¶ 97. {concurring). The question presented is whether a criminal defendant has a subpoena right to obtain and copy police investigation reports prior to the preliminary hearing.1
¶ 98. My answer to the question is "no," and I affirm the order of the circuit court. My answer is the same as that reached by the majority opinion. I reach this answer, however, by a shorter, more direct route than that taken by the majority opinion. My route avoids the majority opinion's case-stretching, lawmaking, and almost entirely dicta-laden detour through the fields of discovery and preliminary examination in criminal cases.
¶ 99. The majority opinion appears to be more interested in developing law about preliminary examinations and discovery (both before and after an information is filed) than in answering the question of law posed by the instant case. I therefore do not join the majority opinion.
¶ 100. I reason as follows:
(A) No statute gives the defendant a subpoena right to obtain and copy police investigation reports prior to the preliminary hearing.
*328(B) The defendant's claimed constitutional rights of compulsory process and effective assistance of counsel do not support the defendant's right to a subpoena for police files under the circumstances of the instant case.
(C) Although the defendant and the third-party brief of amici curiae (the Office of State Public Defender and the Innocence Project) raise serious questions about the reliability and fairness of preliminary examinations and trials when a criminal defendant is not given access to police records prior to the preliminary hearing, I am reluctant to conclude that this case is an appropriate one in which to rule, as a matter of the inherent or superintending powers of this court, that unless good cause exists, law enforcement should give an accused access to police reports before the preliminary examination. The policy arguments of the defendant and the amici do, however, deserve further and serious attention, as the State's brief suggests, from this court in its rule making authority or from the legislature.
¶ 101. I do not address the question whether the defendant may obtain the documents at issue by other means such as a request made under Wisconsin's open records law. The open records law is not raised in the present case. We should not pre-judge issues that are neither raised nor briefed and that may be pending in other cases.2 Unfortunately, in footnote 4, the majority *329opinion weighs in on this unbriefed and unraised issue, suggesting that the provisions of Wisconsin's open records law are qualified by several provisions, including Wis. Stat. § (Rule) 905.09.3 The majority opinion misreads § (Rule) 905.09. Although § (Rule) 905.09 creates an evidentiary privilege regarding law enforcement records, the rule explicitly states that this privilege does not apply "to the extent" that law enforcement records are "available by law to a person other than the federal government, a state or subdivision thereof."4 The *330Judicial Council Committee's Note to the Supreme Court order establishing § (Rule) 905.09 explains that the evidentiary privilege for law enforcement records "is qualified by the phrase 'to the extent available by law' to preserve the supremacy of s. 19.21 permitting examination of public records and documents."5 See 59 Wis. 2d Rl, R142-43 (1973). It is the open records law that qualifies § (Rule) 905.09, not the converse as the majority opinion implies.
A
¶ 102. The defendant relies upon Wis. Stat. § 885.01, a civil statute, to argue that his. subpoena is a *331judicial process authorized by statute. According to the defendant, the civil subpoena statute applies to his criminal proceeding under Wis. Stat. § 972.11(1). Section 972.11(1) provides that the rules of evidence and practice in civil actions shall be applicable in criminal proceedings "unless the context of a section or rule manifestly requires a different construction." Furthermore, § 972.11(1) explicitly states, without any qualification about the context of a section or rule, that chapter 885 "shall apply in all criminal proceedings."6 The subpoena statute, § 885.01, is part of chapter 885. Even if one reads § 972.11(1) as applying chapter 885 "unless the context of a section or rule manifestly requires a different construction," the context of § 885.01 does not "manifestly require [] a different construction" in the instant case. I therefore turn to § 885.01.
¶ 103. Statutory interpretation in the present case begins with the text of Wis. Stat. § 885.01. Unfortunately, the majority opinion is fairly well along before it cursorily examines the subpoena statute at ¶¶ 41-44.
¶ 104. Wisconsin Stat. § 885.01(1) provides that a subpoena may be issued to require the attendance of witnesses and their production of lawful instruments of evidence in "any action, matter or proceeding or to be examined into before [enumerated persons] or other person authorized to take testimony in the state." Section 885.01(1) provides in full as follows:
885.01. The subpoena need not be sealed, and may be signed and issued as follows:
*332(1) By any judge or clerk of a court or court commissioner or municipal judge, within the territory in which the officer or the court of which he or she is the officer has jurisdiction, 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.7
¶ 105. Section 885.02 prescribes the form of the subpoena, including a subpoena requiring the production of evidence.
