Petition for Writ of Certiorari — McClaren v. Wisconsin (No. 09-421)

Supreme Court, U.S.

FILED

09-42 1 CCT 5- 2009

Oi.

OFFICE OF THE CLERK

K. Suter, Clerk

In the

Supreme Court of the Hnited States

a o6—-————_————

JASON L. MCCLAREN,

Petitioner,

vs

STATE OF WISCONSIN,

Respondent.

——-—- =

On Petition For Writ Of Certiorari

To The Wisconsin Supreme Court

0)

PETITION FOR WRIT OF CERTIORARI

} ra

Michael C. Witt

Counsel of Record for Petitioner

Criminal Defense & Civil Litigation, LLC

231 South Main Street

P.O. Box 375

Jefferson, Wisconsin 53549

(920) 674-7824

QUESTION PRESENTED

Whether the Fifth and Sixth Amendments

permit a trial court to force a defendant to choose

between waiving his right to remain silent by

telling the State before trial what he knew or did

not know about his accuser’s violent past, or

foregoing the presentation of otherwise concededly

relevant evidence supporting his claim of self-

defense at trial

1

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...0.....ccccccccseseseeeseseeeeeveeees

TABLE OF AUTHORITIES .........cccccccccccceceeeeeeeees iii

OPINION BELOW...........cc:c0000-. | ee

JURISDICTION En, 0.0.0... 1

CONSTITUTIONAL PROVISIONS

INVOLVED ....:.-.:0 ee, Bere...

STATEMENT OF FACTS ......ccccccccccccscseeecsescseseseseee. 2

REASONS FOR GRANTING THE PETITION.......6

CONCLUSION, 22e ae ga saseicsss....s. 1]

TABLE OF AUTHORITIES

Page

CASES

Chavez v. Martinez,

ee Fe, FO Fr CE vivvcsinccceskcsccesnceee 6

Doe v. United States,

487 U.S. 201, 214, n. 12 (1988)................... ae

Fisher v. United States,

$25 US. SRE, GRATIS) ovccsiscecsivevsesvaresecssecans 8

Kastigar v. Untied States,

BOG US, GEE. BO CITED ooooovcvcecessdodeevasiceee, 7

McMann v. Richardson,

397 U.S. 759, 771, n. 14 (1970)......... ewer he 10

McMorris v. State,

58 Wis. 2d 144, 149-50 (1973)... ee:

Miranda v. Arizona,

384 U.S. 436, 460 CYOGG) «ons ococcc ooo cccccccococecsas 7

State v. Albright.

96 Wis. 2d 122, 291 N.W.2d 487 (1980)....... 10

Wilhams v. Florida,

Pe OF Se Fe AR asses feassasevasacesecrnnee 6, 10, 11

United States v. Hubbell

OUTS. ee CD oie kc ae tka hE {

STATUTES

28 U.S.C. § 12457(a) l

Wisconsin Statutes, § 9OG.11. 0. cececececee eee 4

OPINIONS BELOW

The Wisconsin Supreme Court's opinion is

reported at 2009 WI 69, __ Wis. 2d __, 767

N.W.2d 550. The opinion of the Wisconsin Court of

Appeals is reported at 2008 WI App 118, 313 Wis.

2d 398, 756 N.W.2d 802. These opinions as well as

the trial court’s written order are reproduced in the

appendix, along with the constitutional provisions

involved.

JURISDICTION

On July 9, 2009 the Wisconsin Supreme

Court rendered a decision reversing the Wisconsin

Court of Appeals, re-writing and sustaining a trial

court order for pre-trial disclosure of the substance

of the defendant’s potential testimony at trial. This

decision creates a new court-made rule of criminal

procedure for this and all similarly situated

defendants in the State of Wisconsin that impacts

their substantive constitutional rights. The

statutory basis for this Court’s jurisdiction is found

in 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The defendant’s Fifth Amendment right to

remain silent, as well as his right to competent

assistance of counsel and the right to present a

defense as guaranteed by the Sixth and Fourteenth

Amendments are at issue.

2

STATEMENT OF FACTS

This case arises from an altercation that

occurred during the early morning hours of March

31, 2007 between defendant Jason McClaren and

ex-convict Conrad Goehl at the McClaren residence.

McClaren was originally charged with aggravated

battery, and charges of first degree reckless injury

and attempted first degree intentional homicide

were added after preliminary hearing. The State

has been aware of McClaren’s claim of self-defense

since the morning of the incident. Although not

required by statute or case law to do so, the defense

gave notice of intent to offer evidence of specific

instances of Goehl’s prior violent conduct at trial as

voing “to the reasonableness of the perceived threat

Mr. Goehl posed to the defendant and _ the

defendant's belief that force was necessary to

terminate the interference with his person.” The

defense motion sn /imine providing notice of intent

to offer this so-called McMorris ' evidence was filed

and served July 30, 2007.

The State’s response was not filed or served

until hours before the hearing held on October 2,

2007, and did not raise or address any requirement

or request for pre-trial disclosure. At that hearing,

the State stipulated that “a factual basis exists in

the discovery materials for the defense to make the

showing for perfect self-defense.” The State further

conceded the propriety of the defense request to

MecMorris v. State, 58 Wis. 2d 144, 149-50 (1973)

admit. testimony about Goehl’s prior violent acts

that McClaren was aware of at the time of the

incident, whether through McClaren himself, or

other witnesses.

The trial court initially ruled that the

defense could introduce evidence of Goehl’s prior

violent conduct either through the defendant or

other witnesses, as long as the defendant was

aware of it at the time of the incident giving rise to

the charges. Thereafter, when the tnal court

started to inquire specifically about what McClaren

did or did not know at the time of said incident,

defense counsel declined to get into trial strategy or

reveal specifically what the defendant knew or did

not know about Goehl’s violent past. Only then did

the State raise orally for the first time any claim to

a right to pre-trial discovery of that information.

Defense counsel pointed out the absence of

notice of this argument or authority for the State’s

contention, and objected to the pre-trial disclosure

of the content of her client’s mind:

THE COURT: And the cases cited by

the State. The State is saying

basically: Judge, you don’t have to do

it, that’s up to you, but if you want to

do it you have that power.

I’m asking you if I have that power or

not, not whether I should or whether

it’s wise or that’s what I would choose

to do. lm still at the first hurdle,

which is, can I do that if I want to

within the law.

MS. HAPP: Right.

I don’t have 906.11 in front of me. It’s

not an issue that was raised or briefed

or even referenced by the State.

Certainly, the Court can conduct its

courtroom and the witnesses as it sees

fit.

i think the defendant's constitutional

right to present a defense precludes

this Court from requiring him to

disclose anything in his mind or his

frame of mind other than what is

already in the discovery in the taped

interview. Period.

10/02/07 hearing transcript, p. 67.

At this point, the trial court engaged defense

counsel in a series of hypotheticals designed to

elicit a concession that it had the inherent

authority to grant the State’s discovery request.

Defense counse! declined to concede.

THE COURT: Well, that’s true. Here

is the question: Do I have the

authority to order you to reveal the

information pre-admissibility or not?

MS. HAPP: I don’t believe you do

THE COURT: Okay. Why not’?

MS. HAPP: Well, it all goes back to

the same argument we're having

I don’t think there’s any statutory or

case law that says that a defendant

has to reveal what he intends to

testify. Period. It’s always subject to

objection.

10/02/07 hearing transcript, p. 73, |

14, et seq.; see also, p. 74, 1. 13-19.

After failing to obtain the desired concession

from defense counsel, the trial court nonetheless

ordered the pre-trial disclosure requested by the

State. The trial court’s oral ruling paid lip service

to reciprocity, acknowledging that its order was

unlikely to impose any conceivable obligation upon

the State. The written order from which the

defendant took interlocutory appeal is not in any

way reciprocal.

After granting leave for defendant's

interlocutory appeal, the Wisconsin Court of

Appeals reversed the trial court. Noting the

complete absence of any statute or case law

providing authority for the trial court's order, the

Wisconsin Court of Appeals did not reach any of the

6

constitutional issues briefed by the parties. The

State filed a Petition for Review, which the

Wisconsin Supreme Court granted. In its brief

before the Wisconsin Supreme Court, the State all

but abandoned its argument that there was

authority for the trial court’s order, instead arguing

in the alternative that the Wisconsin Supreme

Court. should depart from its own prior precedent

and use this case to create such authority.

Analogizing the trial court’s pre-trial order to

the Notice of Alibi Statute at issue in Williams v.

Florida, 399 U.S. 78 (1970), the Wisconsin Supreme

Court reversed the Wisconsin Court of Appeals.

The majority did so by combing the record to

substantially re-write the trial court’s order in a

more sustainable form. As noted by the dissent, as

the order the majority sustained was not the order

from which defendant appealed, defendant’s

constitutional issues have not been fully addressed.

This Court is now requested to grant a Writ of

Certiorari to address these constitutional issues.

REASONS FOR GRANTING THE PETITION

The Fifth Amendment provides that no

person “shall be compelled in any criminal case to

be a witness against himself.” Case law and legal

tradition establish that the Self-Incrimination

Clause is a substantive constraint on the

government, not merely an_ evidentiary rule

governing the work of the courts. Chavez vy.

Martinez, 538 U.S. 760, 791 (2003).

“The Clause must provide more than

mere assurance that a compelled

statement will not be introduced

against its declarant in a criminal

trial. Otherwise there will be too little

protection against the compulsion the

Clause prohibits. The Clause protects

an individual from being forced to give

answers demanded by an official in

any context when the answers might

sive rise to criminal liability in the

future.

ld

As noted in Miranda v. Arizona, 384 \).S. 436, 460

(1966), the Fifth Amendment privilege is fulfilled

only “when the person is guaranteed the right to

remain silent unless he chooses to speak in the

unfettered exercise of his own will.”

The protection of the Fifth Amendment

encompasses compelled statements that lead to the

discovery of incriminating evidence even though

the statements themselves are not incriminating

and are not introduced into evidence. United States

v. Hubbell 530 U.S. 27, 37 (2000). The Fifth

Amendment privilege protects against any

disclosures that a witness reasonably believes could

be used in a criminal prosecution or could lead to

other evidence that might be so used. Aastigar v.

