Wisconsin

Overview

Wisconsin’s legal framework reflects a strong acknowledgment of Brady and Giglio obligations at the doctrinal level, but the state remains systemically underprepared to enforce them in practice. There is no statutory mandate requiring law enforcement agencies to report sustained misconduct to prosecutors, no centralized Giglio list, and no obligation for prosecutors to track or disclose officers with credibility impairments across jurisdictions. Despite constitutional due process protections and a modest open records framework, access to law enforcement disciplinary records remains inconsistent, and prosecutorial candor often depends on informal practices rather than enforceable structures. Wisconsin's decentralized criminal justice system and absence of unified guidance leave gaps in disclosure that undermine courtroom integrity—particularly in smaller or rural jurisdictions.

Brief Description of Legal Landscape

Criminal prosecutions in Wisconsin are carried out by District Attorneys, elected in each of the state’s 72 counties. The Wisconsin Attorney General, via the Department of Justice, has authority to assist or supersede in certain criminal matters, but does not exercise centralized supervision over county prosecutors.

Key legal standards guiding disclosure include:

• Wisconsin Statutes § 971.23: Governs criminal discovery and requires prosecutors to disclose exculpatory and impeachment evidence.

• Wisconsin Supreme Court Rules, SCR 20:3.8(d): Obligates prosecutors to disclose all evidence that tends to negate guilt or mitigate punishment.

• Wisconsin Open Records Law (Wis. Stat. §§ 19.31–19.39): Provides public access to government records, including some law enforcement disciplinary files, but allows broad exemptions for internal investigations and personnel records.

Law enforcement certification and decertification are overseen by the Wisconsin Law Enforcement Standards Board (LESB), under the Wisconsin Department of Justice (DOJ). While LESB has authority to revoke officer certification for misconduct, there is no public-facing decertification database, and no legal requirement that prosecutors be notified of disciplinary outcomes relevant to courtroom credibility.

Historical Context

Wisconsin has long struggled with prosecutorial disclosure gaps, especially involving law enforcement officers with prior misconduct. Over the years, investigative journalism and public records litigation have revealed officers who remained on the stand in criminal cases despite sustained findings of dishonesty, excessive force, or constitutional violations.

In 2021, a Wisconsin Watch investigation found that at least 40 law enforcement officers had been flagged in misconduct cases—including instances of lying or abusive behavior—but continued to testify without formal notice to defense counsel or the public. The lack of a statewide Giglio framework made it impossible to know how many such officers had provided courtroom testimony under undisclosed ethical clouds.

Efforts to develop a more transparent system have been incremental and often voluntary. Some counties—such as Milwaukee and Dane—have developed internal “Do Not Call” or Brady/Giglio lists. However, most prosecutors across the state operate without formal policy, tracking, or collaboration with law enforcement agencies on these issues. The lack of statutory guidance compounds the inconsistency.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

Wisconsin’s Constitution guarantees due process and confrontation rights under Article I, Sections 8 and 7, consistent with federal interpretations under the Fifth, Sixth, and Fourteenth Amendments.

Relevant legal provisions include:

• Wis. Stat. § 971.23(1)(h): Requires prosecutors to disclose “[a]ny exculpatory evidence,” including materials that may impeach the credibility of a government witness.

• SCR 20:3.8(d): Enshrines the prosecutor's ethical duty to disclose all favorable information, regardless of whether it has been requested.

• Wis. Stat. § 19.36(10): Allows for exemptions of personnel records from public disclosure, including internal disciplinary findings, unless a clear public interest is found.

Importantly, Wisconsin law does not require:

• Police departments to inform prosecutors of officer misconduct;

• Prosecutors to maintain lists of Giglio-impaired officers;

• Coordination between LESB and District Attorneys when officers are disciplined or decertified.

Relevant Case Law and Judicial Interpretations

• State v. Harris, 2004 WI 64, ¶ 25: Affirmed that the state has a duty to disclose evidence favorable to the defense, including impeachment evidence, and that failure may violate due process.

• State v. DelReal, 213 Wis. 2d 364 (1997): Established that Brady obligations apply to both prosecutors and police and that the state must make reasonable efforts to learn of material held by its agents.

• State v. Randall, 197 Wis. 2d 29 (Ct. App. 1995): Highlighted that undisclosed police misconduct affecting credibility could warrant a new trial under Giglio principles.

These cases affirm the legal principles of candor and disclosure but do not impose procedural structures to ensure that obligations are proactively and consistently met.

Implementation and Enforcement

Law Enforcement Policies and Training

Wisconsin law enforcement agencies operate independently, and internal affairs investigations are handled on a department-by-department basis. There is no mandate requiring police to notify prosecutors when an officer has been found to have committed misconduct involving dishonesty, bias, or civil rights violations.

