Gale v. State

GALE, Appellant Richard Kane

(Defendant), Wyoming, STATE (Plaintiff). Appellee

No. 87-192. Wyoming.

Supreme Court

2,May 1990.

Rehearing May Denied Hostetler, Colo., Denver,

Richard A. Geer, Gillette, Willis C. appellant. Joseph Gen., B. Meyer, Atty. John W. Renneisen, Atty. Gen., Deputy Karen A. Bryne, Gruver, David P. K. Gerald Luck- haupt, Gen., Attys. Asst. for appellee. CARDINE, C.J., THOMAS, Before URBIGKIT, GOLDEN, MACY and JJ. GOLDEN, Justice.

The primary questions presented in this rights concern case of an accused to compel psy- sexual abuse case a victim’s chological examination; compel furnishing expected state’s summaries of expert testimony; witness to discover fa- evidence; vorable and to obtain dismissal charges because of the state’s fail- preserve ure to evidence.

Appellant Gale, Richard Kane D.D.S. (Gale), appeals jury his trial convictions on taking immodest, immoral, three counts of or indecent liberties a child in violation (June of W.S. Repl.). 14-3-105 presents premising issues numerous error inability types obtain various preparation; evidence for trial his issues include: A. Whether the trial court erred de- nying Dr. psychiatric Gale’s motion for evaluation.

B. Whether trial court erred when it denied Dr. motion Gale’s of summaries substance expected prosecu- trial expert tion’s witness. (sic)

C. Whether trial court in fail- erred ing to order disclosure of psychologi- cal and/or psychiatric the R records of children.

D. Whether in fail- court erred ing to disclose social services files. charge being in a filed the trial court de- resulted criminal E. Whether erred 28, 1986, alleging against (sic) GR October nying the motion disclosure year- sexually assaulted the seven that he tape recordings. preliminary hear- old child. GR received in the trial court de- F. Whether erred ing for trial. but was not bound over nying the motion for disclosure of school records. proceed- At the was the same time state in de- Whether the trial court erred G. charges, it ing criminal also against GR on nying the motion to dismiss or pending juvenile in court petition had a suppress testimony of the R alternative well-being R concerning the children. family. transcripts or This not contain record does in H. the trial court erred de- Whether any hearings of which took recordings nying the Motion the to Dismiss juvenile petition. that place as a result of Suppress Testimony for fail- however, Alternative that the R chil- appear, It does preserve ure to evidence. from and LR some- dren were taken GR and in foster placed time in late 1986 We affirm. alleges that was homes. Gale also GR FACTS unsuper- under a court order the his children while vised contact with entering the R fami- Gale was accused of that, petition pending and juvenile was ly August evening home on the origi- conversations which Gale’s based on sexually molesting three of the female and counsel, Preuit, Terry had nal defense R A criminal com- children in their rooms. County Prosecuting Campbell with former plaint and issued on Decem- warrant were Rose, III, may have Attorney, Robert GR ber Gale was arrested the same 1986. and tried for con- violated that order been of tak- day charged and with three counts speculative, tempt. allegations These are a minor in viola- ing indecent liberties with avail- at least terms of information (June Repl.). 14-3-105 tion W.S. presented to this court. able in record February was filed on An information Attorney Campbell County The decided bring charges reprosecute GR or Underlying this case is bizarre atmo- LR; instead, against January sphere neglect and that of sexual abuse family and LR LR entered into a “Juvenile Court Admis- prevailed home GR Agreement” agreed in which the possibly that time. sion state and before grant immunity family parents R GR to her included three, three, seven, LR, ages neglect child in connection with girls, five abuse and ten, seventeen, age alleged On the acts her boy eleven. committed husband. 31, 1986, agreement Wyoming purpose Division of The stated of this October (D- opportunity help LR Services allow "the obtain Public Assistance Social family if PASS) keep together possible information that GR was and to her received year-old protection and further to facilitate the sexually abusing seven child. through processes the R led to November children initial information juvenile agreement, the seven court.” LR D-PASS interview of Under the suspicions that GR had admitted she had and actual year-old which she indicated interview, her; knowledge that in that she some her children com- sexually abused plained come into about her dentist had sexual misconduct GR also stated that night performed LR also agreed oral Gale. interview with the her one bedroom truthfully knowledge used this informa- state and her her. D-PASS relate sex investiga- ongoing of contact between Gale and her children. the basis two tion as Gale, agreed testify truthfully conduct GR and the She also about into the tions dentist, during ensuing subject requested weeks. do so family agreement interviews state. The obligated additional the state conducted D-PASS child, year-old grant immunity the ten to both LR and GR discussions child, LR, concerning year-old allegedly the incidents that oc- the seventeen eurred in the R home and further stated ined the male R child and a number of state further warrants that it gave “[t]he witnesses who testimony about the R presently plans has no pros- for alternative children family. and the R Gale’s counsel ecution of other forum or for [GR] also examined the compiled officer who any other agreement offense.” The also police reports on GR and Gale. After lis- provided promise immunity “[t]his tening to all testimony, of this county applies whether evidence of the crime or finding made a probable cause and crimes comes from or any other [LR] bound Gale over for trial. source.” 6, 1987, April On Gale filed numerous parties appeal to this assert that a motions for discovery. Among these mo- similar written agreement was reached be- (1) tions were: compel motion to three of tween the agreement state GR. This the female undergo children to psychiatric is said to have contained an admission evaluations to determine whether their GR repeated that he had sexual contact mental condition could affect their credibili- child, with the year-old seventeen that he ty prosecution witnesses; (2) an exten- punished excessively, his son and that he general sive discovery motion which endangered family his through alcoholism. sought, among other things, summaries of LR’s, agreement, The like is said to have proposed testimony prosecution of ex- granted immunity GR prosecution from on pert witnesses; (3) a motion compel dis- charge initially had been filed closure of psychiatric records on three of against him and immunity further children; (4) the female a motion for the any previous sexual mis- Campbell disclosure of all County D-PASS conduct or abuse he committed towards his pertaining records family; (5) to the R family return, children in the home. In GR motion for any public disclosure of pri- or apparently agreed to interview and/or tes- vate school records on four of the R chil- tify truthfully concerning knowledge of dren; (6) and a motion for disclosure of alleged Gale’s contact with the R children. tape recording transcript any hearing of supported This is in the record testimo- regarding GR and agreement LR’s with the ny from Campbell County prosecutor state -not to have contact with their chil- who made the decision not to refile the supported dren. Gale these motions with charge initially against filed inGR lieu of the affidavit private of his own investiga- agreement an from GR that contained an tor, which concluded that some of past admission of his sexual these misbehavior records needed to promise gain with his children and his be screened to an help prosecute the state understanding dynamics Gale. The actual of the R agreement state, between family GR how- dynamics might and how those play ever, appear does the record on charges against into the Gale. He also appeal. agreements After these were com- police records, attached a written state- pleted, pursued against the state a ease ment of the eldest R daughter, a written Gale. statement of one of the R children’s friends, juvenile agreement, LR’s three-day

Gale had an extensive prelimi- juvenile other court documents. 30-31, 1987, He filed nary hearing January on requisite subpoenas duces tecum in February support hearing, 1987. At this April 22, these motions on presented testimony state from the three 1987. Gale R also filed motions to daughters implicated suppress who dismiss or Gale. Gale’s victim given testimony opportunity counsel was an extensive the state because failed to preserve the initial pages to cross-examine them. Over 100 interviews of the vic- tims on 600-page transcript tape; from that audio or video hearing and to dismiss suppress contain counsel’s the testimony Gale’s cross-examination of the R family. daughter. of the eldest R objection The state also D-PASS filed an and motion to witness, quash LR expert response called and an Dr. Wil- subpoena duces Wyoming liam Heinecke of Northern tecum seeking Men- D-PASS April records on tal Health Center. Gale’s counsel exam- 1987. The state opposition filed allegations compel against Gale first motions to the child witness- initial were Gale’s examinations, denying A the mo undergo psychiatric for made. series orders es transcripts tape recordings or letter explained disclosure of tions as decision hearings, disclo- any juvenile court filed on were June summary proposed sure 18-21, May jury place A took on witnesses, prosecution expert to dismiss presented sup- 1987. The state evidence to evidence, preserve for failure port theory its had come into testimony of the R suppress the dismiss or family evening August R home on the family. 30, 1986, sexually three of molested filed decision letter trial court daughters. Countering the R the defense’s its May explaining actions and argued theory, the that the trial testi- state findings concerning Gale's motions. Gale’s R the idea that the mony did not bear out* psychiatric examinations of the motion for place family conspired had blame on denied based on the trial victims was away from also Gale and GR. state potential court’s harass decision engaged in a expert witness who called examinations would ment such general the characteristics discussion of by they the information justified might to expect one see a sexual addict similarly court denied yield. The trial professional or abuser and the characteris- proposed motion for summaries Gale’s by a might tics that be manifested child prosecution expert testimony from witness Viewing victim. the trial as sexual assault right had grounds on the that Gale no es credibility and the contest between Gale Wyoming Rules summaries under the such family, argued R counsel that the Gale’s Further, the trial Procedure. of Criminal R testimony of LR and the children was reviewed, it explained that in cam court they and untrue and that had rehearsed era, produced the documents under Gale’s psychologically “transferred” the sexual psychiatric subpoenas duces tecum for their visited them to abuse father had records, records, and school D-PASS unsuspecting an Gale who was a fami- review, completing this records. After trial, ly At both Gale and his wife friend. applying court was trial stated that during at home testified that Gale was Pennsylvania v. Rit principles set forth incidents, did evening alleged of the chie, 39, 107 94 L.Ed.2d 480 U.S. S.Ct. night next the R home that or the visit (1987), of the doc and found that none day. expert counsel called its own Gale’s subpoenas under the duc- produced uments witness, questions about the who answered any information that es tecum contained testimony given by expert wit- the state’s constitutionally to Gale’s material ness, per- about Gale’s scores on various trial court did not review case. The tests, sonality the effect about abuse psychiatric requested Gale’s records ability on a neglect child’s produced; the subpoena none were because specific jury events. returned recall agree to an in cam trial court did conduct guilty against verdict on all three counts should review of such materials era Gale. motion for before trial. Gale’s surface 29, 1987, sentencing a June hear- After juvenile court tapes transcripts ing, the court sentenced three those hearings on the basis that was denied penitentiary terms the state two under to remain confidential records were run years, five those sentences to concur- to dis Wyoming statute. Gale’s motion rently. appeal This followed. evidence was preserve for failure to miss holding on the based denied California I. Trombetta, 479, 467 U.S. Independent Gale’s Motion For (1984). The trial court L.Ed.2d 413 n. 8 Psychological Examinations suppress motion to dismiss or denied Gale’s the Minor Victims family, finding testimony of the R charges LR Gale’s first issue that the the state and agreement between into denied Gale a fair trial legal entered after the court somehow have been case). refusing compel the minor victims to be criminal See also W.R.Cr.P. 18. psychologist. examined Gale’s precedents Gale These argu- leave Gale with the sought provide these examinations to Wyoming ment that a trial court inher- has expert witness with a clinical basis for at- process” ent “due discretion to order a tacking credibility veracity of the R complainant undergo psycho- witness to complainant pos- children as witnesses logical examination psy- a defendant’s sibly provide additional evidence to allow chologist failing and that to do so in this him to cross-examine the ex- case amounted to an abuse of that inherent pert witness. We are uncertain as to how discretion. actually a trial compel court could a wit- support argument To his initial undergo psychological ness to examina- recognize this court should tri inherent appropriate, tion were one deemed to be compel al court discretion to sexual assault parties aspect and these do not discuss that psychologi victim/witnesses to submit to a of this issue. We also note that this issue examination, cal primarily Gale relies any challenge does not involve to the com- Supreme holding California Court’s petency complainant witnesses Superior Diego Ballard v. Court San State, this case. Easterday v. 254 Ind. Cf. County, 64 Cal.Rptr. Cal.2d (1970). 256 N.E.2d 905-06 Our (1966), 18 A.L.R.3d 1416 discussion on this issue is limited to resolv- which has since been revisited and clarified ing right Gale’s assertion of a to have Russel, in People 69 Cal.2d these victims examined and is not intended Cal.Rptr. 443 P.2d 794 express any potential prob- view on the Ballard, the California court held that compliance competency. lem of witness there be sexual assault trials in which specific legal authority There is no allow- psychological expert testimony might be ing compel a defendant to a in a witness credibility admissible to attack the of un undergo independent criminal trial to an testimony given by corroborated a com psychological examination at a defendant’s Ballard, plainant Cal.Rptr. witness. 49 at arena, 35(a) request. In the civil W.R.C.P. 313, Using 410 P.2d at 849. this conclusion provides for a mental examination of a the California court held: party when the mental condition of that We therefore that believe Assuming is in in an party issue the case. judge should be authorized to order the cases, application of this rule to criminal it prosecutrix psychiatric ex- submit authority compel does not confer an amination if the circumstances indicate a examination of a victim who is a witness necessity an examination. ne- Such Liddell, party. but not a v. 211 See State cessity generally would arise if 180, 918, (1984). Mont. 685 P.2d 924 Gale supported little or no corroboration acquiesce legal proposition must also to the charge raised the defense general he that does not have a state or complaining issue effect of right federal to conduct constitutional witness’ mental or emotional condition wide-ranging discovery criminal Thus, rejecting in veracity. her Bursey, state’s files. v. 429 Weatherford polar re- extremes of absolute 545, 559, 837, 846, 97 51 L.Ed.2d U.S. S.Ct. quirement prosecutrix that submit to 30, (1977) (citing Oregon, 42 v. Wardius examination, psychiatric a we have ac- 470, 474, 2208, 2212, 412 U.S. 93 37 cepted ground, placing a middle the mat- 82, (1973))(no pro- L.Ed.2d 87 federal due judge. ter in the discretion of the trial right general discovery in a criminal cess added). O’Neale, (emphasis 87, Id. See also case); 83, Brady v. 373 U.S. Maryland, Psychiatric Ordered Examination 1196-97, Court 10 L.Ed.2d Rape (1963) Rape a in a Criminal (prosecution has an affirma- Victim 218-19 Many Prosecution —or How Times Must a duty exculpatory turn material tive over defense); State, Raped? 18 L.Rev. 618 Woman Be Santa Clara Hubbard v. (1978). (no this rea (Wyo.1980) state due 123-26 Russel echoed P.2d 554-55 soning process right general and solidified the California court’s 576 (1983); Walker, charge 506 A.2d that a of sexual assault State

