State v. Noble

¶1(concurring). I join the mandate and opinion of the court but write separately because of several sentences in ¶ 28 of the majority opinion.

¶2¶ 34. The opinion discusses two cases, State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), and State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982), indicating that in neither case did the court find "an actual abuse of the John Doe proceeding." Then the opinion states:

Nevertheless, as mentioned previously, both courts noted that suppression is required in instances where *231the state abuses the John Doe proceeding by using the proceeding to gather evidence "against a defendant for a crime with which the defendant has already been charged." "Such use is clear abuse of the process." The court never discussed whether such abuse constitutes a violation of due process; however, the terse conclusion reached by the court that such conduct is "clear abuse" suggests that such conduct could rise to the level of a due process violation.

¶3Majority op. at ¶ 28 (citations omitted).

¶4¶ 35. First, these cases do not require automatic suppression of all evidence gathered in a John Doe proceeding against a charged defendant. These cases stand for the proposition that the state may not orchestrate a John Doe proceeding to obtain additional evidence "against a defendant for a crime with which the defendant has already been charged." Cummings, 199 Wis. 2d at 745. The state may still use a John Doe to "(1) investigate other possible defendants related to the crimes that will be charged in the information filed against the original defendant, and (2) investigate other crimes that cannot be charged in the information, but may have been committed by the defendant." Id. at 745-46. "It is only when the John Doe is used to gather evidence specifically relating to the crime for which the defendant is being tried that an abuse of the procedure occurs." Id. at 746.

¶5¶ 36. In my view, this opinion does not settle the question whether evidence uncovered in a John Doe proceeding focusing on one person may be used in a trial against another person on a charge filed against that person before the new evidence was obtained.1*232¶ 37. Second, I do not see how due process violations would be implicated by the use of a John Doe-type proceeding to gather additional evidence against a charged defendant even on the crime charged, so long as the defendant is not asked to testify. A John Doe investigation does not come to an abrupt halt the moment the prosecutor has gathered enough evidence to file a criminal charge. It usually continues until all key witnesses have been examined, and then a charge is filed. Moreover, at a preliminary examination after the charge is filed, new evidence may be sought and adduced; and that evidence may be used against the defendant.2

¶6¶ 38. The prosecutor and the police do not stop investigating a crime once a defendant has been charged with the crime. The state has the burden of proving each element of the crime beyond a reasonable doubt. It is inconceivable that the state would stop *233gathering information and evidence to meet its burden of proof once a charge had been filed. The state may also have to continue investigating to meet its discovery obligations.

¶7¶ 39. One may argue persuasively that the John Doe proceeding is intended to ascertain whether a crime has been committed and, if so, by whom, and is not intended to help firm up the case against a charged defendant. But how would the use of an authorized John Doe-type proceeding to take testimony from potential witnesses against the defendant be fundamentally unfair or violate the due process rights of the defendant? Under Wis. Stat. § 971.23(1), the state would be required to disclose any of the defendant's oral statements about the crime that it learned of in the proceeding, the names of any witnesses whom the prosecutor intended to call at trial, together with a transcript of John Doe-type testimony, and any exculpatory evidence that came out of the proceeding.

¶8¶ 40. Today, John Doe proceedings are usually less secretive and more fair than they once were. This court should not invite suppression of reliable evidence in criminal cases by allusions to due process violations based upon outmoded notions of past practice.

¶9¶ 41. I am authorized to state that JUSTICE DIANE S. SYKES joins this concurring opinion.