While LESB may decertify officers, such actions are often delayed, rarely publicized, and not automatically communicated to the District Attorneys who may rely on those officers as witnesses. Furthermore, because LESB does not maintain a public decertification database, defense counsel and even prosecutors may remain unaware of relevant findings.

Training on Brady/Giglio disclosure obligations is not a required part of law enforcement certification. While some academies offer optional instruction on courtroom testimony, the legal and ethical implications of credibility impairments are rarely emphasized.

Prosecutorial Practices

Prosecutors are ethically and legally obligated to disclose impeachment material, including officer misconduct. However, there is no statewide infrastructure or mandate to help them identify and track such material.

Larger jurisdictions like Milwaukee County and Dane County have developed internal processes for flagging problematic officers, including informal Brady or Giglio lists. In contrast, many rural and mid-sized counties have no formal system, relying instead on personal relationships with law enforcement or reactive discovery by defense counsel.

The Wisconsin Office of Lawyer Regulation has disciplinary authority over prosecutors, but formal sanctions for Brady violations are rare, and enforcement tends to focus on extreme or repeated misconduct.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Milwaukee Police Officer Resignations (2017–2021)
   Several officers resigned amid misconduct investigations involving excessive force or false reports. Despite sustained internal findings, prosecutors were not routinely notified, and some officers testified in court after the incidents occurred.

2. Waukesha County Officer Credibility Challenge (2020)
   An officer found to have lied during an internal investigation was allowed to continue testifying in drug cases. The prosecutor’s office was unaware of the misconduct until defense attorneys uncovered disciplinary documents through a separate civil proceeding.

3. Kenosha County “Wandering Officers” (2019)
   A local news investigation found that several officers previously disciplined or forced to resign for misconduct in one department were hired by others. There was no inter-departmental tracking, and no notification system existed to alert prosecutors or courts of their disciplinary histories.

Outcomes and Implications

These cases show the systemic vulnerability of Wisconsin’s approach. Even when sustained findings exist, they are often siloed within departments and unknown to prosecutors. When discovered post-conviction, such failures can trigger case reviews, appeals, and in some cases, overturned verdicts. But in most instances, these failures go uncorrected—because no system exists to prevent them.

Challenges and Gaps

Identified Issues within the State’s System

• No Required Giglio List: Prosecutors are not obligated to maintain records of officers with credibility impairments.

• No Mandatory Police Notification: Law enforcement is not required to share sustained misconduct with prosecuting attorneys.

• Limited Public Access to Misconduct Records: Open records laws are often constrained by privacy exemptions and local resistance.

• No Oversight or Audit Body: No state agency evaluates or enforces compliance with Brady or Giglio obligations across jurisdictions.

Legislative and Institutional Barriers

Wisconsin’s decentralized structure, strong traditions of local control, and powerful law enforcement unions have made reform difficult. Attempts to increase transparency or centralize disclosure systems have met resistance from departments citing officer privacy, union contracts, and administrative burdens.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Prosecutorial Giglio Tracking
   Require all District Attorneys to maintain internal records of officers with sustained credibility-impairing misconduct and use these lists in all relevant prosecutions.

2. Create a Police-to-Prosecutor Reporting Requirement
   Enact legislation requiring departments to notify prosecutors within 30 days of any sustained finding involving dishonesty, bias, or unconstitutional conduct.

3. Integrate LESB Data with Prosecutorial Systems
   Develop secure access protocols to LESB disciplinary records for all prosecutors and defense counsel in the state.

4. Amend § 971.23 to Clarify Misconduct Disclosure
   Explicitly include internal affairs records and personnel files as discoverable evidence when relevant to witness credibility.

Recommendations for Enhanced Transparency and Accountability

1. Create a Public Officer Misconduct Registry
   Develop a searchable, redacted database of sustained disciplinary actions relevant to courtroom testimony, with legislative protections for due process and privacy.

2. Require Annual Training on Brady/Giglio Compliance
   Make disclosure obligations part of mandatory continuing education for all prosecutors and law enforcement officers.

3. Establish a Disclosure Compliance Oversight Unit
   Task the Wisconsin DOJ or Office of Court Operations with conducting periodic audits of Giglio compliance and public reporting.

4. Encourage Statewide Policy Adoption
   Issue model policies for Brady/Giglio tracking and disclosure through the Wisconsin Department of Justice or a statewide prosecutors' association.

Conclusion

Wisconsin has the legal principles of truth and candor well-established in its case law and ethics rules—but lacks the infrastructure, coordination, and political will to ensure they are consistently enforced. Without mandatory reporting from law enforcement, Giglio tracking by prosecutors, or public access to credibility-related misconduct, the state risks allowing courtroom testimony from officers whose integrity cannot be verified. Justice demands not only the right rules—but also the courage to enforce them. Wisconsin must now close the gap between obligation and action.