conclusion Saldana, complainant (Me.1986); witness’ testimo State v. ny might using (Minn.1982); is warrant People uncorroborated N.W.2d psychiatric expert psychological Souvenir, testimo 83 Misc.2d 373 N.Y.S.2d credibility veracity ny challenge (1975). witness, necessitating thereby of that Here, pri- that Gale’s there no doubt compelled court examination. Russel seeking compelled psy- mary purpose for way which then on to discuss the went psychiatric chological or examinations should be exercised trial court discretion a foundation the minor victims was form expert regarding admission of testimo expert psychological testimony Russel, ny purposes. trial for those psycho- effect the victims’ emotional 216-17, Cal.Rptr. at 443 P.2d 800-01.1 logical ability to health have on their Lanford, ex rel. Holmes v. State Cf. tell That is the continuous the truth. 1989) (trial (Tex.App. S.W.2d pursued he has mo- theme under which authority have inherent to order does not compel psychiatric examination tion to independent psychological evaluation of day filed motion from the he his initial old assault victim to chal four-year sexual through appeal. This is illustrated this competency), lenge and numerous victim’s issue, which appellate Gale’s brief on this Annotation, Necessity eases or Per cited expressly states: missibility Examination to De Mental seeking pre-trial Dr. filed a motion Credibility Competency or termine directing minor an order three [the Complainant In Sexual Prosecu Offense psychiatric examina- submit to victims] tion, A.L.R.4th 310 determining purpose tion adopt the Bal We cannot emotional con- whether their mental or so, un doing lard-Russel rationale because credibility dition [sic] effected case, directly would der the facts of against Dr. allegations Gale. their court. recent case law from this contradict argued first there was motion State, (Wyo. Zabel v. See question regarding the affect significant 1988). There, unanimously this court held emotional and men- of the children’s [sic] plain error a sexual assault veracity which upon tal condition their expert to case for the trial court allow an to a nature as establish a was such directly on the credibil to comment witness psy- need a sufficiently compelling for complainant ity veracity of a witness. or Second, psycho- chological a evaluation. Determining credibility province sole essential to en- logical examination was expert jury, and we will not allow investigate, prepare to able the defense testimony on direct comment or witness prose- confront and cross-examine the alleged emotional distur effect which an expert cution witness. might complainant a wit have on bance added). Obviously, argu this (emphasis ability Id. at tell the truth at trial. ness’ around the ratio exactly ment is fashioned State, (citing 719 P.2d 362 Lessard v. Supreme 702; by the Court 1986)). nale used California W.R.E. (Wyo. 233 also See argu and Russel. Semantic Ill.App.3d 120 75 Ballard People Visgar, v. “way” 784, 791, concerning the the defense N.E.2d 1350 ments 457 Ill.Dec. by psychiat- and must be confirmed used the Ballard and Russel believable 1. The rationale stated, examination, subject simply more "most has been the ric or in the mid-1960’s courts See, e.g., crazy.” strong must be was sexual assault victims criticism since it established. some R.W., legislature passed v. 104 A.2d 1291 State N.J. 514 statute The California (1986); reasoning Looney, overriding v. 294 N.C. 240 legislatively set and State 1980 Wyoming legisla- Code S.E.2d See California Penal forth in Ballard. 1985). requirement (West appel- specifically has disavowed A number of state ture § testimony openly adopt assault victim's must be that a sexual late have refused courts they to exist to for sufficient evidence holdings in and Russel because corroborated Ballard W.S. conviction. 6-4- perceive based the sexist sustain sexual assault the cases to be State, (1977); assumption Heinrich P.2d the uncorroborated that necessarily (Wyo.1981). victim is less of a sexual assault three hours of interviews with the R might try type expert to use this testi over mony credibility attack the of a original at trial to de- children conducted Gale’s change this court’s victim/witness do counsel, timely fense notice of who the rejection expert unanimous of the use of be, expert might state’s witnesses and an jury. testimony to invade the function of opportunity unbridled to interview various Zabel, imply 765 P.2d at 363. We do not might persons who be called as witnesses type that this of evidence would not be opportunity the case. Gale had acceptable purposes, for admissible other expert witness called cross-examine example explain peculiar be for some three-day preliminary at the hear- the state jury. havior of the victim to the See Grie trial, ing. expert At the state called an State, (Wyo.1988); 761 P.2d 973 Les go v. witness, transcript shows that he but the State, sard, 233; P.2d at Scadden give never asked to a direct clinical (Wyo.1987). That use R opinion on the condition of the children. however, testimony, not the expert testimony, con- After that Gale’s counsel psychological allowing compelled basis for cross-examination of ducted an extensive explained examinations in Ballard expert Considering the the state witness. upon which now relies. Since the Gale prepara- to Gale for the evidence available comport does not Baliard-Russel rationale defense, properly of his the trial court tion with the unanimous decision of this court request psychiatric denied his examina- Zabel, reject we must it as a rule of law for on that basis. tions of the R children Wyoming. was not entitled to have Gale the trial court order these minor victims pro

undergo psychological examinations to II. expert a foundation for his witness to vide credibility veracity on challenge Expected their Motion for Summaries of Gale’s the stand. Testimony Expert State Witness only remaining reason Gale begins argument by again this compelling psy presents justification admitting general he has no federal or chological examinations is he discovery in a right state constitutional of such to use the results been able that no statute or rule of criminal case and prepare him for cross- help examinations to discovery. entitles him to We expert witness. examination of the state’s analysis point. agree with his See Ballard, Russel, He cannot cite 559-60, Weatherford, 429 U.S. at rely authority those cases as cases that 42; Hubbard, 845-46, 51 L.Ed.2d at Those cases are proposition. 18(c) P.2d at 554-55. See also W.R.Cr.P. that the examina premised upon the idea (defendant right has a to the statement of expert the defense provides tion testimony given). a state witness after testify directly as to the to clinical basis Instead, on the idea that a trial he relies complainant credibility witnesses. possesses degree of inherent court some 216-17, Russel, Cal.Rptr. 443 P.2d at at grant specific process authority due a 310-12, Ballard, 800-01; Cal.Rptr. at request in to in discovery a criminal case P.2d at 846-48. general sure fairness. Gale builds on this evidence avail- The other information and by referencing conclusion American Bar prepare for cross-examina- able to Gale Justice, Association Standards for Criminal expert witness were sub- tion of the state’s by citing involving a civil dis federal case body material included That stantial. covery, by citing holdings this court’s expert his own witness conferring with State, (Wyo. v. 662 P.2d 104-05 Gee concerning at the trial who testified 1983), State, Chapman given personality tests of numerous results (Wyo.1982) proposition for the Gale, reviewing pre-1984 D-PASS that pos- records in his juvenile court files and prosecution or when a utilizes scientific session, reviewing police the Gillette quasi-scientific may im- family through methods which the R from 1980 records on tape recordings pact credibility possession, the assessment of 1987 in his trial, a fair trial in this claim that he was denied important insure that at it its pretrial opportuni- the trial court abused adequate regard has how defense evidence at ty to confront the it prepare when denied Gale’s motion discretion may require pretrial dis- trial. This of summaries of the compel production generally covery goes beyond the that expert state witnesses potential procedure. applicable rules of Applying the give at trial. Martin might discretion, con of abuse of we definition necessarily disagree do with Gale We no of discre Gale has shown abuse clude a certain that court does have trial under this tion issue. process grant discretion to degree due requests to exceptional discovery criminal However, fairness. his assertion