United States, 406 U.S. 441, 445 (1972). The

8

accused in a criminal case is exempt from giving

answers altogether, for they may _ disclose

incriminating information that the suspect harbors.

Doe _v. United States, 487 U.S. 201, 214, n. 12

(1988).

As noted in Doe, supra, the privilege

embodied in the Fifth Amendment is founded on

our sense of fair play which dictates “a fair state-

individual balance by requiring the government to

leave the individual alone until good cause is

shown for disturbing him and by requiring the

government in its contest with the individual to

shoulder the entire load.” 487 U.S. at 212. These

policies are served when the privilege is asserted to

spare a criminal defendant from having to reveal,

directly or indirectly, his knowledge of facts

relating him to the offense or from having to share

his thoughts and beliefs with the government. Jd.

at 213. The expression of the contents of an

individual's mind fall squarely within’ the

protection of the Fifth Amendment. JF sher v.

United States, 425 U.S. 391, 420 (1976).

The disclosure order in this case requires

McClaren to reveal evidence that will assist the

State in developing its case, and force the

defendant to “be a witness against himself.”

Specifically, the order will a fortior: require

McClaren to disclose not just what he did know

about Goehl’s concededly violent past, but also

what he was not aware of at the time of the

incident. It is ironic that having spent so much

2

time and so many resources over the years keeping

the public safe from Mr. Goehl, the State of

Wisconsin has succeeded in obtaining an order

forcing McClaren to reveal pre-trial the specific

basis for his legitimate fear of Goehl, so that it can

better prepare to downplay those fears at trial.

Under the terms of the trial court’s

disclosure order even as modified by the majority

opinion rendered by the Wisconsin Supreme Court,

McClaren will be forced to reveal his personal

knowledge, thoughts, and frame of mind at the

time of the alleged commission of the serious

crimes with which he is charged in advance of trial.

This would not be information freely given by the

defendant, but compelled by the trial court’s order,

disclosed pre-trial under penalty of the potential

exclusion of otherwise favorable and concededly

relevant evidence if he does not comply. In order to

preserve the possibility of using the McMorris

evidence at trial, McClaren will be forced to

disclose his thoughts even if, after exposure to the

State’s case, he chooses to exercise his right to

remain silent at trial. Therefore, the order forces a

disclosure of information that may otherwise never

come to light, requiring him to assist the State in

his own prosecution.

The majority opinion of the Wisconsin

Supreme Court justifies this compelled pre-trial

disclosure by analogizing the trial court’s inherent

authority to control the mode and order of the

presentation of witnesses to Florida’s Notice of

10

Alibi Statute held to be constitutional by this Court

in Willams v. Florida, 399 U.S. 78 (1970). In that

case, Justices Black and Douglas concurred in part

and dissented in part, specifically noting that the

majority reasoning in that case could be utilized to

allow trial courts to compel the pre-trial disclosure

of any information that a defendant might want to

use at trial. This Court should accept review of this

case to determine whether this extension of

Williams, predicted by Justices Douglas and Black,

is consistent with the Fifth Amendment.

Independently, the Sixth Amendment right

to counsel includes the right to competent

representation. See McMann_v. Richardson, 397

U.S. 759, 771, n. 14 (1970). Tactical decisions, such

as which witnesses or evidence to be offered when

and in support of what legal proposition, are the

province of counsel. Conversely, the decision on

whether to testify or remain silent is a decision

belonging solely to the defendant. See, generally,

State v. Albright, 96 Wis. 2d 122, 291 N.W.2d 487

(1980). The trial court’s order creates an

irreconcilable tension between these distinct rights

and responsibilities. It requires trial counsel to

breach privilege and make pre-trial disclosures of

the defendant’s personal knowledge, unless trial

counsel is prepared to make tactical sacrifices that

may result in the exclusion of evidence negatively

impacting the defendant’s right to the competent

assistance of counsel and the right to present a

defense.

1]

CONCLUSION

This Court should accept review of this case

to determine the degree to which the State of

Wisconsin can compromise these important Fifth

and Sixth Amendment rights by extension of this

Court’s holding in Williams, supra, in the name of

trial court efficiency.

Respectfully submitted,

Jason L. McClaren,

Petitioner

Michael C. Witt

Counsel of Record for Petitioner

Criminal Defense & Civil Litigation

A Limited Liability Company

231 South Main Street

P.O. Box 375

Jefferson, Wisconsin 53549

(920) 674-7824

la

2009 WI 69

NOTICE

This opinion is subject to further editing and

modification. ‘The final version will appear in

the bound volume of the official reports.

No. 2007AP2382-CR

(L.C. No. 2007CF 144)

STATE OF WISCONSIN IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner

V. FILED

July 9, 2009

Jason L. McClaren,

Defendant-Appellant. David R. Schanker

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals.

Reversed and remanded.

4] N. PATRICK CROOKS, J. This case

concerns an interlocutory appeal before the court of

appeals of a circuit court’s pretrial order. The order

permitted the defendant-appellant, Jason L.

McClaren (McClaren), to introduce in connection

with his claim of self-defense what is commonly

referred to as “McMorris! evidence” — evidence of

violent acts the victim had committed which

McClaren knew about at the time of the alleged

' McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).

2a

crime, and which would bear on the reasonableness

of the claim of self-defense — but only on the

condition that he provide a summary of that

evidence prior to trial so that the court could make a

pretrial determination of its relevance and

admissibility. McClaren objected to that requirement

on the grounds that the court had no authority to

require disclosure of such evidence and that doing so

violated certain constitutional rights. He contended

that the proper time to resolve concerns about

admissibility would be after the testimony was

elicited at trial and drew an objection. He sought

and was granted review of the non-final order at the

court of appeals.

q2 The court of appeals, in a published

decision, held that the circuit court’s order exceeded

its authority because neither Wis. Stat. § 971.23

(2005-06),2, which sets forth limited pre-trial

disclosure obligations for a defendant, nor Wis. Stat.

§ 906.11, which authorizes a court to exercise control

over the presentation of evidence, extended to an

order to provide McMorris evidence in advance of

trial. State v. McClaren, 2008 WI App 118, 313 Wis.

2d 398, 756 N.W.2d 802. Because the court of

appeals resolved the issue in favor of McClaren on

statutory grounds, it did not reach McClaren’s

constitutional arguments.

2 All subsequent references to the Wisconsin Statutes are to the

2005-06 version unless otherwise indicated.

3a

q3 For the reasons stated below, we

reverse the decision of the court of appeals.

Wisconsin statutes provide the circuit court with the

necessary authority for the order we consider here.

Wis. Stat. §906.11 authorizes a judge to exercise

control over the presentation of evidence so that the

truth can be effectively ascertained and so that time

will not be needlessly wasted. To hold otherwise

could frustrate a circuit court’s efforts to try to be

certain that a jury is presented with admissible,

reliable evidence and to make pretrial rulings so that

the trial runs smoothly. The authority of a circuit

court under Wis. Stat. § 906.11 fits within the

broader context of a court’s inherent powers “which

must necessarily be used to enable the judiciary to

accomplish its constitutionally or legislatively

mandated functions.” City of Sun Prairie v. Davis,

226 Wis. 2d 738, 747, 595 N.W.2d 635 (1999) (citing

State ex rel. Friedrich v. Dane County Cir. Ct., 192

Wis. 2d 16, 531 N.W.2d 32 (1995)). Foreseeing

potential obstacles to a smoothly run trial and taking

the necessary steps to avoid them is manifestly

within the inherent power of a circuit court.

14 McClaren says that, in requiring him to

tell prior to trial which instances of the victim’s

violent conduct he was aware of at the time of the

incident, the order violates his Fifth Amendment

rights to remain silent and not incriminate himself.

He says the order also runs afoul of the Due Process

Clause because it imposes no reciprocal obligations

on the State. Finally, he argues that excluding

evidence — the sanction the court stated would result

4a

for his not complying with the order — would violate

his Sixth Amendment right to present a defense.

q5 There is no constitutional bar to the

exercise of the circuit court’s authority in this case.

Ascertainment of the truth is the primary objective

of a trial, and such an order serves that objective in a

constitutionally permissible manner. Efficiency is a

secondary objective of a trial, but where it can be

attained with constitutionally permitted measures, it

is highly desirable. The United States Supreme

Court has, on more than one occasion, upheld

measures that ensure fair play and efficient use of

trial court time. Where, as here, the evidence to be

disclosed is nothing more than what the defendant

chooses and has indicated he will put on at trial,

such an order does not invade _ constitutional

protections under the Fifth Amendment. As the

United States Supreme Court noted in an analogous

case, the Constitution does not guarantee a criminal

defendant the right to surprise the prosecutor.

Williams v. Florida, 399 U.S. 78, 86 (1970) (“We

decline to hold that the privilege against compulsory

self-incrimination guarantees the defendant the

right to surprise the State with an alibi defense.”).

Nor does the order violate McClaren’s constitutional

rights to due process; United States Supreme Court

case law holds that so long as_ disclosure

requirements are equally imposed on both parties,

there is no constitutional violation. Wardius_v.

Oregon, 412 U.S. 470 (1973).

Da

6 A corollary to the question of the

constitutionality of the order is the constitutionality

of any sanctions available for a violation of the order.

McClaren contends that exclusion of evidence is

simply not an option. However, in Taylor v. Illinois,

484 U.S. 400 (1988), the United States Supreme

Court set forth the appropriate analysis for such a

violation and established that sanctions up to and

including exclusion of evidence are permissible if

warranted. It appears from the record that the

circuit court intended to exclude from trial any

evidence that McClaren attempted to offer at trial in

violation of the order; we clarify here that while such

a sanction may be permitted, lesser sanctions must

be considered first, and that the extreme sanction of

exclusion is permissible only after the circuit court

has determined that the violation was “willful and

motivated by a desire to obtain a tactical advantage

that would minimize the effectiveness of cross-

examination and the ability to adduce rebuttal

evidence,” the test set forth in Taylor. Id. at 415.

47 We therefore reverse the decision of the

court of appeals and remand to the circuit court for

further proceedings.

