Rule 26.2 Production of Statements of Witnesses
Rule Text
(a) Order for production. — Upon order of the court, the attorney for the state or the defendant and the defendant’s attorney shall produce for the examination and use of the other party, any written or recorded statement of a witness other than the defendant in their possession or which they may reasonably obtain and which relates to the subject matter about which the witness has testified or will testify and:
(1) Upon demand of the other party, the court shall order the statement to be produced after a witness has testified; and
(2) Upon motion of a party or upon its own motion, the court may require the statement to be produced at any time before trial.
(b) Production of entire statement. — If the entire contents of the statement relate to the subject matter of the witness’s testimony, the court shall order that the statement be produced.
(c) Production of excised statement. — If a party claims that the statement contains matter that does not relate to the subject matter of the witness’s testimony, the court shall order that it be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that do not relate to the subject matter of the witness’s testimony, and shall order that the statement, with such material excised, be produced. Any portion of the statement that is withheld over objection shall be preserved by the court, and, in the event of an appeal by the defendant or a bill of exceptions by the state, shall be made available to the appellate court for the purpose of determining the correctness of the decision to excise portions of the statement.
(d) Recess for examination of statement. — After delivery of the statement to the other party, the court, upon application of that party, may recess proceedings in the trial for the examination of the statement and for preparation for its use in the trial.
(e) Failure to comply with order. — If a party elects not to comply with an order to deliver a statement, the court shall order:
(1) That the witness not be permitted to testify; or
(2) That the testimony of the witness be stricken from the record and that the trial proceed; or
(3) If it is the attorney for the state who elects not to comply, shall declare a mistrial if required in the interest of justice.
(f) Definition. — As used in this rule, a “statement” of a witness means:
(1) A written statement that is signed or otherwise adopted or approved by the witness or an oral statement made by the witness and contained in a stenographic, mechanical, electrical, or other recording, or a transcript thereof; or
(2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
(3) A statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury. “Statement” does not include the work product of attorneys.
Amendment history: Amended July 22, 1993, effective October 19, 1993. Compare. — Rule 26.2, Fed. Rules Cr. Proc. Hypnotism of witness. — The defendant must be advised by the state of the fact that a witness has been previously hypnotized and all statements and proceedings relative thereto must be made available to the defendant on request. This requirement goes beyond those concerning discoverable materials for purposes of impeachment, and discoverable statements of witnesses under this rule. Gee v. State, 662 P.2d 103, 1983 Wyo. LEXIS 314 (Wyo. 1983). The trial court’s function is limited to the question of whether the requested material is a “statement” under this rule and, if so, whether it relates to the subject matter of the witness’ testimony. Jones v. State, 568 P.2d 837, 1977 Wyo. LEXIS 279 (Wyo. 1977). Access limited to “statements” of witness. — This rule limits access to the state’s files to only those materials which fit in the definition of “statement” of a state’s witness which includes, inter alia, a recording of an oral statement. Jones v. State, 568 P.2d 837, 1977 Wyo. LEXIS 279 (Wyo. 1977). Defendant entitled to specific “statement”. — Although a defendant cannot obtain a review or combing of any or all reports having to do with interviews of witnesses, he is entitled to the production of a specific “statement.” Hubbard v. State, 618 P.2d 553, 1980 Wyo. LEXIS 315 (Wyo. 1980). As long as statement that of witness. — Since the purpose of obtaining a “statement,” as defined in this rule, is to impeach the witness, the statement must be that of the witness and not an understanding or interpretation of such by an investigator or other person. Hubbard v. State, 618 P.2d 553, 1980 Wyo. LEXIS 315 (Wyo. 1980). And not simply police reports. — Where there is nothing in the record to reflect that police and investigative reports contain “statements,” as such are defined in this rule, or that they are other than the product of law enforcement personnel, such are not subject to discovery. Hubbard v. State, 618 P.2d 553, 1980 Wyo. LEXIS 315 (Wyo. 1980). And in any event, proper foundation must be laid by defendant, consisting of specificity as to the “statement” alleged to exist. Hubbard v. State, 618 P.2d 553, 1980 Wyo. LEXIS 315 (Wyo. 1980). But, on denial by state, court determines issues. — If the defendant makes a prima facie showing of a probable existence of a specific document, but the state either denies its existence or that it is a “statement” within the definition of this rule, the trial court has the duty to determine such issues by in camera inspection or otherwise. Hubbard v. State, 618 P.2d 553, 1980 Wyo. LEXIS 315 (Wyo. 1980). Sufficient factual basis not provided. — Defendant’s convictions for false imprisonment, felonious restraint and aggravated assault and battery were proper because he did not provide the district court a sufficient factual basis on which to evaluate his constitutional challenge to the court’s disclosure order, and the supreme court was likewise left with no record on which it was able to evaluate the alleged infringement. Thus, the district court’s rejection of defendant’s constitutional challenge to the pretrial disclosure order was affirmed. Kovach v. State, 2013 WY 46, 299 P.3d 97, 2013 Wyo. LEXIS 50 (Wyo. 2013). Defendant may meet burden of proof for production of “statements” by examining witnesses. — The defendant may meet his burden of proof to show that certain documents contain “statements,” as defined in this rule, by the cross-examination of the witness whose “statement” is sought or by the examination of those present when the “statement” was made. Hubbard v. State, 618 P.2d 553, 1980 Wyo. LEXIS 315 (Wyo. 1980). Broad disclosures of state’s investigative files not authorized. — Legislative history makes it clear that this rule was not intended to authorize broad disclosures of the state’s investigative files, and the fundamental requirements of due process do not compel the premature disclosure prior to trial of statements ultimately subject to discovery under the rule. Jones v. State, 568 P.2d 837, 1977 Wyo. LEXIS 279 (Wyo. 1977). Failure to comply with order. — Subdivision (e) of this rule is mandatory in all respects; it does not allow district court any discretion to refuse to act in the face of uncontradicted allegations of discovery violations in a criminal prosecution. Seivewright v. State, 7 P.3d 24, 2000 Wyo. LEXIS 134 (Wyo. 2000). No discovery of informant’s prior drug buys. — When defendant was charged with unlawful delivery of a controlled substance after a transaction with a confidential informant (CI), the district court denied his motion under this rule in which he sought to compel the State to produce detailed information as to other drug buys in which the CI had participated. Downing v. State, 2011 WY 113, 259 P.3d 365, 2011 Wyo. LEXIS 116 (Wyo. 2011).