insure III. trial under the of this case the that facts type of court abused that discretion Psychiatric to Obtain Motions Gale’s denying prospective him summaries of tes- Records, Records, D-PASS School expert lacks timony from state witnesses Records, and Tran- Juvenile Court authority. The American Bar Association scripts or Records the federal civil Standards and various dis The trial court denied Gale’s inapposite are case referenced statutorily covery motions disclosure consequence. this fact situation and no holding on the privileged information based Chapman, while those As for Gee There, the United States Su in Ritchie. might proposition stand for the above cases granted- to review certiorari preme Court enhancing the case involves witness when vacating Supreme Pennsylvania Court’s testimony through hypnosis, specific that rape, Ritchie’s convictions for involun application process of due does auto- intercourse, incest, tary sexual deviate matically every discovery request extend minor, charges a all that corruption of beyond defendant the bounds by a criminal thir brought on behalf of Ritchie’s were of W.R.Cr.P. 18. Id., daughter. year-old 480 U.S. at teen here is received The issue whether Gale 994, 94 L.Ed.2d at 48. Before 107 S.Ct. at has to trial. Under this issue Gale fair trial, Pennsylvania his Ritchie served so by denying his motion for the prove that (CYS) agency subpoena service with cial expert potential wit summaries of state seeking concerning access records testimony, rendered ness acknowledged daughter. apparently CYS and abused its discretion. this trial unfair the records existed but refused State, (Wyo. P.2d Martin produce them. There was no indication judicial 1986), this discretion court defined had access to or many things, among composite as “a knowledge at of the contents of the records objective are conclusions drawn Id., any time. at U.S. criteria; judgment means sound exer 94 L.Ed.2d 49 n. Ritchie sched regard right under to what is cised hearing uled a sanctions at which the trial doing so and without the circumstances arguments court heard Ritchie’s arbitrarily capriciously.” Under this persons might records contain the names of standard, challenge must be con Gale’s him who be favorable witnesses for in the record light of evidence sidered specific at trial. Ritchie also made a re (1) that the indicating: Gale was notified report to quest a medical he believed expert at call certain witnesses state would compiled by have been in 1978. The CYS alleged he was has trial and that Gale acknowledged re having trial court those opportunity interview denied accepted entire viewed the CYS file (2) individuals; allowed cross- Gale was report assertion that no 1978 medical expert CYS’ the state’s wit extensively examine (3) existed. It then denied Ritchie’s motion for trial; also offered at ness Id., 44, at at expert own sanctions. U.S. substantial trial, backdrop, 94 L.Ed.2d n. At Against this at 49 3. in rebuttal. witness difficulty understanding prosecution’s main Gale’s was Ritchie’s witness we daughter and Ritchie was allowed to con making state statute such records inadmis- sible) duct an extensive cross-examination. The denying to hold that lawyer Ritchie’s jury counts, then convicted Ritchie on all access to the file denied him his sixth year and he received a prison three ten right amendment to confront his accusers Id., sentence. at U.S. 107 S.Ct. at because his counsel was not allowed to look 995, 94 L.Ed.2d at 49. at the entire file in an effort to locate evidence for the defense and because the appeal In his to the Pennsylvania Superi- trial court’s review would not fulfill that Court, court, appellate intermediate Ritchie, end. 480 U.S. at 107 S.Ct. at argued Ritchie that his sixth amendment 995-96, 94 L.Ed.2d at 50. rights under the confrontation clause were violated when the trial court certiorari, denied his On the United Supreme States motion for sanctions on CYS’ refusal to Court discussed the balance between the subpoena. honor the appellate That need safeguard privacy privileged conviction, vacated Ritchie’s holding that information and a criminal defendant’s although Ritchie did rights not have an unlimited under the confrontation clause. It right to full disclosure statutorily subject also reviewed that in the context of privileged file, information in holding the CYS he its Davis concluded that the right did have a Pennsylvania have the trial court Supreme interpreta- Court’s conduct an in camera examination of holding tion of the in Davis was too broad. privileged records so that the victim’s The explained Court that while its decision statements could be released. The full protect Davis did a defendant’s trial- record was then to be right released to Ritchie’s to substantive cross-examination of lawyer so that he could use it argue prosecution witnesses, it did not “trans- relevancy of those statements. Counsel form the confrontation clause into a consti- for both the and the defense tutionally-compelled rule pre-trial dis- argue could then covery.” Ritchie, harmless error and rele- atU.S. 107 S.Ct. vancy, respectively, and the basis, trial court 94 L.Ed.2d at 54. On could denying determine whether plurality infor- of the Court held that Ritchie’s mation to prejudicial Ritchie was right or not. confrontation clause to cross-examine Id. prosecutrix preserved had been Id., trial court’s actions. U.S. appeal Supreme On Court of Penn- 107 S.Ct. at 94 L.Ed.2d at 54. sylvania, agreed that court to vacate Rit- remand, Next, chie’s conviction and concluding the Court discussed the implica lawyer that Ritchie’s was entitled to search tions which the trial court’s actions the entire record for useful evidence. The have in terms of the sixth amendment com Pennsylvania Supreme pulsory Court relied process clause and eventually opt Alaska, Davis v. 415 U.S. ed to address Ritchie’s claim within the (1974)(criminal 39 L.Ed.2d 347 carefully defen- context of more pro defined due dant had sixth amendment precedents concerning confrontation cess fundamental right question concerning clause witness fairness in criminal opinion trials.2 The juvenile notwithstanding criminal record emphasized first that under the sixth review, adopt In Ritchie the Court process analysis stated: we a due purposes Although squarely This Court has never held this case. we conclude that the the Compulsory guarantees compulsory process provides greater Process Clause no witness, right identity to discover the of a protections in this area than those afforded require produce the Government to excul- today process, due we need not decide wheth- patory evidence. Instead the Court tradition- guarantees Compulsory er and how the ally has evaluated claims such as those raised Process Clause differ from those of the Four- protections Ritchie under the broader enough teenth Amendment. It is to conclude the Due Process Clause of the Fourteenth facts, that on these Ritchie’s claims more applicability Amendment. Because the of the properly are considered reference to due type Sixth Amendment to this of case is unset- process. tled, and because our Fourteenth Amendment Ritchie, 56, 1001, 480 U.S. at 107 S.Ct. at 94 addressing precedents the fundamental fair- (citations omitted). L.Ed.2d at 56-57. ness of trials establish a clear framework for

580 that is both favorable possession in its clause the process due amendment pun- guilt or and material the accused obligation to turn has the “government Agurs, 427 v. ishment. United States posses evidence its the over defense] [to 2392, 97, L.Ed.2d 342 49 U.S. 96 S.Ct. to the accused favorable sion that is both supra, Brady Maryland, v. (1976); Id., [373 punishment.” and material guilt or Although 87, 83 S.Ct. at 1194. at 1001, 57, 107 U.S.] at 94 L.Ed.2d at S.Ct. 480 U.S. terminologies have used different courts (citing Brady, added) 373 (emphasis at 57. majority of this “materiality,” to define 1196, 87, 10 L.Ed.2d at at at 83 S.Ct. U.S. “[ejvidence is material agreed, has Court acknowledged the 218). also The Court probability is a reasonable only if there statutory policy of the Common qualified that, been disclosed had the evidence type Pennsylvania keeping wealth defense, proceeding the result its re confidential unless of information A ‘reason- different. would have been order. Rit compelled by lease was probability suffi- probability’ is a able 1002, chie, 57, 94 at 107 S.Ct. at 408 U.S. in the the confidence cient to undermine Next, recognized at 56.3 Court L.Ed.2d Bagley, v. su- States outcome.” United Pennsylvania applicable that under 682, at 3375 pra, 473 U.S. at 105 S.Ct. circumstances, statute, in certain such id., BLACKMUN, see J.); at (opinion of constitutionally might contain records 3375, 685, L.Ed.2d at 481 at 87 105 S.Ct. vital to the defense. material information J.). WHITE, (opinion of upon the standard for then drew The Court materiality previously it had constitutional Ritchie, 57, at 1001- 107 S.Ct. 480 U.S. Bagley, 473 v. State, United States articulated Aguilar v. 02, at 57. 94 L.Ed.2d Cf. 3375, 3383, 667, 682, 87 105 S.Ct. (Wyo.1988); U.S. W.R. 684, 688-89 (1985)4, 481, stated: 494 49(a); (harmless L.Ed.2d error 7.04 W.R.A.P. Cr.P. Using Wyoming). this stan- government standard It is well settled dard, affirmed the decision of the Court turn over evidence obligation has 3440, 3450, (1982), the L.Ed.2d 1193 73 in footnote 14 that Court's statement 3. Note the process concerning due is violated when any opinion held that expressing Court testimony to the defense might statute is made unavailable strike when the state the balance it "only deportation of witnesses creating privilege not allow for would Government Ritchie, U.S. at likelihood that the 480 is a reasonable disclosure. if there court ordered 1002, 57, judgment L.Ed.2d at 56 n. 14. affected the 94 could have 107 S.Ct. significant Wash- factual distinction And in Strickland v. This is a the trier of fact.” 2052, 668, results when the statute 80 ington, created different U.S. has 466 privilege. (1984), an "absolute" that a new involved creates 674 the Court held L.Ed.2d Cf. 18, 337, Foggy, 118 Ill.Dec. People granted v. 121 Ill.2d when evidence is not must be (1988); incompetence Commonwealth 521 N.E.2d because of the introduced Pa.Super. A.2d Kyle, proba- only if "there is a reasonable counsel that, unprofessional bility for counsel’s but errors, proceeding would result of the S.Ct. at different.” Id. at have been Bagley, discussed three scenarios the Court Court obligations 674. The Strickland prosecution’s 80 L.Ed.2d that can exist when prob- probability" "a Brady play. It then articulated defined a "reasonable into under come materiality ability undermine the confidence sufficient to standard the constitutional Court applied three situations. The in the outcome.” Ibid. in those might not make formulation of explained the defendant We find the Strickland material, sufficiently Brady materiality that the de- any request Agurs flexible test for "specific” “general” request,” request,” "general make fendant to cover the "no request it believed to be request” prosecutorial for material "specific cases of explaining these possession. After prosecution’s evidence favorable to failure to disclose the Court stated: three situations there The evidence is material accused: that, evi- probability had the a reasonable reformulated has relied on and The Court defense, the result dence been disclosed materiality of un- Agurs for the standard proceeding have been would subsequent cases in two evidence different. disclosed arising probability probability" is a A “reasonable Brady context. In neither outside the suf- in the out- Agurs to undermine Court's discussion case did the confidence ficient among come. distinguish three situa- standard 681-82, Id., S.Ct. at U.S. at Agurs. In United States tions described added). (emphasis Valenzuela-Bernal, at 493-94. L.Ed.2d 458 U.S. Pennsylvania to information Supreme Court remand the whenever it becomes constitu tionally proceedings proceedings. case for further held that: material to the Id. Ritchie is entitled to have CYS file This in review for camera constitu by the trial court to determine reviewed tionally material evidence was the standard whether it contains information that which under the trial court addressed changed probably would have the out- subpoenas Gale’s for various records in does, come If it he of his trial. must be privilege. which state asserted a The given a new trial. records main- trial court focusing If conducted this review tained contain no by CYS such issue, privileged on at on materials infor- nondisclosure mation or was harm- ability gather defendant’s to such evidence doubt, less reasonable beyond a the low- sources, privi from other and on how the er court will reinstate the leged evidence relate to the free defen prior conviction. theory approach dant’s of the case. This Ritchie; adopt it consistent with we for Ritchie, 58, 1002, U.S. at S.Ct. at Wyoming and review employ will 94 L.Ed.2d at 58. court’s trial actions this case. See State facing the remaining The task Court was Cusik, N.J.Super. 452, 530 A.2d apply materiality the constitutional stan adopted in a just way dard it had rights guaranteed a defendant’s to a fair Psychiatric A. Records radically altering trial without traditional for begins argument his disclo discovery. limits on criminal constitutional psychiatric by asserting sure of records he began by noting The this discussion Court right records of psy has examine a general that a has never had defendant experi chological counseling or treatment his right constitutional to conduct own un by the The state enced R children. re supervised in the state’s search files to sponds pro before we can address Id., argue relevancy. 480 U.S. at priety argument we must Gale’s deter (citing Bag at L.Ed.2d at 58 S.Ct. mine if the contains evidence of record at ley, 473 at 105 S.Ct. U.S. this issue these documents such that 494; Weatherford, L.Ed.2d at 429 U.S. properly preserved appeal. for This re at at 51 L.Ed.2d at 42. quires concerning us to review the record Hubbard, 618 P.2d at 554-55. Cf. requests Gale’s for such information. typical in a Court described that case also pretrial for practice requests the defendant to Two of Gale’s dis- settled was for covery speculation his coun- general request make a concerned psychological and then the state sel that some records of exculpatory evidence counseling or the R would information must be treatment of children decide what , Ritchie, at lead to the 480 U.S. 107 existed disclosed. 59 (citing exculpatory or witnesses for 94 L.Ed.2d 58-59 evidence things filed a Brady). Considering in con the defense. Gale’s counsel motion these compel produce psychologi- junction requirements pro of due state to with the 6, 1987, cess, similarly necessary April com cal records Court struck subpoena tecum issued Dr. promise holding that a defendant would had duces Wyoming attorney his look Heinecke of Northern Mental not be allowed to have records, through April but Health Center on privileged defense hearing held a on the same allowed to have the trial motions counsel would be during attorney day admitted court conduct an in camera review which Gale’s request psychological records constitutionally material to the information given speculative. also characterized this as a Gale’s counsel was defense. The Court opportunity Heinecke competing interests to cross-examine balance between ques- duty hearing at this but did that a court’s motions and reiterated .trial any psychi- ongoing, tion him about existence of information was re disclose such the R privileged concerning release atric records children. quiring court to the trial (Wyo.1987) (citing Heinecke Nicholls was minimal evidence that There Nicholls, (Wyo.1986); during his treatment of P.2d took some notes 1, 12 children, Dieringer, did 708 P.2d the R but Gale’s counsel and State hearing 1985)). pursue point (Wyo. in the or did all that that motions The district court subsequent pleadings. gave open It invitation it could do. Gale an present establishing exist evidence hearing, the At the trial court motions psychological part not a ence of records subpoena duces tecum issued addressed the juvenile court file and information with because to Heinecke and concluded that might constitution in such records that be any or treatment Heinecke examinations never ally to his defense. Gale material with the R children might conducted offer; advantage district court’s took of the juvenile pursuant to the earlier court were he has not fulfilled his bur consequently, availability proceedings, their to the de- court with record that present den this under fense would be decided Gale’s mo- review this appellate him on would afford juvenile court tion for release issue. ap- The issue is discussed in this records. on the peal below. In its decision letter hearing, the