I. BACKGROUND

q8 McClaren spent a= spring evening

drinking with his wife’s ex-boyfriend, Conrad Goehl

(Goehl), and the night ended with an altercation —

arising, ironically, from a discussion of anger

management counseling — in which McClaren hit

6a

Goehl with a pickaxe. When the police arrived at the

scene, Goehl said he had been attacked without

provocation; McClaren claimed _ self-defense.

McClaren was charged with several crimes,

including attempted first-degree intentional

homicide. Prior to trial, which was scheduled to

begin October 29, 2007, McClaren filed a motion in

limine seeking a ruling on the admissibility of

information about Goehl’s extensive criminal record

and time in prison, and evidence of his “dangerous

character and prior acts of violence.” A hearing was

held on McClaren’s motion on October 2, 2007, four

weeks before the day of trial.

q9 Following the hearing, the Jefferson

County Circuit Court, the Honorable Randy R.

Koschnick presiding, ruled that McClaren would be

ailowed to introduce evidence about Goehl’s violent

past but gave McClaren a pretrial deadline to

disclose to the State and to the court the nature of

the evidence he intended to introduce. The court

required “a summary of all specific instances of the

victim’s violent conduct of which the defendant was

aware and that the defendant intends to introduce at

trial, including witnesses to such conduct and the

date and place such conduct occurred.” ‘The record

showed that Goehl had 11 prior convictions,’ and the

circuit court expressed concern about the length of a

mid-trial hearing, outside the jury’s presence, on the

admissibility of evidence of this nature.

3 Of course, we note that the potential evidence of prior violent

conduct could include conduct other than that which led to the

convictions

910 In its oral ruling, the circuit court

imposed a reciprocal requirement that the State in

turn provide a summary of any evidence it intended

to use to rebut McClaren’s McMorris evidence

regarding Goehl.

{11 Since the order was not appealable as

of right, McClaren filed a petition for leave to appeal

the order, pursuant to Wis. Stat. § 809.50, and the

court of appeals granted the petition.

412 The court of appeals reversed. The

court of appeals viewed the order, “in essence, as a

discovery device,” and thus centered its analysis on

Wis. Stat. § 971.23, which addresses what evidence a

prosecutor must disclose and what evidence a

defendant must disclose. McClaren, 313 Wis. 2d

398, 425. Because that statute has nothing to say

about McMorris evidence, the court held that the

order exceeded the circuit court’s authority; 1t found

Wis. Stat. § 906.11 inapplicable and, because it found

no statute or case that required such disclosure, held

that the order was not permitted. Id. It cited this

court’s holding in State v. Miller, 35 Wis. 2d 454, 151

N.W.2d 157 (1967), that discovery in criminal cases

was not a matter to be determined by case law but

depended on statute or the rule-making process. Id.,

14.

{#13 The State filed a petition with this

court seeking review of the court of appeals’ decision,

and we granted review.

Sa

Il. STANDARD OF REVIEW

714 This case involves questions of judicial

authority, statutory interpretation, and

constitutional issues, all of which are reviewed de

novo. Custodian of Records for the LTSB v. State,

2004 WI 65, 96, 272 Wis. 2d 208, 680 N.W.2d 792;

State v. Floyd, 2000 WI 14, 411, 232 Wis. 2d 767, 606

N.W.2d 155; In the interest of E.C., 130 Wis. 2d 376,

381 N.W.2d 72 (1986).

III. DISCUSSION

915 We begin by focusing on two things: the

circumstances under which the order was made, and

what evidence the order concerned.

416 ‘This case was proceeding toward trial

The order McClaren challenges here arose at a

hearing on a motion in limine brought by McClaren.

He was seeking, among other things, for the circuit

court to rule that testimony concerning Gochl’s

violent history would be admissible on the grounds

that it was relevant to McClaren’s state of mind.4

1 McClaren’s motion 1n limjne requested:

3 That the court make a ruling out of the presence of the

jury regarding the admissibility of Conrad Goehl’s

criminal convictions, as well as specific finding as to the

number of Mr. Goeh]’s criminal convictions

4. That the Court make a ruling out of the presence of the

jury regarding the admissibility of the type and factual

basis for Mr. Goehl’s convictions, as well as Mr. Guehl’s

'

'

'

'

i

!

'

Ga

The discussion turned to what specific evidence

McClaren wanted to admit. The court engaged

counsel in extended discussion of the dilemma

presented: how the court could control the evidence

to ensure that the jury heard only that which was

relevant, not cumulative and not unfairly prejudicial.

Among Goehl’s prior convictions, for example, was a

conviction for sexual assault of a child, and the

potential for that evidence to be submitted at trial

raised multiple questions — its relevance to

McClaren’s state of mind (whether McClaren even

knew about it), its relevance as to Gochl’s violent

character, and its highly prejudicial nature. Besides

questions of admissibility there was also the

question of how the State would be able to

investigate and rebut evidence that was revealed for

the first time at trial. The circuit court concluded

that the impracticality of deciding these issues at

trial precluded that option. The part of the written

order relevant to this review was as follows:

The defendant shall make written

disclosure to the Court and _ the

prosecution by the close of business on

October 16, 2007, a summary of all

specific instances of the victim’s violent

conduct of which the defendant was

aware and that the defendant intends

dangerous character and prior acts of viol nce, as they

directly relate to the reasonableness of the perceived

threat Mr. Goehl posed to the defendant and the

defendant's belef that force was necessary to terininate

the interference with his person by Mr. Goehl

LOa

to introduce at trial, including

witnesses to such conduct and the date

and place such conduct occurred. Such

disclosure does not include acts of the

victim referenced in the defendant's

interrogation on March 31, 2007

917 In the oral ruling made at the hearing.

the circuit court further stated:

The ruling is, 1f any party intends to

introduce evidence concerning an act by

Mr. Goehl which is not covered in the

interview, police interview with the

defendant, the offering party needs to

provide written notice to the Court and

the opposing party by close of business

on October 12'' as to the particular

acts; and that includes the location, the

time, the witnesses and the behavior

the witnesses that the party intends to

call at trial concerning that particular

act. That applies to both parties. I can't

conceive of a situation right now where

the State would have evidence that

falls into this category, but they

mightl,] and the same ruling applies to

both parties

{18 The court referred repeatedly to th

fact that the ruling was based on its concern for

lla

using jurors’ time effectively and avoiding unfair

prejudice to either party.®

419 As noted above, McClaren appealed the

order on several grounds: first, that the circuit court

was without authority for such an order; second, that

it violated his Fifth Amendment right against self-

incrimination and right to remain silent because it

compelled him to provide to the circuit court and the

State an account of what he knew at the time of the

incident about Goehl’s prior violent acts; third, that

in conditioning the admissibility of testimony of

defense witnesses on prior disclosure, the order

violated his due process rights because it imposed no

reciprocal obligation on the State; and fourth, for the

same reason, the order violated his’ Sixth

Amendment right to present a defense.®

For example, the court stated, “|'m not concerned about

sanctions on [McClaren] so much as | am concerned about not,

you know, misleading the jury, allowing evidence to come in

that’s not properly admissible; it’s likely to be unfairly

prejudicial.” Later in the hearing, the court said, “I don’t want

to take time with the jury sitting here to be processing this

information during the trial, and it could be a pretty lengthy

hearing that’s required depending on what it is we're talking

about.... I don’t want to end up in a situation where the jury

is Waiting 1n the jury room for two hours while | hear from three

or four witnesses describing something allegedly done by Mr

Goehl

®* The Sixth Amendment provides as follows: “In all criminal

prosecutions, the accused shall enjoy the right to have

compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.” U.S. Const

amend. VI

12a

q20 We examine each of his arguments in

turn but first briefly summarize the law on evidence

supporting a claim of self-defense.

§21 It is well established that a defendant

seeking to support a self-defense claim may attempt

to “provle] prior specific instances of violence within

[the defendant's] knowledge at the time of the

incident.” State v. Wenger, 225 Wis. 2d 495, 507,

593 N.W.2d 467 (Ct. App. 1999) (quoting McMorris v.

State, 58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973));

see also Wis. Stat. §§ 904.04 and 904.05(2). It is also

well established that admissibility of evidence

proffered to show the reasonableness of the self-

defense claim is within the circuit court’s discretion.

State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648

N.W.2d 413. As with any “other acts evidence,” the

evidence is subject to the application of the balancing

test involving the weighing of probative value

against the danger of unfair prejudice, and

considerations of undue delay, waste of time, or

needless presentation of cumulative evidence. See

Wis. Stat. § 904.03. Assuming its probative value

outweighs such considerations, we have in previous

cases established the defendant's right to put on

such evidence once a factual basis has been set forth

for a self-defense claim, and also established the

circuit court’s responsibility to vet the evidence prior

to admission to be sure it 1s valid McMorris evidence.

See, e.g.. McAllister v. State, 74 Wis. 2d 246, 246

N.W. 2d 511 (1976). The question before us in this

case 1s primarily a question of timing: whether a

circuit court has the authority to order a defendant

13a

to disclose any planned McMorris evidence prior to

trial, so that the factors involved in determining the

evidence’s admissibility can be weighed not only

prior to admission, but also prior to trial.

A. Authority for the order

q22 McClaren argues that this court in

Miller limited a court’s authority to order disclosure

of evidence in a criminal case to what is permitted by

statute. In Miller this court noted, “If we are to

adopt a pretrial discovery procedure in criminal

cases in this state we deem it would be best done by

a rule of court or by legislative action rather than on

a case to case basis by the court.” Miller, 35 Wis. at

478. Finding no authority for the disclosure of

McMorris evidence in Wis. Stat. § 971.23, which lists

what parties in a criminal case are required to

disclose, he argues that the inquiry is ended.

423 The State gleans statutory authority

for a circuit court to order disclosure of pretrial

McMorris evidence from reading together Wis. Stat.

§§ 906.11 and 901.04(3)(d). Those statutes authorize

a court to exercise reasonable control over the

presentation of evidence and provide for hearings to

be held outside the presence of the jury for “[alny

preliminary matter if the interests of justice so

requires.” § 901.04(3)(d).

