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Witness Sequestration Order, § 906.15(3): Authority to Bar Access to Transcript

State v. Derek J. Copeland, 2011 WI App 28; for Copeland: David Leeper; case activity

Trial court has discretion under § 906.15(3) to order an attorney not to discuss with a sequestered witness who hasn’t yet testified the testimony of other witnesses; this authority extends to barring counsel from providing the sequestered witness with a transcript of prior-witness testimony. The trial court in this instance misperceived a lack of such authority, and refused to preclude the prosecutor from providing to a sequestered witness a transcript of testimony of prior witnesses at an on-going postconviction Machner hearing. The matter is remanded so that the trial court can exercise discretion in the first instance.

¶18      Accordingly, we conclude that the only reasonable construction of Wis. Stat. § 906.15(3) is that a circuit court has the authority to prevent an attorney from sharing with a nonparty witness who has yet to testify the testimony of prior witnesses during a recess, including barring a witness from reading a transcript of that testimony.  Consequently, we conclude that the circuit court erred by determining that it lacked this authority under the statute.[10]

¶19      The State argues that, even though the circuit court erred in concluding that it lacked the authority to grant the relief Copeland requested, it reached the correct result and should therefore be affirmed. …

¶20      … The circuit court is better positioned to determine whether to sequester witnesses and the proper scope of its sequestration order.  We therefore leave it to the circuit court to decide Copeland’s motion, applying Wis. Stat. § 906.15(3) in a manner consistent with this opinion.

¶21      Accordingly, we remand for the circuit court to address Copeland’s motion in the proper exercise of its discretion under Wis. Stat. § 906.15(3).  If necessary, the court may have to determine whether Thompson has read the hearing transcript and/or whether the prosecutor discussed testimony of prior witnesses with Thompson.  Under either scenario, the court must then determine whether Copeland has been prejudiced, and, if so, the proper remedy.  See Nyberg, 75 Wis. 2d at 410.

The court’s reference to “nonparty” witness isn’t accidental: the court recognizes that limits on counsel’s discussion with “a party witness” (read: defense counsel’s discussion with his client) would be problematic, ¶12 n. 6. The court also implies, but doesn’t need to distinctly hold, that § 906.11(1) also justifies the result, ¶15 n. 7.

Aside: This is on appeal of a nonfinal order entered during postconviction proceedings. A fine example of creative, zealous representation.

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