issues raised in Gale’s motions B. D-PASS Files trial court stated: for disclosure of all D- Gale moved psychiat- discussing In the disclosure of family. involving the R His PASS files sought by the ric records defendant’s D- disclosure was that motivation motion, to ex- there has not been shown notes of interviews with PASS caseworker any psychiatric examinations or ist such family R members contain referenc up this time records to this Court allegations'against him that could es to the repeat [May simply I will 1987]. constructing defense. Pur be useful his earlier, I that under the what have said analysis set out in Ritchie the suant to recognizes process clause this due the D-PASS records in court reviewed obligation has the to turn that the State After this review it sealed the camera. possession evidence its over a part and made them D-PASS records materi- favorable the accused and both appeal. now before us on Based record guilt punishment, but there no al to or its review of these records the trial right general constitutional no material or relevant evi court found Brady case and the case did in a criminal against concerning charges Gale dence Pennsylvania one. v. Rit- not create request they dis and denied be event, chie, it be supra. any should him. closed to Court’s attention that brought statutorily privi- records are records the mi- D-PASS psychiatric are there case, (July leged materials under 14-3-214 this W.S. complainants nor pertinent Repl.), provides in them camera as court will consider part: it has the other confidential informa- sought by determine tion (a) concerning reports and defendant All records materiality. their investigations neglect child or abuse except provided by added.) are confidential (emphasis through 14-3-215. W.S. 14-3-201 put has forth additional never (b) exist, to records showing Applications access that such records evidence concerning neglect claim child abuse or con- basis for a let alone establish some agency child informa tained state local might contain that such records protective agency shall made in the constitutionally to his de material tion Ritchie, prescribed by manner and form the state 480 U.S. at fense. See application, agency. Upon appropriate 58 n. 15. Fur 94 L.Ed.2d at give agency shall access to ther, provide us state Gale has burden persons agencies following review of supporting further with a record Edwards, purposes directly related with admin- issue. Edwards v. through istration W.S. 14-3-201 14- We have already decided general Gale’s 23-215: challenges by constitutional adopting the Supreme United States reasoning Court's (i) A protective agency; local child right Ritchie. His to confrontation was (ii) A agency, guardi- law enforcement satisfied when he was allowed to conduct litem, an ad protection child team or extensive prosecu- cross-examination of the attorney representing subject against tion witnesses Ritchie, him. report; of the 52-53, at 999-1000, U.S. S.Ct. at (iii) physician A surgeon who is at Davis, L.Ed.2d 54-55 (explaining treating child, an neglected abused or 318-20, at 1110-12, U.S. 94 S.Ct. at family the child’s or a child he reason- 354-56). L.Ed.2d at See also Story v. ably suspects may have been abused or State, (this (Wyo.1986) neglected; recognition explanation court’s and of the (iv) person legally A authorized to Davis). holding Like the United States

place protective a child in temporary Court, Supreme we will address his chal- custody when report information in the lenge concerning the compulsory process required or record is to determine analysis clause under our overall place protective whether to the child in fairness of this trial as a matter of due custody; process. Ritchie, U.S. (v) A person responsible 94 L.Ed.2d at 57. for the wel- Gale’s assertion child; trial court somehow fare of the denied him effective assistance of counsel refusing (vi) A grand jury upon court or to disclose all of the D-PASS records is showing that access to the records is make-weight. Gale’s counsel did all that necessary the determination he could do when he moved for disclosure issue, in which case access shall be argued records and for their disclo- inspection limited to in camera un- sure at hearing. the motions The trial public less the court disclosure finds court denied those requests disclosure necessary; is based on controlling United States Su- (vii) personnel Court who are investi- preme precedent. Court only general gating reported incidents of child presented whether, constitutional issue neglect. abuse so, doing compromised trial court added). (emphasis D-PASS records process right Gale’s due to a fair trial when question are those files created after applied holding from Ritchie. predecessor Campbell sometime in 1984. A Hence, our discussion of the trial court’s County attorney provided had earlier application dispositive Ritchie for both pre-1984 Gale’s counsel with D-PASS files. challenges of Gale’s under this issue. explain why The record priv- does not those argues Gale that the proce- in camera ileged were prematurely files released. holding dure mandated in Ritchie challenges the trial court’s actions should not have applied request been to his essentially under this issue in ways: two language D-PASS files because the (1) argues he that nondisclosure of the 3—214(b)(iii), above, W.S. set pro- out 14— post-1984 him D-PASS records denied vides for release of such files to en- law rights constitutional to a fair trial under agencies forcement specific under certain process guarantee, the due as well as effec- circumstances. Gale also claims the record counsel, right tive assistance of to confron- employees shows that actively D-PASS aid- tation, compulsory (2) process;5 he personnel ed law enforcement in investigat- argues that the trial erred court when it ing against the case him. He then com- applied materiality the constitutional stan- points, concluding bines these that because reviewing privileged dard for records information in the D-PASS files was “di- rectly set out Ritchie. available” to the state it should have Const, Const, XIV; Wyo. VI and See U.S. amend. art. 6 and 10. §§ possession. (Wyo.1977). to be shows been deemed in its That This record urges, presumption, thorough he be the should basis had under- releasing standing obligations files to of its under Brady for- D-PASS Gale’s repeatedly acknowledged open insure fairness them in counsel to fundamental and in its process. pleadings. due agree argument with the that Gale’s the Ritchie stan We state novel Gale’s precariously materiality reasoning rests several dard for should constitutional assumptions, applied his own which do not -find not be under this issue also lacks applying in this He first He claims that support record. assumes merit. standard is it post-1984 appellate the state must had the unfair because is an standard that have looking D- necessarily D-PASS records in its files because that “is backward obligated in statute to investi- therefore framed terms whether PASS charges change at 14-3- evidence would the result.” gate the issue. See W.S. the argument ignores parallel were the that 204. Whether those interviews re- This not, obligation ported prosecution’s the record does not indicate exists between the copies possession them for in its that the state obtained to turn over evidence that constructing against in a case Gale. is both favorable to the accused materi use pointed guilt punishment to and the Gale has no record evidence indi- al to trial cating actually obligation privileged that the had review in state those court’s to Further, specifically reports. the statute formation evidence con stitutionally provides agency that a law enforcement material to the defendant’s Ritchie, 56, in at 107 wishing to obtain D-PASS records this case. 480 U.S. S.Ct. at 1001, (citing apply must them and obtain 94 L.Ed.2d 56-57 Bagley, situation at 3378, 672, at at pursuant agency them disclosure rules. 473 U.S. 105 S.Ct. 87 487; 111, record does evidence L.Ed.2d at 427 U.S. at Agurs, not contain 96 2401, 354; application prosecution 49 such the in S.Ct. at L.Ed.2d at Bra an 1196, 87, 373 U.S. at at dy, this case. 83 S.Ct. 10 218); Wilde, L.Ed.2d at 706 P.2d see also prem- argument also seems to be Gale’s authority supporting at 255. Gale cites no that, assumption he ised on an because did his criticism of the constitutional materiali any post-1984 D-PASS not receive files ty being to be standard devised used county attorney, prosecution the the hindsight. Bagley, 473 U.S. at Cf. case must have decided not com- in this 683, 3384, 105 S.Ct. at 87 L.Ed.2d at 494- Brady obligation its to disclose to ply with Rather, applied like the standard it exculpatory defense material ac- the appears prosecution Brady, it 57, Ritchie, at tually possessed. 480 U.S. have been intended to focus trial 1001, L.Ed.2d at 57. 107 S.Ct. at 94 See attention court’s on in camera search 251, State, v. 255 also Wilde privileged information could make that (Wyo.1985). We decline to as- change the a defendant’s outcome of trial. lacking sumption, evidence some eager type apply Gale seems contrary. The determination record to the prosecution to the once he standard as subject evidentiary items are of whether they obligations sumes not met their belongs under Brady disclosure not want Brady, under but he does 429 U.S. prosecution. Weatherford, at apply court to him when it trial it to re 845, 42; at L.Ed.2d at 97 S.Ct. 51 privileged speculates he views information Hubbard, P.2d If the at 554-55. de- pivotal might be in his defense. He cannot evidence requesting has a basis for fense ways. have it both has, prosecution but believes materiality divulging, application pro then for disclosure of The Ritchie standard prosecu- can to the vides a workable between the that evidence be made balance and, confidentiality trial interest necessary, court. state’s cer tion poten 106- Agurs, v. 427 U.S. tain information and a defendant’s States United 2392, 2398-99, in some 49 L.Ed.2d tial need for such information situ 96 S.Ct. State, ations, (1976); P.2d and it in this situation. controls Jones 60-61, Ritchie, ing pursuant subpoenas duces 480 U.S. at Gale’s 59-60, 1003-04, R 94 L.Ed.2d at cited Cu tecum to the various schools the children sik, N.J.Super. 530 A.2d 813 had attended. The trial court reviewed Reber, camera, (1987). way People also Cal. them in same it reviewed See records, App.3d Cal.Rptr. and concluded that D-PASS posses that Gale had in his there was information in the We also note no school copies fairly constitutionally sion of a extensive set records that was material pre-1984 reports along D-PASS with Gil to Gale’s defense. police department reports the R