924 We do not view this case as presenting

the kind of discovery question Muller was

l4a

addressing.’ One significant difference is that the

evidence covered by the order is nothing more than

evidence that the party chooses to submit. The order

is, In essence, compelling advance notice of whatever

McMorris evidence McClaren decides to offer solely

for the legitimate purpose of establishing its

admissibility in advance of trial.

925 Here, the evidence in question presents

the potential for multiple delays in the trial, if it is

not resolved in advance of trial. The rule McClaren

advocates, which would render disclosure of any

McMorris evidence impermissible until such time as

the defendant chose to disclose it, could force not just

one, but many mid-trial delays. Under his approach,

the court may not force him to disclose, even after

the trial is underway, all of the specific acts at once;

his argument is that any forced disclosure before the

point at which he seeks to admit the evidence runs

afoul of the Constitution. Multiple continuances

while the State investigates each incident and

multiple hearings outside of the presence of the jury

are a distinct possibility on the facts of this case: 11

prior convictions of the victim, Goehl, are known; the

number of incidents of prior violent conduct that did

7 We do note, however, that State v. Miller, 35 Wis. 2d 454, 151

N.W.2d 157 (1967), which was decided in 1967, predated both

Wis. Stat. § 906.11, which gives a court broad powers to control

the presentation of evidence, and Wis. Stat. § 971.23, which

imposes disclosure requirements on both the State and criminal

defendants. ‘Those statutes were adopted in 1973.

8 At the motion hearing, McClaren’s counsel said any evidence

he would attempt to admit is “subject to objection” and would be

dealt with at that moment in the trial.

l5a

not result in conviction is unknown. Such an

approach puts the control of the trial in the hands of

the defendant rather than the court and introduces

unnecessary uncertainty into an_ otherwise

predictable trial process. With no basis for an

estimate of how long the trial will run, a judge would

be unable to balance other calendar demands and

unable to tell potential jurors during jury selection

how long the trial is expected to least.

26 Given the limited nature of the

evidence covered in this order — that is, the

requirement that McClaren give notice of the specific

McMorris evidence he wants to introduce and which

he was aware of on the night of the incident — this

order fits comfortably into Wis. Stat. § 906.11’s

description of the court’s sphere of control. The court

is, in fact, required to “exercise reasonable control”

over the “presentlation of] evidence” so that it can be

done effectively and with minimal wasted time. See

State v. Wallerman, 203 Wis. 2d 158, 168, 552

N.W.2d 128 (Ct. App. 1996). Both concerns were

specifically mentioned by the circuit court with

regard to this order. This is precisely the type of

admissibility of evidence questions that circuit courts

should be attempting to resolve in advance of trial.9

427 The United States Supreme Court has

upheld a law requiring pre-trial notice of an alibi

9 For example, evidence the prosecution wishes to introduce

against the defendant under Wis. Stat. § 904.04(1)(b) and (2) is

handled in a similar fashion. See State v. Sullivan, 216 Wis. 2d

768, 576 N.W.2d 30 (1998).

l6a

defense along with the specific location where the

defendant claims to have been and names and

addresses of alibi witnesses.!9 Like such a law, this

order merely moves the notification of the intent to

introduce evidence from the heat of the trial to the

relative calm of a pre-trial motion hearing. It enables

more effective presentation of evidence, avoids

needless waste of time while a jury is waiting, and

gives a circuit judge the time to consider all the

arguments and research the case law prior to

making a ruling.!!

10 Williams v. Florida, 399 U.S. 78 (1970).

11 In State v. Wright, the court of appeals noted the common

use of pretrial rulings in Wisconsin and other jurisdictions and

noted that they are favored in a variety of circumstances:

While the following list is not exhaustive, we

view a motion in limine as proper where (1) the

trial court has directed that the evidentiary

issue be resolved before trial; (2) the evidentiary

material is highly prejudicial or inflammatory

and would risk a mistrial rf not previously

addressed by the trial court; (3) the evidentiary

issue is significant and unresolved under

existing law; (4) the evidentiary issue involves a

significant number of witnesses or a substantial

volume of material making it more economical

to have the issue resolved in advance of trial so

as to save the time and resources of all

concerned: or (5) a party does not wish to object

to the evidence in the presence of the jury and

thereby preserves the issue for appellate review

by obtaining an unfavorable ruling via a

pretrial motion in liminel.]

State v. Wright, 2003 WI App 252, 440, 268 Wis. 2d 694, 673

N.W.2d 386 (citations omitted).

17a

q28 Under the circumstances presented

here, where McClaren seeks to introduce McMorris

evidence in support of a self-defense claim, the

circuit court has the authority under Wis. Stat. §

906.11, in conjunction with Wis. Stat. § 901.04(3)(d),

to order the defendant to disclose prior to trial any

specific acts that he knew about at the time of the

incident and that he intends to offer as evidence so

that admissibility determinations can be made prior

to trial.

429 The United States Supreme Court’s

discussion of lmitations on the defendant in

presenting his or her evidence when the defendant

pleases closely tracks the logic of Wis. Stat. § 906.11.

The linchpins of a fair trial are the “orderly

presentation of facts” and “a fair opportunity” for

each party to prepare evidence and_ rebuttal

evidence. Taylor, 484 U.S. at 411.

730 In Taylor, a case concerning a violation

of a rule requiring advance notice of witnesses, the

United States Supreme Court said:

The principle that undergirds the

defendant’s right to present

exculpatory evidence is also the source

of essential limitations on the right.

The adversary process could _ not

function effectively without adherence

to rules of procedure that govern the

orderly presentation of facts and

arguments to provide each party with a

18a

fair opportunity to assemble _and

submit evidence to contradict or

explain the opponent's case. The trial

process would be a shambles if either

party had an absolute right to control

the time and content of his witnesses’

testimony.

Id. at 410-411. (emphasis added).

431 The Supreme Court noted as well: “In

the exercise of [the right to present witnesses], the

accused, as is required of the State, must comply

with established rules of procedure and evidence

designed to assure both fairness and rehability in

the ascertainment of guilt and innocence.” ‘Taylor,

484 U.S. at 411 n. 15 (quoting Chambers _v.

Mississippi, 410 U.S. 284, 302 (1973)).

432. The order in this case did nothing more

than what was found permissible in the Taylor case:

it was a procedure related to a rule of evidence

designed to assure fairness.

B. Constitutionality of the order.

433 McClaren further argues that the order

violates his’ rights against compelled _ self-

incrimination under the Fifth Amendment of the

United States Constitution. In essence, he argues,

he 1s being compelled to provide the State, prior to

trial, with what he knew about Gochl’s violent

character and when he knew it, even though he

19a

could ultimately choose at the close of the State’s

case not to testify.

934 The State argues that no

constitutionally protected right is violated because

the order concerns only what McClaren chooses to

disclose'2, and merely accelerates the disclosure of

information that would be presented at trial.

{35 In ruling that a defendant could be

required to give notice of an alibi defense prior to

trial, a defense analogous to self-defense, the United

States Supreme Court said:

Petitioner concedes that absent the

notice-of-alibi rule the Constitution

would raise no bar to the court’s

granting the State a continuance at

trial on the ground of surprise as soon

as the alibi witness is called. Nor

would there be © self-incrimination

problems if, during that continuance,

the State was permitted to do precisely

what it did here prior to trial: take the

12 Any concerns that a defendant has concerning the disclosure

potentially being used by the prosecutor in the case-in-chief

could be addressed by an in camera review by the circuit court.

Such a mechanism has been endorsed by the United States

Supreme Court as a fair way of resolving disclosure disputes.

See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) (finding that

both the defendant’s and the State’s interest “in ensuring a fair

trial can be protected fully by requiring that the [the evidence

being sought] be submitted only to the trial court for in camera

review’ prior to a ruling on disclosure).

20a

deposition of the witness and find

rebuttal evidence. But if so utilizing a

continuance 1s permissible under the

Fifth and Fourteenth Amendments,

then surely the same result may_be

accomplished through pretrial

discovery, as it was here, avoiding the

necessity of a disrupted trial. We

decline to hold that the privilege

against compulsory self-incrimination

guarantees the defendant the right to

surprise the State with an ahbi

defense.

Williams, 399 U.S. at 85 (emphasis added). The

same rationale supports our conclusion here.

736 McClaren also argues that the order is

constitutionally deficient because its lack of

reciprocity violates the requirement of the

Fourteenth Amendment's Due Process Clause. The

United States Supreme Court struck down a

criminal statute in Wardius that required a

defendant to disclose an alibi defense without

requiring reciprocal disclosure by the state of its

rebuttal evidence. Wardius, 412 U.S. 470. McClaren

argues that the order presented here is equally

deficient; the only way it could be made reciprocal is

for the prosecutor to be ordered to disclose “all

corroborating evidence of the alleged victim’s

concededly violent past implicated by the defendant’s

forced pre-trial disclosures, including the names of

2la

any additional witnesses to prior violent acts

engaged in by the alleged victim.”

937 A careful comparison of Wardius and

the oral ruling of the circuit court in this case shows

that the flaw present in Wardius was not present

here. The statute at issue in Wardius contained no

guarantee of disclosure of rebuttal evidence to the

defendant. The Court stated that “[allthough the

Due Process Clause has little to say regarding the

amount of discovery which the parties must be

afforded, it does speak to the balance of forces

between the accused and accuser.” Wardius, 412

U.S. at 474 (citation omitted). The Court went on to

say:

The State may not insist that trials be

run as a “search for truth” so far as

defense witnesses are concerned, while

maintaining “poker game” secrecy for

its own witnesses. It is fundamentally

unfair to require a defendant to divulge

the details of his own case while at the

same time subjecting him to the hazard

of surprise concerning refutation of the

very pieces of evidence which he

disclosed to the State.

Id. at 475-76.

9438 Here the circuit court’s oral ruling

made more clear than the written order that

22a

reciprocity was absolutely required. ‘The circuit

court said:

So what I have in mind is that the

deadline for filing the written materials

would be the 12" .... That would

apply to the State and to the detense.

