July 10, 2009 – Criminal defendants intending to argue self-defense must tell the prosecution ahead of trial which of the victim’s past violent acts informed their decision to use force so that the court can make a pretrial determination of its relevance and admissibility, the Wisconsin Supreme Court held on July 9.

Dissenting from this holding in State v. McClaren, 2009 WI 69, Justice Ann Walsh Bradley warned that the majority had circumvented statutory restrictions on pretrial discovery in criminal cases, potentially exposing other areas of a defendant’s case to pretrial disclosure.

A claim of self-defense

After a night of drinking, Jason McClaren hit his wife’s ex-boyfriend with a pickaxe. Prior to trial for attempted first-degree intentional homicide, McClaren filed a motion in limine for a ruling on the admissibility of information about his victim’s extensive criminal record and prior acts of violence.

Following the hearing, the court ruled that McClaren could introduce this McMorris evidence about his victim’s past in connection with his claim of self-defense. However, the court required McClaren to disclose to the prosecution and the court the nature of the evidence he intended to introduce. In its oral ruling, the circuit court also instructed the prosecution to provide a summary of any evidence it intended to use to rebut McClaren’s McMorris evidence.

McClaren appealed, arguing the proper time to resolve concerns about admissibility is after the testimony is elicited at trial and an objection is made. He said that under State v. Miller, 35 Wis. 2d 454 (1967), the court had no authority to add to his discovery obligations listed in Wis. Stat. § 971.23. McClaren also asserted several constitutional rights violations.

The Wisconsin Court of Appeals agreed with McClaren’s statutory argument and did not address his constitutional claims.

Court’s inherent authority

Before the supreme court, the state argued that the order comports with Wis. Stat. § 906.11, which authorizes a trial court to control the presentation of evidence so that truth can be effectively ascertained and time is not wasted.

Agreeing with the state, the justices said that this case “is primarily a question of timing.” That is, the court explained, “[f]oreseeing potential obstacles to a smoothly run trial and taking the necessary steps to avoid them is manifestly within the inherent power of a circuit court.”

“[T]he evidence in question presents the potential for multiple delays in the trial, if it is not resolved in advance of trial,” the court said. “The rule McClaren advocates, which would render disclosure of any McMorris evidence impermissible until such time as the defendant chose to disclose it, could force not just one, but many mid-trial delays.”

A court would likely have to grant “multiple continuances while the State investigates each incident and [hold] multiple hearings outside of the presence of the jury,” putting control of the courtroom in the hands of the defendant, the justices said.

Further, the court said that the “limited nature of the evidence covered in this order” places it “comfortably into Wis. Stat. § 906.11’s description of the court’s sphere of control.”

No constitutional violations

The court rejected McClaren’s argument that the order to disclose evidence regarding his state of mind at the time of the incident when he may not choose to testify at trial violates his Fifth Amendment rights. “Where, as here, the evidence to be disclosed is nothing more than what the defendant chooses and has indicated he will put on at trial, such an order does not invade constitutional protections under the Fifth Amendment,” the court said.

Additionally, the court said the order ensures fair play. “As the United States Supreme Court noted in an analogous case, the Constitution does not guarantee a criminal defendant the right to surprise the prosecutor,”   the court stated, citing Williams v. Florida, 399 U.S. 78 (1970), that upheld a law requiring pretrial notice of a defendant’s alibi defense.

McClaren argued that the circuit court’s threat to enforce its order by excluding any undisclosed McMorris evidence violated his Sixth Amendment right to present a defense. Exclusion is permissible, the court said, but a judge should consider lesser sanctions first and has determined that the violation was “willful and motivated by a desire to obtain a tactical advantage.”

Next, McClaren charged that the order violated his due process rights because it imposed no reciprocal disclosure obligations on the state. Specifically, McClaren said the order should direct the prosecution to turn over all corroborating evidence of incidents he identified from the alleged victim’s violent past. The court disagreed, noting that the oral order directed the prosecution to share its rebuttal evidence.

Discovery device?

In dissent, Bradley accused the majority of ignoring the order’s obvious discovery purpose to avoid the fact that McMorris evidence is not among the items a defendant is statutorily obliged to give to the prosecutor.

Bradley commented that “[t]he policy reasons advanced by the majority for allowing the court to compel the production of McMorris evidence are based on the rationale underlying discovery.” She also noted the majority was supporting its arguments with cases involving discovery rules, such as Williams.

“[C]ompelled pretrial disclosure of evidence by any name is still governed by the discovery rules,” Bradley said.

Bradley warned that the majority “opens wide the gates of pretrial discovery in criminal cases” by relying on inherent authority of the court. “[T]he majority rests on an unlimited pronouncement that covers the pretrial disclosure of any information that might aid in ensuring a smoothly run trial,” she wrote.

The majority argued the order is not a discovery device because it addresses nothing more than the evidence the party chooses to submit. “The order is, in essence, compelling advance notice of whatever McMorris evidence McClaren decides to offer solely for the legitimate purpose of establishing its admissibility in advance of trial,” the majority said.

But Bradley said the majority’s effort to restrict its holding to cases involving facts like those in McClaren’s case is “undermined by its invocation of the court’s broad inherent powers.” Because of this, Bradley remarked that the judiciary should not try to solve the potential problem posed by McMorris evidence.

“I acknowledge that McMorris evidence may pose special difficulties for the court,” Bradley wrote. “Perhaps the rationale underlying the statutory notice-of-alibi requirement applies to McMorris evidence as well.

“If so, however, it would be preferable for the legislature to promulgate a new rule. The advantage of a rule, rather than an opinion justified on the basis of the court’s inherent authority, is that it could be strictly limited to this type of evidence,” she said.