STATE v. SCHAEFER

¶ 1. DAVID T. PROSSER, J.

This case is before the court on certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2005-06). It relates to an appeal from a nonfinal order of the Waukesha County Circuit Court, Ralph M. Ramirez, Judge. Judge Ramirez granted the State's (State) motion to quash a subpoena duces tecum from defendant Ronald Schaefer (Schaefer) that sought to obtain police investigation reports in Schaefer's case before his preliminary examination.

All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

¶ 2. After permitting Schaefer's interlocutory appeal, the court of appeals certified the following question to this court: "Does a criminal defendant have a subpoena right to obtain and copy police investigation reports and nonprivileged materials prior to the preliminary hearing?" This question requires interpretation of several Wisconsin statutes as well as the constitutional rights to compulsory process and effective assistance of counsel.

¶ 3. We conclude that a criminal defendant does not have a statutory or constitutional right to compel production of police investigation reports and other nonprivileged materials by subpoena duces tecum prior to the preliminary examination. A criminal defendant who employs the subpoena power in this manner is attempting to engage in discovery without authority in either civil or criminal procedure statutes and in conflict with the criminal discovery statutes. Although a reasonable argument can be made for prosecutors to open their files to defendants at an early point in criminal prosecutions, this argument does not translate into an enforceable right to subpoena police investigation reports and nonprivileged materials before a preliminary examination. Consequently, we affirm the order of the circuit court granting the State's motion to quash Schaefer's subpoena duces tecum.

I. FACTS AND PROCEDURAL POSTURE

¶ 4. The criminal complaint charged Schaefer with two counts of second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2), for conduct that allegedly occurred in 1990. The complaint was signed by Detective Jennifer Toepfer (Toepfer) of the Brookfield Police Department who asserted that she took a statement about the alleged assaults from Kerry M., DOB: 4/6/76, in March 2006 and then conducted an investigation into Kerry's claims.

¶ 5. The complaint makes the following allegations: Ronald Schaefer was a teacher and basketball coach at a parochial school in Menomonee Falls. Kerry was a student at the school. Schaefer was Kerry's basketball coach when she was in seventh grade. During the 1988-89 school year, Schaefer began to focus attention on Kerry, complimenting her, telling her that she "looked nice," and giving her the nickname "Special K."

¶ 6. The next year, Schaefer became Kerry's eighth grade teacher. Following his usual practice of picking an eighth-grade student to serve as a babysitter for his children, Schaefer selected Kerry. Toward the end of her eighth grade year and continuing into the summer — between March 1990 and August 1990 — Kerry had a sexual relationship with Schaefer.

¶ 7. Kerry described both her social and sexual encounters with Schaefer over this time period. She reported that Schaefer wrote her notes and poems, which she saved (and subsequently turned over to Detective Toepfer). Schaefer kissed Kerry and told her that he loved her. When the two called each other at their respective homes, Kerry would hang up if Schaefer's wife answered the telephone, and Schaefer would hang up if one of Kerry's parents answered. Kerry considered Schaefer her first boyfriend. Kerry said that in May 1990 she and Schaefer discussed running away together to Kentucky or Tennessee because "it was ok to get married younger there."

¶ 8. Kerry recounted how Schaefer touched her physically and sexually on several occasions during this period. His touching included hugging, kissing, and performing oral sex on her. On one occasion, after swimming, Kerry and Schaefer had sexual intercourse on a bed at his parents' home in Brookfield. On another occasion, the pair had sexual intercourse in Schaefer's bed while Kerry was babysitting his two children. Kerry had not attained the age of 16 years at the time of any of these incidents and thus could not legally consent.

¶ 9. In August 1990, the relationship between Kerry and Schaefer ended when Schaefer told Kerry that they could not see each other anymore because Kerry was starting high school. Kerry later told the detective that she was devastated because she thought Schaefer was her boyfriend.

¶ 10. These allegations led the State to file a criminal complaint on May 25, 2006, charging Schaefer with two counts of second-degree sexual assault of a child. The defendant made his initial appearance on June 1. He posted bond and was advised to have no contact with the victim. He made a second appearance on June 19. At that time a preliminary hearing was scheduled for July 20, 2006, before Waukesha County Court Commissioner Martin O. Binn.

¶ 11. On July 10, Schaefer served a subpoena duces tecum on the "Chief of Brookfield Police Department or Designee," commanding the person to bring the following material before Commissioner Binn on July 13, 2006: "A complete copy of all reports, memorandums, witness interviews and any records related to the investigation and arrest of Ronald Schaefer on suspected criminal offenses relating to the alleged sexual assault of Kerry M. DOB 4/6/76 in 1990." The subpoena duces tecum characterized the "Type of Proceeding" before Commissioner Binn as a "Return of Records."

¶ 12. On July 11, the State moved to quash the subpoena. At a hearing on July 13, Commissioner Binn granted the State's motion, indicating that after he reviewed Chapters 805, 885, 970, 971, and 972 of the Wisconsin Statutes, he considered the defendant's subpoena a request for the circuit court to "re-write the discovery statute, [Wis. Stat. §] 971.23." He also noted that the preliminary examination is "not a mini-trial, and [] not a discovery proceeding."

¶ 13. The defendant sought de novo review in circuit court. On July 18 Judge Ramirez conducted a hearing and concluded that there is no mechanism under state statute or the Wisconsin or federal constitutions that specifies that "discovery materials" shall be produced before the preliminary hearing.

¶ 14. On July 19, 2006, Judge Ramirez entered an order granting the State's motion to quash Schaefer's subpoena duces tecum.

¶ 15. Schaefer filed a timely petition for leave to appeal, and the court of appeals stayed further proceedings pending appeal. See Wis. Stat. § 809.52.

¶ 16. On December 27, 2006, the court of appeals certified the appeal to this court. We accepted certification on February 12, 2007.

II. STANDARD OF REVIEW

¶ 17. This case involves questions of statutory interpretation and constitutional law. Statutory interpretation presents a question of law that we review de novo. State v. Floyd, 2000 WI 14, ¶ 11, 232 Wis. 2d 767, 606 N.W.2d 155. Similarly, we review constitutional questions, both state and federal, de novo. Custodian of Records for the Legislative Technology Services Bureau v. State, 2004 WI 65, ¶ 6, 272 Wis. 2d 208, 680 N.W.2d 792.

III. ANALYSIS

¶ 18. This is a discovery case, notwithstanding the defendant's protestations to the contrary. Schaefer's appeal asks this court to approve the subpoena power to effect discovery in a criminal case prior to the preliminary examination.

¶ 19. Schaefer does not claim to be seeking some specific piece of information missing from the complaint so that he can fully respond to the charges. Rather, he is trying to force the State to disclose the evidence against him before it has had an opportunity to present any of that evidence in court. In effect, Schaefer is asking this court to accommodate all felony defendants who wish to conduct discovery of the state's evidence before their preliminary examinations by vesting these criminal defendants with a new discovery tool. Schaefer's arguments that the state and federal constitutions compel this result unreasonably stretch the boundaries of compulsory process and misapprehend the requirements of effective assistance of counsel.

