Section 980.036. Discovery and inspection.

 

(1)   Definitions. In this section:

(a) “Person subject to this chapter" means a person who is subject to a petition filed under s. 980.02 or a person who has been committed under s. 980.06 .

(b) “Prosecuting attorney" means an attorney representing the state in a proceeding under this chapter.

(2)   What a prosecuting attorney must disclose to a person subject to this chapter. Upon demand, a prosecuting attorney shall disclose to a person subject to this chapter or his or her attorney, and permit the person subject to this chapter or his or her attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the state:

(a) Any written or recorded statement made by the person subject to this chapter concerning the allegations in the petition filed under s. 980.02 or concerning other matters at issue in the trial or proceeding and the names of witnesses to the written statements of the person subject to this chapter.

(b) A written summary of all oral statements of the person subject to this chapter that the prosecuting attorney plans to use at the trial or proceeding and the names of witnesses to the oral statements of the person subject to this chapter.

(c) Evidence obtained in the manner described under s. 968.31 (2) (b) , if the prosecuting attorney intends to use the evidence at the trial or proceeding.

(d) A copy of the criminal record of the person subject to this chapter.

(e) A list of all witnesses whom the prosecuting attorney intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

(f) Any relevant written or recorded statements of a witness listed under par. (e) , including all of the following:

1. Any videotaped oral statement of a child under s. 908.08 .

2. Any reports prepared in accordance with s. 980.031 (5) .

(g) The criminal record of a witness listed under par. (e) that is known to the prosecuting attorney.

(h) The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the prosecuting attorney intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

(i) Any physical or documentary evidence that the prosecuting attorney intends to offer in evidence at the trial or proceeding.

(j) Any exculpatory evidence.

(3)   What a person subject to this chapter must disclose to the prosecuting attorney. Upon demand, a person who is subject to this chapter or his or her attorney shall disclose to the prosecuting attorney, and permit the prosecuting attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the person who is subject to this chapter or his or her attorney:

(a) A list of all witnesses, other than the person who is subject to this chapter, whom the person who is subject to this chapter intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

(b) Any relevant written or recorded statements of a witness listed under par. (a) , including any reports prepared in accordance with s. 980.031 (5) .

(c) The criminal record of a witness listed under par. (a) if the criminal record is known to the attorney for the person who is subject to this chapter.

(d) The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

(e) Any physical or documentary evidence that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding.

(3m)   When disclosure must be made. A party required to make a disclosure under this section shall do so within a reasonable time after the probable cause hearing and within a reasonable time before a trial under s. 980.05 , if the other party's demand is made in connection with a trial. If the demand is made in connection with a proceeding under s. 980.08 or 980.09 (3) , the party shall make the disclosure within a reasonable time before the start of that proceeding.

(4)   Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial may be made or given if the sole basis for the comment or instruction is the fact that the name of the witness appears upon a list furnished under this section.

(5)   Testing or analysis of evidence. On motion of a party, the court may order the production of any item of evidence or raw data that is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.

(6)   Protective order. Upon motion of a party, the court may at any time order that discovery, inspection, or the listing of witnesses required under this section be denied, restricted, or deferred, or make other appropriate orders. If the prosecuting attorney or the attorney for a person subject to this chapter certifies that listing a witness under sub. (2) (e) or (3) (a) may subject the witness or others to physical or economic harm or coercion, the court may order that the deposition of the witness be taken under s. 967.04 (2) to (6) . The name of the witness need not be divulged prior to the taking of such deposition. If the witness becomes unavailable or changes his or her testimony, the deposition shall be admissible at trial as substantive evidence.

(7)   In camera proceedings. Either party may move for an in camera inspection of any document required to be disclosed under sub. (2) or (3) for the purpose of masking or deleting any material that is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

(8)   Continuing duty to disclose. If, after complying with a requirement of this section, and before or during trial, a party discovers additional material or the names of additional witnesses requested that are subject to discovery, inspection, or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.

(9)   Sanctions for failure to comply.

(a) The court shall exclude any witness not listed or evidence not presented for inspection, copying, or photographing required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.

(b) In addition to or in place of any sanction specified in par. (a) , a court may, subject to sub. (4) , advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (2) or (3) , or of any untimely disclosure of material or information required to be disclosed under sub. (2) or (3) .

(10)   Payment of copying costs in cases involving indigent respondents. When the state public defender or a private attorney appointed under s. 977.08 requests copies, in any format, of any item that is discoverable under this section, the state public defender shall pay any fee charged for the copies from the appropriation account under s. 20.550 (1) (a) . If the person providing copies under this section charges the state public defender a fee for the copies, the fee may not exceed the applicable maximum fee for copies of discoverable materials that is established by rule under s. 977.02 (9) .

(11)   Exclusive method of discovery. Chapter 804 does not apply to proceedings under this chapter. This section provides the only methods of obtaining discovery and inspection in proceedings under this chapter.

2005 a. 434 ; 2007 a. 20 ; 2009 a. 28 .