01-2126 State v. Konkol

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“To put it bluntly, the defense takes its chances when offering a theory of defense and the State can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating sec. 971.23(1)(d). …

“Sound policy reasons support our holding that the State should not be barred from putting on legitimate rebuttal evidence simply because it correctly anticipated the defense. Any contrary rule would cause considerable delay and confusion in the trial process.

First, it would require a prosecutor to assemble and list all possible rebuttal witnesses in anticipation of defense strategies that may or may not be presented at trial. This would needlessly protract the entire trial process. Furthermore, if the prosecutor presented in the case-in-chief evidence that was directed to a defense theory which was never advanced during the trial, the jury would view the prosecutor’s efforts, at best, as a waste of time and, at worst, as disingenuous, untrustworthy and, perhaps, ‘piling-on.'”

Judgment affirmed.

Recommended for publication in the official reports.

Dist II, Winnebago County, Hawley, J., Brown, J.

Attorneys:

For Appellant: Brian Hough, Appleton

For Respondent: Joseph F. Paulus, Oshkosh; Jennifer E. Nashold, Madison; Carissa J. Kuecherer, Oshkosh