Matter of State ex rel.
82 Wis.2d 454 (1978)
262 N.W.2d 773

Lynch, Dane County District Attorney
Dane County Court, Branch III:
Cleveland and Another, Appellants,
Dane County Circuit Court, Rspondent.
Wisconsin Supreme Court # 75-807
Argued 2/6/78 - Decided 3/7/78

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APPEAL from a judgment of the circuit court
for Dane county:

RICHARD W. BARDWELL, Circuit Judge. 

A judgment of absolute prohibition was
entered by the circuit court pursuant to
Section 293.12, Stats., to prohibit
enforcement of an order of the county court.

The order of the county court directed the
district attorney to permit counsel for
certain criminal defendants charged with
delivery of a controlled substance to review
the files of the state for the respective
defendants, and to take whatever notes they
wished before proceeding with a preliminary

The defendants appeal from the judgment of
the circuit court.

For the appellant Ronald S. Sielo there
was a brief by Donald S. Eisenberg and
Charles W. Giesen and oral argument by
Jack M. Priester, all of Madison.

For appellant Gary G. Cleveland there was a
brief and oral argument by Warren A. Kenney
and Steven P. Weiss, Wisconsin Indian Legal
Services of Madison.

For the respondent the cause was argued by
Wm. L. Gansner, assistant attorney general,
with whom on the brief was
Bronson C. La Follette, attorney general.

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The appellants, Gary G. Cleveland and Ronald
S. Sielo, and five others were charged with
feloniously delivering cocaine, a controlled
substance, contrary to Sections 161.41(1)(b),
161.16(4), and 939.05, Stats.

Preliminary examination was commenced in the
county court of Dane county.

In the course of cross-examination of the
state's first witness, counsel for one of the
defendants demanded any exculpatory material
contained in reports prepared by the witness,
and counsel for the other defendants joined
in this motion.

During the ensuing exchange, the motion
became a general demand for all exculpatory
material in the possession of the district

In response, the state offered to have the
county court inspect the state's files [1] in
camera to determine whether any exculpatory
evidence was present, an offer which the
state repeatedly advanced.

The county court ultimately determined that
the files should be examined by the
respective attorneys for the defendants and
in doing so ordered from the bench that:

   ". . . The order is to allow each of
    the attorneys for the defendants to
    review their respective file in your
    district attorney's office.

    They can take whatever notes they
    want to out of that file.

    They are not to have copies of the file,
    you know, xerox [sic] them at this time."

The preliminary examination was then
adjourned and the district attorney
petitioned the circuit court for an
alternative writ of prohibition restraining
the county court and the county judge from
enforcing the order of the county court.

A hearing was held before the circuit court,
and although the county judge did not appear,
appellants Cleveland and Sielo were permitted
to intervene.

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The appellants' motions to quash the writ
were denied, and the writ was granted.

Judgment making absolute the writ of
prohibition was entered and the
appellants appeal.

The issue presented is whether, on the facts
of the present case, the extraordinary remedy
of a writ of prohibition was proper.

The writ of prohibition is an
extraordinary remedy.

State ex rel.
Dept. of Pub. Instruction v. ILHR,
68 Wis.2d 677, 684,
229 N.W.2d 591 (1975).

Traditionally employed to restrain
an inferior court from exceeding
its jurisdiction,

State ex rel. Freemon v. Cannon,
40 Wis.2d 489, 491,
162 N.W.2d 32 (1968),

the writ of prohibition has in recent years
been extended to reach claims of
nonjurisdictional error,

State ex rel. Jefferson v. Roraff,
44 Wis.2d 250, 255,
170 N.W.2d 691 (1969);

State ex rel. Freemon v. Canon,
supra, at 492;

State ex rel. Reynolds v. Circuit Court,
15 Wis.2d 311, 314, 315,
112 N.W.2d 686 (1961).