¶ 20. We acknowledge at the outset that the right of an accused to present a defense is fundamental. Washington v. Texas, 388 U.S. 14, 19 (1967). It is embodied in the due process guarantees of the Fifth and Fourteenth Amendments and in the Sixth Amendment's command that the accused shall have compulsory process for obtaining witnesses in his favor. Due process preserves an accused's right to challenge the prosecution's case by obtaining evidence tending to establish the accused's innocence or by casting doubt upon the persuasiveness of the prosecution's evidence.

5 Wayne R. LaFave, et al., Criminal Procedure § 24.3(a), at 469 (2d ed. 1999).

Id. at 470.

¶ 21. There are several ways for a criminal defendant to gather information and evidence that may be used in his defense. First, a defendant may request information from the state and other sources on a voluntary basis. A criminal defendant will often be given information voluntarily when the custodian has no objection to its release. Second, a defendant may conduct his own investigation of the case through interviews, record and data collection, and other lawful investigatory techniques. In some situations, a person's investigation will begin even before the person is charged with a crime. Third, a person may use information-gathering techniques such as open records requests that are available to non-litigants. A person is not disqualified from using these familiar procedures simply because he becomes a criminal defendant. Fourth, a defendant may employ the subpoena power at pretrial hearings to litigate specific issues, such as the suppression of evidence, and may also use the subpoena power at trial. Pretrial hearings will have a narrow focus; thus, the evidence sought must be relevant to the issue being litigated and is not likely to be admitted if it fails this test. Finally, a defendant may exercise his discovery rights under the Wisconsin Statutes.

Wisconsin's open records law, see Wis. Stat. §§ 19.31- 19.39, does not preclude access to law enforcement records. However, the right to access law enforcement records is not unqualified. See, e.g., Wis. Stat. §§ 19.35(1)(am), 19.36(2) and (8), 905.09, and 905.10. Wisconsin Stat. § 905.09 provides:

Law enforcement records. The federal government or a state or a subdivision thereof has a privilege to refuse to disclose investigatory files, reports and returns for law enforcement purposes except to the extent available by law to a person other than the federal government, a state or subdivision thereof. The privilege may be claimed by an appropriate representative of the federal government, a state or a subdivision thereof.

¶ 22. Our legislature has codified specific discovery rights for criminal defendants. See Wis. Stat. § 971.23 (listing mandatory disclosures for both the district attorney and defendant). In theory, these criminal discovery rights attempt to level the playing field between the state and the accused. State v. Maday, 179 Wis. 2d 346, 353, 507 N.W.2d 365 (Ct.App. 1993). Clearly, a defendant has a right to obtain evidence in the state's possession when that evidence is material and exculpatory. See, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963). The state must turn over material that tends to negate the guilt of the defendant or tends to reduce the defendant's punishment. Nelson v. State, 59 Wis. 2d 474, 479, 208 N.W.2d 410 (1973).

¶ 23. Traditionally, however, statutory discovery is designed to assure fairness at a criminal trial. Discovery anticipates a trial at which a fact-finder determines guilt. The court of appeals has stated that "[p]retrial discovery is nothing more than the right of the defendant to obtain access to evidence necessary to prepare his or her case for trial." Maday, 179 Wis. 2d at 354 (citing Britton v. State, 44 Wis. 2d 109, 117, 170 N.W.2d 785, 789 (1969)) (emphasis added). "Providing a defendant with meaningful pretrial discovery underwrites the interest of the state in guaranteeing that the quest for the truth will happen during a fair trial." Maday, 179 Wis. 2d at 354-55 (emphasis added).

¶ 24. A preliminary examination is not a trial. State ex rel. Lynch v. County Ct., Branch III: Cleveland, 82 Wis. 2d 454, 465-66, 262 N.W.2d 773 (1978). Its purpose is not to determine guilt beyond a reasonable doubt. State v. Anderson, 2005 WI 54, ¶ 24, 280 Wis. 2d 104, 695 N.W.2d 731. Its purpose is merely to determine if there is probable cause to believe that the defendant has committed a felony. Wis. Stat. § 970.03(1). Hence, when a defendant issues a subpoena with a broad demand for records before the preliminary examination, he is trying to expand the scope of statutory discovery and move it to a preliminary stage of the criminal proceedings. At this early point, the state has not settled on final charges, may not have completed its investigation, and may not fully understand the complexities of its own case. While the preliminary examination often affords the defendant new information and detail about the state's evidence, this new information is a byproduct, not the objective, of the preliminary examination.

4 Wayne R. LaFave, et al., Criminal Procedure § 14.1(b), at 115 (2d ed. 1999). See also Whitty v. State, 34 Wis. 2d 278, 287, 149 N.W.2d 557 (1967) (recognizing that the preliminary examination may be helpful to a criminal defendant and noting its "incidental fringe benefits").
For an excellent discussion of the principle that the preliminary examination should not be used for purposes of discovery, see Desper v. State, 318 S.E.2d 437, 441-42 (W.Va. 1984).

¶ 25. This case presents an opportunity to address the relationship between pretrial discovery and the preliminary examination. We begin with a discussion of the nature and purpose of discovery, as well as the purpose and scope of the preliminary examination.

A. Discovery and the Preliminary Examination

¶ 26. We begin with discovery because of the character of the information the defendant seeks. Schaefer's "Subpoena and Certificate of Appearance" uses Form 126. His document adds the words "Duces Tecum" under the form's heading. The subpoena is issued to "Chief of Brookfield Police Department or Designee." (Emphasis added.) It demands that the "witness" bring "[a] complete copy of all reports, memorandums, witness interviews and any records related to the investigation and arrest of Ronald Schaefer on suspected criminal offenses or relating to his alleged sexual assault of Kerry M. DOB 4/6/76 in 1990."

¶ 27. The expansive swath of Schaefer's subpoena duces tecum and the subpoena's indifference regarding which person should appear with the requested information immediately raise questions about the subpoena's purpose. Because Schaefer makes no showing of a particularized need of information for the preliminary examination, his demand to inspect law enforcement files amounts to generalized, unrestricted discovery. This court decided in Lynch that giving defendants the right to compulsory inspection of the state's files before the preliminary examination will impede the orderly process of discovery prescribed by statute, unjustifiably delay the administration of justice, and needlessly complicate the relatively informal procedures of the preliminary examination. Lynch, 82 Wis. 2d at 466.

The facts in Lynch are instructive. Seven persons were prosecuted in Dane County for feloniously delivering cocaine. State ex rel. Lynch v. County Ct., Branch III: Cleveland, 82 Wis. 2d 454, 458, 262 N.W.2d 773 (1978). When the State's first witness was cross-examined at the preliminary examination, counsel for one of the seven defendants demanded receipt of any exculpatory material contained in reports prepared by the witness. Id. This demand came after defense counsel had been unsuccessful in efforts to persuade the court to order the witness to produce his reports on the incident, despite the fact that he had not relied on his notes or reports to refresh his recollection prior to his testimony. Id.
In response to this demand, the State offered to submit its files for each of the seven defendants to the county court for in camera inspection, thereby permitting the court to determine whether exculpatory evidence was present. Id. The county court responded that its review of the seven files would take too long and would delay the preliminary examination, and it ordered the district attorney to submit the files for inspection by defense counsel. Id. On appeal, the county court's order was prohibited by the circuit court, and this court upheld the circuit court. Id.
From our review of the Lynch decision and the Lynch briefs, it is obvious that defense counsel wanted access to the police investigation reports contained in the files of the seven defendants. Assistant Attorney General William Gansner argued successfully in his brief that the defendants were not entitled to obtain the same reports via the county court's order that they were unable to obtain "by normal evidentiary or statutory discovery means."