¶ 106. The defendant used the standard court form for subpoenas adopted pursuant to Wis. Stat. § (Rule) 971.025 by the Judicial Conference under § (Rule) 758.18(1). The standard court form for subpoenas is substantially the same as the form for subpoenas prescribed in § 885.02.
¶ 107. The subpoena was issued by the clerk of circuit court of Waukesha County.8 The subpoena requires the witness named (here the chief of police) to appear and give evidence at the type of proceeding described in the subpoena (here the proceeding was simply denominated a "Return of Records").9 A copy of the subpoena is attached.
*333¶ 108. The defendant's subpoena does not satisfy the applicable statutes because the subpoena did not require the Brookfield police chief, in the words of Wis. Stat. § 885.01(1), to attend an "action, matter or proceeding pending or to be examined into before" the court. The Return of Records proceeding set forth in the subpoena is not a proceeding known in this state and is not described in the subpoena or briefs. Defense counsel explained in the circuit court that rather than have the subpoenaed records delivered to her office (a procedure for which she cites no authority), she used the subpoena to raise before the circuit court the legal issue of whether she could obtain the records by subpoena and expected the State to move to quash the subpoena.
¶ 109. The defendant does not cite any statute providing for any court proceeding in which a criminal defendant or his or her attorney receives a witness's testimony or documents in or out of court prior to the preliminary examination. The defendant nevertheless argues that a witness or evidence may be subpoenaed for the sole purpose of producing documents prior to the preliminary examination. I disagree with the defendant under the circumstances of the present case.
¶ 110. The defendant's subpoena in the present case seeking documents from a potential witness does not command the witness "to attend an action, matter or proceeding pending or to be examined into before" the commissioner or court under Wis. Stat. § 885.01(1) to be held on July 13, 2006. No hearing was to take place on July 13, 2006. Defense counsel obtained a return date for purposes of completing the subpoena *334form, but no hearing at which the witness was to appear and testify was scheduled. The circuit court recognized this flaw in the subpoena demand, observing, "I am asked here today ... to in essence create some type of new beast, some new creature not provided by the statute .. . whether we call it a return of records or a review of records or production of records."10
¶ 111. No witness's testimony or lawful instrument of evidence, whether provided by the police chief or any other witness, was required in the Return of Records proceeding. The court commissioner was not to consider any matter in respect to which the Brookfield police chief might have supplied relevant testimony or produced relevant evidence. The sole apparent purpose of the Return of Records proceeding, according to the defendant, was to determine the validity of the defendant's demand that there be a transfer of information and documents from the Brookfield police chief to the defendant and to transfer the information and documents to the defendant if the court determined that the defendant's demand was valid.
¶ 112. The majority opinion interprets the subpoena statutes as I do and concludes as I do: "In short, no subpoena statute authorizes Schaefer's action." Majority op., ¶ 45.11
*335¶ 113. Nevertheless the majority opinion marches onward. Not satisfied with its holding that the defendant has no statutory authority for the subpoena, the majority opinion embarks upon a confusing and ultimately fruitless discussion of the criminal discovery statutes, §§ 971.23 and 971.35(5)(b), declaring that the defendant's subpoena is "inconsistent with our criminal discovery statutes." See majority op., ¶ 41.
¶ 114. Interestingly, the defendant lays no claim to a discovery right under either the criminal discovery statute, § 971.23, or the civil statutes, Wis. Stat. §§ 804.01(2) and 804.09, to obtain the materials demanded in his subpoena. I agree with the defendant that neither the civil discovery statutes nor § 971.23, entitled "Discovery and inspection," applies in the present case to authorize the subpoena.
¶ 115. Nevertheless the majority devotes almost one-half of its opinion to analyzing our criminal discovery statutes and the nature and purpose of discovery in general. See majority op., ¶¶ 18-40, 46-59. The majority opinion's lengthy discussion of the criminal discovery statute, Wis. Stat. § 971.23, in relation to the present case, ignores the text of § 971.23 and related statutes and will likely confuse the law.