Regardless of the nature of the error
asserted, however, prohibition remains a
drastic and extraordinary remedy,

State ex rel. Klinkiewicz v. Duffy,
35 Wis.2d 369, 375,
151 N.W.2d 63 (1967);

State ex rel. Niedziejko v. Coffey,
22 Wis.2d 392, 401,
126 N.W.2d 96,
127 N.W.2d 14 (1964),

and its invocation is subject
to stringent prerequisites.

State ex rel. Jefferson v. Roraff, supra.

Prohibition will not lie to
correct every judicial error.

Only where the duty of the court below is
plain, and where there is a clear refusal to
meet that duty or a clear intent to disregard
it, will a writ of prohibition issue.

State ex rel. Prentice v. County Court,
70 Wis.2d 230, 235,
234 N.W.2d 283 (1975);

State ex rel. Jefferson v. Roraff,
supra, at 257,

quoting In

Petition of Pierce-Arrow Motor Car Co.,
143 Wis. 282, 285,
127 N.W. 998 (1910).

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Moreover, no matter how meritorious
a claim of error may be, two distinct
showings must be made before a
writ of prohibition will issue.

First, it must be shown that ordinary
remedies, by appeal or otherwise,
are inadequate.

State ex rel.
Dept. of Pub. Instruction v. ILHR,
supra, at 684;

Mohrhusen v. McCann,
62 Wis.2d 509, 512,
215 N.W.2d 560 (1974). [2]

Second, it must be shown that grave or
extraordinary hardship will result
if the writ does not issue.

State ex rel.
Di Salvo v. Washington County Ct.,
79 Wis.2d 27, 31,
255 N.W.2d 459 (1977);

State ex rel. Prentice v. County Court,
supra, at 234.

It will not suffice merely to assert these
prerequisites in a conclusory fashion.

Rather, a party seeking the intervention of a
supervisory court has the burden of alleging
facts sufficient to reasonably demonstrate
both the inadequacy of ordinary remedies and
the gravity of the hardship if the writ does
not issue,

State ex rel.
Di Salvo v. Washington County Ct.,
supra, at 31;

State ex rel.
Prentice v. County Court,
supra, at 234;

Mohrhusen v. McCann,
supra, at 512;

unless the harm is

"inherent in the situation,"

Mohrhusen v. McCann, supra, at 509, 512

State ex rel.
Dept. of Pub. Instruction v. ILHR,
supra, at 686, 687.

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In the instant case, the petition for the
writ of prohibition alleged the inadequacy of
the remedy of appeal, asserting that appeal
would come too late for effective redress
because the order of the county court
directed the state to permit the defendants
to examine their respective files before
resuming the preliminary hearing.

On appeal, the state further asserts that
immediate appeal was not available to the
state under Section 974.05, Stats. and that
the issue may evade review altogether,
because of jury verdict favorable to the
defendants would prevent appeal by the state.

These arguments are consistent with
the decisions of this court.

The inadequacy of the remedy of appeal may
arise from the fact that appeal would
come too late for effective redress.

State ex rel. Jefferson v. Roraff,
supra, at 256,


Drugsvold v. Small Claims Court,
13 Wis.2d 228, 232,
108 N.W.2d 648 (1961);


State ex rel.
Dept. of Pub. Instruction v. ILHR,
supra, at 687.

This court has indicated that a writ of
prohibition is a proper remedy where an
inferior court has improperly compelled
disclosure of evidence.

Thus in

State ex rel. Reynolds v. Circuit Court,
15 Wis.2d 311, 315,
112 N.W.2d 686 (1961),

prohibition was sought to restrain
enforcement of a trial court order requiring
two appraisers to give certain depositions
in a civil action against the state
highway commission.

Although the petitioners did not prevail on
the merits of their claim, and the writ was
therefore denied, this court acknowledged
the inadequacy of the remedy of appeal
in such a situation.

