2008AP2713-CR State v. Copeland

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Criminal Procedure
Machner hearings; sequestration

Circuit courts have broad discretion under sec. 906.15(3) to prevent an attorney from sharing during a recess the testimony of prior witnesses with a nonparty witness who has yet to testify and to prevent an attorney from giving a witness a transcript of that testimony.

“Wisconsin Stat. § 906.15(3) provides that a court ‘may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended.’ Although this language does not explicitly reference communications between witnesses and attorneys, the only reasonable reading of the statute is that the court may restrict those communications when necessary to prevent indirect communications, sharing one witness’s testimony with another. See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶44, 46, 271 Wis. 2d 633, 681 N.W.2d 110 (we interpret statutory language to avoid unreasonable results and to effectuate the purpose of the statute). There is no practical difference between an attorney sharing the testimony of a witness with another witness who has yet to testify and the same two witnesses communicating directly with each other. The result is the same: the second witness receives information about the first witness’s testimony. The second witness might then tailor his or her testimony to that of the first witness, potentially frustrating the fact finder’s ability to discern the truth. Without the authority to restrict attorney-witness communication in these circumstances, courts would be powerless to stop noncomplying attorneys from circumventing sequestration orders.” Reversed and Remanded.

Recommended for publication in the official reports.

2008AP2713-CR State v. Copeland

Dist. IV, Clark County, Counsell, J., Higginbotham, J.

Attorneys: For Appellant: Leeper, David, Madison; For Respondent: Zwieg, Darwin L., Neillsville; Whelan, Maura F.J., Madison

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