¶ 116. The text of Wis. Stat. § 971.23 is clearly not applicable to the instant case. The defendant is clearly *336correct in not trying to rely on § 971.23, and the majority opinion clearly errs in reaching out to apply the criminal discovery statutes to the present case.
¶ 117. First, motions for discovery under § 971.23 may be made only after the information is filed. See § 971.31(5) (b). The subpoena in the present case is not a motion (although the majority opinion at ¶ 54 nearly declares the subpoena a motion).12 Moreover, no information has been filed in the present case.
¶ 118. Second, Wis. Stat. § 971.23 governs discovery and the district attorney. It governs what a district attorney shall disclose to a criminal defendant.13 The *337present case involves disclosure by a police chief to the defendant. Nothing in the text of § 971.23 governs disclosure by law enforcement agencies to a criminal defendant.
¶ 119. The majority opinion ignores the plain language of Wis. Stat. § 971.23 governing district attorneys and toys with the idea of adding the words "law enforcement officers" to § 971.23, asserting in a footnote that this court is "reluctant to treat the police department and the district attorney's office as separate entities" for purposes of § 971.23(1) because the police and the district attorney are "related" for purposes of this statute.14 The majority does not explain why the relationship between the two separate entities for purposes of a statutory provision does not mean simply that the two entities should be treated as separate but related entities for purposes of the statute.
¶ 120. The majority opinion errs in musing that law enforcement and the district attorney perhaps may be treated as one. In our system of government, law enforcement and the district attorney's office are two separate entities, with separate functions and subject to different codes of conduct, although the two often work together.15 TV's Law & Order gets it right: "In the *338criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders." The legislature has treated these separate entities differently in the criminal discovery statutes, using Wis. Stat. § 971.23 to govern defendants' rights against district attorneys. Section 971.23 does not govern the question of defendants' similar rights against law enforcement agencies. This court should not, as the majority opinion appears to do, disturb the relationship of law enforcement and district attorneys in the Wisconsin criminal justice system.16
*339¶ 121. The majority opinion twists and bends to avoid the plain language of the discovery statute as the text of the statutes proves inconvenient to the majority's unclear theses about discovery in criminal cases. Because the majority opinion's analysis is so *340badly at odds with the plain language of the criminal discovery statutes, the majority cannot bring itself to reach any actual holding regarding what the criminal discovery statutes mean and how they should be applied to the present case. The majority opinion concludes not that the criminal discovery statutes actually apply to and forbid the defendant's subpoena, but rather that the criminal discovery statutes are "inconsistent" with the subpoena;17 not that the subpoena is governed by Wis. Stat. § 971.31(5)(b), but rather that it is "arguably" governed by that provision;18 not that the subpoena is a "motion," but rather that it "satisfies some of the criteria of a 'motion' ";19 and not that the district attorney and police department are a single entity for purposes of § 971.31(5)(b), but rather that the two entities are "related" and "linked."20
¶ 122. The majority opinion's lengthy analysis ultimately comes up empty. In the face of the plain text of the criminal statutes, the majority opinion cannot hold that the criminal discovery statutes apply to the defendant's subpoena.
¶ 123. The majority opinion's contortionist interpretation and slippery phrasing are unnecessary. A straightforward, simple reading of the subpoena statutes demonstrates that the defendant's subpoena was properly quashed by the circuit court. As the majority opinion itself appears to conclude, the criminal discovery statutes do not govern the defendant's subpoena to law enforcement officers; the criminal discovery statutes are fully consistent with the subpoena statutes for *341purposes of the instant case; and the criminal discovery statutes need not be discussed at all in the instant case. The majority opinion fabricates a need to "harmonize" the two sets of statutes,21 but the majority opinion never identifies a single inconsistency between the two sets of statutes that needs harmonization.
¶ 124. The majority opinion's interpretation of our criminal discovery statutes ignores the text of Wis. Stat. § 971.23 and § 971.35(5)(b) and risks creating undue confusion in the law governing discovery and preliminary examinations in criminal cases in this state.