If the State has evidence that would fall

into the category of acts not covered in

the police interview which are relevant

to self-defense or the lack thereof, those

acts would be covered as well for the

same reasons.

(Emphasis added.)

q39 It might have been more clear had the

court explicitly called the evidence showing a lack of

self-defense rebuttal evidence, but in any case, the

court was explicit that its order applied to both

parties.

C. Constitutionality of the potential sanction.

440 A conclusion that the circuit court has

authority to issue such an order necessarily brings

us to the question of the authority to enforce such an

order.

4] McClaren says that excluding evidence

as a sanction for violating the court’s order is

impermissible because it would violate his

constitutional right to present witnesses, and thus to

present a defense, under the Sixth Amendment’s

compulsory process clause. !%

142 The State contends that such a

sanction may be permitted depending on the facts

and that Taylor controls the sanction for any

violations. Taylor upheld an [llinois court’s refusal

to allow testimony from a defense witness whose

name was not disclosed prior to trial. The Court

rejected the defendant’s assertion that excluding

evidence was never a permissible sanction and

established a framework for analyzing violations

Taylor, 484 U.S. at 412-13.

{43 We agree with the State. The United

States Supreme Court has established a test for

excluding evidence and has said that under certain

circumstances, exclusion of evidence does not violate

a defendant's constitutional rights. There are

sanctions short of excluding evidence, of course. The

Court cited a case, for example, that “[gave]

consideration to the effectiveness of less severe

sanctions, the impact of preclusion on the evidence at

trial and the outcome of the case, the extent of

prosecutorial surprise or prejudice, and whether the

violation was willful.” Taylor, 484 U.S. at 415 n.19

(citing Fendler v. Goldsmith, 728 F.2d 1181 (9% Cir.

iS The Sixth Amendment provides, in relevant part, “In all

criminal prosecutions, the accused shall enjoy the nght to

have compulsory process for obtaining witnesses in his favor

U.S. Const. amend. VI In Washington v. Texas, 388 U.S. 14

(1967), the United States Supreme Court held that this mght

applies in state prosecutions

24a

1983)) However, as ‘l'aylor makes clear, even the

sanction of excluding evidence against a defendant is

constitutionally permissible in certain cases, such as

where there have been willful violations “motivated

by a desire to obtain a tactical advantage.” ‘Taylor,

184 U.S. at 415.

144 As we noted above, Taylor states well

the balancing of interests that goes into a court's

oversight of a trial:

[t is elementary, of course, that a trial

court may not ignore the fundamental

character of the defendant’s right to

offer the testimony of witnesses in his

favor. But the mere invocation of that

right cannot automatically and

invariably outweigh countervailing

public interests. The integrity of the

adversary process, which depends both

on the presentation of reliable evidence

and the rejection of unreliable evidence,

the interest in the fair and efficient

administration of justice, and the

potential prejudice to the truth-

determining function of the tnial

process must also weigh in the balance.

Id. at 414-415 (emphasis added)

945 Whether a violation merits the extreme

sanction of exclusion must be determined by a circuit

court after a violation has occurred. and under the

VAST: |

parameters set forth by the United States Supreme

Court in Taylor.

{46 Here the circuit court noted in its oral

ruling that, “As always, if new evidence is discovered

at the last minute that may be the basis for an

exception to the notice requirement.” The circuit

court should have been more clear that the Taylor

analysis would be applied and that exclusion was

one of the sanctions available to the circuit court for

a violation of its order; it was premature for the

circuit court, in its oral ruling, to predict that the

sanction for failure to abide by the order would

necessarily be the exclusion of evidence.

IV. CONCLUSION

47 For the reasons stated, we reverse the

decision of the court of appeals. Wisconsin statutes

provide the circuit court with the necessary

authority for the order we consider here. Wis. Stat. §

906.11 authorizes a judge to exercise control over the

presentation of evidence so that the truth can be

effectively ascertained and so that time will not be

needlessly wasted. To hold otherwise could frustrate

a circuit court's efforts to try to be certain that a jury

is presented with admissible, reliable evidence and

to make pretrial rulings so that the trial runs

smoothly. The authority of a circuit court under Wis.

Stat. § 906.11 fits within the broader context of a

court’s inherent powers “which must necessarily be

uscd to enable the judiciary to accomplish its

constitutionally or legislatively mandated functions.”

26a

Davis, 226 Wis. 2d at 747. Foreseeing potential

obstacles to a smoothly run trial and taking the

necessary steps to avoid them is manifestly within

the inherent power of a circuit court.

¢48 McClaren says that, in requiring him to

tell prior to trial which instances of Goehl’s violent

conduct he was aware of at the time of the incident,

the order violates his Fifth Amendment rights to

remain silent and not incriminate himself. He says

the order also runs afoul of the Due Process Clause

because it imposes no reciprocal obligations on the

State. Finally, he argues that excluding evidence —

the sanction the court stated would result for his not

complying with the order — would violate his Sixth

Amendment right to present a defense.

149 There is no constitutionai bar to the

exercise of the circuit court’s authority in this case.

Ascertainment of the truth is the primary objective

of a trial, and such an order serves that objective in a

constitutionally permissible manner. Efficiency is a

secondary objective of a trial, but where it can be

attained with constitutionally permitted measures, it

is highly desirable. The United States Supreme

Court has, on more than one occasion, upheld

measures that ensure fair play and efficient use of

trial court time. Where, as here, the evidence to be

disclosed is nothing more than what the defendant

chooses and has indicated he will put on at trial,

such an order does not invade constitutional

protections under the Fifth Amendment. As the

United States Supreme Court noted in an analogous

21a

case, the Constitution does not guarantee a criminal

defendant the right to surprise the prosecutor. Nor

does the order violate McClaren’s constitutional

rights to due process; United States Supreme Court

case law holds that so long as_ disclosure

requirements are equally imposed on both parties,

there is no constitutional violation.

450 A corollary to the question of the

constitutionality of the order is the constitutionality

of any sanctions available for a violation of the order.

McClaren contends that exclusion of evidence is

simply not an option. However, in Taylor, the United

States Supreme Court sets forth the appropriate

analysis for such a violation and establishes that

sanctions up to and including exclusion of evidence

are permissible if warranted. It appears from the

record that the circuit court intended to exclude from

trial any evidence that McClaren attempted to offer

at trial in violation of the order; we clarify here that

while such a sanction may be permitted, lesser

sanctions must be considered first, and that the

extreme sanction of exclusion is permissible only

after the circuit court has determined that the

violation was “wilful and motivated by a desire to

obtain a tactical advantage that would minimize the

effectiveness of cross-examination and the ability to

adduce rebuttal evidence,” the test set forth in

Taylor.

451 We therefore reverse the decision of the

court of appeals and remand to the circwt court for

further proceedings.

By the Court— The decision of the court of

appeals is reversed, and the cause is remanded to

the circuit court.

{52 SHIRLEY J. ABRAHAMSON, C.J., did

not participate.

29a

{53 ANN WALSH BRADLEY, J.

(dissenting). There is a name for mandatory pretrial

disclosure of information that might be offered as

evidence in a criminal proceeding: discovery.

Although the majority attempts to label what is at

issue in this case as merely the pretrial disclosure of

information, I agree with a unanimous court of

appeals that the order here “in essence, [is] a

discovery device.” State v. McClaren, 2008 WI App

118, (25, 313 Wis. 2d 398, 756 N.W.2d 802.

454 Our precedent is clear that discovery is

governed by the criminal discovery statute, Wis.

Stat. § 971.23. Lynch v. County Court, 82 Wis. 2d

454, 466, 262 N.W.2d 773 (1578) (citing State _v.

Miller, 35 Wis. 2d 454, 478, 151 N.W.2d 157 (1967)).

If a certain type of evidence is not enumerated in the

statute, then mandatory disclosure is not authorized.

{55 The majority departs from this

precedent. Realizing that the discovery statute does

not require pretrial disclosure of McMorris! evidence,

the majority ultimately turns to the inherent powers

of the court. See majority op., 43.

56 By relying on inherent authority, the

majority opens wide the gates of pretrial discovery in

criminal cases. Its rationale and holding stretch far

beyond the disclosure of McMorris_ evidence.

Instead, the majority rests on an_ unlimited

pronouncement that covers the pretrial disclosure of

1 McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973)

30a

any information that might aid in ensuring a

smoothly run trial: “Foreseeing potential obstacles to

a smoothly run trial and taking the necessary steps

to avoid them is manifestly within the inherent

power of a circuit court.” Majority op., 43.

157 I agree instead with the court of

appeals that “the court’s general authority under

Wis. Stat. §901.11 to exercise control over the mode

and order of presenting evidence cannot. be read to

permit it to require pretrial discovery that it would

otherwise not be permitted to require under [the

criminal discovery statute].” McClaren, 313 Wis. 2d

398, 41. Although I share the majority’s concern for

the efficient and fair administration of a trial, I

believe that any revision in the law should be

brought about by legislative change and not by a

resort to inherent authority of the court.”

Accordingly, I respectfully dissent.

|

158 In this case, the circuit court ordered

the defendant to provide “a summary of all specific

instances of the victim’s violent conduct of which the

defendant was aware and that the defendant intends

to introduce at trial, including witnesses to such

conduct and the date and place such conduct

2 Because I conclude that the circuit court did not have the

authonty to enter the order, I need not address McClaren’s

constitutional arguments

31a

occurred.”3 The court of appeals determined that the

order for disclosure was governed by the discovery

statute. Finding no authority in the statute for the

order, it reversed the circuit court.

"59 The majority, however, asserts that

this is not a discovery case. Majority op., §24.

Although it attempts to tie its analysis to evidentiary

statutes, its conclusion is based on _ inherent

3 See majority op., 16. Throughout the opinion, the majority

focuses on the court’s oral ruling rather than focusing on the

unilateral nature of the written order. See majority op., [§ 10,

17, 37, 38. This focus is misguided. Appeal is taken from a

written order or judgment. State ex rel. Hildebrand v. Kegu, 59

Wis. 2d 215, 216, 207 N.W.2d 658 (1973); Estate of Jackson v.

Gray, 212 Wis. 2d 436, 442, 569 N.W.2d 467 (Ct. App. 1997).