¶ 28. The Wisconsin Statutes do not define the term "discovery." As a result, we must refer to other authority.

The Wisconsin Statutes describe the types of items subject to discovery and various methods for effecting discovery. See Wis. Stat. §§ 804.01(1) ("Discovery methods"), 804.01(2) ("Scope of discovery"), 971.23 ("Discovery and inspection"). Materials subject to discovery in civil cases are outlined in Wis. Stat. § 804.01(2)(a)-(d).
Similarly, Wis. Stat. §§ 971.23(1) and 971.23(2m), respectively, list disclosures required to be made by the district attorney and the defendant in a criminal proceeding.

¶ 29. Black's Law Dictionary defines "discovery" as "[t]he act or process of finding or learning something that was previously unknown" and " [c]ompulsory disclosure, at a party's request, of information that relates to the litigation." Black's Law Dictionary 478 (7th ed. 1999) (emphasis added). The first definition is general; the second relates specifically to legal proceedings. The California Supreme Court commented on the difference in Arnett v. Dal Cielo, 923 F.2d 1, 10-11 (Cal. 1996), in a discussion of civil discovery:

[The word "discover" can be used] in its general sense of finding something out by search or observation. . . .

[D]iscovery also has a specific legal meaning, to wit, the formal exchange of evidentiary information and materials between parties to a pending action. The two meanings of the word are well recognized in the dictionaries. Thus a leading legal dictionary first defines "discovery" to mean, " In a general sense, the ascertainment of that which was previously unknown; the disclosure or coming to light of what was previously hidden.". . . (Black's Law Diet. (6th ed. 1990) p. 466). But the same work also defines the word ["discovery"] in its specifically legal sense, as "[t]he pre-trial devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party's preparation for trial," . . . Even nonlegal dictionaries draw this distinction . . . "3. Law. Data or documents that a party to a legal action is compelled to disclose to another party either prior to or during a proceeding." (Am. Heritage Diet. (2d college ed. 1985) p. 403).

¶ 30. Discovery, in the legal sense, is distinguishable from less formal information-gathering techniques. Discovery is grounded in statute or court rule, is designed to avoid unfairness and surprise in litigation, and may be enforced by judicial orders and sanctions. As a result, discovery, in the legal sense, is subject to reasonable terms and limitations as to timing, convenience, cost, methodology, privilege, and purpose. This is especially true of discovery in criminal cases, for criminal discovery operates on different principles from civil discovery. In criminal discovery, the stakes are different, the purposes are different, the procedures are different, and the disclosure of information is understandably not reciprocal.

¶ 31. The essence of "discovery" for purposes of analysis here is "[c]ompulsory disclosure, at a party's request, of information that relates to the litigation." Black's Law Dictionary 478 (7th ed. 1999). Schaefer's subpoena duces tecum seeks to compel a law enforcement agency to produce information and material "relate[d] to the litigation" before the preliminary examination. Id. Hence, Schaefer is using the subpoena duces tecum as a discovery tool.

¶ 32. We turn now to the preliminary examination. There is no constitutional right to a preliminary examination. State v. Williams, 198 Wis. 2d 516, 525, 544 N.W.2d 406 (1996). The right to such an examination stems purely from statute. State ex rel. Klinkiewicz v. Duffy, 35 Wis. 2d 369, 373, 151 N.W.2d 63 (1967). As noted above, Wis. Stat. § 970.03 provides a preliminary examination for the specific purpose of determining whether there is probable cause to believe a felony has been committed by the defendant. Wis. Stat. § 970.03(1).

¶ 33. The independent screening function of the preliminary examination serves as a check on the prosecutorial power of the executive branch. An accused has the option to assure that the hearing is scheduled expeditiously so that he may be discharged quickly if the government cannot justify its right to go forward. Klinkiewicz, 35 Wis. 2d at 373.

¶ 34. We examined the scope of the preliminary examination in State v. Dunn, 121 Wis. 2d 389, 359 N.W.2d 151 (1984). We emphasized that a preliminary hearing as to probable cause is not a preliminary trial or a full evidentiary trial on the issue of guilt beyond a reasonable doubt. 7c?. at 396 (citing State v. Hooper, 101 Wis. 2d 517, 544, 305 N.W.2d 110 (1981)). Rather, the preliminary examination is "intended to be a summary proceeding to determine essential or basic facts as to probability." Dunn, 121 Wis. 2d at 396-97. "[A] preliminary hearing is not a proper forum to choose between conflicting facts or inferences, or to weigh the state's evidence against evidence favorable to the defendant." 7c?. at 398. The preliminary examination is not a minitrial on the facts; its purpose is merely to determine whether there is sufficient evidence that charges against a defendant should go forward. See id.

¶ 35. Significantly, a defendant may present evidence at a preliminary examination. Wis. Stat. § 970.03(5). He may call witnesses to rebut the plausibility of a witness's story and probability that a felony was committed. See Dunn, 121 Wis. 2d at 396-98. In this regard, the defendant must have compulsory process to assure the appearance of his witnesses and their relevant evidence.

Wisconsin Stat. § 970.03(5) states: "All witnesses shall be sworn and their testimony reported by a phonographic reporter. The defendant may cross-examine witnesses against the defendant, and may call witnesses on the defendant's own behalf who then are subject to cross-examination."

¶ 36. However, a defendant's right to present evidence at a preliminary examination is not boundless. In State v. Knudson, 51 Wis. 2d 270, 187 N.W.2d 321 (1971), we held that Knudson's attempt to call two witnesses — the victim's mother and the chief of police — was an effort "to expose inconsistencies in the accounts given by the victim to various people" and impermissible at the preliminary examination. Id. at 280-81. After the victim testified to the factual basis for the charge of child enticement, Knudson sought to impugn the victim's credibility and, in the process, "gain some valuable information for his defense" by presenting contradictory testimony. Id. at 281. The court described this as pretrial discovery beyond the role of the preliminary examination. Id. See also State ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 630, 317 N.W.2d 458 (1982) (observing that "possible weaknesses in [the witness's] identification are matters affecting . . . weight and credibility" and not subjects for the preliminary examination).

¶ 37. Because the statutory purpose of the preliminary examination is narrowly focused upon a determination of probable cause, Wis. Stat. § 970.03(1), a defendant's right to present evidence at the hearing is limited to "essential facts as to probability" that the alleged offense occurred. Knudson, 51 Wis. 2d at 280 (citing State ex rel. Evanow v. Seraphim, 40 Wis. 2d 223, 228, 161 N.W.2d 369 (1968)). This means that although a defendant may subpoena witnesses and evidence for the preliminary examination, see Wis. Stat. §§ 973.03(5), 972.11(1), and 885.01, his subpoena may be quashed, a witness may not be allowed to testify, or evidence may be excluded if the defendant is unable to show the relevance of the testimony or evidence to the rebut probable cause.

¶ 38. When a defendant's subpoena duces tecum seeks all investigatory material in the possession of the police, and the subpoena is returnable before the preliminary examination, the subpoena is fishing for elements of the state's case, see Knudson, 51 Wis. 2d at 280, and is not proper.