¶ 125. For the reasons I have set forth, I conclude that no statute allows the defendant to have the benefit of the subpoena at issue in the present case. I therefore conclude that the subpoena at issue is not authorized by any statute and is of no force and effect.
B
¶ 126, The defendant argues for access to the police chiefs documents under the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution.22 Indeed, the constitutional argument is the major argument in his brief. He argues that the right to compulsory process includes the right to access and copy police investigation reports prior to the preliminary examination as a matter of the *342right to defend and that the right to effective assistance of counsel at the preliminary examination cannot be satisfied without the defense attorney having these materials before the preliminary examination.
¶ 127. The defendant argues that the allegations in the present case are very stale and involve memories of events sixteen years earlier; that under these circumstances he needs the information subpoenaed to prepare for the probable cause preliminary examination; and that the subpoenaed documents are valuable tools that could be used to test the plausibility of witnesses' testimony at the preliminary examination, a critical phase of the prosecution. I do not view this explanation as demonstrating a particularized need for inspection allowed under the Lynch case.
¶ 128. I agree with the defendant that the effective assistance of counsel requires the time and ability to investigate and prepare.23 I conclude, however, that the defendant's inability to access full information prior to the preliminary examination in the instant case does not necessarily implicate the defendant's federal constitutional right to a fair preliminary examination and does not implicate the defendant's right to effective assistance of counsel in light of the purpose and scope of the preliminary examination and a defendant's limited rights at the preliminary examination.
¶. 129. Although the records subpoenaed may be relevant to the probable cause determination, may enable defense counsel to fashion a vital impeachment tool for use in cross-examining the state's witnesses at trial, may preserve testimony favorable to the accused, or may allow preparation of a proper defense at trial, I *343am not convinced that the defendant's inability to obtain the subpoenaed information before the preliminary examination in the present case rises to a federal constitutionally protected claim. As Professor Mary Prosser has detailed, the United States Supreme Court has limited the pretrial information required to be given to the defendant.24 The Court has largely limited prosecutors' constitutional discovery obligations to exculpatory evidence and has focused on the adversarial nature of the relationship between the district attorney and defense counsel rather than on the question of the reliability of outcomes in criminal cases.25
¶ 130. I cannot conclude that material in law enforcement files would be treated differently than material in the district attorney's files for federal constitutional purposes. I do not explore whether the Wisconsin constitution grants the defendant a right to information before a preliminary examination.
C
¶ 131. The office of the State Public Defender and the Wisconsin Innocence Project join in a non-party brief, often referred to as an amicus brief. They argue (as the defendant does in his brief) that it is sound public policy to permit a criminal defendant access to police records prior to the preliminary hearing. The amici assert that such a practice is used in other states and communities, and in the federal system.
¶ 132. The amici contend that such a practice (1) would lead to fewer wrongful prosecutions and convictions by better equipping innocent defendants to *344challenge the State at the preliminary examination; (2) would help to reinforce the principle that police investigation should be viewed as objective and non-adversarial fact gathering; and (3) would render more fair the preliminary hearing, a proceeding in which the State currently wields an informational advantage, and the trial.
¶ 133. The briefs of the defendant and amici advise the court that some district attorneys in Wisconsin already maintain an "open file" system permitting a defendant broad access to information in their possession and that some states, communities, and federal courts allow defendants access to information early in the process.
¶ 134. Based on these policy arguments and the experience in other jurisdictions, the defendant and amici ask this court to establish a procedure allowing defendants access to non-privileged police records before the preliminary hearing to determine their relevance.26
¶ 135. The State argues that any change in procedure should come "through the normal legislative process, or through this court's formal rule-making process."27 According to the State, "[i]t would be highly inappropriate for this court to use this lone appeal as the vehicle for creating such a radical change in criminal procedure."28
¶ 136. The Wisconsin Constitution confers upon this court superintending authority over all Wisconsin courts.29 We have traditionally construed our superin*345tending power broadly as authority to control litigation in the courts.30 Our superintending authority, however, is not lightly invoked.31 This court ordinarily has refused to modify rules of practice or procedure on appeal.32
¶ 137. The defendant and the amici raise troubling questions about the reliability and fairness of preliminary examinations and trials when a criminal defendant is not given access to police records and all non-privileged information early in the process. The criminal justice system must be reliable to convict the guilty and to prevent wrongful conviction of the innocent. The Innocence Projects across the country have demonstrated that wrongful convictions do occur, even in Wisconsin.33 The ideal in our legal system is that "[sjociety wins not only when the guilty are convicted but when criminal trials are fair."34 Indeed, "the more we learn about the incidence of wrongful convictions, the less it makes sense to deprive a defendant of access to relevant evidence" at the earliest possible opportunity.35 The majority opinion acknowledges the wisdom of law enforcement and district attorneys adopting the practice proposed by the defendant. See majority op., ¶ 81.