As a result, the majority does not squarely address

McClaren’s constitutional arguments. The majority correctly

sets forth the due _ process principle that disclosure

requirements must be reciprocal: “It is fundamentally unfair to

require a defendant to divulge the details of his own case while

at the same time subjecting him to the hazard of surprise

concerning refutation of the very pieces of evidence which he

disclosed to the State.” Majority op., 937 (quoting Wardius v.

Oregon, 412 U.S. 470, 476 (1973).

Nevertheless, the circuit court’s written ruling required

only the defendant to disclose information. See majority op., 416

(“The defendant shall make written disclosure to the Court and

the prosecution ....”) The court’s written order imposed no

reciprocal disclosure requirement upon the State. See Id. In

fact, it posed no requirement on the State at all.

Given that the circuit court’s order lacked reciprocity, it

is unclear to me how the majority can affirm this

constitutionally deficient written order.

32a

authority: “Foreseeing potential obstacles to a

smoothly run trial, and taking the necessary steps to

avoid them, is manifestly within the inherent power

of a circuit court.” Id., 43.

{60 Our cases have established that

compelled pretrial disclosure of evidence by any

other name is still governed by the discovery rules.

State v. Schaefer, 2008 WI 25, 308 Wis. 3d 279, 746

N.W.2d 457. In Schaefer, the defendant filed a

subpoena to obtain police reports before’ the

preliminary examination. Id., 41.

{61 We stated, “This is a discovery case,

notwithstanding the defendant’s protestations to the

contrary.” Id., §18. We determined that the

subpoena should be quashed because “the scope of

discoverable materials 1s set out in statute and

compliance with the statute will be enforced by the

court.” Id., {77 n.17. The lesson from Schaefer is

clear. If something looks like discovery, it is

governed by the discovery statute.

{62 The policy reasons advanced by the

majority for allowing the court to compel the

production of McMorris evidence are based on the

rationale underlying discovery. The majority

explains, “Besides questions of admissibility’ there

4 The majority acknowledges that a court can satisfy its

responsibility to vet McMorris evidence prior to its admission,

even if the evidence is not produced prior to trial. See majority

op., §21: “The question before us in this case is primarily a

question of timing: whether a circuit court has the authority to

order a defendant to disclose any planned McMorris evidence

33a

was also the question of how the State would be able

to investigate and rebut evidence that was revealed

for the first time at trial.” Majority op., 916.

63 This 1s a general discovery rationale.

The purpose of discovery is to promote “the

ascertainment of the truth and ultimate disposition

of the lawsuit in accordance therewith[.]” Monier v.

Chamberlain, 221 N.W.2d 410, 417 (Ill. 1966).

Through discovery, mutual knowledge of all the

relevant facts will be achieved. See Hickman v.

Taylor, 329 U.S. 495, 507 (1947).

464 In addition to relying upon a discovery

rationale, the majority cites to criminal discovery

cases. It relies primarily upon three United States

Supreme Court opinions: Williams v. Florida, 399

U.S. 78 (1970); Wardius v. Oregon, 412 U.S. 470

(1973); and Taylor v. Illinois, 484 U.S. 400 (1988). In

all three cases, the issue before the Court was the

constitutionality of a discovery rule.

965 The majority asserts that Williams is

“analogous” to this case. Majority op., 95. In

Williams, the Florida Rules of Criminal Procedure

required a criminal defendant to provide notice of an

alibi defense or risk discovery sanctions.® The Court

prior to trial so that the factors involved in determining the

evidence’s admissibility can be weighed not only prior to

admission, but also prior to trial.”

5 See Fla. Rule Crim., Proc. 1.200, reprinted in Williams v.

Florida, 399 U.S. 78, 104 (1970) (appendix to opinion of the

Court) (“[A] defendant in a criminal case who intends to offer

evidence of an alibi in his defense shall, not less than ten days

34a

said, “Florida’s notice-of-alibi rule is in essence a

requirement that a defendant submit to a limited

form of pretrial discovery by the State whenever he

intends to rely at trial on the defense of alibi.” 399

U.S. at 80.

{66 The second case relied upon by the

majority, Wardius, addressed a similar state rule.®

At the outset of the opinion, the Court framed the

issue as follows: “This case involves important

questions concerning the right of a defendant forced

to comply with a ‘notice-of-alibr rule to reciprocal

discovery.” 412 U.S. at 471. The Court commented:

“nothing in the Due Process Clause precludes States

from experimenting with systems of broad discovery

designed to achieve the [ ] goals” of reducing surprise

before trial or such other time as the court may direct, file and

serve upon such prosecuting attorney a notice in writing of his

intention to claim such alibi, which notice shall contain specific

information as to the place at which the defendant claims to

have been at the time of the alleged offense and, as particularly

as is known to defendant or his attorney, the names and

addresses of the witnesses by whom he proposes to establish

such alibi.”)

Wisconsin has a similar rule, which is enumerated in

the criminal discovery statute, Wis. Stat. § 971.23(8).

6 See Or. Rev. Stat. § 135.875 (1973) (“If the defendant in a

criminal action proposes to rely in any way on alibi evidence, he

shall, .. . file and serve upon the district attorney a written

notice of his purpose to offer such evidence, which notice shall

state specifically the place or places where the defendant claims

to have been at the time or times of the alleged offense together

with the name and residence or business address of each

witness upon whom the defendant intends to rely for alibi

evidence.”)

and enhancing the fairness of a criminal trial. Id, at

474.

"67 The third case, Taylor, is also a

discovery case. There, the trial court excluded a

witness's testimony hecause the defendant “fail[ed]

to identify [the] defense witness in response to a

pretrial discovery request.”? 484 U.S. at 401. The

question before the Court was whether “the Sixth

Amendment bars a court from ever ordering the

preclusion of defense evidence as a sanction for

violating a discovery rule.” Id. at 406. The Court

concluded that the Constitution did not create an

absolute bar to discovery sanctions.

968 The majonty relies on the analysis of

these cases, yet it denies that the issue presented

here is a discovery issue, governed by the discovery

statute: “We do not view this case as presenting the

kind of discovery question [other cases were]

addressing.” Majority op., (24.

469 To the contrary, I conclude that the

issue presented to this court is squarely a discovery

issue, and it is governed by the discovery statute.

II

/ The Illinois Supreme Court Rules require a defendant to

disclose a list of witnesses that he intends to call at trial. This

rule is one of several cnumerated under the heading

“Discovery.” [thnois Supreme Court Rules, Article TV: Rules on

Criminal Proceedings in the Trial Court, Part B. Discovery,

Rule 413: Disclosure to Prosecution

36a

470 We have long held that there is no

general right to discovery in criminal cases and that

the court should not order discovery on a case-by-

case basis:

Wisconsin does not recognize a right lof

a] defendant to a pretrial discovery of

the prosecution’s evidence. If we are to

adopt a pretrial discovery procedure in

criminal cases in this state we deem it

would be best done by a rule of court or

by legislative action rather than on a

case to case basis by the court.

Miller, 35 Wis. 2d at 478.

471 Subsequent to Miller, the legislature

adopted a comprehensive system of rules governing

criminal discovery. See Wis. Stat. § 971.23. After its

enactment, Wisconsin courts affirmed the principle

that pretrial discovery is prescribed by the statute.

See, e.g., Lynch, 82 Wis. 2d at 466 (vacating a court’s

order permitting a defendant to examine the State’s

files because it “would operate, in essence, as a

discovery device, and would therefore be inconsistent

with [thel principle” that “discovery procedures

should be determined by statute or by rule of court”).

q72 The criminal discovery statute provides

limited and reciprocal discovery requirements. Upon

demand, a defendant “must disclose” the following:

(1) a list of the names and addresses of witnesses the

defendant intends to call at trial; (2) relevant written

or recorded statements of the named witnesses

37a

including expert reports that the defendant intends

to produce at trial; (3) the criminal records of the

named witnesses; and (4) physical evidence the

defendant intends to produce at trial. Wis. Stat.

§971.23(2m). McMorris evidence is not on the list.

9473 Aside from the mandatory disclosures

enumerated above, “[lo]ur discovery statute does not

require a defendant to divulge the details of his or

her own case.” State v. Konkol, 2002 WI App 174,

417, 256 Wis. 2d 725, 649 N.W.2d 300. The statute

provides just one exception to this rule. If the

defendant wishes to present an alibi defense, “the

defendant shall give notice to the district attorney . .

. stating particularly the place where the defendant

claims to have been when the crime is alleged to

have been committed together with the names and

addresses of witnesses to the alibi, if known.” Wis.

Stat. § 971.23(8)(a).

174 On the issue of notice of self-defense

and disclosure of McMorris evidence, however, the

statute is silent. Therefore, under the principle

stated in Miller and reaffirmed in Lynch, notice and

disclosure of this evidence is simply not required.

475 Finding no authority in the statute for

the compelled pretrial disclosure of McMorris

evidence, I determine that the court was without

authority to enter the order. The court of appeals got

it right when it determined that a circuit court’s

authority to exercise control over the mode and order

of presenting evidence does not provide the authority

to require pretrial discovery that it would otherwise

38a

not be permitted to require under the Wisconsin

criminal discovery statute. See McClaren, 313 Wis

2d 398, 41.

a

176 ‘Today, the majority permits a circuit

court to compel pretrial disclosure of any manner of

evidence, citing the court’s inherent authority to take

the necessary steps to avoid potential obstacles to a

smoothly run trial. See majority op., 93. The

majority's attempt to fit a discovery issue into an

inherent authority box has broad implications.

77 A court may exercise its inherent

authority to ensure “that the court functions

efficiently and effectively to provide the fair

administration of justice.” City of Sun Prairie _ v.

Davis, 226 Wis. 2d 738, 749-50, 595 N.W.2d 635

(1999). However, invoking inherent powers in order

to trump legislatively enacted public policy should be

a last resort. See Id. at 755.

178 Here, the legislature has made policy

choices regarding the evidence that 1s subject to

compulsory. pretrial disclosure. It permits

compulsory pretrial disclosure of certain types of

evidence, including alibi evidence, but it is silent

about McMorris evidence Nevertheless, the

majority permits a circuit court to circumvent these

legislative policy choices by invoking the court’s

inherent authority to ensure that it functions

effectively and efficiently to provide for the fair

administration of justice.