¶ 39. We do not see how Schaefer's subpoena duces tecum aimed at securing "[a] complete copy of all reports, memorandums, witness interviews and any records related to the investigation and arrest of Ronald Schaefer" can be viewed as a narrow attempt to secure essential information to rebut the State's showing of probable cause. (Emphasis added.) It is plainly an attempt to effect discovery.

¶ 40. To summarize, we conclude that the purpose of a preliminary examination is limited to an expeditious determination of whether probable cause exists for the state to proceed with felony charges against a defendant. The limited purpose of the preliminary examination does not permit a criminal defendant to compel discovery in anticipation of the hearing. Schaefer's subpoena duces tecum in the instant case is an effort to effect discovery.

B. Statutory Rights to Subpoena Evidence and to Discovery in a Criminal Proceeding

¶ 41. Schaefer contends that the analysis above is inconsistent with the broad subpoena power in the Wisconsin Statutes. We disagree. Schaefer's subpoena duces tecum is 1) not authorized by our subpoena statutes, and 2) inconsistent with our criminal discovery statutes.

¶ 42. The subpoena power is set out in multiple statutes. For instance:

(A) Wisconsin Stat. § 757.01(1) provides that courts of record shall have power "[t]o issue process of subpoena, requiring the attendance of any witness, . . . to testify in any matter or cause pending or triable in such courts."

(B) Wisconsin Stat. § 885.01(1) authorizes a court to "require the attendance of witnesses and their production of lawful instruments of evidence in any action, matter or proceeding pending or to be examined into before any court, magistrate, officer, arbitrator, board, committee or other person authorized to take testimony in the state." This statute provides a court with general power, at the behest of an attorney, to subpoena both witnesses and documents. See Wiseman, et al., 9 Wisconsin Practice: Criminal Practice and Procedure § 24.11 (1996).

(C) Wisconsin Stat. § 805.07(1) provides that "[a] subpoena may also be issued by any attorney of record in a civil action or special proceeding to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding." (Emphasis added.) Wisconsin Stat. § 805.07(2)(a) states that "[a] subpoena may command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein."

¶ 43. As a general rule, Wis. Stat. § 972.11(1) makes civil procedure statutes part of the criminal code. The subsection provides that the rules of evidence and practice in civil actions, including Wis. Stat. § 805.07, "shall be applicable in all criminal actions unless the context of a section or rule manifestly requires a different construction." (Emphasis added.) The subsection then adds: "Chapter[] 885 . . . shall apply in all criminal proceedings." Wis. Stat. § 972.11(1).

¶ 44. Considered broadly, courts and attorneys of record have the power to compel the attendance of witnesses and the production of evidence by subpoena in any proceeding. But, unlike present Federal Rule of Civil Procedure 45, Wis. Stat. § 805.07 appears to link the production of documentary evidence with the appearance and testimony of a witness. This is significant because Wis. Stat. § 805.07(1) authorizes a subpoena for the attendance of a witness "for deposition, hearing or trial." Schaefer is asking this court to establish an additional proceeding, denominated by him as a "Return of Records," that will help the defendant prepare for his preliminary examination without requiring any witness to testify. Our criminal procedure statutes do not contemplate a court proceeding to receive evidence preliminary to a preliminary examination, and our civil procedure statutes neither recognize nor compel such a proceeding.

Wisconsin Stat. § 805.07(2)(a) is based on Federal Rule of Civil Procedure 45(b) as it existed circa 1975. Patricia Graczyk, The New Wisconsin Rules of Civil Procedure, Chapters 805-807, 59 Marq. L.Rev. 671, 686 (1976). At that time, Rule 45 wedded the subpoena duces tecum with the subpoena ad testificandum — the subpoena for witness testimony. David D. Siegel, Practice Commentaries Fed. Rules Civ. Proc. Rule 45, 28 U.S.C.A. at 355 ("Under Rule 45 as amended in 1991, a subpoena duces tecum seeking the production of documents (or other materials) from a nonparty may be used independently of the regular testimonial subpoena; the two are no longer wedded, as they were under the prior version of Rule 45") (emphasis added).
Wisconsin modified Wis. Stat. § 805.07(2) in 1995 (effective January 1, 1996) to add third-party subpoenas for discovery purposes. Supreme Court Order No. 95-09, 195 Wis. 2d xiii (1996). However, subsection (4) of Wis. Stat. § 805.07, which creates the form for subpoenas and instructions on how to add a subpoena duces tecum, was not amended; and we find no evidence that the amended statute intended to break the linkage found in the text.

¶ 45. Wisconsin Stat. § 804.09, entitled "Production of documents and things and entry upon land for inspection and other purposes," is the civil procedure statute that most closely approximates what Schaefer is trying to accomplish in this case. However, § 804.09(1) involves a "request," not a "command," and § 804.09(1) is located in the chapter on "Civil Procedure — Depositions and Discovery." (Emphasis added.) In short, no subpoena statute authorizes Schaefer's action.

¶ 46. Schaefer's attempt to utilize the general subpoena power for discovery prior to his preliminary examination also conflicts with Wis. Stat. §§ 971.31(5)(b) and 971.23. Wisconsin Stat. § 971.23 is the criminal discovery statute. Wisconsin Stat. § 971.31(5)(b) provides explicitly that in felony actions, "motions under s. 971.23 . . . shall not be made at a preliminary examination and not until an information has been filed." (Emphasis added.)

¶ 47. "[G]enerally where a specific statutory provision leads in one direction and a general statutory provision in another, the specific statutory provision controls." Marder v. Bd. of Regents of Univ. of Wis., 2005 WI 159, ¶ 23, 286 Wis. 2d 252, 706 N.W.2d 110. This principle of statutory interpretation aligns with the important qualification in Wis. Stat. § 972.11(1) that a civil practice applies to criminal procedure " unless the context of a section or rule manifestly requires a different construction." Wis. Stat. § 972.11(1) (emphasis added).

¶ 48. Schaefer's statutory argument is that Wis. Stat. § 972.11 allows a criminal defendant access to the civil subpoena duces tecum power embodied in Wis. Stat. § 805.07(2). He asserts that § 972.11 applies the general subpoena power in Wis. Stat. § 885.01 to criminal proceedings. He further contends that the subpoena duces tecum constitutes a "judicial process independent of discovery rules." In view of this argument, if we were to conclude that Schaefer was not attempting to pursue discovery with his subpoena duces tecum, we might have difficulty concluding that his subpoena request was inconsistent with the timing limitation in Wis. Stat. § 971.31(5)(b).

Wisconsin Stat. § 805.07(2)(b) refers specifically to "discovery" with respect to a third party.

¶ 49. Wisconsin Stat. § 971.23 sets out the state's discovery obligations. Subsection (1) provides in part:

(1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state[.]

Wis. Stat. § 971.23(1).

¶ 50. Paragraphs (a) through (h) of the statute then outline the specific disclosures the district attorney must make:

(a) Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under s. 968.26 or before a grand jury, and the names of witnesses to the defendant's written statements.

(b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements.

(bm) Evidence obtained in the manner described under s. 968.31(2)(b), if the district attorney intends to use the evidence at trial.

(c) A copy of the defendant's criminal record.

(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

(e) Any relevant written or recorded statements of a witness named on a list under par. (d), including any audiovisual recording of an oral statement of a child under s. 908.08, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.