If the appraisers were required to comply
with the order, this court observed, any
right which the state had to have such
testimony withheld would be destroyed, and an
appeal would be unable to repair the damage.

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The appellants contend that the state could
have secured adequate relief by seeking a
protective order covering any privileged
items or material which could not safely be

However, the record makes plain that the
state's objection to disclosure does not
concern specific items which might properly
be made subject to a protective order.

Upon direct inquiry by the county court, the
assistant district attorney stated that the
seven files did not contain information which
would reveal the identities of informants or
undercover agents.

The trial court further inquired whether the
files contained information regarding any
other persons which warranted protection, or
anything which should not be revealed to the

The assistant district attorney stated that
generally there was nothing of that nature,
but that he could not be positive without
examining the files page by page.

Neither the petition for the writ of
prohibition nor the supporting brief
indicated that the files contain specific
items requiring protection.

It is apparent, therefore, that the writ of
prohibition was sought, not to prevent
disclosure of any specific item or items, but
to prevent whatever harm may be implicit in
ordering that the state make its file
available to counsel for the defendant for
examination and the taking of such notes as
he wishes prior to preliminary examination.

The question, then, is whether the order of
the county court was plainly erroneous, and
whether grave harm would result if the writ
of prohibition did not issue.

The state maintains that prohibition was
proper because the harm in the present case
is "inherent in the situation."

State ex rel.
Dept. of Pub. Instruction v. ILHR,
supra, at 686, 687;

Mohrhusen v. McCann, supra, at 512.

More specifically, the state contends that
the actions of the county court will subvert
the orderly processes of disclosure and
discovery, unjustifiably delay the case
below, unnecessarily expose the state's case
against these defendants and create a
precedent which is likely to hinder the
efforts of the prosecution in future cases.

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In sum, the state asserts that the order of
the county court impedes the orderly
administration of justice by infringing upon
the state's right not to open its files for
general inspection by criminal defendants
prior to a preliminary examination.

These contentions are predicated upon the
view that the actions of the county court are
utterly without sanction in the constitution
or legal precedent.

For this reason, it is impossible to gauge
the alleged harm without determining whether
the trial court erred; it is therefore
necessary to turn to the merits of the
state's arguments.

State ex rel. Reynolds v. Circuit Court,
supra, 315.

The parties recognize that the state has an
affirmative duty to disclose to a criminal
defendant any material within its possession
or control which tends to negate the guilt of
the defendant or which would tend to reduce
his punishment therefor.

Nelson v. State,
59 Wis.2d 474, 479,
208 N.W.2d 410 (1973).

It is unprofessional conduct for a prosecutor
to fail to disclose such exculpatory material

     ". . .at the earliest
      feasible opportunity . . ,"

American Bar Association Project on
Standards for Criminal Justice, The
Prosecution Function and the Defense
Function, Section 3.11(a),

quoted in

Nelson v. State, supra, at 483, fn. 9.

The state must therefore disclose such
material as soon as the state recognizes
its exculpatory character.

United States v. Mitchell
(S.D.N.Y. 1973),
372 Fed. Supp. 1239, 1257.

These principles are not in dispute here.

Rather, the question here is whether criminal
defendants may determine for themselves
which, if any, of the materials in the
hands of the state are exculpatory.

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The constitutional right to a fair trial does
not entitle a defendant to inspect the entire
file of the prosecutor.


United States v. Agurs,
427 U.S. 97, 106, 109,
96 Sup. Ct. 2392,
49 L.Ed.2d 342 (1976),

the Supreme Court stated:

     . . . There is, of course, no duty to
     provide defense counsel with unlimited
     discovery of everything known by the
     prosecutor, . . .


     Whether or not procedural rules
     authorizing such broad discovery might
     be desirable, the Constitution surely
     does not demand that much.

     While expressing the opinion that
     representatives of the State may not
     "suppress substantial material
     evidence," former Chief Justice Traynor
     of the California Supreme Court has
     pointed out that "they are under no duty
     to report sua sponte to the defendant
     all that they learn about the case and
     about their witnesses."