39a

"79 I| acknowledge that McMorris evidence

may pose special difficulties for the court. Perhaps

the rationale underlying the statutory notice-of-alibi

requirement applies to McMorris evidence as well.

There may be good policy reasons for a rule requiring

pretrial discovery of this type of evidence. If so,

however, it would be preferable for the legislature to

promulgate a new rule. The advantage of a rule,

rather than an opinion justified on the basis of the

court’s inherent authority, is that it could be strictly

limited to this type of evidence.

"80 The majority attempts to lmit its

holding to cases involving similar facts: “Under the

circumstances presented here, where McClaren

seeks to introduce McMorris evidence in support of a

self-defense claim, the circuit court has the

authority” to order pretrial disclosure of the

evidence. See majority op., 428. However, the

majority's attempt to narrow the scope of its holding

is undermined by its invocation of the court’s broad

inherent powers. Consequently, neither its rationale

nor its holding is limited to McMorris evidence.

{81 For the above stated reasons, |]

respectfully dissent.

COURT OF APPEALS

DECISION NOTICE

DATED AND FILED This opimon is subject to further

editing. If published, the official

June 19, 2008 version will appear in the bound

volume of the Official Reports

David R. Schanker A party may file with the

Clerk of Court of Appeals Supreme Court a petition to

review an adverse decision by the

Court of Appeals. See WIS. STAT.

§ 808.10 and RULE 809.62

Appeal No. 2007AP2382-CR Cir. Ct. No. 2007CF144

STATE OF WISCONSIN IN COURT OF

APPEALS

DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

¥.

JASON L. McCLAREN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for

Jefferson County: RANDY R. KOSCHNICK, Judge.

Reversed.

Before Dykman, Vergeront and Bridge, Jd.

41 BRIDGE, J. Jason McClaren is

charged with aggravated battery, attempted first-

degree intentional homicide and first-degree reckless

injury. The State has conceded that a factual basis

exists for him to raise a claim of perfect self-defense.

He appeals the circuit court’s pretrial order requiring

him to disclose, prior to tral, a summary of the

evidence he intends to offer in furtherance of his

defense regarding what he believed to be the violent

character of the victim. In particular, the order

requires disclosure of a summary of all specific

instances of the victim’s violent conduct of which

McClaren is aware and intends to introduce at trial,

including witnesses to the conduct and the relevant

dates and locations of the conduct. We conclude that

under the rule articulated in State v. Miller, 35 Wis.

2d 454, 478, 151 N.W.2d 157 (1967), the circuit

court’s order exceeds its authority under WIS. STAT.

§971.23(2m) (2005-06)! governing pretrial discovery

in criminal matters. We also conclude that the

court’s general authority under WIS. STAT. § 906.11

to exercise control over the mode and order of

presenting evidence cannot be read to permit it to

require pretrial discovery that it would otherwise not

be permitted to require under §971.23(2m) and the

rule in Miller. Accordingly, we reverse the circuit

court's order.

BACKGROUND

All references to the Wisconsin Statutes are to the ZU05-U6

version unless otherwise noted.

q2 Jason McClaren is charged with

aggravated battery by use of a dangerous weapon in

violation of WIS. STAT. §§ 940.19(5) and

939.63(1)(b); attempted first-degree intentional

homicide in violation of WIS. STAT. §§ 940.01(1)(a)

and 939.32; and first-degree reckless injury in

violation of WIS. STAT. § 940.23(1)(a). The charges

stem from allegations that while inside the garage of

McClaren’s residence, McClaren struck Conrad

Goehl in the neck with a pack axe. In a videotaped

statement, McClaren told police that he knew that

Goehl had a violent character and had been “in and

out of prison.”

q3 By pretrial motion in limine, McClaren

sought a ruling regarding the admissibihty of

evidence of Goehl’s dangerous character and prior

acts of violence as they related to McClaren’s claim of

self-defense. At the hearing on the motion, the State

conceded that there was a factual basis to raise a

claim of perfect self-defense? and did not oppose the

motion as long as the evidence was not unfairly

duplicative. Goehl’s criminal record includes eleven

prior convictions. McClaren’s witness list contains

the names and addresses of six witnesses, in

addition to the witnesses named in the prosecutor's

witness list.

2 Pertect self-defense gives the jury a basis to find a defendant

not guilty. See State v. Head, 2002 WI 99, 92, 255 Wis. 2d 194,

648 N.W.2d 413.

A3a

14 During ‘he motion hearing, the circuit

court rules that evidence of any specific alleged prior

acts of Goehl’s violence that McClaren mentioned to

police in the videotaped interview would be

admissible at trial without McClaren providing any

further description of those alleged acts. The court

went on, however, to express concern about

additional evidence of McClaren’s knowledge of

Goehl’s violent behavior that would come in through

witness testimony, and whether McClaren would

attempt to present evidence that may not be

admissible and would unduly influence the jury. For

example, the court referenced the fact that Goehl

had one felony conviction for the sexual assault of a

child, and observed tiat this particular offense may

or may not be relevant to McClaren’s self-defense

claim. The court noted that such evidence may have

an unfairly prejudicial effect on the State’s case once

the jury heard of it, and that it would be “a bell that

would be difficult to unring.” Defense counsel

indicated that she did not intend to introduce

evidence about this particular offense, but the court

observed that. there may be similar issues regarding

Goehl’s other offenses. The court continued to voice

concern about the danger of unfair prejudice if the

details emerged for the first time at trial before the

court could rule on admissibility.

15 The couit also indicated that it did not

wish to take the timeto hear offers of proof outside of

the jury’s presence wien and if McClaren attempted

to introduce such evilence and drew objections from

the State. The court concluded:

44a

So, I'm not requiring the defense

to submit anything if it doesn’t want to,

but I am prohibiting the defense from

referring to any alleged conduct by Mr.

Goehl that falls under this category

without a pretrial ruling.

1 don’t want to take time with

the jury sitting here to be processing

this information during the trial, and it

could be a pretty lengthy hearing that’s

required depending on what it is we’re

talking about.

[ don’t know what we're talking

about, because it hasn’t been revealed.

I don’t want to end up in a situation

where the jury is waiting in the jury

room for two hours while I hear from

three or four witnesses describing

something allegedly done by Mr. Goehl

that’s not covered in the _ police

[videotaped] interview lof McClaren].

So, in order to ensure that the

trial proceeds in an orderly manner and

that | am allowed to take reasonable

steps to avoid unfair prejudice to both

parties, I will require that any party

who wishes to offer such evidence

present the details in writing to the

45a

Court and to the opposing party before

trial.

q|6 In its written pretrial order, the court

ruled that McClaren must provide the State, before

trial, with “a [written] summary of all specific

instances of the victim’s violent conduct of which the

defendant was aware and that the defendant intends

to introduce at trial, including witnesses to such

conduct and the date and place such conduct

occurred.” The order provided further that this

requirement did not apply to the instances of violent

conduct which were referenced in McClaren’s

statement to police.

{7 McClaren sought leave to appeal the

court’s pretrial order. We granted interlocutory

review and stayed further proceedings in the circuit

court pending resolution of this appeal.

STANDARD OF REVIEW

18 The question of judicial authority is an

issue of law which we review de novo. Breter v. E.C.

130 Wis. 2d 376, 381, 387 N.W.2d 72 (1986).

DISCUSSION

9 In McMorris v. State, 58 Wis. 2d 144,

152, 205 N.W.2d 559 (1973), the supreme court held

that:

46a

When the issue of self-defense 1s

raised in a prosecution for assault or

homicide and there is a factual basis to

support such defense, the defendant

may, in support of the defense,

establish what the defendant believed

to be the turbulent and _ violent

character of the victim by proving prior

specific instances of violence within his

knowledge at the time of the incident.

{10 A defendant’s proof of alleged prior

violent acts of the victim is not limited to the

defendant’s own testimony; within the trial court’s

discretion, the defendant may produce supporting

evidence to prove that the acts of which the

defendant claims knowledge actually occurred. State

v. Wenger, 225 Wis. 2d 495, 508, 593 N.W.2d 467

(Ct. App. 1999). The court may exclude the evidence

‘Nf its ‘probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation

of cumulative evidence.” State v. Head, 2002 WI 99,

4129, 255 Wis. 2d 194, 648 N.W.2d 413.

411 The issue before us is_ whether

McClaren may be compelled to provide a summary of

his proffered McMorris evidence prior to trial.

912 McClaren argues that to require

pretrial disclosure of this evidence would violate his

state and federal constitutional right to freedom

Ava

from compelled — self-incrimination. The self-

incrimination clause of the Fifth Amendment to the

United States Constitution and article I, section 8 of

the Wisconsin Constitution provide that no person

may be compelled in any criminal case to be a

witness against himself. The privilege against self-

incrimination protects a defendant from “being

compelled to testify against himself, or otherwise

provide the State with evidence of a testimonial] or

communicative nature.” Schmerber v. California, 384

U.S. 757, 761 (1966).

413 McClaren also argues that the court’s

threatened sanction of excluding evidence of any of

Goehl’s past violent acts and the witnesses thereto if

McClaren does not provide the required summary

would violate his constitutional rights to present a

defense and to due process. The night to present a

defense is grounded in the confrontation and

compulsory process clauses of the Sixth Amendment

to the United States Constitution and article I,

section 7 of the Wisconsin Constitution and includes

the right to present the testimony of favorable

witnesses.

q14 Although the majority of the parties’

arguments concern whether the required disclosure

violates these constitutional rights, our analysis

begins instead with a consideration of Wisconsin’s

criminal discovery statute. In Miller, 35 Wis. 2d at

478, which was decided before Wisconsin’s criminal

discovery statute was enacted, the supreme court

determined that there is no general right to

48a

discovery in criminal cases except as provided by

statute. See also Wold v. State, 57 Wis. 2d 344, 348,

204 N.W.2d 482 (1973). The supreme court stated

further that “li]f we are to adopt a pretrial discovery

procedure in criminal cases in this state we deem it

would be best done by a rule of court or by legislative

action rather than on a case to case basis by the

court.” Miller, 35 Wis. 2d at 478.