(f) The criminal record of a prosecution witness which is known to the district attorney

(g) Any physical evidence that the district attorney intends to offer in evidence at the trial.

(h) Any exculpatory evidence.

Wis. Stat. § 971.23(1)(a)-(h).

¶ 51. These mandatory disclosures should be compared to Schaefer's subpoena demand: "A complete copy of all reports, memorandums, witness interviews and any records related to the investigation and arrest of Ronald Schaefer on suspected criminal offenses or relating to the alleged sexual assault of Kerry M. DOB 4/6/76 in 1990." (Emphasis added.)

¶ 52. The demands in the defendant's subpoena duces tecum clearly overlap the discovery materials outlined in Wis. Stat. § 971.23. In some respects, the subpoena demands exceed the discovery materials authorized by the statute. Because the mandatory disclosures outlined in § 971.23(1) include information that is customarily found in police investigative reports or similar records, we are hard pressed to distinguish the defendant's subpoena duces tecum from a discovery demand under Wis. Stat. § 971.23(1).

Professor LaFave has noted that materials contained in police reports equate with discovery:

Police investigative reports may fall in one or more of several categories of discoverable material. Where the report contains a recital of the comments of a defendant, codefendant or witness sufficiently complete to constitute a recorded statement of that person, that portion of the report may be subject to discovery under the appropriate provision for recorded statements.

4 Wayne R. LaFave, et al., Criminal Procedure § 20.3(k), at 879 (2d ed. 1999).

¶ 53. As noted above, Wis. Stat. § 971.31(5)(b) provides that "[i]n felony actions, motions . . . under s. 971.23 . . . shall not be made at a preliminary examination and not until an information has been filed." (Emphasis added.)

¶ 54. Schaefer's subpoena duces tecum arguably is governed by the limitation on pretrial discovery found in Wis. Stat. § 971.31(5)(b). Schaefer is seeking discovery materials (police records). His subpoena satisfies some of the criteria of a "motion." See Wis. Stat. § 971.30. The police chiefs failure to honor the subpoena would likely lead to "an application for an order" to comply. Wis. Stat. § 971.30(1). Black's Law Dictionary defines "motion" as "A written or oral application requesting a court to make a specified ruling or order." Black's Law Dictionary 1031 (7th ed. 1999). In effect, Schaefer has requested the circuit court to order, pursuant to its subpoena power, the Brookfield Chief of Police or designee to appear in court with the documents requested. We think it makes little sense to disregard the timing limitations on discovery in Wis. Stat. § 971.31(5)(b) simply because Schaefer does not rely on Wis. Stat. § 971.23, has tried to exceed the scope of discovery in § 971.23, and has not labeled his subpoena duces tecum as a "motion." To say that Schaefer's subpoena duces tecum is not a "motion" elevates form over substance.

¶ 55. This case requires us to interpret several statutes. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper and intended effect." State ex rel. Kalal v. Cir. Ct. for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. "[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. Statutes involving the same subject matter "must be construed in a manner that harmonizes them in order to give each full force and effect." Wis. Power Light Co. v. Pub. Serv. Comm'n of Wis., 2006 WI App 221, ¶ 15, 296 Wis. 2d 705, 725 N.W.2d 423.

¶ 56. The plain truth is that if we permitted the general subpoena authority to effect discovery in a criminal case before the preliminary examination, there would be nothing left of the limiting conditions in Wis. Stat. §§ 971.23(1) and 971.31(5)(b). This would not be "harmonizing" the general subpoena statutes with the criminal discovery statutes.

¶ 57. Wisconsin Stat. § 971.23(1) requires a district attorney to disclose discovery material "within a reasonable time before trial." Requiring the state to disclose discovery material before the preliminary examination — before the court has even authorized a trial — is plainly at odds with the statutory scheme. This conclusion about timing is reinforced by the language in Wis. Stat. § 971.31(5)(b) that discovery motions "shall not be made at a preliminary examination and not until an information has been filed."

Schaefer argues that the Brookfield Police Department and the district attorney are not a single entity; therefore, the prohibitions on discovery in Wis. Stat. § 971.31(5)(b) are inapplicable. This contention is not valid. Although separate entities in fact, the Brookfield Police Department and the district attorney's office are related for considerations of the state's duty of disclosing evidence to criminal defendants. This court has stated that "[u]nder [Wis. Stat.] § 971.23, the State's discovery obligations may extend to information in the possession of law enforcement agencies but not personally known to the prosecutor." State v. DeLao, 2002 WI 49, ¶ 21, 252 Wis. 2d 289, 643 N.W.2d 480. As a result, we are reluctant to treat the police department and the district attorney's office as separate entities before an information is filed if they are treated as inextricably linked for purposes of discovery after the information is filed. Id.
The court of appeals came to a similar conclusion. In a case involving the state's loss of a tape-recording of a defendant, the court stated:

We also reject the trial court's reasoning that the actions of the police authorities in losing the tape should not be visited upon the state as the prosecuting entity. For purposes of the criminal discovery statutes, we view an investigative police agency which holds relevant evidence as an arm of the prosecution. In most criminal cases, the evidence against the accused is garnered, stored and controlled by the investigating police agency. Depending upon local practice, many courts and district attorneys entrust the custody and control of such material to the police even after it has been elevated to formal evidentiary status in a criminal proceeding.

The trial court's reasoning would apparently sanction the loss of relevant evidence only if committed by the district attorney's office, but not by the principal investigative agency. This distinction is neither reasonable nor valid.

State v. Martinez, 166 Wis. 2d 250, 260, 479 N.W.2d 224 (Ct.App. 1991) (footnote omitted).
More important than the link between police and prosecutor for discovery purposes is the reality that the principal documents of interest in the district attorney's file are the police reports. These documents, which constitute a comprehensive summary of law enforcement's investigation of the alleged crime, normally serve as the basis for the criminal complaint. The district attorney has never been required to disclose the totality of law enforcement reports, only specific pieces of information, especially exculpatory evidence. Here the defendant demands the totality of law enforcement records, putting his subpoena at odds with the criminal discovery statute.

¶ 58. Equally important, Wis. Stat. § 971.23 does not require the state to turn over all the information in its possession. For instance, Wis. Stat. § 971.23(1)(d) requires the state to disclose "[a] list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only." If Schaefer were entitled to obtain by subpoena duces tecum the names of all witnesses who have surfaced in the police reports as well as their statements, his need — and the need of all defendants — for § 971.23 discovery would be substantially reduced. Section 971.23(1) would then be used primarily to make sure that the state discloses any new information that it obtains and reveals its trial strategy, i.e., what witnesses and physical evidence the state plans to present at trial and what evidence it has decided not to present.

¶ 59. It must be noted that the limitations on the scope of discovery in Wis. Stat. § 971.23(1) may not always prevail against a subpoena duces tecum after an information is filed. We have previously implied that a subpoena duces tecum may have to be honored if the defendant shows a "particularized need" for information in the possession of the state. See Lynch, 82 Wis. 2d at 466-68. That is not the case here. The defendant has no statutory subpoena right to obtain and copy police investigation reports and nonprivileged materials prior to his preliminary examination.

