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Postconviction Discovery

State v. Delano J. O’Brien, 223 Wis.2d 303, 588 N.W.2d 8 (1999), reconsideration denied, 225 Wis.2d 247, 591 N.W.2d 846 (1999), affirming 214 Wis.2d 327, 572 N.W.2d 870 (Ct. App. 1997)
For O’Brien: Martin E. Kohler, John C. Thomure, Jr.

Issue/Holding: O’Brien sought to obtain certain exhibits for postconviction testing. Though the court of appeals enunciated certain guidelines for such postconviction discovery, State v. O’Brien, 214 Wis. 2d 327, 342-43, 572 N.W.2d 870 (Ct. App. 1997), the supreme court now declines to adopt them. Acknowledging, at the same time, “that a defendant has a right to post-conviction discovery when the sought-after evidence is relevant to an issue of consequence,” the court apparently leaves the test at just that level of generality.

Rather, we believe that a determination whether evidence is of consequence will limit the remedy of post-conviction discovery to only those situations where it is warranted…. Rather, we hold that a party who seeks post-conviction discovery must first show that the evidence is consequential to an issue in the case and had the evidence been discovered, the result of the proceeding would have been different.

O’Brien isn’t entitled to such discovery, because testing wouldn’t have shed any light on the critical question of whether or not the victim consented to the acts.

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