lette legal arguments makes the same ample family for 1986 and 1987 and had for disclosure of the school records that he jury’s at opportunity at to focus concerning made above files. D-PASS problems tention on the social that were a before, showing As he has made no reality family R home day-to-day actually possessed ever Applying from least forward. hand, these records. On the other Gale has standard, and after our own review Ritchie complaint that he hindered in made no considering and of the D-PASS records family R ability his to learn more about the evidence that was available to Gale before by having investigator people his interview trial, agree the trial court that the we with community who knew the R children records contain no evidence that is D-PASS parents. Considering their all of these and constitutionally material the out or was circumstances, again apply we the constitu re come of this case. That conclusion tionally material standard from Ritchie quires to affirm on this issue. us ruling against review of the trial court’s That re disclosure of the school records. Records C. School no evidence that is or was view reveals review of the trial court’s deci Our constitutionally material to Gale’s defense. par the school records sion not to disclose 147; Reber, Cal.Rptr. and Cu See used review its analysis allels the we sik, Therefore, affirm 530 A.2d at 813. we on the D-PASS records. decision they conclusion that did the trial court’s of the R children are statu school records not contain evidence material to Gale’s de under 16-4- torily privileged W.S. fense. 203(d)(viii)(Cum.Supp.1987):6 (d) Transcripts, deny right shall of D. Juvenile Court Record- The custodian .records, following un- inspection ings, or Records provided less otherwise law: issue, premises error In this Gale (viii) containing district records School inability transcripts or upon his to obtain relating biography, to the information any juvenile hearings court recordings of religion, family, physiology, academic R chil concerning GR’s contact with the physical or mental' achievement abusing accused of dren once he had been person except per- ability of the sexually molesting them. Gale wanted duly in interest or to the officials son existed, information, if it to review this supervise him. appointed elected and support of his gather more evidence (1982)(school 1232g(b) also U.S.C. See theory § intimidated or coerced LR that GR funding receiving federal records schools implicating the R children into Gale to pursu- released confidential but be are blame from himself. Gale has never shift order). to court ant actually establishing the put forth evidence transcripts recordings existence of such or requested disclosure of the school Gale showing used them that theory grade on the records based Rather, believing his in this case. basis and attendance records fluctuations exist, and are material to that such records relationship between the relevant to defense, hearsay state centers around father. The school his R children and their original his defense coun- produced at the motions hear- ments made were records (Cum. Supp.1988). at W.S. 16-4-203 Codified as amended Preuit, transcripts, sel, Campbell recordings, nile Terry that former court Rose, it had County Attorney, say Robert had at least and did not whether records contempt trying considered hold GR information in camera. reviewed such having unsupervised visits of court similar to the issue above This issue is juve- R with the children violation of psychological independent dealing allowing only supervised nile court order portion of in that even the sealed records visits. does not con- the record before court filed his motion for disclosure Gale dis- tain the information that Gale wanted transcripts or records on juvenile court Consequently, are left with closed. we motion April 1987. Attached depo- scraps few from Rose’s including copy of exhibits were a number try whether these sition to and determine petition juvenile of the November exist, ever did whether the state records children, R behalf of the LR’s filed on trial, for use in this possessed them juvenile agreement, January court so, unfairly trial court denied whether the which chronicled police a number files to them. Gale access family the R investigations of the R filed his motion for disclo When Gale through December children from mid-1980 sure, obligation had an he several of the R and statements of claim basis establish It clear friends. is not children their sought contained privileged information he how obtained these records. constitutionally material to his de evidence 24, hearing, April 1987 motions At 58, Ritchie, at fense. 480 U.S. at 107 S.Ct. as a witness examined Gale called Rose 1002, at 58 n. 15. We also 94 L.Ed.2d during telephone call. him conference Gale, appellant, reiterate that as has length questioned counsel Rose at Gale’s obligation provide this court with up leading to GR and about the events enough record evidence to allow review agreements. juvenile Curious- LR’s court (cit Edwards, at this 732 P.2d 1070 issue. attempt any Rose ly, he did ask about 1105; Nicholls, ing Dier at contempt or to seek a citation consideration 12). inger, 708 at has not P.2d Gale violating alleged juve- against GR for juvenile any failed to establish a basis that prohibiting unsupervised nile court order transcripts, recordings, court or records any juve- visitation or for violations of the constitutionally contain evidence material agreement to have nile court GR said defense, has forth minimal put to his he signed. not call his former de- Gale did establishing that such records ex evidence counsel, Preuit, other witness- fense ist. transcripts, suspicion that es to bolster his appellate in- We hold that the record is hearing recordings, or records of such a challenge support Gale’s con- sufficient actually existed. any alleged juvenile tran- cerning court trial court denied Gale’s motion scripts, recordings, or records. transcripts Juvenile Court disclosure records, noting holding Davis IV. provide Gale with carte blanche did not juvenile authority privileged to examine Suppress Gale’s Motion to Dismiss or for information records in a search court Testimony Family Rthe Ritchie, helpful his 480 case. See also 1003, presents arguments un 59, at two 94 L.Ed.2d at Gale U.S. at 107 S.Ct. First, 675-76, challenges the (citing der this issue. he Bagley, 473 U.S. at 58-59 3379-80, 489-90; juvenile the GR and LR’s L.Ed.2d at effect which 87 S.Ct. testimony of agreements court had on the Weatherford, 429 U.S. at his Hubbard, family R violative of 618 the entire 51 L.Ed.2d Cf. Second, chal 554-55). rights process. to due he The trial court did not P.2d at agreements lenges prosecution ever the substance explain whether LR and the state as viola- alleged juve between GR and possessed to have shown rights process. agreement tive of his to due We ad- prosecution between the and the parents dress Gale’s sub-issues in reverse order. admittedly abused children is not one that shocks the conscience of this challenge his the substance of the any precedent court. Gale fails to cite juvenile agreements, court Gale identifies type agreement idea that appropriate process standard of due per illegal; somehow se and he also fails to California, review as set out Rochin v. distinguish refute or more recent federal 342 U.S. S.Ct. 96 L.Ed. 183 upholding prosecutorial case law contin- Rochin, (1961). In the Court held that the gent arrangements suggesting that the prosecution process violated federal due court, jury, appellate not an should deter- when it obtained evidence “conduct that credibility mine the of witnesses who are Id., shocks the conscience.” 342 U.S. at party prosecution agreements. See 72 S.Ct. at 96 L.Ed. at 190. See Cervantes-Pacheco, United States v. States, v. also United 385 U.S. Hoffa (5th Cir.1987) F.2d 312-16 cases L.Ed.2d 374 cited therein. also refers us to federal case law discuss ing propriety prosecutorial agree challenge Gale’s to the overall effect of See, ments to obtain e.g., evidence. United juvenile agreements as violative Waterman, (8th States 732 F.2d 1527 rights process of his due is couched Cir.1984); States, Williamson v. United argument that this court should invoke (5th Cir.1962); F.2d 441 United States supervisory power an “inherent ensure Baresh, (S.D.Texas F.Supp. fair conduct from the in fur 1984). judge As observed the trial in nishing evidence to the courts.” we Since letter, his decision these cases all involve held agreements above themselves arrangements contingency in which the process were not violative due it is hard prosecution conditions its offer to seek speculation to understand how Gale’s as to immunity sentence reduction or for the de their effect leads to the conclusion ability pro fendant the defendant’s pro their existence alone denied him due leading duce evidence to the arrest or in cess. While Gale has set out his theories specific dictment of another individual in juvenile agreements of how the court were Waterman, activity. criminal 732 F.2d at lie, family incentive for R members to he 1, 1530; Williamson, n. F.2d at support offers no record evidence in agreement); (illegal contingent 442-45 fee those theories or assertion that his

Baresh, F.Supp. at 1134. opportunity extensive at trial to cross-ex arguments These and citations do not credibility amine those witnesses on was apply specific facts of this case. The undermined. Bald assertions do not take agreement between LR and the state is not place the of record evidence from which is, contingency agreement. That it does real inferences can be drawn. Green Cf. grant immunity given not condition the Wierdsma, wood v. 741 P.2d LR, GR, apparently to their to (Wyo.1987) (conclusory in sum affidavits ability produce to evidence that resulted in mary judgment proceedings have little or indictment, arrest, the or conviction of effect). no This court will not substitute specifically agreement Gale. LR’s recited jury simply itself for the because Gale immunity pros- she receive from that would testify in an wanted certain witnesses to long truthfully ecution so as she testified way; argument other his on this issue concerning knowledge her of Gale’s in- State, merit. lacks Newton v. children; in volvement with her terms of (Wyo.1985). nothing testimony, her this is more than obligation affirmance of the she would her V. subpoenaed her as a be under the state Gale’s Motion to Dismiss for Failure to trial witness. The record is unclear on the Preserve Evidence juvenile agree- exact terms of GR’s court ment, This issue Gale’s assertion but admits it did not contain involves Gale the any contingency provisions. type police This that the initial interviews with plainly limit the state’s information and Trombetta must have contained victims preserve to and disclose evidence duties potentially aid him in de- that would explained Brady. those duties he argue not that fense. Gale does notes or denied to the interviewer’s access Supreme also the United We note States right the denied him the trial court opinion in Arizona v. recent Court’s the witnesses cross-examine state’s 51, 109 333, 102 Youngblood, 488 U.S. testimony could be traced whose (1988). In Youngblood, the L.Ed.2d 281 interviews; forgoes he also initial victim kidnapping charged defendant was police the state any suggestion that the assaulting a minor. When the sexually concerning crime, the content of acted bad faith used reported physician victim Instead, argues samples the interviews. a “sexual kit” take assault recordings somehow de- later used as evi the lack of such the victim that sam judge police at took these opportunity him dence trial. prived of his best they clothing, but did allegations ples the victim’s precise what victim’s Later, refrigerate clothing. when allegations their were explanations for criminologist compare state tried says they first uttered. Gale when were samples kit with he found from the stains holding deprivation violates the refrigerate clothing, on the the failure to Trombetta, for the which he asserts stands impossi clothing comparison made the proposition have an legal police comparison from such a ble. Evidence duty gather affirmative constitutional who could have exonerated defendant evidence, preserve recog- as well as the appellate The state was convicted. duty exculpatory evidence. nized to disclose po focusing reversed the conviction on at Brady, U.S. See ex lost had for tential which the evidence 1196-97, 10 L.Ed.2d granted the Court the state’s oneration and interpretation of disagree We with Gale’s opinion, its petition certiorari. held that the law on this issue. This court stan Court discussed constitutional not have a constitutional the state does obligation police have to dards duty to manufacture evidence addition to “un preserve and then held that evidence exculpato- duty Brady to its under disclose bad less a criminal defendant can show possession. spe- also ry in its We evidence police, [negligent] part faith deputy’s apparent neg- cifically held that preserve potentially useful evi failure recording properly tape ligence does not constitute a denial due dence between the defendant conversation Youngblood, 488 U.S. at process law.” deputy not violate the defendant’s did -, 109 at 102 L.Ed.2d at 289. S.Ct. Wilde, rights process to law. 706 due to interviewer’s Gale had access Trombetta, (citing 467 U.S. at P.2d at 255 opportunity and an extensive many convicts question that there are is no unequivocally believe contempt of court. I who languishing in durance vile society not would enlightened that even our spe- acquitted if some novel or have been that the victim long tolerate a result found discovery procedure had or cial rule refusing to submit to an incarcerated for case. govern particular a been invoked to while the ac- or examination evaluation system of criminal If to claim a we are no conse- perpetrator suffered cused system, that serve that justice and rules only The other alternative would quences. however, and con- they must be the same charges if the a dismissal of the state’s be it is a favorite sistently applied. While cooperate not witness would victim try the counsel to technique of defense my I firm in convic- procedure. Again, am witnesses, prosecution or the ap- people find that that would tion appellate opin- place no in Consequent- that tactic has ludicrous to bear. proach too remedies are ineffi- ions. possible ly, because dissent, in from Rule in the effort to is no different substance