C. Constitutional Rights to Compulsory Process and Effective Assistance of Counsel

¶ 60. Schaefer also raises challenges under the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. First, he argues that the rights to compulsory process found in both of these constitutional provisions include the right to access and copy police investigation reports and nonprivileged materials prior to a preliminary hearing. Second, he argues that his Sixth Amendment right to effective assistance of counsel cannot be satisfied without his attorney having access to these materials before the preliminary examination.

¶ 61. We address these challenges in turn and conclude that Schaefer has no state or federal constitutional right to obtain and copy police investigation reports and nonprivileged materials by subpoena prior to his preliminary hearing.

1. Right to Compulsory Process

¶ 62. The Sixth Amendment to the United States Constitution provides that the accused in a criminal proceeding shall have the right "to have compulsory process for obtaining witnesses in his favor." U.S. const. amend. VI. Similarly, the Wisconsin Constitution provides that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to have compulsory process to compel the attendance of witnesses in his behalf[.]" Wis. Const. art. 1, § 7. Although this court has the prerogative to afford greater protection to a criminal defendant under a provision of the Wisconsin Constitution than is mandated by an equivalent provision in the United States Constitution, State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210 (1977), the court tends to interpret and apply equivalent provisions in the same manner. See State v. Agnello, 226 Wis. 2d 164, 180-81, 593 N.W.2d 427 (1999) (stating that "[w]here . . . the language of the provision in the state constitution is `virtually identical' to that of the federal provision or where no difference in intent is discernible, Wisconsin courts have normally construed the state constitution consistent with the United States Supreme Court's construction of the federal constitution").

The Sixth Amendment to the United States Constitution reads as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

¶ 63. In Washington v. Texas (1967), the Supreme Court explained that the right to compulsory process is plainly "the right to present a defense[.]" Washington, 388 U.S. at 19. The Court reviewed a criminal defendant's Sixth Amendment challenge to two Texas statutes that prohibited persons charged or convicted as co-participants in the same crime from testifying for one another, even though there was no bar to their testifying for the state. Id. at 16-17. The Court held that this statutory scheme violated the defendant's right to compulsory process for obtaining witnesses at trial:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.

Id. at 19 (emphasis added). Thus, compulsory process for securing favorable witnesses is "so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment." Id. at 17-18. "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process." Chambers v. Mississippi, 410 U.S. 284, 294 (1973).

¶ 64. Twenty years after Washington, the Court noted that it has "had little occasion to discuss the contours of the Compulsory Process Clause." Pennsylvania v. Ritchie, 480 U.S. 39, 55 (1987). In Ritchie, the Court reviewed Sixth Amendment claims of a criminal defendant convicted of various sexual offenses against his daughter. Id. at 39. The defendant, Ritchie, sought pretrial discovery — via subpoena — of ostensibly confidential records from Children and Youth Services (CYS), a Pennsylvania protective agency. Id. at 43. Ritchie claimed he was entitled to review CYS's file to discover information that might be useful in contradicting testimony favorable to the state. Id. at 53. Because it noted that defense counsel was able to cross-examine all trial witnesses fully, the Court determined that the Pennsylvania Supreme Court erred in holding that the failure to disclose the CYS file violated the Confrontation Clause. Id. at 54.

"This paucity of compulsory process rulings is attributable largely to the Court's decision to address initially under the Due Process Clause claims that the government failed to assist in identifying or locating defense witnesses, or improperly interfered with the defense's use of subpoenas." 5 Wayne R. LaFave, et al., Criminal Procedure § 24.3(a), at 470 (2d ed. 1999).

¶ 65. The Court then turned to the compulsory process claim. The Court acknowledged that Sixth Amendment applicability to discovery disputes was unsettled; hence, it utilized a due process analysis. Id. at 56. The Court said it had articulated "some of the specific rights" secured by the Compulsory Process Clause of the Sixth Amendment. Id. "Our cases establish, at a minimum, that criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt." Id. (emphasis added).

¶ 66. The Court was reluctant to establish an unconditional discovery right under the Sixth Amendment. Thus, it analyzed the case on Fourteenth Amendment due process grounds. The Court concluded that the Compulsory Process Clause "provides no greater protections in this area than those afforded by due process." Ritchie, 480 U.S. at 56. Stated another way, unless due process requires defense access to specific evidence, the Compulsory Process Clause cannot provide substitute authority for such access.

¶ 67. These comments by the Court point the compass of the Compulsory Process Clause toward a defendant's right to the compelled production of evidence in anticipation of trial, not in anticipation of a preliminary examination. Professor LaFave has observed that "[t]he Compulsory Process Clause naturally suggests some constitutional entitlement to trial evidence." 5 Wayne R. LaFave, et al., Criminal Procedure § 24.3(a), at 469 (2d ed. 1999) (emphasis added).

¶ 68. Thus, our holding in Lynch, founded upon due process, applies here and circumscribes a criminal defendant's compulsory process right to access the state's files prior to his preliminary examination.

¶ 69. In Lynch, we held that, under the Due Process Clause, a criminal defendant has no right to inspect the state's files for the existence of exculpatory evidence prior to a preliminary examination. Lynch, 82 Wis. 2d at 465-68. The constitutional right to such exculpatory material "is in the right to a fair trial guaranteed by [due process]." Id. at 465 (citing United States v. Agurs, 427 U.S. 97, 107 (1976); Brady v. Maryland, BIB U.S. 83, 87 (1963)). We concluded:

Inspection of the state's files by the defense at this early stage, where there has been no showing of particularized need for inspection, can serve only as an opportunity for generalized, unrestricted discovery, rather than as a device for the constitutionally mandated disclosure of specific exculpatory material. Such discovery will impede the orderly processes of discovery prescribed by statute, see: sees. 971.23 to 971.25, Stats., and will circumvent the legislative determinations reflected in those statutes; will unjustifiably delay the administration of justice; and will needlessly complicate the relatively informal procedures applicable at this early stage of a prosecution. This harm is inherent in the order of the county court.

Lynch, 82 Wis. 2d at 466 (footnote omitted).

¶ 70. We conclude that Lynch controls the compulsory process challenge in the instant case. There is no compulsory process right to subpoena police investigation reports and nonprivileged materials before the preliminary examination.

¶ 71. Schaefer asserts that if Lynch applies, he has demonstrated a "particularized need" for access to police records because of a "sixteen year delay in charging and its consequent effect on memory." We are not persuaded. An extended period of time between commission of the alleged offense and the filing of a criminal complaint may provide justification for subpoena access to police investigatory records under extraordinary circumstances. See Lynch, 82 Wis. 2d at 466. However, in Schaefer's case, the criminal complaint is sufficiently detailed to allow him to identify the complainant and the alleged circumstances of the charges and to prepare to rebut the plausibility of the complainant's accusations and probable cause. The lengthy span of time since the alleged offenses will not incapacitate this defendant from preparing for the preliminary examination, and it does not justify the unbridled access to police investigatory materials that the defendant seeks.

At his initial appearance, Schaefer was admonished not to contact the victim listed in the complaint. We have no record evidence that Schaefer claimed inability to comply with this condition because of uncertainty about the identity of the complainant.

¶ 72. We note that this court has also addressed compulsory process in the context of a circuit court's subpoena ordering two newspaper reporters to appear at a pretrial hearing regarding the identities of their sources for several stories they wrote about a murder. State ex rel. Green Bay Newspaper Co. v. Cir. Ct., Branch 1, Brown County, 113 Wis. 2d 411, 415-16, 335 N.W.2d 367 (1983). We concluded that the circuit court erred when it ordered in camera disclosure of the reporters' sources and held the reporters in contempt for refusing to disclose this information. Id. at 429.

