*1 No. 23399. Dec. [S.F. 1976.] ALLEN, Petitioner,
CHARLES THE COUNTY, SUPERIOR COURT OF ALAMEDA Rеspondent; PEOPLE, THE Real In Interest. Party
Counsel Defender, C. Public Wood Michael G.
James N. Hooley, Gary Gordon, Defenders, Assistant Public for Petitioner. behalf of Curiae on as Amici and R. & Warner Jay Engel
Engel Petitioner. Winkler, Chief Assistant General, R. Jack J.
Evelle Attorney Younger, General, O’Brien, Assistant General, P. Edward Attorney Attorney Granucci, Robert R. A. Reardon E. Deraid Timothy Granberg, Real General, and for Party Attorneys Respondent Deputy Interest. Peter C. Miller, Jr., (San District
Edwin L. Attorney Diego), Curiae on behalf of Real Lehman, District as Amici Attorney, Deputy in Interest. Party
Opinion to restrain a writ of WRIGHT, C. J.Charles Allen seeks prohibition disclosure of an order court from enforcing compelling respondent in criminal defense witnesses names of proceedings pending prоspective trial of On the set for commencement him. petitioner’s day and own motion ordered both court on its People respondent The court of their witnesses. disclose the names to prospective petitioner to ascertain would be read to that those names intended potential jurors witnesses. with such them was whether prospective any acquainted to those would not be described counsel that named court advised The court also witnesses. defense or as proposed jurors the defense named individual from any contacting enjoin the course disclosed was otherwise the name of such during until person of his reveal the names Petitioner refused to of the trial. prospective relief. the instant sought that the disclosure Petitioner contends foregoing sought by He also self-incrimination. his constitutional would violate right against innovation as instant that such a alternative urges procedural introduced, all, the considered order should be if at judgment only upon the court erred We have concluded that ordering Legislature. witnesses, issue our and herewith disclosure of prospective writ of prohibition. peremptory contention alternative we
Preliminarily, dispose petitioner’s within a innovation the instant order constitutes solely procedural Court discretion of the Reynolds Legislature. 12 Cal.3d In we 45].) Cal.Rptr. Reynolds created We concluded confronted notice-of-alibi judicially procedure. the intricate state federal constitutional given questions it to refrain was this court from the creation presented preferable fiat. Under notice-of-alibi procedure by judicial comprehensive it better for this court circumstances we considered “far pass if document and when on an necessary, integrated judgment, legislative than on our own conditional decree ....” (Id., court’s disclosure order does not The instant review of respondent federal state constitutional issues discussed at present complex On the we consider our in Reynolds. contrary, opinion length Prudhomme the constitutional issue raised herein.
P.2d
be dispositive
673]
are not
to exercise the restraint
Consequently,
compelled
appropriate
We thus
alternative contention.
Reynolds.
reject petitioner’s
*5
In
we
that
Prudhomme
concluded
element
principal
whether a
disclosure should be allowed is
determining
compelled
“whether
thereof
disclosure
conceivably might lighten
prosecution’s
burden of
its case in chief.”
at
We observed that “in
326.)
(Id.,
proving
p.
it
claim of
the trial
must find that
clearly
ruling upon
privilege,
from a consideration of all the circumstances in the case
an
appears
to the
have a
answer
cannot
tendency
question
possibly
challenged
at
326.)
incriminate the witness.
(Id.,
[Citations.]”
curiae,
that Prudhomme is not in
The
and amicus
arguing
People
decisions,
with
United States
Court
accord
urge
Supreme
subsequent
we reexamine our
therein.
holding
in direct
States
United
are no decisions
Supreme
There
the trend of
Nevertheless,
are mindful that
with Prudhomme.
conflict
decisions on
court’s
compelled
the federal
questions
high
our
consistent with
is not
interpreta-
wholly
States v.