     In re Imbler,
     60 Cal.2d 554, 569,
     387 P.2d 6, 14 (1963).

     And this Court recently noted that there
     is "no constitutional requirement that
     the prosecution make a complete and
     detailed accounting to the defense of
     all police investigatory work on a

     Moore v. Illinois,
     408 U.S. 786, 795. . . . . .


Ruiz v. State,
75 Wis.2d 230,
249 N.W.2d 277 (1977),

this court considered the holding of Agurs,
supra, and at pages 241, 242, stated:

     "It appears, therefore, that under the
     standard of Agurs, unless the evidence
     not disclosed is probative of innocence,
     no duty to disclose arises, and only if
     the evidence not disclosed would have
     created a reasonable doubt was
     constitutional error committed by the

See also:

Britton v. State,
44 Wis.2d 109,
170 N.W.2d 785 (1969)

(holding that there is no general right to
inspect the prosecutor's files after trial).

The defendants in the present appeal concede
that the constitution confers no general
right to peruse the prosecutor's files.

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However, the defendants maintain that
the trial court may, in its discretion,
confer such a right.

It is the conclusion of this court that
generalized inspection of the prosecution's
files by the defense, at this early stage of
a criminal prosecution, is inherently harmful
to the orderly administration of justice.

It is important to remember that the
constitutional source of the defendants'
right to exculpatory material is in the right
to a fair trial guaranteed by the fifth and
fourteenth amendments to the United States
Constitution. [3]

United States v. Agurs,
supra, at 107; see:

Brady v. Maryland,
373 U.S. 83, 87, 88,
83 Sup.Ct. 1194,
10 L.Ed.2d 215 (1963).

A preliminary examination is not a trial.

Tell v. Wolke,
21 Wis.2d 613, 617, 618,
124 N.W.2d 655 (1963).

A preliminary examination is a hearing before
a court for the purpose of determining
whether there is probable cause to believe
that a felony has been committed by the

Section 970.03, Stats.

Once such probable cause has been shown, and
the defendant has been bound over for trial,
the prosecutor is not bound, in presenting an
information, to the particular charges
advanced at the preliminary examination.

Rather, he may advance additional related
charges and, indeed, may charge in the
information any crime not wholly unrelated to
the transactions and facts adduced at the
preliminary examination.

Wittke v. State ex rel. Smith,
80 Wis.2d 332, 352
259 N.W.2d 515 (1977).

In this sense, the particular charges alleged
in the complaint at a preliminary examination
must be considered tentative or provisional.

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Because the ultimate charges have not been
determined with any certainty, it is
inevitably difficult, if not impossible, to
determine at the time of the preliminary
examination which materials, if any, may
prove exculpatory at the time of trial.

This determination cannot be made
in any meaningful way until

  ". . . after the issues and the 
   Government's proof have crystallized. . ."

United States v. King (S.D.N.Y. 1970),
49 F.R.D. 51, 53.

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. [4]

Such discovery will impede the orderly
processes of discovery prescribed by
statute, see:

Sections 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.

Further this court has said that pretrial
discovery procedures should be determined
by statute or by rule of court and should
not be decided by the courts on a
case-by-case basis.

State v. Miller,
35 Wis.2d 454, 478,
151 N.W.2d 157 (1967).

The order of the county court would operate,
in essence, as a discovery device, and
would therefore be inconsistent
with this principle.

The defendants rely upon

Dennis v. United States,
384 U.S. 855, 874,
86 Sup.Ct. 1840,
16 L.Ed.2d 973 (1966),

in which criminal defendants were permitted
to examine the grand jury testimony of
prosecution witnesses.

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There, the Supreme Court said that attorneys
for the defense, rather than the prosecutor
or the trial court, should be permitted to
determine what was exculpatory.