¶ 73. Weighing the defendant's right to compulsory process for witnesses in his favor against the journalist's qualified nondisclosure privilege, we recognized that "a criminal defendant does not have an unqualified right to subpoena witnesses." Id. at 420. We observed that "[f]or the constitutional right to compulsory process to be invoked, a defendant must, if the subpoena is challenged, show there is a reasonable probability that the subpoenaed witnesses' testimony will be competent, relevant, material and favorable to his defense." Id. at 420-21.

See also United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (observing that a violation of the Sixth Amendment exists where the defendant is deprived of access to favorable evidence that is "relevant . . . material . . . and vital" to his defense) (citation omitted).

¶ 74. We went on to analyze the efficacy of the circuit court's order requiring in camera disclosure of reporter sources, concluding that the facts of the case did not suggest a need for such disclosure. We outlined a procedure for the circuit court to evaluate compulsory process rights implicated by desired evidence based upon whether "the evidence is necessary to the defense." Id. at 423. "Information is necessary to the defense if it tends to support the theory of defense which the defendant intends to assert at trial." Id. (emphasis added).

¶ 75. The Green Bay Newspaper case evaluated compulsory process rights in terms of their relationship to trial evidence. Inasmuch as a criminal defendant does not have an unqualified right to require the appearance of any and all persons as witnesses for a trial, and a defendant's right to compulsory process at trial must satisfy certain standards, see id. at 420-21, we conclude a fortiori that the compulsory process rights of a criminal defendant at a preliminary stage of the criminal proceedings also must be subject to reasonable restrictions. See United States v. Scheffer, 523 U.S. 303, 308, (1998) ("A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions."). We have previously observed that "even though a defendant's right to present certain evidence is constitutionally protected, that right may have to `bow to accommodate other legitimate interests in the criminal trial process.'" State v. Pulizzano, 155 Wis. 2d 633, 653, 456 N.W.2d 325 (1990) (quoting Chambers, 410 U.S. at 295). In our view, there is a legitimate interest in preserving the statutory scheme that prescribes pretrial discovery limitations under Wis. Stat. §§ 971.31(5)(b) and 971.23. Therefore, we decline to expand a criminal defendant's compulsory process rights to encompass a right to subpoena police reports and other non-privileged investigatory materials for examination and copying in anticipation of a preliminary hearing.

¶ 76. Schaefer suggests that we adopt a procedure in which Wisconsin circuit courts would review subpoena duces tecum materials prior to the preliminary examination to resolve disputes regarding privilege, relevance, and materiality. He notes that Illinois has adopted such a procedure, see People ex rel. Fisher v. Carey, 396 N.E.2d 17 (Ill. 1979), and he urges Wisconsin to follow suit.

¶ 77. We respectfully decline this invitation. In Carey, the Illinois Supreme Court concluded that:

Subpoenaed material should be sent directly to the court because the subpoena is a judicial process or court writ, whereas discovery is the parties' procedure, a distinguishable concept under our rules. . . . The court then determines the relevance and materiality of the materials, and whether they are privileged, as well as whether the subpoena is unreasonable or oppressive. The State's attorney, of course, must be fully aware of the records sought from the investigative agency by the subpoena in order for him to object.

Carey, 396 N.E.2d at 19-20 (citation omitted) (emphasis added).

In Wisconsin, criminal "discovery" is not entirely the parties' procedure because the scope of discoverable materials is set out in statute and compliance with the statute will be enforced by the court.

¶ 78. The underlined language implies that the Illinois court established a proceeding — before the preliminary hearing — to hear objections and settle evidentiary disputes, even though Illinois rules at the time precluded the use of a subpoena to circumvent formal discovery (which was not scheduled to go into effect until "following indictment or information."). Id. at 19; see 58 Ill. 2d Rule 411, 65 Ill. 2d Rule 412(g). The Carey court appears to have concluded that its ruling was constitutionally required.

¶ 79. The Illinois Supreme Court's analysis is clearly supportive of Schaefer's position. On the other hand, the Illinois Supreme Court's analysis does not square with subsequent decisions of the United States Supreme Court, most notably Ritchie. The analysis also conflicts with our decision in Lynch. The Illinois court's heavy reliance on United States v. Burr, 25 Fed. Cas. 30 (C.C.D. Va. 1807), is intriguing, but that decision has no precedential value for us because it is not a decision by the United States Supreme Court, and it predated modern discovery rules.

¶ 80. In United States v. Nixon, one of only a handful of Supreme Court cases to discuss and apply Burr, the Court commented that the subpoena duces tecum "was not intended to provide a means of discovery for criminal cases[.]" United States v. Nixon, 418 U.S. 683, 698 (1974). The Court construed the federal subpoena duces tecum provision, Federal Rule of Criminal Procedure Rule 17(c), as requiring, among other things, that "the application [be] made in good faith and [] not intended as a general `fishing expedition.'" Id. at 699.

¶ 81. As an additional matter of public policy, Schaefer notes that at least one county in Wisconsin, Washington County, conducts a pretrial status hearing where discovery material is customarily exchanged prior to the preliminary examination. We acknowledge the benefits that such an "open file" policy may produce in terms of an increased number of defense waivers of the preliminary examination as well as eventual guilty pleas. As one commentator has observed, however, "[t]hough some prosecutors maintain an `open file' policy, granting defenders access to the prosecution's case files, this is purely a policy choice on the prosecutor's part, not a legal right of defendants." David Luban, Are Criminal Defenders Different?, 91 Mich. L.Rev. 1729, 1738 (1993). No existing state statute or compulsory process provision of either the United States Constitution or the Wisconsin Constitution commands the state to divulge the entirety of police investigatory files to an accused before an information has been filed against him.

The preliminary examination sometimes serves as a valuable "educational process" for a defendant who is not persuaded by his counsel's opinion that the prosecution has a strong case and that, therefore, a negotiated plea is in the defendant's best interest. 4 Wayne R. LaFave, et al., Criminal Procedure § 14.1(e), at 123 (2d ed. 1999). An "open file" may serve the same purpose, provided the state's investigation is relatively complete and persuasive. Requiring the state to expose proof problems in its case is not the same as requiring it to turn over exculpatory evidence.

¶ 82. Accordingly, we hold that Schaefer has no right to subpoena police reports and other non-privileged investigatory materials prior to his preliminary hearing under either the Compulsory Process Clause of the Sixth Amendment to the United States Constitution or Article 1, Section 7 of the Wisconsin Constitution.

2. Right to Effective Assistance of Counsel

¶ 83. Finally, Schaefer contends that he is entitled to subpoena police reports and other investigatory materials to safeguard his right to effective assistance of counsel, which also is guaranteed by the Sixth Amendment to the United States Constitution.

The Sixth Amendment to the United States Constitution provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defence." This right to counsel has been applied to the States through the Due Process Clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). The right to counsel has been defined by the United States Supreme Court as the right to effective assistance of counsel. See United States v. Cronic, 466 U.S. 648, 654 (1984).