United
self-incrimination.
tion of
privilege against
141,
Williams
L.Ed.2d
95 S.Ct. 2160];
notice-of-alibi statute stressing the unanticipated presentation a continuance granted following prosecutor’s being alibi evidence. be . . . Persons not ... may in 2Article section pertinent part: provides “[11] themselves----” criminal cause to be a witness against in a compelled should not be construed as Our conclusion this regard noted, the state It should be interests. demeaning importance hоwever, interests be other measures not that these served may likely self-incrimination. For infringe upon privilege against example names of the be read to the prospective might jurors prior of counsel of trial the absence both or alternate be parties, jurors may to substitute for whose with a witness is designated any juror relationship made known when such witness is called trial. In case where during any a is indicated which a conflict or bias voir relationship suggests possible dire would be feasible without the disclosure to the untimely prosecution of the names of defense witnesses. prospective
It of no is that while Prudhomme involved a trial significance order disсlosure to the of the discovery requiring prosecution names, witnesses, addresses and of defense expected testimony instant order arose sua and was not initiated motion sponte forbids disclosures...” discovery. prosecutorial compelled “[T]he form which added) at italics (id., regardless Thus, order must be takes. court’s compulsion propriety determined under the test articulated Prudhomme.3 below, that test to the order of the court we find that it Applying does not that the disclosure to be cannot clearly sought appear compelled have a to incriminate The trial did possibly tendency petitioner. judge not make the careful which we mandаted in Prudhomme. inquiry Moreover, the fact that would be contacting enjoined .from were defense witnesses until their names otherwise revealed would not of other matters names of investigation suggested by preclude noted; In Prudhomme we “It no effort or witnesses.4 requires great with while the instant discovery, that Prudhomme dealt pretrial 3It is also irrelevant Prudhomme, Bradshaw v. case to trial. In companion case involves 680], rejected which disclosure of witnesses within of a required defense portion hours “If the evidence incriminate use. We observed that might possibly expected it at its actual use at to disclose time any cannot be prior they compelled petitioners, (Id., fn. trial.” at p. accused, 4For if the defense witnesses are friends or relatives of an identified example, defense; if the defense of can an alibi officers anticipate police can be The trial of the instant order no entrapment projected. judge’s qualification *7 from the of the witnesses designated way investigating background prevents details friends Such reveal the may or their or acquaintances. investigation questioning defenses, the alibi or other or other evidence useful yield prosecution may statements, witnesses, evidence of inconsistent and admissible including impeachment witnesses. instances of misconduct by specific prоspective to conceive of a of situations wherein the disclosure variety imagination of defense or even their and names testimony expected addresses, could link in a an essential chain evidence easily provide case in chief.” (Prudhomme underlying prosecution’s Superior 326; 2 Cal.3d italics added.) possibility self-incrimination in no is measure diminished omission by in the addresses instant order since names lead directly easily addresses. conclude, therefore,
We that the disclosure order of respondent fails to the standards established in Prudhomme to secure the satisfy self-incrimination as set forth article section 15 of against the California Constitution.
Let a writ of issue peremptory prohibition restraining respondent court from herein. disclosure enforcing challenged
Tobriner, J., Mosk, J., concurred. SULLIVAN, J . I concur under of Prudhomme v. compulsion Court Cal.3d 320 466 P.2d I did 673], [85 Cal.Rptr. not with the rationale of the agree Prudhomme (see Cal.3d majority at 328), of the view that such rationale being from derogates constitutional of the accused and him to rights compels provide information before the has made its case him. This against rationale, which to have been on based the state as well as the appears federal Constitutions (see Cal.3d fn. 4 and especially test for the text), the constitu accompanying provides disposition tional issue in the case. While I am in accord with the present majority’s here, conclusion I would that it not be reached prefer Prudhomme standards but I that we are bound recognize presently case. dissent, RICHARDSON, J.I finding my position respectfully lies at that of the this case between midway majority point roughly hand, that of the dissent. On the one reaffirm the strict majority Court standard Prudhomme imposed by and, recent 673], disregarding important federal rest their decision exclusively holdings, upon self-incrimination clause of the Constitution. On the other California hand, the dissent would overrule Prudhomme and embrace outright *8 Court in v. Florida
conclusions of the United States
Williams
Supreme
v.
U.S. 78
L.Ed.2d
90 S.Ct.
and United States
1893],
In
easy
thorny
my
questions posed
of the
interests of the
herein.
the most careful balancing
Only
respective
defendant,
and the courts will enable us to chart a wise
the prosecution
strictures of Prudhomme and
course between
rigid
prudent
I
in Williams/Nobles.
new
announced
suggest
principles
expansive
troublesome and
more extended
of this
neéd for a somewhat
analysis
Prudhomme
indeed afford
issue.
satisfactory
may
Although
complex
solution,
a serious and
we should test
thoughtful
premise
in
of the
reconsideration
of that case
very
light
subsequent
Court.