415 Following the enactment of the

criminal discovery statute, the supreme court has

continued to adhere to the principle that the right to

discovery in criminal casés is limited to that which is

provided by statute. See, e.g, State v. O’Brien, 223

Wis. 2d 303, 319, 588 N.W.2d 8 (1999); State ex rel.

Lynch v. County Ct., 82 Wis. 2d 454, 466, 262

N.W.2d 773 (1978); State v. O'Connor, 77 Wis. 2d

261, 280 n. 7, 252 N.W.2d 671 (1977); Irby v. State,

49 Wis. 2d 612, 620, 182 N.W.2d 251 (1971).4

3 In Wold v. State, the supreme court observed that prior to the

new criminal code, there was no “clear legal right” to discovery,

and stated that “the question of whether a discovery motion

would be granted was a matter of discretion with the trial

court.” Wold v. State, 57 Wis. 2d 344, 348, 204 N.W.2d 482

(1973). However, the cases cited for that proposition state only

that there is no right to pretrial discovery so that mandamus

does not le to compel it; they do not support the proposition

that the court may, in the proper exercise of its discretion, grant

discovery. See Woodhull v. State, 43 Wis. 2d 202, 215, 168

N.W.2d 281 (1969); State ex rel. Johnson v. County Ct., 41 Wis

2d 188, 193, 163 N.W.2d 6 (1968); and State v. Miller, 35 Wis.

2d 454, 478, 151 N.W.2d 157 (1967).

4 Although the cited cases involve a defendant's request for

pretrial discovery, we see no reason why the logic of Miler and

49a

{16 WISCONSIN STAT. § 971.23, which

was enacted in 1969,° now grants limited discovery.

See Wold, 57 Wis. 2d at 348-49. Pursuant to §

971.23 (1), entitled “WHAT A_ DISTRICT

ATTORNEY MUST DISCLOSE TO A

DEFENDANT,” the district attorney must disclose

any written or recorded statement made by a

defendant concerning the alleged crime; a written

summary of the defendant’s statements that the

prosecutor plans to use at trial and any witnesses to

such statements; evidence obtained’ through

interception of wire, electronic or _ oral

communications; a copy of the defendant’s criminal

record; a list of all witnesses the prosecutor intends

to call, along with their addresses; any written or

recorded statements of these witnesses; any criminal]

record of a prosecution witness which is known to

the prosecution; any physical evidence’ the

prosecutor intends to use at trial; and any

exculpatory evidence. WIS. STAT. § 971.23(1)(a)-(h).

417 Pursuant to WIS. STAT. § 971.23(2m),

entitled “WHAT A DEFENDANT MUST DISCLOSE

TO THE DISTRICT ATTORNEY,’ the defendant

must disclose all witnesses who the defendant

intends to call at trial, along with their addresses;

any written or recorded statements of these

witnesses; reports or statements of experts, or a

written summary if no report or statement has been

subsequent cases would differ in cases involving pretrial

discovery requested by the State

5 1969 Wis. Laws, ch. 255, § 63.

50a

prepared; the results of any examination, test,

experiment or comparison that the defendant

intends to offer in evidence at trial; the criminal

record of any defense witness other than the

defendant known to the defense attorney; and any

physical evidence the defendant intends to offer at

trial. WIS. STAT. § 971.23(2m)(a)-(c).

418 WISCONSIN STAT. § 971.23 does not

require a criminal defendant to give pretrial notice of

any specific theory of defense that the defendant

intends to present at trial, other than a notice of

“alibi.” See WIS. STAT. § 971.23(8). In addition, the

discovery statute does not require a defendant to

divulge the details of his or her own case. See State

v. Konkol, 2002 WI App 174, 917, 256 Wis. 2d 7285,

649 N.W.2d 300. Thus, the discovery statute does

not require McClaren to give pretrial notice of a

claim of self-defense or of intended McMorris

evidence to support such a claim.

419 The State concedes that the court's

order requires McClaren to disclose more

information before trial than a defendant. is required

to do under WIS. STAT. § 971.23(2m). However, it

argues that the court's authority to do so stems from

Wisconsin case law that permits courts to order

pretrial disclosure of certain types of evidence that, if

delayed until trial, would potentially warrant a

continuance of trial to enable the opposing party to

investigate the proffer. In particular, the State

refers to proffered “other acts” evidence. The State

points out that in State v. Wallerman, 203 Wis. 2d

5la

158, 167-68, 552 N.W.2d 128 (Ct. App. 1996), we

encouraged the circuit court to address the

admissibility of “other acts” evidence pretrial if

possible. We conclude _ that Wallerman 1s

distinguishable on its facts and does not support the

State’s position

q20 In /allerman, we addressed the

circumstances under which a criminal defendant's

concession of one or more elements of the crime

charged can effectively bar the State from

introducing evidence on those elements. At issue in

Wallerman was the defendant’s concession that

whoever committed the sexual assault at issue in

that case did so to obtain sexual gratification, which

was an element of the crime charged. J/d. at 165. In

spite of the concession, the State sought to prove that

element through the introduction of “other acts’

evidence of motive and intent with respect to a prior

sexual assault allegation against Wallerman. Jd. at

162. The State argued that it was necessary for it to

do so because Wallerman never explicitly offered to

enter into a _ stipulation or make a_ concession

regarding the motive and intent elements of the

charges. J/d. at 166.

2] We concluded that when a defendant is

faced with “other acts” evidence but wishes to

concede an element of the crime for which the

evidence is being offered, it is necessary for the court

to ensure that the record contains conclusive

evidence upon which the jury may rely to find guilt

before it reheves the State of the duty to prove that

element. /d. at 167. We then set out four guidelines

designed to make sure that a defendant who wishes

to make such a concession expresses his or her intent

clearly and unequivocally. /d. at 167-68. Under these

guidelines, courts are encouraged to: explore the

breadth of the defendant's offer in order to determine

exactly what the defendant is conceding to; access

the State’s evidence and determine whether the

“other acts” evidence would still be necessary even

with the defendant’s concession; and personally voir

dire the lawyers and the defendant to ensure that

they each understand the effects of the concession.

Id. In addition, we stated that “just like questions

involving the admissibility of ‘other acts’ evidence,

these concessions or stipulations should’ be

addressed pretrial if possible.” Jd. at 168.

{2: Assuminy for the sake of argument

that McMorris evidence is comparable to “other acts”

evidence, nothing in Wal/erman authorizes a circuit

court to require, rather than encourage, pretrial

disclosure. Wallerman involved the need for the

circuit court to determine whether the defendant

intended to, and did, make a concession. We

concluded that the existence of a concession should

be ascertained as early as possible in the

proceedings. However, we did not hold that a

defendant could be required to make this concession

pretrial. Instead, we held that, to the extent a

defendant makes a concession or stipulation, it is

preferable to address the matter pretrial, if possible.

Thus, our holding in Wad/erman is not inconsistent

with Miller and should not be read to authorize a

53a

circuit court to require pretrial discovery beyond the

dictates of WIS. STAT. § 971.23.

423 The State next argues that the circuit

courts order requiring pretrial disclosure of

McMorris evidence falls within the court’s authority

under WIS. STAT. § 906.11 to “exercise reasonable

control over the mode and order of interrogating

witnesses and presenting evidence.” However, the

general authority to superintend a trial cannot be

read to permit a court to require pretrial discovery

that it would otherwise not be authorized to do

under WIS. STAT. § 971.23 and the rule in Miller.

924 Citing State v. Revels, 221 Wis. 2d 315,

319-21, 585 N.W.2d 602 (Ct. App 1998), the State

also contends that discovery rules are rules of court

procedure rather than’ substantive or _ penal

provisions. ‘Thus, it argues, discovery rules are not

left exclusively to the legislature, and Wisconsin’s

appellate courts are equally free to develop them.

The Wisconsin Court of Appeals does not possess

supervisory authority which would permit it to

promulgate rules of criminal practice and procedure.

See State v. Perez, 170 Wis. 2d 130, 137, 487 N.W.2d

630 (Ct. App. 1992). Wisconsin's constitution and

statutes reserve law-developing and law-declaring

functions to the Wisconsin Supreme Court. /d. See

also State v. Schumacher, 144 Wis. 2d 388, 405-07,

424 N.W.2d 672 (1988). To date, the Wisconsin

Supreme Court has declined to adopt a_ pretrial

discovery procedure in criminal cases beyond that

provided by statute.

925 We conclude that the order of the

circuit court would operate, 1n essence, as a discovery

device, and would therefore be inconsistent with

WIS. STAT. § 971.23(2m) and contrary to the

holding in A@l/er. For the foregoing reasons, we

reverse the circuit court’s order requiring the pretrial

disclosure of McMorris evidence.

By the Court.—Order reversed.

Recommended for publication in the official

reports.

55a

State of Wisconsin Circuit Court Jefferson County

State of Wisconsin

Plaintiff,

vs: Case No. 2007CF000144

Jason L. McClaren,

Defendant.

ORDER

Based on the record made at the October 2,

2007 hearing and the written submissions herein,

the Court hereby Orders:

The defendant shall make written disclosure

to the Court and the prosecution by the close of

business on October 16, 2007, a summary of all

specific instances of the victim’s violent conduct of

which the defendant was aware and that the

defendant intends to introduce at trial, including

witnesses to such conduct and the date and place

such conduct occurred. Such disclosure does not

include acts of the victim referenced in_ the

defendant’s interrogation on March 31, 2007.

56a

Dated this 10 day of October, 2007.

BY THE COURT:

/s/ Randy R. Koschnick

Randy R. Koschnick

Circuit Court Judge

re: Attorney Happ

DA

CLERK OF THE CIRCUIT COURT

Jefferson County, Wisconsin

FILED

OCT 10 2007

o'clock == OM

57a

CONSTITUTIONAL PROVISIONS

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of hfe or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of hfe, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the state and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to he

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for his

defense.

AMENDMENT XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the state

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States: nor shall

any state deprive any person of hfe, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.