*346¶ 138. The instant case presents, however, a question of first impression, not a question that this court has had occasion to consider or address previously.36 I am not convinced that this case is an appropriate one in which to rule, as a matter of the inherent or superintending power of this court, that unless good cause exists, law enforcement should give an accused access to police reports before a preliminary examination. Under these circumstances, I therefore conclude that this court should not in the instant case invoke its superintending authority by establishing a procedure allowing defendants access to non-privileged law enforcement records prior to the preliminary hearing.
¶ 139. For the reasons set forth, I write separately. My reasoning and conclusions can be summarized as follows:
(A) None of the subpoena statutes and no other statute gives a subpoena right to the defendant to obtain and copy police investigation reports prior to the preliminary hearing.
(B) The defendant's claim of a constitutional right to compulsory process or effective assistance of counsel do not support the defendant's right to a subpoena for police files under the circumstances of the instant case.
(C) Although the defendant and the third-party brief of amici curiae (the Office of State Public Defender and the Innocence Project) raise serious questions about the reliability and fairness of preliminary examinations and trials when a criminal defendant is *347not given access to police records prior to the preliminary hearing, I am reluctant to conclude that this case is an appropriate one in which to rule, as a matter of the inherent or superintending powers of this court, that unless good cause exists, law enforcement should give an accused access to police reports before the preliminary examination. The policy arguments of the defendant and the amici do, however, deserve further and serious attention, as the State's brief suggests from this court in its rule making authority or from the legislature.¶ 140. I am authorized to state that Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR. join this opinion.
*348[[Image here]]
The responsibility of law enforcement under the public records law is not settled. See, e.g., Portage Daily Register v. Columbia Co. Sheriffs Dep't, 2008 WI App 30, 308 Wis. 2d 357, 746 N.W.2d 525 (no petition for review filed). I do not cite this case for its holding or as precedent but as an example showing that the responsibility of law enforcement under the public record law is subject to dispute. In Portage Daily Register, the court of appeals concluded that the sheriffs department had responsibility under the public records law independent of the responsibility of the district attorney. The court of appeals *329further concluded that the sheriffs department's denial of a request to release a report on the ground that a copy of the report had been forwarded to the district attorney's office and was part of an open investigation did not state a sufficient legally specific policy under Wis. Stat. § 19.27 (2005-06).
In State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991), this court held that although there is a presumption that the public has a right to inspect public records unless an exception is found, "the common law provides an exception which protects the district attorney's files from being open to public inspection." Foust, 165 Wis. 2d at 433-34. The decision in Foust did not address any question pertaining to records in the possession of law enforcement agencies.
Recently, Assistant Attorney General Mary E. Burke advised the Brookfield Assistant Police Chief that the police department's policy of refusing to release any police files that have been forwarded to a prosecuting attorney is not permitted under Wisconsin's public records law. The Brookfield Police Department has apparently rejected this advice. See Amy Rinard, Police Files Get Limited Protection, State Says, Milwaukee Journal Sentinel Online, Nov. 23, 2007, at http://www.jsonline.com/story/ index.aspx?id=689460 (last visited March 20, 2008); Amy Rinard, Police Ignore Open Records Advice, Milwaukee Journal Sentinel Online, Dec. 7, 2007, at http://www.jsonline.com/ story/index.aspx?id=694473 (last visited March 20, 2008).
Majority op., ¶ 21 n.4.
Wisconsin Stat. § (Rule) 905.09 provides in full:
*330The 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.
