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Rebuttal Witness – Test for “Bona Fide” Rebuttal

State v. Juan M. Sandoval, 2009 WI App 61, PFR filed 5/6/09
For Sandoval: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: The State need not disclose bona fide rebuttal evidence, the test for which turns on whether the evidence “only became necessary at rebuttal” (as opposed to whether it would have been admissible or useful in the State’s case-in-chief), ¶¶30-34.

¶33   We are convinced that the State satisfied the law of Wisconsin in this case. Vela’s testimony was bona fide rebuttal evidence because it directly answered an issue introduced by Sandoval’s defense: that Sandoval did not have a gun in the car. Specifically, Sandoval offered Gryczawski’s testimony that she was in the car with Sandoval on the way to the party on Thor Avenue and no one in the car had a gun, and that specifically, she did not see a gun on Juan Sandoval. Sandoval himself testified that he had “never seen” a gun before; that the “[f]irst time” he saw or held a gun was after they exited the car and went into the party. It should have come as no surprise to Sandoval that the State would seek to defuse his proffered evidence that he did not have a gun in the car before the party. See id. Although the specifics of the State’s evidence—Vela’s testimony that he saw Sandoval with a gun in his possession in the car before the party—may have been a surprise, it directly rebutted Sandoval’s own evidence: Gryczawski’s testimony that no one in the car had a gun and specifically, she did not see a gun on Sandoval; Sandoval’s testimony that his very first contact with a gun was in the Thor Avenue house when he grabbed and held one momentarily before relinquishing it. This is not trial by ambush; it is simply the State’s response to an issue Sandoval raised in his defense. See id. The fact that Vela’s testimony would have been useful in the case-in-chief does not preclude its use in rebuttal. See id.

In terms of the larger principle involved, the court largely reaffirms its prior holding in State v. Richard N. Konkol, 2002 WI App 174, ¶1 (“To put it bluntly, the defense takes its chances when offering a theory of defense and the State can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating § 971.23(1)(d).”). More particularly, the court rejects a test proffered by Sandoval, based on Wright v. State, 708 A.2d 316 (Md. 1998), which is whether the supposed rebuttal would have been inadmissible in the case-in-chief as irrelevant. Instead, per Konkol, the test is as noted above whether the evidence “only became necessary at rebuttal.” It may be worth recalling, if for no other reason than that Konkol stresses the point, ¶19 n. 7, that disclosure of the defendant’s statements is entirely something else.


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