of the United States
holdings
Supreme
significant
in Prud-
dissent, we were
in the
As
persuaded
carefully explained
of Jones
retreat from the broader
homme to
implications
A.L.R.2d
529 at 85-86 to (Id., he has chosеn information divulge. pp. already at 452-453].) L.Ed.2d pp. Nobles, Williams, States v. the Court in United
Following Supreme 422 be U.S. held that a defendant could unanimously required chief, furnish case in with to the after of the prosecution, completion relevant of an statements made portions investigator’s report containing court that the witnesses. The reasoned by prosecution high privilege ” one,’ “is ‘intimate which self-incrimination an and against personal “ that incrimin ‘adheres not information may basically person, ” him.’ 233 at Since at ate (Id., 150-151].) pp. report [45 L.Ed.2d witnesses, third issue contained statements of party only self-incrimination was held to be inapplicable. rule in The “acceleration” enunciated Williams “personal of Nobles would clearly prosecutorial privilege” reasoning permit not under the strict in certain instances where it is available Therefore, our Prudhomme standard. to the extent that -assessment Prudhomme, determined of the federal law the outcome in rationale case and its undercut. indeed have been severely validity manifestly 570, 575, v. Hass U.S. Oregon S.Ct. Its federal Prudhomme has 1215].) sheared away, underpinnings now become a rule in search of a reason. weakness, this structural believe that .sensing majority, foundation, it
California Constitution a new and as supplies sturdy self-incrimination art. (in contains 15) § guarantee against compelled Fifth idеntical to that of the Amendment language substantially elaboration, to, I without self-incrimination clause. adhere and reexpress circumstances or the view in the absence of strong countervailing reasons, “. . we should demonstrable . defer leadership policy identical the nation’s in its nearly interpretation highest to create echelon constitutional rather than separate attempt language, . . . .” v. Disbrow (1976) of state constitutional interpretations (People dis. 272], opn. not Richardson, reason, but For this I am J.) disappointed, surprised, Nobles, retain Williams and herein flatly reject majority Prudhomme, or evalua- of critical form without analysis any attempting I do of these cases. merits of either or tion of implications respective which ourselves think, the Prudhomme rule not blindly repeating understood were on what we then “developments posited large part law,” that we can or should so these very blithely ignore [federal] recent decisions of the United States one them unanimous court in the land. opinion highest *10 disturbed,
I am
however,
the
treatment which the
equally
cursory
afford our own California law. At the time the
majority
Prudhomme rule
was
we
we had no reasonable alternative
adopted,
federal
thought
under
law. It is now clear that
available;
alternatives are
but the majority
decline even to consider thеm.
choose
inexplicably
to lift
They
simply
Prudhomme from its
federal foundations and resettle it on the
crumbling
sheltered
of the California Constitution without
ground
the
considering
nontestimonial nature of the material
arguably
(see
sought
California
I the do not advocate that Prudhomme be overruled and necessarily Indeed, federal in its be entirety. might persuaded, approach adopted issues, the wiser course in after a careful consideration of that this instance is to adhere to a standard more restrictive than the relatively broad of am the federal cases. I not as confident as Williams sweep instance, that the is necessari- defense disclosures majority, timing matter, an nor am I convinced ly inconsequential propriety defendant, Nobles, a as in to make compelling pretrial do; however, information that he does not I intend to use trial. which, advocate a reexamination of a rule as judicial majority it, will bar all interpret effectively discovery. prosecution (Today’s decision even those few cases in which implicitly disapproves appellate some limited been see has prosecutorial discovery permitted; People 13]; Wiley Ayers Cal.App.3d Cal.Rptr. a The 283].) Cal.App.3d possibility middle should at least be and both the course and the ground explored, result of that described. inquiry openly
The case a before us factual matrix well to such very presents adapted an The trial court’s order on analysis. required petitioner produce, trial, the date set for list a of defense witnesses. The names disclosed with those of were then to be intermixed prosecution connection determine if entire list rеad any jury disqualifying witness, and a existed between delay thereby juror avoiding of such attendant disqualifica- disruption upon subsequent with one order a second tion. trial offered to initial judge couple before defense witness from any contacting prohibiting was to the stand. that witness called actually
