Discovery error is harmless

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Harmless error analysis applies to the State’s failure to disclose a witness’ criminal record, the Wisconsin Court of Appeals held on Dec. 18. Because the witness had no “knowledge, motive or opportunity” to lie, the court held that the defendant is not entitled to a new trial.

Paul Rice was charged with two counts of burglary and one count of bail jumping. One of the burglaries involved the theft of $2,600, mostly in $100 bills.

On the morning of trial, the State informed Rice that it intended to call Christopher LeFevre as a witness, but did not disclose LeFevre’s criminal record to Rice, as required by sec. 971.23.

LeFevre testified that, shortly after the burglary, Rice purchased a van from Le-Fevre and paid in $100 bills.

Rice was convicted, and appealed, but the court of appeals affirmed in a decision by Judge Gregory A. Peterson.

The court first concluded that the State did not violate its duty to disclose the names and addresses of its witnesses, even though it did not inform Rice that it intended to call LeFevre until the day of trial.

The prosecutor informed the trial court that he did not realize LeFevre’s testimony might be useful until the day before trial, when he noticed that Rice purchased a van shortly after the burglary, and he suspected the van may have been purchased with the burglary’s proceeds.

The court of appeals thus concluded that the late notice was made in good faith, and LeFevre was properly allowed to testify.

The court then held that Rice is not entitled to a new trial, even though the State did not disclose LeFevre’s criminal record.

The State conceded that it violated sec. 971.23 by not doing so, and that it did not have good cause for the violation.

However, the court found the error was harmless.

The court reasoned, “the same things that made LeFevre’s testimony so important also made his criminal convictions relatively unimportant. LeFevre was involved in the case simply by happenstance and, as the circuit court noted, he testified to facts that ‘were only significant in the context of other evidence….’ As a result, LeFevre did not have the knowledge, motive, or opportunity to fabricate his testimony.”

The court observed that, in some cases, the value of impeachment with criminal convictions may be extremely probative, while in others, its value is minimal.

Because LeFevre’s criminal convictions had little connection to the value of his testimony, the court concluded there is no reasonable possibility that the State’s discovery violation contributed to the conviction.

Accordingly, the court affirmed.

Case analysis

In most cases, the case will be distinguishable, because it is a rare witness of whom it can be said that he lacked “knowledge, motive or opportunity” to lie.

Although it may be true that LeFevre had no motive to lie, it is not exactly clear what the court meant when it said that he lacked the knowledge or opportunity to do so.

Presumably, LeFevre did not know that the burglary at issue involved the theft of many $100 bills, and therefore, his testimony that Rice paid for the van with $100 bills could not possibly be subject to attack based on his credibility. However, the court does not explicitly state that LeFevre did not know about the details of the burglary, so this is only speculation.

Many witnesses, like LeFevre, have no particular motive to testify falsely; experienced defense attorneys accordingly try to cast doubt on their reliability, rather than their credibility.

Nevertheless, few witnesses are such innocent bystanders that the court’s assessment in this case — the witness had no “knowledge, motive or opportunity” to lie — will be applicable to them.

As a result, in most cases when the State fails to disclose a witness’ criminal record, the case will be distinguishable and a new trial will be required, pursuant to State v. White, 2004 WI App 78, 271 Wis.2d 742, 680 N.W.2d 362, review denied, 684 N.W.2d 137.

Oddly, the court in the case at bar does not even cite White, much less attempt to distinguish it.

The defendant in White was charged with the armed robbery of a convenience store clerk.

The State did not disclose to White that the clerk was on probation under a deferred-judgment of a conviction for possessing marijuana.

The jury found White guilty, but the court of appeals reversed, holding that White was entitled to a new trial, because of the State’s failure to disclose the clerk’s conviction, as required by sec. 971.23(1)(f).

The court concluded, “A witness’s probationary status is relevant because it and the fear of possible revocation are pertinent to the material issue of whether the witness has ‘ulterior motives’ to shape his or her testimony. Indeed, unless a defendant can ‘make a record’ so the jury can assess why the witness might be testifying falsely, attacks on credibility will often be perceived by the jury as ‘a speculative and baseless line of attack.’

Significantly, the non-disclosed evidence need not necessarily be of such force to result in an acquittal: ‘The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’ It may very well be that the jury would have adopted the trial court’s analysis, but, under our system, White had the right to lay a foundation to present his theory to the jury and have the jury decide — every defendant is entitled to ‘“a meaningful opportunity to present a complete defense.”’ In sum, we cannot say that failure to apprise the jury that Ehlers had a motive to lie about the robbery was ‘“harmless beyond a reasonable doubt.”‘ (cites omitted).” White, 680 N.W.2d at 369.

In most cases when the State fails to disclose a witness’ criminal record, this assessment will be applicable, and will warrant a new trial, and the case at bar will be distinguishable.

It should be a rare case when a new trial is not granted.