2006AP1826-CRAC State v. Schaefer

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Criminal Procedure
Discovery

A criminal defendant does not have a statutory or constitutional right to compel production of police investigation reports and other nonprivileged materials by subpoena duces tecum prior to the preliminary examination.
"A preliminary examination is not a trial. State ex rel. Lynch v. County Ct., Branch III: Cleveland, 82 Wis. 2d 454, 465-66, 262 N.W.2d 773 (1978). Its purpose is not to determine guilt beyond a reasonable doubt. State v. Anderson, 2005 WI 54, 24, 280 Wis. 2d 104, 695 N.W.2d 731. Its purpose is merely to determine if there is probable cause to believe that the defendant has committed a felony. Wis. Stat. § 970.03(1). Hence, when a defendant issues a subpoena with a broad demand for records before the preliminary examination, he is trying to expand the scope of statutory discovery and move it to a preliminary stage of the criminal proceedings. At this early point, the state has not settled on final charges, may not have completed its investigation, and may not fully understand the complexities of its own case. While the preliminary examination often affords the defendant new information and detail about the state's evidence, this new information is a byproduct, not the objective, of the preliminary examination.
"We conclude that a criminal defendant does not have a statutory or constitutional right to compel the production of police investigation reports and nonprivileged materials by subpoena duces tecum prior to the preliminary examination. A criminal defendant who employs the subpoena power in this manner is attempting to engage in discovery without authority in either civil or criminal procedure statutes and in conflict with criminal discovery statutes. Although a reasonable argument can be made for prosecutors to open their files to defendants at an early point in criminal prosecutions, this argument does not translate into an enforceable right to subpoena police investigation reports and nonprivileged materials before a preliminary examination."
Affirmed.

2006AP1826-CRAC State v. Schaefer

Prosser, J.

Attorneys: For Appellant: Stilling, Kathleen B., Brookfield; For Respondent: O'Brien, Daniel J., Madison; Schimel, Brad, Waukesha