First, no claim that clear advanced it is from record petitioner existed; of incrimination he actual and substantial any possibility it a form of on the sole that was effect challenged ground Prudhomme. Prud- and as such was barred by *11 prosecution that the the burden of homme trial “determining upon judge places in the case before him it under the facts and circumstances clearly that to defendant.” disclosure cannot tend incriminate appears possibly (Prudhomme v. 2 Cal.3d at italics added.) the trial court is difficult The task in such a situation imposed upon or at best. It not have to should enough speculate hypothesize. however, I have
Even it were in if to indulge necessary conjecture, self-incrimination. the facts of this case risk of difficulty finding any facts he The effect of the was to to disclose orders only require petitioner The make a or two intended to within day anyway. prosecution public available to such new information as be was might permitted gamer the case in defense after state’s about the witnesses only completion could at chief. Advance the names of prospective the with the barest indication of most the prosecution potential provide the names of defenses. For a list of witnesses containing example, an It on relatives alibi defense. friends or may, might petitioner’s suggest hand, evidence. Names of other routine character only police signal officers that to might petitioner planned entrapment—an suggest plead so would have any argument predictable prudent prosecutor if the could for it facts arrest surrounding anticipated prepared such an possibly support interpretation. conceivable, cоurse,
It is had located an petitioner eyewitness, as unknown to whose was testimony yet prosecution, generally but to favorable defense enough perhaps equivocal supply a with lead or fruitful line of (Petitioner inquiiy. suggest prosecution circumstances, Even herein no such under such assertion.) made unlikely here could have created with the issue hardly compliance risk. substantial At the district would any request, petitioner’s attorney have been barred order from or even by parallel questioning contacting defense witness who not had been called to the stand. Thus the any yet alibi, would have learned the substance of the the basis prosecutor evidеnce, nature of entrapment argument, eyewitness’ same and at the time he same would have if there had precisely way been no disclosure order—from the of defense witnesses when lips true, the stand. The it on is would a few testifying prosecution, gain additional which to (as from days investigate distinguished question- witnesses, and to accumulate material ing) potential bearing on for I see generally credibility impeachment purposes. nothing wrong with this. The alternative is either to a continuance to the grant with resultant or to force the prosecution delay evidence; without the benefit of proceed potential impeaching conduct of a trial is a search for the truth. The state’s ultimate burden of evidence sufficient conviction is.in no producing way lightened. We need not the basic Prudhomme repudiate principle uphold case, disclosure order this when even freest little speculation yields fear however, of self-incrimination. The not support any majority, *12 hold that case is only inconsistent with article present 15, reflex, section but a rule of unlimited “The pronounce, by extremity: (Ante, Prudhomme standard no leaves room for a of interests.” balancing 525.) this Under sweeping, all-encompassing pronouncement, evidently risk, remote, no matter how how any free-floating hypothetical tenuously case, relаted to the facts of the will bar all particular prosecutorial This neither nor is wise discovery. approach necessary.
We insisted so fixed and a We have not previously upon rigid posture. of of have some limited interests even the context permitted weighing crucial First Amendment when the state’s interest is both rights activities, and the effect on is and compelling, protected legitimate v. ex rel. Busch Room (See comparatively slight. People Projection 42, 328, 17 51-53 Theater Cal.3d 550 (1976) P.2d 600]; Cal.Rptr. [130 331, 468, Diamond v. Bland 11 Cal.3d 334 521 (1974) P.2d Cal.Rptr. [113 138, v. Court 10 460]; Cal.3d 148-150 (1973) Municipal [109 Braxton 767, 897, P.2d In re 1 697]; 514 Bushman Cal.3d 773 (1970) Cal.Rptr. [83 375, 463 P.2d L. A. v. L. 727]; Teachers Union A. Bd. Cal.Rptr. City of 551, 723, Ed. 71 Cal.2d 558 455 (1969) P.2d 827].) Cal.Rptr. [78 Moreover, several statutes mandate at some least actually balancing state interests a defendant’s not to himself: incriminate
533
accidents that cause
involved in automobile
drivers
example,
or
are
stop
identify
damage
required
injury
personal
property
criminal
themselves,
charges
danger
potential
subsequent
despite
424;
U.S.
20002;
v.
402
Code,
see
Byers,
(Veh.
supra,
§§
California
v.
712
438];
re
A. (1971)
In
Carlos
Cal.Rptr.
People
Cal.App.3d
[93
must
a defendant
415]);
Bammes (1968)
Cal.Rptr.
Cal.App.2d
Code,
1016);
(Pen.
an
§
notice of
advance
insanity
give
be
defendant
undergo
certain circumstances a
under
may
compelled
be
examination,
which will
admissible
results of
psychiatric
Cal.2d 135
Combes
Code,
1027;
(1961)56
see
evidence (Pen.