¶ 84. A defendant is entitled to the assistance of counsel at all critical stages of prosecution. United States v. Wade, 388 U.S. 218, 224 (1967). In State v. Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995), we adopted the view of the Supreme Court that a preliminary hearing is a critical stage in the criminal process. Wolverton, 193 Wis. 2d at 252 (citing Coleman v. Alabama, 399 U.S. 1, 9 (1970)). Consequently, every defendant charged with a felony in Wisconsin is constitutionally entitled to the assistance of counsel at a preliminary hearing. Wolverton, 193 Wis. 2d at 253. We also observed, however, that [a]lthough the right to counsel at a preliminary hearing is constitutionally guaranteed, the right to a preliminary hearing is purely statutory. Id. at 253 n. 11 (citing State v. Moats, 156 Wis. 2d 74, 83, 457 N.W.2d 299 (1990)). This factor influences our analysis.

¶ 85. In considering Schaefer's right to effective assistance of counsel at a preliminary examination, we must keep in mind the narrow purpose of the hearing. "[T]he limited scope of the preliminary hearing compresses the contours of the sixth amendment." Wiseman, et al., 9 Wisconsin Practice: Criminal Practice and Procedure § 8.12 (1996). "In particular, the defendant's right to present evidence and cross-examine the state's witnesses is severely limited by the summary nature of the preliminary hearing." Id.

¶ 86. Schaefer's argument is somewhat unusual because he poses a prospective challenge to effective assistance of counsel. Schaefer argues that his defense counsel cannot be effective at a future preliminary examination without access to police reports and other similar materials, not that his counsel was ineffective in the past for lack of access to such evidence. To address Schaefer's position on the merits would require this court to hypothesize, in the abstract, what actions by defense counsel are necessary to preserve a criminal defendant's right to effective assistance of counsel at a preliminary examination. To adopt Schaefer's position would require us to create a per se rule that defense counsel is ineffective when counsel fails to subpoena police reports and other similar materials prior to a preliminary examination.

¶ 87. This court operates under the principles adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To establish a claim of ineffective assistance of counsel under Strickland, the defendant must demonstrate that: (1) defense counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment; and (2) this deficient performance prejudiced the defense so seriously as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687.

¶ 88. The primary consideration on the first prong is whether a reasonable basis existed for the lawyer's conduct. State v. Rock, 92 Wis. 2d 554, 560, 285 N.W.2d 739 (1979). On the second prong, counsel will not be deemed ineffective unless the defendant is prejudiced by the lawyer's action or failure to act. State v. Felton, 110 Wis. 2d 485, 503, 329 N.W.2d 161 (1983). Since Schaefer's Sixth Amendment challenge is prospective, he must demonstrate that he would be prejudiced per se by defense counsel's inability to subpoena police reports prior to the preliminary hearing. See, e.g., United States v. Cronic, 466 U.S. 648, 659-60 (1984) (noting that prejudice is presumed where there is no "likelihood that any lawyer, even a fully competent one, could provide effective assistance" under a particular set of facts).

¶ 89. Schaefer cites State v. Harper, 57 Wis. 2d 543, 557, 205 N.W.2d 1 (1973), in which we said that effective counsel "must be equal to that which the ordinarily prudent lawyer, skilled and versed in criminal law, would give to clients who had privately retained his services." In so holding, we expressly approved of the 1971 American Bar Association Project on Standards For Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function, as a means of evaluating counsel's performance. See Harper, 57 Wis. 2d at 557 n. 8. Schaefer places emphasis on ABA Standard 4.1:

4.1 Duty to investigate. It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty.

Harper, 57 Wis. 2d at 553 n. 3 (emphasis added). He argues that the Standard's use of the word "prompt," coupled with our comment that "[t]he lawyer who is ignorant of the facts of the case incapacitates himself to serve his client effectively," id. at 553, should persuade us to hold that police records must be provided to defense counsel before the preliminary examination to preserve the defendant's Sixth Amendment rights.

¶ 90. We cannot adopt Schaefer's argument. Harper can be distinguished by the fact the case concerned defense counsel's performance at trial, not his investigatory acumen prior to the preliminary examination. Id. at 551. ABA Standard 4.1, although calling for defense counsel to "explore all avenues" and "include efforts to secure information in the possession of the prosecution and law enforcement authorities," does not compel us to conclude that Schaefer's attorney would be ineffective if he failed to procure police investigative materials (including police reports) prior to Schaefer's preliminary examination.

¶ 91. An attorney's performance at the preliminary examination does not define the level of performance expected of defense counsel at later stages of the proceeding. A "preliminary hearing is not a full evidentiary trial and [] the purpose of a preliminary examination is only to determine whether further criminal proceedings are justified." State v. Akins, 198 Wis. 2d 495, 512, 544 N.W.2d 392 (1996) (citing Taylor v. State, 55 Wis. 2d 168, 172-73, 197 N.W.2d 805 (1972)). Given the limited scope and purpose of the preliminary examination, a defendant's counsel may waive the hearing entirely, or deliberately decline to ask certain questions that would be relevant. We cannot say that Schaefer's counsel would be hand-cuffed and rendered ineffective by failing to procure police reports prior to Schaefer's preliminary examination.

¶ 92. Defense counsel is not barred from conducting significant investigation into the case before the preliminary examination to rebut the plausibility of a witness's story and probable cause. This investigation would likely be based on the details in the complaint and information supplied by the defendant. In this case, nothing prevents counsel from identifying and seeking to interview the complainant's classmates and teammates, as well as Schaefer's co-workers and family. We note that the failure of classmates to corroborate the complainant's claim of sexual assaults would not undermine the plausibility of her story at the preliminary examination. Witness statements that do corroborate the complainant's claims are likely to be disclosed to the defendant before trial.

¶ 93. Schaefer cannot reasonably argue that information contained in March 2006 police reports would offer indispensable information about the complainant's story that is not stated or implied in the May 2006 criminal complaint. The principal benefits to be gained from review of the police investigation file would be to determine the names of additional persons whom the police interviewed and whether the police had uncovered corroborating evidence. We cannot say that Schaefer's defense counsel will be ineffective at the preliminary examination without this information.

¶ 94. Therefore, we hold that Schaefer has no Sixth Amendment right, based on effective assistance of counsel, to subpoena police reports and other non-privileged materials prior to his preliminary examination.

IV CONCLUSION

¶ 95. We conclude that a criminal defendant does not have a statutory or constitutional right to compel the production of police investigation reports and non-privileged materials by subpoena duces tecum prior to the preliminary examination. A criminal defendant who employs the subpoena power in this manner is attempting to engage in discovery without authority in either civil or criminal procedure statutes and in conflict with criminal discovery statutes. Although a reasonable argument can be made for prosecutors to open their files to defendants at an early point in criminal prosecutions, this argument does not translate into an enforceable right to subpoena police investigation reports and nonprivileged materials before a preliminary examination.

¶ 96. Accordingly, we affirm the order of the circuit court granting the State's motion to quash Schaefer's subpoena duces tecum. By the Court. — The order of the circuit court is affirmed.

U.S. Const. amend. VI. The language of the Sixth Amendment refers to "witnesses," but the Supreme Court has held that the Compulsory Process Clause also applies to documentary materials. See United States v. Nixon, 418 U.S. 683, 711-13 (1974). See also United States v. Hubbell, 530 U.S. 27, 54 (2000) (Thomas, J., concurring).