As set forth W.R.Cr.P., justify furnish- and it does not discovery concepts the crimi- mix civil into expert testimony of ing The summaries simply inappropriate. sug- nal law is witnesses. Rules of Civil gestion Wyoming that the cases are in criminal Procedure invoked discovery justification enhanced The for 1, W.R.C.P., Rule language virtue of the re- case also perjury in this because leap a only leap logic, a in but also in is not very a adopts quires rebuttal. The dissent founded. No That faith is not well faith. concept every Not ranging perjury. far given proposition credence is fact im- statement or inconsistent because the discovery justified can be civil perjury. a peaches witness demonstrates par- both opportunity available to mistaken, prevari- same is People can be and wilful is in a criminal case. every ties since that not true in- cation is demonstrated discovery for the The in- arguing expanded contrary In for information. stance defendant, equiva- opinion majority mentions recited in the dissent stances serve, case, justify a fictitious lency, concept but the is would not might, charge perjury Fifth Amendment criminal criminal arena. The therefore, as in- fairly more described be reciprocal dis- as a clear stands bar consistencies. permitted by discovery and the covery, W.R.Cr.P., compro- represents Rule opinion the is- majority addresses has the criminal mise that been achieved very in a actually present in this case sues Furthermore, remember we must law. They are resolved professional manner. discovery civil is limited that even prin- application applicable a correct of relevance. bounds appropriate an ciples of law. Since it is not as either serve role for court to lightly should assume a Neither we prose- for the or as the advocate defendant case, in a whether the criminal witness parents, I am jury for the cutor not, subject to the same complainant or join disposition of this pleased to party a requirements opin- majority that is announced in the case judiciary should be so civil case. ion. the constitutions as to assume that blind only criminal defendants. Others serve URBIGKIT, psy- Justice, dissenting. rights as The demand well. such as this examinations in cases

chiatric of sexual for a that victims is a call rule I. OF FACTS STATEMENT assault, women, primarily must not history presents case of Elmer This integrity, their but stripped physical (Gene Rounsa- “Gene” Rounsaville Jean their minds and they must also surrender ville), year fifty-four ex-police old officer of their tormentors. souls at behest sexually molesting two of admitted to who discovery in a criminal case Wyoming, (the step- daughters eldest is his five W.R.Cr.P., governed Rule probably per- third and daughter), abused a construed of this that have decisions youngest presents It also haps the twins. rule does to summaries it. That not extend Gale, appellant K. tragedy of Richard 26(b)(1), Rule W.R. expert witnesses like Gale), Gillette, (Dr. Wyoming den- D.D.S. Neither do the ABA Standards C.P. tist, following three his conviction language, quoted Criminal Justice. The immoral indecent acts with counts of “(iv) made any reports statements who of the Rounsaville children had three particular the vic- subsequently in with the and been experts previously connection case, physical or including of their father’s incestuous activities results tims presents Finally, and of scientific most of decade. mental examinations for prosecutor comparisons; situation where a tests, experiments, or an ironic * * prosecute the father of sexu- agreed not II for Criminal ABA Standards molesting in return for (2d 1980), ally his children his Justice, ed. 11-2.1 Standard — -, L.Ed.2d U.S. questionable testimony regarding one (1989)and v. Medical Econom Gilbert with Dr. Gale. event (10th Cir.1981). Co., F.2d 305 ics history is within this exhaustive At issue participants minor who other children and not the criminal guilt of Dr. Gale but and law en the victims of societal were complicity nor Rounsaville conduct of Gene designated, not failure will be forcement mother, This is Linda Rounsaville. letters, by age at time of trial. but for those with not a case for consideration non-prosecu- The facts of weak stomachs. include parade in this of horror Actors con- Linda Rounsaville tion of Gene and Rounsaville, Rounsaville, and Linda Gene charged against trasted with the offenses daughter, age sev- their six children: first understanding. Dr. Gale belie son, (S 11); (D-17); age eleven sec- enteen — (D-10); daugh- ten third daughter, age ond reasoning probabilities in I dissent ter, (D-7); daughters, age seven twin truth with a answers about the provide (Dl-3 D2-3). The other age three by the unfairness of engendered concern in to the multitude principal, addition ques- and a residual concern the trial po- personnel, welfare workers school miscarriage justice did occur. tionable age forty-one, investigators, is Dr. Gale lice Fairness, equal protection process due family dentist whose substantial bill faintly present symptom as a but seem unpaid until at least services went dental Nearly every mo- justice. the substance and resided date. Dr. Gale officed discovery and trial tion filed Dr. Gale family resided and the Rounsaville any contact with Gillette was denied and defense Rozet, rural town Wyoming, a small complainants agency witnesses of Gillette. prosecu- miles to the east proscribed thirteen themselves was Actually, only two motions forces. torial of Public Assistance Department A sustained; was ever one by Dr. Gale were (D-PASS) protection child Services Social trial challenge the first preemptively D-17, questioning opened first file was to travel out-of- the second was judge and July 1979. That parental child abuse lawyer. preparation state for action, incident, was closed lacking further Otherwise, the dozen or so every one of Action future reference.” as “I & R for de- motions were discovery and defensive following a developed year the next really nied. involving complaint party and a slumber appeal can arguments for eight Rounsaville, not offenses Gene sexual within a con- and defined be characterized D-17, daughter but only with the oldest analysis factual siderably more detailed at the Rounsa- two of her friends also with majority. This by provided than is from Confirming statements ville home. documentation, incomplete as it record actually taken un- D-17’s friends were be, encompassed within wel- are still made, investigation was No real til 1986. well as a modi- school records as fare and meeting held on June although a material and department police cum of family met with a the entire 1980 where proceedings. juvenile parts of some Following this second welfare worker. avail- is not the basic information Much of file, eight more reveals opened a count was, What is available in this record. able SS-219, complaints, D-PASS form contact to Dr. Gale significant part, denied investi- an active criminal until 1986 when discovery mo- requested of all rejection of a sexual because gation was undertaken tions. Rounsaville complaint against Gene abuse D-7, daughter. third-oldest involving of events in a course you do do What that Gene and confirmed It is admitted managed to hide miscreants directly of sexual engaged a course Rounsaville responsibil or individual public observation D-17, appears named, against offenses so will Dr. Gale is ity? Since eight, two age mother, at about Gene, Linda. have commenced father, and the by school Communications, complaint first years before v. Midwest Ross See and contin- D-PASS (5th Cir.), authorities to denied Inc., cert. 870 F.2d son, children, including the six the older years. ued for about Gene Rounsaville S— a hanger whippings, coat which involved against also sexual abuse D-7. admitted whip. a possible and use of bull strongly The demonstrates belt record when Rounsaville started leave Gene appeared, Dr. Gale When the name of alone, of sex- D-17 he commenced a course attorney’s and county office Gene ual with the second-oldest misconduct custody into Linda entered a Rounsaville daughter, D-10. This sexual misconduct required protection child settlement time, At continued until 1986. the same the home and to leave Gene Rounsaville misconduct was commenced sexual immunity prosecutorial parents gave both years. for about two D-7 and continued exchange in for from all criminal offenses have en- Finally, Gene Rounsaville against Dr. Gale.1 their gaged sexually in motivated misconduct con- documentary prosecutorial detail of three-year-old A record with his twins. duct, delayed ac- although the reasons in 1984 contains in- by D-PASS submitted since corre- are demonstrable all tion not that Linda Rounsaville terview information record, in this spondence cannot be found by molestation became aware of D-17’s during developed the inves- shows intent the wel- Gene Rounsaville sometime before tigation in 1986 of Gene Rounsaville family fare met with June worker forgiveness at price convict Dr. Gale 30, 1980. by Gene Rounsaville and com- incest prosecutor's open petition file Although plicity by a stated Linda Rounsaville. The custody in law enforcement policy had existed both in which a filed district county prosecutorial offices for two or jurisdictional order was entered included four, obviously years, perhaps all more probable claim cause: not to Dr. Gale. Cli- files were available named are sub- The above minor children developed after law enforce- mactic events pur- ject jurisdiction of this court to the first seri- commenced their ment officials Wyoming Statute suant investigation ous of Gene Rounsaville 6—203(a)(i), they neglect- in that are § 14— During in his arrest. 1986 which resulted by Wyoming ed defined child[ren] investigation of Gene Rounsaville’s 14-6-201(a)(xvi)(B), in that Statute § offenses, came to information sexual inflicting they by have been abused investigating officers attention physical injury, causing of or mental year from the children that comments danger physical harm imminent earlier, committed sexual Dr. Gale had also of the chil- or mental health or welfare D-17, and D-7 involving D-10 offenses means, than dren other accidental when episode brief the Rounsaville home unrea- wit: the infliction of excessive or house. present were parents fa- corporal punishment by the sonable Rounsaville; ther, commis- “Gene” family problems criminal Finite against one or sion of a sexual offense party inci- are confined to the slumber more the father children dent and the sexual offenses on least Rounsaville, allowing “Gene” daughters. In unconfirmed three of a sexual offense the commission of investigat- really reports which were never against or more of the children one ed, Linda Rounsaville’s it was related that mother, their Linda Sue Rounsaville. up boyfriend raped D-17 and beat Linda * n * 17, 1986, Investi pun- On November early 1985. Extreme Rounsaville Campbell gator Monty Trenary, of the physical had also been ishment and abuse Terry Wal- County all Rounsaville on Sheriffs Office committed Gene entry immunity legal about current sexual abuse basis of this Gene Rounsaville’s children, charges involving the her immediate nor dis- is not established response State, was: Hennigan P.2d See cussed. " J., dissenting). Nothing (Urbigkit, say? my (Wyo.1987) you me to That do want ‘[W]hat * * * * * * ‘[Y]es, certainly pretty, my case about this husband is children?’ my participants. When Linda I that he has touched kids conduct of believe ’’ past.' initially interviewed Rounsaville dorf, Campbell point At indicated that her for one social worker a [D-17] home in Department Public Assistance sent her to her County of mother aunt[’]s Services, respon- punishment being met at the Rozet and Social Utah as child, [D-7], a interview minor School to molestation. That sible for sexual pursuant complaint a that she had May, occurred in and re- [D-17] father, sexually her been molested Upon her turned in the Fall of 1982. minor, who Rounsaville. The “Gene” return, her once her father molested old, years Trenary and Mrs. told Inv. again. reported that her also [D-17] begun that her father had sexu- Waldorf age 7, [D-7], had been younger sister ally molesting approxi- her when she was early by her father in 1982. molested old, years and the latest inci- mately 5 her mother about it at that told [D-17] 28, 1986. dent on or about October was time her mother then confronted her and sleep- The said that she had been minor father. Mr. Rounsaville admitted hav- ing year old broth- in a room with her [D-17], ing molested but denied molest- er her came into bed- when father or ing any girls of the other their friends. pulled her covers. room and down bed reported that she was also when [D-17] rubbing vaginal her area began He then approximately years age, of her while, and then left the bedroom. photographs of her. father took nude if her father The minor was uncertain photo- discovered the When her mother finger vagina, of placed his inside her “being graphs, she accused of [D-17] much he had her so because touched photos. bad” and then burned he past recall the times did she can’t in detailed allegations These were confined The also minor indicated that didn’t. petition reports for the investigation past, her father molested her when pursued in November 1986. was her he “kill her” if he has told that would petition and concurrent dispose To anyone. The she told minor’s broth- ever criminal evidence of the course of behavior er, 11],also witnessed the sexual as- [S— Rounsaville, juve- two of Gene and Linda evening 1986. sault on October agreements were nile court admission Trenary investigation Further Inv. agreement stat- made. Rounsaville’s Gene an ex- and Mrs. Waldorf have revealed ed: history physical and sexual tensive Rounsaville, by Jean and Elmer father, upon the children their abuse * * *, attorney, and the through his by their passive acceptance of it through its Wyoming, State has Mrs. obtained doc- mother. Waldorf * * *, representative, Campbell County reports Department from the umented following into the Attorney, have entered Assistance and Social Services Public agreement relating to admission/de- involving excessive dating to 1980 back juvenile proceeding. nial phase possible sexual corporal punishment agreement is to The se- purpose corporal by Mr. abuse Rounsaville. the op- cure Elmer Rounsaville Jean taken punishment on the children has keep help and portunity to obtain beatings hangers coat form together possible and further to straps. family as leather other wires well protection the Rounsa- has facilitate Additionally, Mr. Rounsaville been through processes the home ville children weapons to fire inside known gun purpose reported placed juvenile court. It also was secure, for agreement head. against his of this wife[’]s testimony regard- state, information reported exten- [D-17], age has involvement ing Dr. Richard Gale and his history being sexually abused sive family and children. with the Rounsaville father, beginning when was 8 her she agree as follows: Elmer parties also indicated that years old. [D-17] following admit the Jean Rounsaville will years old her mother when she taking jurisdiction support of the court sexual molesta- an incident of witnessed family: tion, for it. of his instead blamed but [D-17] a) against stepchildren or That he contact with his crime children or had sexual stepchild, [D-17], on several af- persons occasions named above which occurred years age. when 7 to of taking up was ter Elmer Jean Rounsaville’s [D-17] touching This contact included or rub- Wyoming in the State of and residence bing genital area or breasts. of this the date of execution before b) That on two occasions he has agreement. whipped his excess of a son [S-ll] prose- immunity of promise This punishment for a reasonable child [S- applies evidence of the cution whether age. he That on these occasions ll’s] crime(s) from Elmer Jean Rounsa- comes strap. whipped with a belt or [S-ll] source, it is any other and bind- ville or c) he is and late as That an alcoholic as in office of the ing upon successors proceeding the initiation of this he was Attorney present Campbell County and drinking point black- often of staff. usually This in his out. done prevent The state will seek to un- B. family causing and his home around the release of the der W.S. 26-2-310 great apprehension and them deal of any of minor victim or informa- names He and pain. is informed now believes pro- likely identify that victim tion endangered family and dur- he his wife against ceedings Richard Gale. ing of times. includes some these This agrees Elmer The state that Jean C. allegation but is not limited to the attorney have an Rounsaville gun petition against he held a that present during any with the interviews ap- his wife’s head. This occurred Attorney’s during his County office proximately 1980. testimony in court. d) That all these actions occurred they parties Both warrant enter Campbell Wyoming. County, agreement good in the utmost into this 2. Elmer Rounsaville inter- Jean will representative faith. The state’s war- Campbell County Attor- view with the agreement signing this he rants ney’s truthfully office will tell all authority so and that the has full to do his he knows the contact of about his immunity given pow- herein is within including family with Dr. Richard Gale give. er The state further warrants he knows sexual contact with all about presently plans that it has no alterna- stepchildren by any of his children or tive Elmer Jean Rounsa- Gale. Richard any any ville in other forum or other agrees also Elmer Jean Rounsaville offense. testify completely truthfully about agreement Linda Rounsaville’s stated: requested do so these matters if he is Rounsaville, through by and her Linda Campbell County Attorney’s of- * * *, attorney, Wyo and the State fice. through representative, ming, its by Elmer promises In return for these * * n , Campbell Attorney, County Wyoming Rounsaville the state Jean following agreement into the re entered agrees: phase lating to the admission/denial neglect, charges A.No criminal juvenile proceeding. purpose assault, incest, abuse, illegal sexual con- following agreement secure for any allegedly or actu- other crime