§
addition,
Court
P.2d
In
4]).
Reynolds
Superior
Cal.Rptr.
437, 528 P.2d
we
left
45],
is ironic that now turn their backs modem trend majority upon toward even a without full or limited either fair prosecutorial discovery of the discussion alternatives. Sometime former Chief Justice ago reminded us that since serves “. . . Traynor discovery, promote . . . not ascertainment tmth should be a orderly procedure [t]hat street.” 58 Cal.2d at (Jones one-way observation, barriers now this and erect artificial majority reject salutary on the assure that street. thereby two-way passage They preventing criminal ascertainment instead “orderly constituting *13 remains, effect, which one the tmth” the poker player—the game .. cards until to conceal. defendant—has “an absolute right always [his] Florida, 82 v. 399 U.S. L.Ed.2d at (Williams supra, p. [26 played.” 450].) I the writ. would deny mistake of J., correct the
CLARK, Dissenting. Candor requires 129, 2 466 v. Court Cal.3d 320 (1970) Prudhomme Cal.Rptr. [85 Superior P.2d 673], more court on record as
“'Prudhomme this considerably being put than federal law the self-incrimination solicitous of against privilege ” 525, Court v. (Ante, Reynolds quoting Superior currеntly requires.’ 834, 12 Cal.3d (1974) 528 P.2d Granted. 45].) But Cal.Rptr. [117 its was not intent. This court to conform intended clearly federal constitutional standard it the States United expected Court to announce in a then case before the court. pending high Court, v. (Prudhomme Cal.3d at This 323-325.) Superior supra, pp. was, course, court Florida’s expectation upheld disappointed; high statute the claim notice-of-alibi that it violated the accused’s against Fifth Amendment self-incrimination. v. (Williams privilege against Florida U.S. 78 L.Ed.2d 90 S.Ct. Lack of (1970) 1893].) is in error is not. prescience forgivable; By persistence reaffirming this Prudhomme court on record as more majority put being than solicitous of the California self-incrimination privilege against Jones Constitution—let alone federal law—requires. Cal.2d 56 96 A.L.R.2d (1962) Cal.Rptr.
1213].)
to
enforcement
Prudhomme
of a
petitioner
sought
enjoin
to
her
disclose
discovery
compelling
attorney
People
names, addresses and
she
the witnesses
intended
expected testimony
violate,
to call at
She
trial.
contended enforcement of the order would
alia,
inter
her
self-incrimination. The
privilege against
People responded
that the order was
under this court’s
in Jones
decisions
proper
In Jones a defendant with moved for a charged rape successfully continuance on he would a defense of ground present impotence and wished to marshal evidence. The then supporting granted motion for names and of all addresses medical People’s discovery would who for the defendant and all doctors who had testify trial, treated the defendant of these doctors prior reports bearing on his claim to have impotence, X-rays alleged injuries caused his The Fifth Amendment not been made impotency. having yet the states 378 U.S. applicable by Malloy Hogan 653, 84 S.Ct. on the 1489], defendant’s constitutional attack order was on the based self-incrimination set forth in *14 article of 15) section the California Constitution. The (now § was to the extent that it the defendant to discovery upheld required disclose of call, thе names and addresses he intended to introduce, and the he medical intended to X-rays reports support his defense The order the defendant to impotence. compelling disclose this information did not violate his self- privilege against incrimination, reasoned, this court because simply requires peti- “[i]t tioner to disclose information that he will reveal at trial. shortly anyway” Cal.2d at (58 62.)
The “intent to disclose at trial” rationale articulated in Jones later led
this court to
order which was unrelated to
approve
pretrial discovery
affirmative defense such as
any particular
or alibi and which
impotence
disclosure of the identities and
required
оf all
expected testimony
defense witnesses—the same information
in Prudhomme.
sought
(People
v. Pike
Why
enforcement of the
same sort of
order it had
in Pike less than a
discovery
approved
year
before? The
court,
answer is that this
out,
as it turned
read
incorrectly,
“certain
in the law since Jones” as
significant developments
indicating
orders of the sort involved in Pike and
discovery
Prudhomme were
violative of the Fifth Amendment
self-incrimination.
privilege against
Court,
(Prudhomme
Four
law,”
in the
“significant
federal,
all of them
developments
were
as
for this court’s
First,
given
grounds
heart.
change
“[t]he
is now an
[against
element of due
self-incrimination]
process protected
stаte action
Amendment,
the Fourteenth
federal stan-
dards
in state
goverti
536
names,
or
witnesses.
addresses
testimony
expected
Third, “recent
in the area of criminal
cases
demonstrate
discovery
increased concern
an accused’s Fifth Amendment
be not
rights
overlooked,” case cited
one
Cantillon v.
