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Yearlong failure to disclose witnesses merits exclusion

State v. Caroline D. Prieto, 2016 WI App 15; case activity (including briefs)

Nearly three years after the defense demand, and a year after the first (of two) court orders to produce a witness list, the state still hadn’t done so. The circuit court’s response? No list, no witnesses. The state appeals and…

The appellate court lays its cards on the table early, reciting in the opening paragraphs the following history:

Caroline Prieto was charged on May 24, 2012, with great bodily harm to a child in a type of case often referred to as “shaken baby.” Prieto promptly made a statutory demand to the Kenosha county district attorney to disclose all witnesses that the district attorney intended to call against her at trial. The district attorney ignored Prieto’s request. On December 4, 2013, the circuit court ordered the district attorney to provide its witness list within sixty days and scheduled a trial for June 23, 2014. The district attorney ignored the court’s order to name its witnesses. The court postponed the trial and at a hearing on August 15, 2014, scheduled a trial for February 9, 2015, and ordered the district attorney to provide its witness list within twenty days. The district attorney ignored the court’s order.

On January 23, 2015, Prieto moved to exclude any witness the State intended to call at trial that it had not already named. The court granted Prieto’s motion, leaving the State with one witness whom the court found the State had previously disclosed that it would call. The district attorney’s office offered no “good cause” for its failure to list its witnesses over the previous two-plus years. On January 26, 2015, fourteen days before trial, the district attorney filed a witness list followed by a motion for reconsideration of the court’s exclusion order. The court denied the motion.


The state appealed and the trial was put on hold. (See Wis. Stat. § 974.05(1)(d)1.) The court of appeals affirms, with the majority and concurrence reaching the same result for different reasons.

The majority views the trial court’s order as an application of Wis. Stat. § 971.23, the criminal discovery statute, which requires the state to provide to the defendant, “within a reasonable time before trial,” a list of all intended witnesses (save rebuttal witnesses or those called only for impeachment). § 971.23(1)(d). The majority holds that the failure to abide by two court orders renders the timing of the state’s disclosure not “reasonable.” (¶12). The statute also provides sanctions for failure to comply: absent good cause for the failure, “[t]he court shall exclude any witness not listed.” § 971.23(7m)(a). Despite the “shall,” in the next breath the statute undermines this apparently mandatory directive by allowing various other sanctions “in addition to or in lieu of” exclusion. § 971.23(7m)(b).

Invited by the state to resolve this ambiguity and some purportedly contradictory case law, the court declines, holding that even if the trial court was required to exercise its discretion whether to exclude the witnesses, it did so, and soundly. (¶¶11-13).

The state also deploys a creative variant of what seasoned defense practitioners will recognize as the “Come on, give us a break, we’re the good guys!” argument. First, it posits that the exclusion of its lay witnesses amounted to a dismissal with prejudice. Citing civil authority that dismissal is not a proper remedy for discovery violations unless a party (as opposed to that party’s lawyer) is at least partially at fault, the state argues that its client, “the public,” is blameless. According to the state, “the public” should not suffer the harsh sanction of not getting to try to convict Prieto just because its lawyer, the ADA, failed rather spectacularly to follow the law. The court’s not buying it:

It is difficult to imagine a circumstance in which the public would be to blame for the derelict performance of a prosecutor, and we cannot reconcile the State’s position with a criminal justice system that affords fairness to both the State and defendant. See United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (trial courts have an interest “that legal proceedings appear fair to all who observe them” (citation omitted)).

… We remind the State that the magnitude of the sanction imposed by WIS. STAT. § 971.23(7m) is measured by the degree of the district attorney’s violation of § 971.23(1): the greater the number of witnesses a district attorney does not disclose upon demand, the greater the number of witnesses he or she puts at risk of being excluded from trial. It is the district attorney who ultimately determines what sanction is available against his or her office. The district attorney’s office ignored § 971.23(1)(d) and the court’s orders at its peril.

(¶¶14-15). The concurrence notes that the circuit court based its decision to exclude the witnesses not on the discovery statute, but on the state’s violation of scheduling orders (violations the state conceded on appeal). Given the court’s clear statutory authority to exclude evidence as a remedy for such violations, Wis. Stat. §§ 802.10(7)805.03804.12(2)(a), the concurrence thinks it unnecessary to discuss the discovery statute, and also finds the majority’s analysis unconvincing. (¶¶22-23).

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