The Judicial Council Committee's Note reads as follows:
This section has no direct parallel in the proposed Federal Rule 509. A privilege for law enforcement files and records is established by this section. However, the privilege is qualified by the phrase "to the extent available by law" to preserve the supremacy of s. 19.21 permitting examination of public records and documents. The burden is upon the person claiming the privilege to establish in a judicial determination that the public interest outweighs the right of a member of the public to have access to claimed privileged material in the fashion prescribed in State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470, 139 N.W.2d 241 (1965), and Beckon v. Emery, 36 Wis. 2d 510, 153 N.W.2d 501 (1967). Normally, the "appropriate representative" to make the claim will be counsel, however, it is possible that disclosure of the privileged material will be sought in proceedings to which the government, state or subdivision, as the case may be, is not a party. Under these circumstances, effective implementation of the privilege requires that other representatives be considered "appropriate."
Section 972.11(1) provides in relevant part as follows:
Except as provided in subs. (2) to (4) [on which no one relies in the present case], the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction.... Chapters 885 to 895 and 995, except ss. 804.02 to 804.07 and 887.23 to 887.26, shall apply in all criminal proceedings.
See also Wis. Stat. § 757.01(1) empowering courts of record of this state to issue "process of subpoena, requiring the attendance of any witness ...."
Clerks of court may sign subpoenas in blank and deliver them to attorneys for completion. Such a subpoena has the same force and effect as if perfected by the clerk. Wis. Stat. § 757.35.
A box on the subpoena describing the subpoena as a third-party subpoena under Wis. Stat. § 805.07(2) was not checked. Nevertheless, throughout his brief the defendant refers to the subpoena as a third-party subpoena to compel the *333production of police investigatory reports and to obtain copies of all non-privileged material prior to the preliminary examination.
The majority opinion explains the "Return of Records" proceeding similarly as follows: "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." Majority op., ¶ 44.
Furthermore, Wis. Stat. § (Rule) 805.07(1) does not authorize the defendant's subpoena in the present case. Section (Rule) 805.07(1) provides that "[a] subpoena may also be issued by any attorney of record in a civil action or special proceeding *335to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding.. . ." The subpoena in the present case was not issued by an attorney of record. It was issued by the clerk of the circuit court.
In any event, the subpoena in the present case did not direct the police chief to appear to testify at a deposition, hearing, or trial. The Return of Records was not a deposition, hearing, or trial at which the police chiefs testimony was to be given.
" 'Motion' means an application for an order." Wis. Stat. § (Rule) 971.30(1). The defendant's subpoena is not an application for an order. The subpoena made direct demands of the Brookfield police chief, ostensibly pursuant to statutory authority. The subpoena did not request that a court make demands of the police chief.
The majority opinion concedes that the defendant's subpoena satisfies only "some of the criteria of a 'motion.'" Majority op., ¶ 54. Yet even this weak assertion is plainly incorrect. The majority opinion does not actually identify any "criteria of a 'motion'" satisfied by the defendant's subpoena but instead notes only that "[t]he police chiefs failure to honor the subpoena would likely lead to" a motion from the defendant. Majority op., ¶ 54.
With the significant qualification that the holding applies only "where there has been no showing of particularized need for inspection," this court held in State ex rel. Lynch v. County Court, 82 Wis. 2d 454, 464-66, 262 N.W.2d 773 (1978), that a defendant does not have a "general right to peruse the prosecutor's files" at the preliminary examination.
During a preliminary examination for seven different defendants, defense attorneys in the Lynch case made a general demand for all exculpatory material in the possession of the district attorney. Lynch, 82 Wis. 2d at 458. The circuit court *337responded by permitting each defendant's attorney to review the district attorney's entire file regarding his or her client. Lynch, 82 Wis. 2d at 458. The facts oí Lynch did not involve, and the Lynch court did not address, the question of a defendant's right to obtain records from a law enforcement agency.
Majority op., ¶ 57 n.12.
Law enforcement's task is to objectively gather all the evidence in pursuit of the truth, rather than to attempt to hone in early on a suspect and build a case against him or her. Tunnel vision by law enforcement, that is, incomplete investigation and premature concentration on one suspect, has been shown to *338lead to wrongful convictions. See Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291.
For a chilling non-fiction description of non-objective police investigation resulting in an innocent person being convicted and sentenced to death, see John Grisham, The Innocent Man (2006).
