State ex rel. Byrne v. Circuit Court of Dane County, Branch II, 9th Judicial Circuit
| Decision Date | 22 March 1962 |
| Citation | 114 N.W.2d 114,16 Wis.2d 197 |
| Parties | STATE ex rel. William D. BYRNE, Dane County District Attorney, Petitioner, v. The CIRCUIT COURT OF DANE COUNTY, BRANCH II, 9TH JUDICIAL CIRCUIT, The Honorable Richard W. Bardwell, Judge of said Court, presiding therein, Respondent. |
| Court | Wisconsin Supreme Court |
John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., William D. Byrne, Dist. Atty., Curtis M. Kirkhuff, Asst. Dist. Atty., for petitioner.
Richard E. Lent, Madison, for respondent.
An order has been entered in the above-entitled matter directing that a writ of prohibition issue commanding the Honorable Richard W. Bardwell to refrain from issuing an order compelling the state of Wisconsin to turn over to the defendant before trial statements now in possession of the state of Wisconsin.
An occasion may arise after the commencement of the trial that will call for the production of a statement of a prosecution witness made prior to trial for impeachment purposes. Such a situation can be dealt with by the trial judge.
I understand the court's ruling to be that the accused might be entitled to inspect a statement in the state's possession at the time of trial, but not before trial. I am unable to perceive a valid basis for this differentiation. If it is within the trial judge's discretion to require the district attorney to divulge his witness' statement during the course of trial, the trial judge should have the discretion to do the same thing before trial.
It is for the purpose of impeachment that an accused may inspect such a statement. See Anno. 156 A.L.R. 345. Normally, the foundation for impeachment does not arise until trial. In the case at bar, however, the 14-year-old prosecutrix upon whom the defendant is alleged to have committed a statutory rape has already contradicted herself. Based upon her report, the prosecution first alleged that the date of the crime was November 24, 1961. At the preliminary hearing held shortly after the complaint was issued, she testified that she had been mistaken and that the event occurred on December 10, 1961.
Upon this foundation, the trial judge was amply justified in ordering that the accused should have an opportunity to examine a copy of the statement taken from the prosecutrix so that he might attempt to impeach her testimony at the trial. If the document is not produced until the trial is on stream, there will be an interruption of the proceedings (a) while the judge inspects the statement and prunes those portions which...
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