tact opportunity Rounsaville Linda to ob by Elmer Jean Rounsa- ally committed family together help keep tain and to her wife, stepchil- children or against ville his if possible and further to facilitate the charges any No dren will be filed. protection of the Rounsaville children incident which be filed for an kind will processes juvenile through the allegedly occurred at Rounsaville’s purpose agree also a of this court. It is [CC], involving [D-17], [BJC], [CD], home secure, state, for the information ment to This incident is and others. [JH] Dr. regarding Richard statement dat- subject of written [BJC’s] with the Gale and involvement Roun- promise includes 11/18/86. This ed children, parties subject This incident is family others. saville agree follows: dated written statement [BJC’s] charges Also criminal 11/18/1986. no admit the

1. Linda Rounsaville will miscon- taking will be filed for other sexual following support family: such jurisdiction report her duct or failure sexual mis- involving conduct which occurred Elmer suspi- had a. That Linda Rounsaville from the time the was Jean Rounsaville cions that Elmer Jean Rounsaville up took having sexual contact with when Rounsaville’s residence [D-17] years approximately she Wyoming was to the date of the State age. Mrs. Rounsaville did not further agreement. this execution of investigate that contact and did not noti- promise immunity prose- This from fy suspicions. her authorities of evidence of the applies cution whether fall of re- b. That [D-7] crime or crimes comes Linda Roun- that Elmer ported to Linda Rounsaville any or other source. saville sexually had molested Jean Rounsaville prevent un- B. The state will seek her. Linda Rounsaville did believe der W.S. 26-2-310 the release by the and the these statements children any names of minor victim or informa- notified and Linda authorities were not pro- likely identify that victim tion investigation did Rounsaville no further ceedings against Gale. Richard into inquiry or the matter. agrees state that Linda Roun- C. The approximately c. That on 29th present attorney have an saville August, to the Roun- Richard Gale came County during any interviews with the home had sexual contact saville’s and Attorney’s during office and her testimo- with Linda Rounsa- and [D-17] [D-10]. ny in court. by informed of this incident ville was parties they enter report the Both warrant but did not and [D-10] [D-17] good police agreement or other authorities into this utmost incident any investigation and not do further representative did The state’s war- faith. Richard concerning matter Gale. by signing agreement this he rants that authority full do so that the 2. Linda will interview has Rounsaville Campbell Attorney’s pow- of- County immunity given herein is within his truthfully all that she fice will tell give. warrants er to state further family her the contact of knows about presently plans alterna- has no including all she with Dr. Richard Gale prosecution of Elmer Jean Rounsa- tive any of sexual contact with knows about any or for other any ville other forum stepchildren by her children or Richard offense. agrees to Linda Rounsaville also Gale. case must be summarized exer- truthfully testify completely and about prosecutor that con- discretion of the cised requested do so these matters she was better than two viction of one dentist Attorney’s County of- Campbell charged difficulty is the parents. The fice. curious against Dr. were so events promises Linda return these year developed after unlikely as Rounsaville, Wyoming the State of then a claimed occurrence date of agrees that: against charges conjunctively to related charges neglect, A.No criminal factual Rounsaville. The and Linda Gene assault, incest, abuse, illegal sexual con- Dr. Gale particularized since situation is duct, alleg- crime other contact being the Roun- ever specifically denied by Linda edly actually committed date claimed and on the saville’s residence against her be children will Rounsaville with believ- was corroborated his statement kind charges No will filed. testimony. able allegedly oc- an incident which filed for double- family lived in a The Rounsaville home involv- at the Rounsaville’s curred Rozet. The back home in [CD], [CC], and wide modular ing [D-17], [BJC], [JH] and it night light was on in the room was nailed shut and it is claimed the The door up got front door was unlocked. Attached fell the floor. Gene Rounsaville appendix diagram living got as an is a dissent of the chair room out pro- meeting D-17 at trial which family home drawn Dr. Dr. Gale left. A Gale. general understanding of the thereafter, vides a loca- Shortly Dr. Gale was held. participants within the residence tion get hat. came back She background and affords some invoked meeting oc- day the next present when made Dr. the issue denied motions involving Linda Rounsa- curred Gene and spe- background From that Gale.2 Dr. was in school. ville and Gale since she testimony given, presented we are cific following: with the testimony: D-7’s brother, her shares bedroom with She D-17’s testimony: was the bunk bed S—11. She bottom a.m., August 2:00 Dr. Gale 1985 at during night. Dr. Gale was awakened the her with hand on her stom- awakened his covers, room, pulled her in the down was ach, got touching private parts. her She pulled down pulled up nightgown her out of bed went to the bathroom “monkey.” He panties her and licked her minutes, spoke ten to Rounsaville in Gene D-7’s back to room.” then “went [D-10’s] room, go to back living and was told to the the D-10’s hallway is across from room her sister the bedroom. She then asked where Gene living room and the room room, D-10, who was in the same she sitting. was Her door was Rounsaville okay and an affirmative re- was received then heard Rounsaville open. She Gene Dr. D-17 between sponse. Gale cornered talking. Dr. Gale Gene Rounsaville twenty himself and the to bed and fifteen sleeping living in the had been in a chair passed. Rounsaville came minutes Gene family, except The for Linda Roun- room. and Dr. went down the down the hall Gale saville, gathered night. did not She hallway to talk him. The front door meeting day attend the the next when family, except the for Linda slammed and get Dr. his Gale returned to was said Rounsaville, living gathered in the room was hat since she in school. the children were sent back bed. before came the house. There Dr. Gale back into testimony: Gene Rounsaville’s going fireplace and a fire in the Gene was was and was awake. Rounsaville not drunk living sleeping in the He was in the chair meeting the D-17 also attended a next room, waited ten seconds and he five called morning, having after been home was then went into D-17’s room. Dr. Gale baby-sitting neighbor, when Dr. lighter with a in his sitting cigarette there home returned to the mobile when Gale Dr. He took out and escorted hand. Gale present her mother and father were both him to the door. Dr. came back him. meet with leave. drink- was told to He had been ing fireplace. and there was no fire testimony: D-10’s hallway is two and he was feet wide up it. when D-17 top sitting bunk bed and close to He woke sleeping She was the got Following inci- beside in and him. the awakened. Dr. Gale was came was a.m., bed, drinking 2:00 legs, her and touched and dents of he went out touched kneeling morning and mid-morn- private next returned home parts her while rubbed 30) ing present for a meet- got (.August bed. D-17 out of bed and the bunk get Dr. ing saw Dr. Gale when Gale came back went to the bathroom. She D-17 returned from bathroom. hat. after they alleged occurred, It was stated hand-drawn occurred.

