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Due Process – Exculpatory Evidence – Deferred-Judgment Probationary Status, Prosecutorial Duty to Disclose, § 971.23(1)(f)

State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz


¶23. Under Wis. Stat. § 971.23(1)(f), a prosecutor must, upon request, disclose to the defense “[t]he criminal record of a prosecution witness which is known to the district attorney.” A prosecutor, however, has an affirmative duty to make reasonable inquiry and may not assert that he or she did not know of those things within the ambit of § 971.23 that could have been reasonably discovered. See Wold v. State, 57 Wis. 2d 344, 349, 204 N.W.2d 482, 486 (1973) (prosecutor’s duty to disclose encompasses duty “to obtainall evidence in the possession of investigative agencies of the state”) (emphasis in original); see also Brady v. Maryland, 373 U.S. 83, 87 (1963) (non-disclosure of evidence favorable to defendant, when defendant has requested that information, violates due process “irrespective of the good faith or bad faith of the prosecution”); cfState v. DeLao, 2002 WI 49, ¶21, 252 Wis. 2d 289, 301, 643 N.W.2d 480, 486 (“under certain circumstances, the knowledge of law enforcement officers may be imputed to the prosecutor”). Moreover, in this case an assistant district attorney signed the trial court’s pre-trial order and, by virtue of her signature on that order, “acknowledge[d] an obligation to diligently seek and provide discoverable materials in a timely manner.” (Emphasis added.) White’s lawyer was entitled to rely on this acknowledgment. SeeWold, 57 Wis. 2d at 351, 204 N.W.2d at 487 (“If there is to be pretrial discovery, broad or limited, in criminal cases, defense counsel should be able to rely upon evidence as disclosed by the state; otherwise, the purpose of discovery is frustrated and more injustice is done than if no discovery were allowed.”).¶24. The trial court held that Ehlers’s deferred-judgment probationary status was not relevant because White disclosed to the jury that Ehlers had been convicted of a crime. …

¶25. A witness’s probationary status is relevant because it and the fear of possible revocation are pertinent to the material issue of whether the witness has “ulterior motives” to shape his or her testimony. Davis v. Alaska, 415 U.S. 308, 311, 316, 317-318 (1974). Indeed, unless a defendant can “make a record” so the jury can assess whythe witness might be testifying falsely, attacks on credibility will often be perceived by the jury as “a speculative and baseless line of attack.” Id., 415 U.S. at 318; see alsoState v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (“extrinsic evidence may be used to prove that a witness has a motive to testify falsely”). Significantly, the non-disclosed evidence need not necessarily be of such force to result in an acquittal: “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”Kyles, 514 U.S. at 434. It may very well be that the jury would have adopted the trial court’s analysis, but, under our system, White had the right to lay a foundation to present his theory to the jury and have the jury decide-every defendant is entitled to “`a meaningful opportunity to present a complete defense.'” State v. St. George, 2002 WI 50, ¶14 n.8, 252 Wis. 2d 499, 512-513 n.8, 643 N.W.2d 777, 781-782 n.8 (quoted source omitted). In sum, we cannot say that failure to apprise the jury that Ehlers had a motive to lie about the robbery was “`harmless beyond a reasonable doubt.'” See State v. Norman, 2003 WI 72, ¶¶47-48, 262 Wis. 2d 506, 528-529, 664 N.W.2d 97, 108-109 (quoted source omitted).


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