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IAC – Rebuttal Witness

State v. Jeremy M. Bootz, 2010AP2795-CR, District 2, 7/27/11

court of appeals decision (1-judge, not for publication); for Bootz: Craig S. Powell; case activity

Counsel “had no obligation to object to” the testimony of “a bona fide rebuttal witness,” hence didn’t perform deficiently.

The court summarizes ground-rules relative to rebuttal witnesses, overarching principles being: “A bona fide rebuttal witness is a witness whose testimony only becomes necessary and appropriate after the defense presents its case-in-reply.  A witness’s testimony that would be useful in the case-in-chief does not, however, disallow that witness from being used as a rebuttal witness.” In this instance the State’s correct anticipation of the theory of defense and inclusion of the rebuttal witness’s name on its list of witnesses didn’t require, or limit, usage to the case-in-chief. It was enough that the witness’s rebuttal testimony attacked the credibility of the defense case-in-reply, ¶17. The court’s discussion includes the following observations, of possible interest:

¶18      The Wisconsin Supreme Court has suggested that a witness who would normally be used in the case-in-chief, but is deliberately held back for the dramatic effect of being a final witness in the rebuttal case, is not a bona fide rebuttal witness.  See Caccitolo v. State, 69 Wis. 2d 102, 118, 230 N.W.2d 139 (1975).  This rule, however, is inapplicable to the present case.  Sippel’s testimony was not surprising—the State provided Sippel’s name as a potential witness in its list of witnesses, and again during voir dire, eliminating any surprise factor to the introduction of Sippel as a rebuttal witness.

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