Court (C.D.
being
Superior
Cal.
305
304 in
1969)
which the federal district court
F.Supp.
granted
habeas
to
a
annul
order for the names of
alibi
corpus
Fourth,
the defendant
intended to call at trial.
“the
States
United
Court
certiorari Williams v. Florida (Fla.
recently granted
224
So.2d
which had
Florida’s alibi statute
App.)
upheld
against
claim that it
violated
accused’s Fifth Amendment
(Prud-
rights.”
homme v.
Taking surprise, Florida’s notice-of-alibi rule was (Williams Florida (1970) upheld. U.S. 78 90 S.Ct. L.Ed.2d the then 1893].) unbroken line Noting [26 of decisions notice-of-alibi L.Ed.2d (id. upholding procedures at p. at 450-451]), concession that there pp. stressing petitioner’s would be no constitutional bar prosecution’s being granted evidence, continuance of alibi following unanticipated presentation which continuance would allow the to seek out evidence at rebuttal alibi evidence 85-86 L.Ed.2d at (id. presented pp. court concluded that the state could 452-453]), constitution high pp. avoid the of such necessity ally disruption requiring pretrial of an alibi defеnse and the that the identities of alibi witnesses. Noting Jones, cases, in addition cited to notice-of-alibi Black in Justice majority dissent that the court had in its charged “adopt[ed] entirety” “theory” of Jones. L.Ed.2d at (Id. 484].) Williams, court’s decision in the Court of
Following high Appeals Ninth Circuit remanded Cantillon the district court in light that case. Cir. F.2d (Cantillon 1971) (9th
Then, 12.1, rule notice-of-alibi was added provision, Federal Rules of Criminal Procedure.
Prudhomme’s self- remaining ground—that privilege [against “[t]he is now an element of due state process protected incrimination] Amendment, action the Fourteenth federal standards govern state now be seen to decision. proceedings”—can require overruling 570, 575, 420 U.S. Hass Oregon S.Ct. 1215].)
537 case, court, In case what after this majority disappointed they to be the conservatism United States increasing Supreme. perceive Court, have from the to the California Constitu- shifted federal ground 528, tion. v. 13 Brisendine Cal.3d 553-558 (1975) People [119 315, J., P.2d v. Norman (Burke, Cal.Rptr. dissenting); People 1099] 929, 109, J., 940-942 (1975) Cal.3d 538 P.2d (Clark, Cal.Rptr. [123 237] 943, v. Cal.3d (1975) dissenting); People Longwill Cal.Rptr. [123 297, J., 538 P.2d v. (Clark, Disbrow (1976) dissenting); People 753] 101, 117, 360, Cal.3d 118-121 545 P.2d (Richardson, Cal.Rptr. [127 272] J., 196, v. Maher 17 Cal.3d 204-205 (1976) dissenting); 508, J., 550 P.2d (Clark, see also Gee Cal.Rptr. dissenting); 1044] 571, Brown 14 Cal.3d (1975) 231, 576-577 536 P.2d Cal.Rptr. 1017] J., (Clark, United Farm Workers America dissenting); 14 Cal.3d (1975) 914-915 Cal.Rptr. 1237] J., (Richardson, 16 Cal.3d concurring); People Ramey 277-281 J., P.2d (Clark, dissenting).) 1333] court, courts, this like other state considered the state Previously, rarely Constitution when case could be decided undеr a provision parallel Therefore, federal Constitution. have been able to write majority their “new states’ decisions on clean If their slate. rights”2 relatively California Constitution find no in our interpretations support cases, However, Jones, neither are contradicted them. because they states, Fifth had Amendment not held been yet applicable was considered under the propriety prosecution discovery parallel of the California Constitution. provision (58 at p. By Williams, Jones, Prudhomme in the face of not also but reaffirming only reveal their “solicitude” for the majority conviction, self-incrimination is based on not constitutional personal principle.
I would writ. deny
McComb, J., concurred. 2Mosk, The New 10 J.Cal.L. Enforcement 81. States’ Rights