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ON THE DEFENSIVE: Defense of liberty should face no obstacles

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Criminal defense attorneys have few tools they can use to learn about the prosecution’s case.

Typically, the defense attorney gets a set of police reports that largely summarizes the events in question. There is no statutory right, in criminal cases, to depose witnesses. Unless the attorney can find a legal challenge, such as probable cause for the arrest, there is almost no mechanism by which police officers or witnesses can be questioned, under oath, short of trial.

Defendants used to have a limited opportunity to question the state’s witnesses at preliminary hearings, albeit in felony matters only. In April 2012, the Legislature largely took away that right, permitting the prosecution to introduce hearsay at those proceedings.

The practical effect of that legislation was to eviscerate the only meaningful chance defendants had to test the evidence against them. The liberty interest of defendants took a back seat to judicial economy.

It is well known that almost all criminal cases resolve by way of a plea agreement. There are countless reasons for this, but perhaps the crucial one is the risk felt by most defendants if they go to trial.

The risk is so high because the average defendant has little way of knowing how good the witness recollections will be prior to trial and also must assume the witnesses the defendant wants to call at trial actually will be permitted to testify.

In criminal actions, Wisconsin law prohibits defense attorneys from signing their own subpoenas. They must instead request that the judge sign them. Those are the rules that have been established when one’s liberty is at stake.

The rules are different when money is involved. While civil practitioners have similar jury trial rights, they also possess quite a few additional tools.

Civil lawyers can depose witnesses, thereby learning the details of their trial testimony. Civil lawyers also can send out interrogatories and, unlike defense attorneys, can sign subpoenas for witnesses without advance judicial approval.

That structure ensures that those who face the potential loss of liberty also are the most likely to face trial by ambush. Unless a defendant has the resources to hire a private investigator, the defendant is unlikely to know much about the prosecution’s case, beyond what has been written in the police reports.

Because the Legislature is unlikely to change the paradigm, judges need to assume the responsibility of ensuring that defense attorneys are afforded adequate time to prepare and investigate. In cases of considerable complexity, such as those involving significant medical evidence, that sometimes can mean delays of a year or two.

Money should not be elevated above liberty, and judicial economy never should trump the right of a defendant to a fair trial.

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