.C.’s only claim of prejudice is that if the State had complied with the discovery demand, it would have helped “defense counsel reasonably advise L.C. about the strengths and weaknesses of her case and provide her guidance on whether she should negotiate a plea instead of exercising her right to a trial[.]” We fail to see any prejudice as neither the identity of the witnesses nor their testimony were a surprise to L.C.’s defense counsel. See State v. Hunter, No. 2014AP2521, unpublished slip op. ¶40 (WI App Sept. 15 (2015)(finding harmless error where defendant was aware that the state intended to introduce certain evidence). This was a straight forward factual case and L.C. was not surprised by the testimony of any witness or evidence presented.
It seems the plain language of the statute doesn’t carry much weight in District II these days–at least not for defendants. Click here. While this is not a published opinion, it is persuasive authority. So the court of appeals’ “spare the rod” decision here will only encourage the State’s carefree attitude toward discovery requirements . . . unless, of course, SCOW reverses.