The court said:

     . . . Trial judges ought not to be
     burdened with the task or the
     responsibility of examining sometimes
     voluminous grand jury testimony in order
     to ascertain inconsistencies with trial

     In any event, "it will be extremely
     difficult for even the most able and
     experienced trial judge under the
     pressures of conducting a trial to pick
     out all of the grand jury testimony that
     would be useful in impeaching a

     Pittsburg Plate Glass,
     360 U.S., at 410 (dissenting opinion).

     Nor is it realistic to assume that the
     trial court's judgment as to the utility
     of material for impeachment or other
     legitimate purposes, however,
     conscientiously made, would
     exhaust the possibilities.

     In our adversary system, it is
     enough for judges to judge.

     The determination of what may
     be useful to the defense can
     properly and effectively be
     made only by an advocate . . ."

Dennis v. United States,
supra, at 874, 875.

In Dennis, however, the defendants had made a
showing of "particularized need" to inspect
the material, a fact which the
Supreme Court emphasized.

Dennis v. United States, supra, 870-873.

No such showing of "particularized need" was
made or attempted in the present case.

Dennis is therefore inapposite and is not
authority for the proposition that counsel
for the defendant has a right to examine
the files of the state before bindover.

Brady v. Maryland, supra, and succeeding
cases necessarily place heavy responsibility
upon the prosecutor.

Particularly at this early stage of the
proceedings, substantial reliance must be
placed upon his good faith and upon his
desire to meet that responsibility in
accordance with the general presumption of
regularity and propriety to which his
official acts are entitled.

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At the preliminary hearing stage, therefore,
and in the absence of a showing of
particularized need, the identification of
exculpatory material must be entrusted to the
good conscience of the prosecution, subject
to the sanction implicit in Brady, supra,
that if the prosecution improperly withholds
disclosure it may later risk the granting of
a motion for a new trial.


United States v. Wolfson (S.D.N.Y. 1968),
289 Fed. Supp. 903, 915,
judgment affirmed

405 F.2d 779 (1968), cert. den.
394 U.S. 946 (1969);

United States v. Cobb (S.D.N.Y. 1967),
271 Fed. Supp. 159, 163, 164.

For the foregoing reasons, this court is of
the opinion that under the prevailing
circumstances, the order of the county court
was without basis in the constitution or in
sound judicial policy; that the order
therefore represented a clear breach of a
plain judicial duty; and that the harm
involved was inherent in the situation.

The judgment of prohibition
is therefore affirmed.

By the Court.   Judgment affirmed.


There are seven files, one for each
of the seven defendants.

These files are not included in the
record in the present proceeding.


Although this prerequisite has at times been
stated as requiring only that the remedy of
appeal be unavailable or ineffective, see,
e.g., State ex rel. Jefferson v. Roraff,
supra, at 256; State ex rel. Prentice v.
County Court, supra, at 234, the decisions of
this court make clear that a writ of
prohibition will not issue where any
available legal remedy would provide
effective redress.

See, e.g.,

State ex rel. Freemon v. Cannon,
supra, at 491 (motion for remand held
to constitute adequate remedy);

State ex rel. Cullen v. Ceci,
45 Wis.2d 432, 438, 440,
173 N.W.2d 175 (1970)
(writ of habeas corpus held
to be adequate remedy);

In re Weaver,
162 Wis. 499,
156 N.W. 459 (1916)
(plea in abatement held adequate remedy).


Disclosure at the present stage of the
instant prosecution is in no way essential to
the effective use of any exculatory material
by the defendants at trial.

It is unnecessary to determine whether the
right to a fair trial may, under certain
circumstances, require pretrial   but
post-bindover   disclosure to permit the
effective use of particular evidence at


This court has emphasized that discovery is
distinct from constitutionally mandated

State v. O'Connor,
77 Wis.2d 261, 280, fn. 7,
252 N.W.2d 671 (1977).

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