As a result of the majority opinion, are police departments as well as district attorneys obliged to turn over, upon a defendant's request after the information is filed, all the materials and information set forth in Wis. Stat. § 971.23?
The majority opinion cites State v. DeLao, 2002 WI 49, ¶ 21, 252 Wis. 2d 289, 643 N.W.2d 480, for the undisputed proposition that under 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." See majority op., ¶ 57 n.12. The fact that § 971.23(1) imposes upon the district attorney an obligation to disclose information in the possession of law enforcement agencies plainly does not mean that § 971.23(1) governs what law enforcement agencies must disclose to a defendant. The DeLao court explained its decision as follows: "Put another way, under certain circumstances, the knowledge of law enforcement officers may be imputed to the prosecutor. ... The test. . . [is] whether by the exercise of due diligence [the prosecutor] should *339have discovered it." State v. DeLao, 2002 WI 49, ¶¶ 21-22, 252 Wis. 2d 289, 643 N.W.2d 480 (quoted source omitted). DeLao does not support the position that in referring to the "district attorney" in § 971.23, the legislature intended to refer to both the "district attorney" and "the police."
State v. Martinez, 166 Wis. 2d 250, 260, 479 N.W.2d 224 (Ct. App. 1991), cited in DeLao and in n.12 in the majority opinion, does not support the position that the reference in Wis. Stat. § 971.23 is a reference to both the district attorney and the police. Martinez is a "good cause" case under the discovery statute. In Martinez, the law enforcement agency, not the prosecutor, had control over a tape. The court of appeals noted that many courts and district attorneys entrust the custody and control of evidence to the police even after it has been elevated to formal evidentiary status in a criminal proceeding. The State had no explanation of how the tape that was requested by the prosecutor (in response to defense counsel's request for discovery) was lost after it was deposited at the front desk of the sheriffs department. The State admitted that it had failed to advise defense counsel that the tape was awaiting him at the front desk. Martinez stands for the proposition that when the State concedes that the requested information was lost, it has the burden under the criminal discovery statute to show that the State had good cause for its failure to produce the information. Martinez, 166 Wis. 2d at 258-59. In Martinez the State did not meet its burden. The court of appeals held (1) that the actions of law enforcement in losing the requested tape were visited on the State for purposes of requiring the State to prove "good cause"; and (2) that even if there was a distinction between a police agency that controls the evidence and the State as the prosecuting entity, for purposes of assessing good cause, the prosecutor was not without fault. See Martinez, 166 Wis. 2d at 260 & n.7 (which the majority opinion fails to discuss).
Majority op., ¶ 41.
Id., ¶ 54.
Id.
Id., ¶ 57 n.12.
Id., ¶ 56.
Under the confrontation and compulsory process clauses of the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution, the defendant also enjoys a constitutional right to present evidence on his behalf. State v. St. George, 2002 WI 50, ¶ 14, 252 Wis. 2d 499, 643 N.W.2d 777.
See, e.g., State v. Harper, 57 Wis. 2d 543, 553, 205 N.W.2d 1 (1973).
Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities, 2006 Wis. L. Rev. 541, 561.
Prosser, supra note 24, at 561-64.
The defendant suggests in camera inspection of police files.
Brief of Plaintiff-Respondent (State) at 27.
Id.
Wis. Const. Art. VII, § 3(1).
See State v. Jerrell C.J., 2005 WI 105, ¶¶ 61, 69, 283 Wis. 2d 145, 699 N.W.2d 110 (Abrahamson, C.J., concurring).
Jerrell, 283 Wis. 2d 145, ¶ 67 (Abrahamson, C.J., concurring).
Mitchell v. State, 84 Wis. 2d 325, 334, 267 N.W.2d 349 (1978).
See Rodney Uphoff, Convicting the Innocent: Aberration or Systemic Problem'?, 2006 Wis. L. Rev. 739.
Brady v. Maryland, 373 U.S. 83, 87 (1963).
See Prosser, supra note 24, at 614.f
The defendant himself acknowledges that no reported Wisconsin case has considered the defense use of a subpoena duces tecum to the police for their investigative reports prior to a preliminary hearing.. . ." Brief and Appendix of Defendant-Appellant at 13.