2. This is one two exhibits step- during provide part, her after D-17 "alerted” the trial and neither children that Dr. Gale a visitor to this well-oc- no time was either father was clarification size. At (two living facility thirty cupied parents and six chil- twenty feet from the parent more than dren). assault events were children when sexual testimony, testimony: or doubt created about his ex- Linda Rounsaville’s cept the statements of the Rounsaville fam- participants all of date used involving the ily August morning 30th was with a mark- identified from calendar meeting with Dr. Gale Rounsaville ing which had made the 30th of she house. August August partic- did not She ipate anything during night since she Observedly, jury accepted testi- up. meeting never woke She attended family reject- mony of the Rounsaville morning, when following August provided by family. ed that the Gale Con- wrong Dr. Gale said he turned down the credibility absolutely sequently, was con- $1,100 hallway. Dr. owed Gale about She trolling in their It is within decision. on the dental bill. She noted the date on nature of factual umbrella the calendar to be sure the date case the trial in denial of re- decision of in at any “I decide turn him time.” The development quested and case sleep- back not sealed. door was She to be tested. drug ing prescription of a soundly because day. Dr. obtained from Gale that II. ISSUES OF THE CASE testimony: Dr. of this must be accommo- Gale’s The issues case presented, including to the facts rec- dated He residence had been the Rounsaville ognition charged that the offenses were spring of but none or, most, at the twenty committed within August through events for described thirty physical presence from the feet of August had ever occurred. He was and Linda Rounsaville. None both Gene night go home in that and did not bed objection. of the victims raised verbal morning. indi- Rozet the next Dr. Gale Thereafter, testimony provided about a is story conception cates the entire is a morning meeting following that could joint imagination someone’s and obvious actually happened.3 not Gale, wife, preparation. con- Stormie his during firmed was home bed he issues are all directed to the devel- These night. presented to re- opment within facts a fair whether trial occurred which view Larry testimony: Maier’s question or denial: include manag- employee Maier was an relations request psychological for A. Dr. Gale’s Mining Company. er at He testified Carter children; evaluation Rounsaville mining company from the records of summaries B. Denial of worked that Roun- where Gene Rounsaville testimony prosecution’s ex- expected mine, is saville worked at the had witnesses; pert Rozet, Gillette and some distance from psychological psy- Disclosure C. p.m. August a.m. to 3:00 7:00 from children; records of the Rounsaville chiatric daytime work schedule for for day separately scheduled in order was files; of D-PASS D. Disclosure participate in a mine Gene Rounsaville to records; E. Disclosure school safety had project which been scheduled recordings; tape F. Disclosure during day. This wit- August for cross-examined, Denial of motion to dismiss records G. ness was failure to disclose evidence. suppress is no rebuttal disputed, were not there baby-sitting attend the they she was mid- children testified knew where 3. All of the when, occurred, meeting morning he had meeting although she with Dr. Gale D-17 stated had meeting get younger did present. were in returned to hat. If was children testified, meeting by happen had the their Gene Rounsaville told about the school and were school, working capacity at the mine while she not in older D-17 said sister. drinking morning and to then return baby-sitting time in town since same but had been present holiday, appar- to be unsche- holiday. not a but to his residence was a It was meeting happened yet with who ently had Dr. Gale had not started. She duled her school neighbor’s his hat. house return to retrieve been home from called pro The minimum intrinsic to historical occurrences. for truth which is The search charged offense protection justice tection afforded to sex process, equal due expert only prosecution extinguished by discretional deni- defendants denies cannot be discretion, only credibility, while we admit justice al. If is exercised about pro only 404(b) man process then the is the rule of character evidence W.R.E. justifi- of law. To the extent that are now ex and not Those considerations fusion. provided by majority pretrial examina cation is not in this decision to tended the tools to seek the from the denial to Dr. Gale of a different decision tions which is truth, in discre- If the it cannot be accommodated evidence. admissibility of tendered majority to the that discretion is related general tion unless thesis advanced presented. valid, psychological The movement of assistance facts medical and analysis majority away helpful from discretion as seen young victims as State, (Wyo.1980) permitted. 611 P.2d 831 never have been Martinez v. should understanding McCord, Expert Psychological as defined Martin Cf . State, (Wyo.1986) postu- Complainants in Testimony 720 P.2d 894 About Child recognition. Foray Discretion does A Into lates this Abuse Prosecutions: Sexual Psychological It should be a rational Admissibility exist a vacuum. Novel Evidence, Criminology decision application of facts to a reasoned & J.Crim.L. conflicting forces majority justification world of switches within real This Truth, except development where the actu- pretrial and factors. case and status definition, by arbitrary ality presumed apply relating rules to the introduction observer, can, got reasoned opinions. be a would have expert We only if the motion had probability. from here to there granted, the examinations conducted been presented to testi expert was then and the EXAMINATION III. PSYCHOLOGICAL the criminal offense fy, opinion, in his that THE ROUNSAVILLE CHILDREN OF never occurred. disagreement and dissent on the first My investiga- system proper of justice of If is a psychological examination issue of presentation development and the exercise tion and case does not foreclose the children to the I and material evidence recognized, of relevant of discretion. With discretion finder, principle is misunderstood The rationale fact perceive improper exercise. cannot be ad- logic ignored here. Justice completely misses the majority adequately prosecution if the is case dressed decidendi of the voluminous and ratio opportuni- given investigatory access inquiry should be exer proper law. The case is ty.4 Exercise of discretion for this for the truth discretion to search cised in- by facts where information is that Gene and confined it is uncontroverted when preparation. trial Access perjury dispensable for both committed Linda Rounsaville prepara- required information for trial majority seeks to reconstruct at trial. The court’s deci- tion is the essence of the trial Superior case of Ballard v. Court of 159, unequal rights sion. Discretion fails where 64 Cal.2d 49 Cal. Diego County, San (1966) prosecution and defense result. 302, a credi between Rptr. 410 P.2d 838 into Fairness, principle, oppor- competency in as a demands analysis. pursue I bility development by tunity adequate factual complexity of for within the quiry definable usage. Any justification 4. For rational review of example, reject Dr. denied access for I authenticates, supervised this record in the midst these properly interviews to secure validity, confounding questions doubt certainly clear complainants and his insula- with anything wrongfully agency done Dr. Gale with welfare contact tion from Russel, People probative act him. Full factual v. of criminal school officials. workers and 794, 210, crucially 187, presentation investigation was Cal.Rptr. for trial 70 69 Cal.2d cert, 145, logic important. and scientific 21 The rules of U.S. 89 S.Ct. denied 393 anything (1968). justifica- knowledge can Availability of chaos teach that L.Ed.2d Improba- happen, improbable. no matter how question exercised discretion be a tion should Here, likely materiality. bility did occur. relevancy If teaches that it not validity, based issue, outweighs particularized probability chaos. there is no there is no real Hunter, 210, 443 P.2d cert. denied 393 U.S. litigant. People v. either (1968) (1965); L.Ed.2d Mich. 132 N.W.2d 95 State Ballard, Cal.Rptr. 410 P.2d 838 and (1967); Franklin, 229 A.2d 657 49 N.J. court conceding then that trial acted Butler, 143 A.2d 530 N.J. State likely its will be under discretion. There comparable few if fact sensitive cases separate Three choices for consideration clearly perjury per to this unbelievable generally are psychiatric examination That some of the vaded scenario. procedure civil present revealed rules of comprehensively lied cannot be witnesses applications. is law The first and criminal Linda questioned, that Gene and Rounsa deny ap- court to discretion the trial significant misstatements ville committed requirement complain- that for the prove meeting challenged, be and that cannot is considers that issue ant. second August not occur is scripted did soundly exercised discretion.5 bounded dispositively majority authenticated. If prove Finally, the third would a defen- say that State were right dant’s to secure the examination. psychiatric testimony cannot secure Dr. Gale not contend discretion does presentation, medical witnesses case Rather, argues he did exist. equivalency for denial to defen then factually is case decision unrelated is least exist. That neither dant would at improperly was denied as request and the Wyoming general law nor well-followed holding ma discretion. The precedent. agree abused I with Dr. Gale that the intermixing confusing absence jority psychiatric evaluation decision whether discretion exercise of discretion is a matter of discretion required should be here, and, cases Peo exercised rejecting the discretion if discretion was first improper Russel, Cal.Rptr. denial abused.6 ple v. 69 Cal.2d seems lost wherein: unfair In this The trauma L.Ed.2d 40 but there is no what require process chiatric examination. State has the accused and material to psychiatric Court would be of records there has not tion case did not create one. chie, all. trauma of if deter victims in its complainants itself In granted any compelling psychiatric to the defendant. The discussing supra I possession n up to this time. Court have said case, these minor children clause sought it is sharply in a criminal routinely, undergoing the (1987) serve examinations or attending the role of these minor [480 ^[*] has, first, the decision obligation been been this Court in sex offense general examination, the that as a U.S. earlier, ]. appropriate increased n reason for lodging discretionary, shown disclosure the defendant’s such is both tool I do constitutional decided to turn over evidence guilt or I will ^[*] case and the Pennsylvania that under recognizes of harassment request indignity made not find that there any by search for truth the favorable to event, records to this it in exist in this case of simply n submit the complaint at punishment, examination prosecution psychiatric but might well its discre- this any should of a indignity the trial that the due motion, right n clearly v. Rit- repeat Brady case. such and, psy- the the 6. Another justice psychiatric nally whether A.2d 530. duct. examination or should In cooperate, plaining cannot, Linda torial at best for examination. That Rounsaville, proceedings course istic Rounsaville refusal er abuse are plainants tial information It is also them in camera as mine-their the event that the witness citation truth, law 410 P.2d at brought commenced? absolution when an than this psychiatric Rounsaville. Clearly, by demands ephemeral be the journal witness should where do we permitted.” sexual non-sequitur the however, disturbing to evaluation in this forced deals and admitted sexual on his children including materiality. to the Court’s complainants no can present the effect of the article. abusé punishment were statutory sought by cooperate records of. the minor com- case, issue still be See I do a comment on that refusal in See, position this decade submit validly of admittedly event has the other confiden- Ballard, the Court context see the relation If question, not, conjecture the children investigation however, justice is basis pursued attention that there with defendant to not reached and is and then states for criminal con- participate made and wheth- to a thus refuses to decision rested abuse Gene for the immu- complicity children of a will more recent psychiatrist. even Cal.Rptr. "[t]he realistically psychiatric Butler, if, the search consider prosecu- by juvenile possible in slogan- was fi- today, in the deter- Gene com- fact, long by judge the has subject jority of the cases is proceed We do not into a of first Ne- discretion Annotation, an examina- to order such impression. Generally, see Exam- cessity Permissibility tion, Mental has although the failure to do so Competency Determine ination of discretion.’ rarely been held an abuse Complainant Credibility good reason in Sexual Of- aware of We are not Prosecution, why not be the rule concern- 45 A.L.R.4& 310 that should fense Ballard, in complaining sex of- (1986).7 ing witnesses The similar case was Klueber, supra, {State (emphasis Cal.Rptr. at 410 P.2d at 849 fenses.” [81 (1965); omitted): 223], 132 N.W.2d S.D. original in and footnotes ** *(cid:127)) fixed rule in Rather than formulate a the trial We therefore believe this matter we believe that discretion judge be authorized to order repose judge to order a should should psychiatric to submit to a complain- prosecutrix psychiatric examination of circumstances indicate involving a sex examination ing witness a case Such necessity for an examination. presents if the defendant a com- violation only if necessity generally would arise an examination. pelling reason for such supported the re- little or no corroboration Supreme Court of South Dakota is- stated, charge and if the defense raised the cently Psy- “In an article entitled complaining wit- Credibility Wit- of the effect of Opinions chiatric as to sue mental or emotional condition Suggested Approach, A in Vol. ness’ nesses: Thus, veracity. rejecting polar con- her page 648 at Cal.L.Rev. prohibition an absolute ‘Most the courts extremes of clusion is reached: prose- requirement problem with this an absolute which have dealt psychiatric examina- cutrix submit to a recognized authority the trial tion, accepted ground, a middle psychiatric examination we have judge to order a placing the matter the discretion of question on the of credibili- of a witness judge. the ina- the trial ty. principle established overview, only statutory provision nity the article demonstrates that existed. The psychiatric examination is immunity Wyoming provided court ordered merely grant special procedures one of a host of drug prosecutions. case W.S. 35-7-1043. legal system utilized in sex offense Directly positions which consider the converse Then, explores key role cases. the article process rights of the accused fair trial and due played attitudes have in the formu- traditional Comment, against rights privacy are noted law, present exposes the lack lation of the Testimony Impeachment Psychiatric given the of foundation for these attitudes Cases, & Criminol- Witnessesin Sex 39 J.Crim.L. rape prosecution. Since current realities of (1949): ogy basis in reali- these attitudes have little or no psychi- ty, Unfortunately, present evidence the article concludes that the use of rules of assumptions proper inquiry atric examinations based on such than aid a into hinder rather restricted, severely veracity complaints if not aban- about sexual mis- should be the usually adequate are doned. conduct. These rules case, subject ordinary the are to be found in appropriate the but Other views on Juviler, Psychiatric Opinions Credibility in sex cases which as there are certain factors Suggested Approach, Calif.L. require law exclu- Witnesses: A 48 a relaxation of the common Comment, (1960); Psychiatric sionary respecting Rev. 648 Pre-trial rules evidence as to charac- Proposed Testing probing Means Adequately the truth of a com- Examination ter. Allege charged Complainant’s Competency a Sex plaint against with a sexual a man Of- Comment, (1957); Psy- charge may fense, stem 1957 U.I1I.L.F.651 difficult when the crime is Mentally complexes psychic chiatric Evaluation Abnormal female from the complainant. Witness, (1950); Yale L.J. 1324 and Recent 59 O’Neale,' Case, Psychiat- Psychiatric Criminal Law. Aid in Evaluat- Court Ordered The author ing Credibility Prosecuting Rape a Witness Victim in Criminal ric Examination Charging Many Rape, 26 Rape How Times Must a Ind.L.J. 98 Prosecution—Or 119, justice delivery system Clearly, ad- Raped?, L.Rev. has Be 18 Santa Clara Woman (1978) a rational access to actual facts since vanced for said: 119-20 250, Botsford, provides 141 U.S. 11 Initially, an overview Union Pac. R. Co. v. this article 1000, (1891), physical psy- present governing L.Ed. 734 where a law the use of 35 cases, focusing rape examination in advance of trial was denied. evidence in chiatric (W.R.C.P. 35). developing experience. See F.R.C.P. 35 After California's

601 the Kansas court in v. test was exercised discretion with eviden- See likewise State Id., tiary weighed in factors to be decision. (1979): P.2d 91 Gregg, 226 Kan. 602 Cal.Rptr. at n. 443 at n. 216 P.2d 800 We, too, adopt ground” the “middle presented 8. Then is a decision judge and hold a trial has the discretion whether admissible be ten- psychiatric to order a examination of just dered trial. That decision is not in a sex crime case complaining witness present here since examination was not presents compelling the defendant permitted. Relevancy materiality first examination. Even if a reason such totally of tendered evidence is academic. compelling trial court finds a reason for Actually, defendant’s initial interest was examination, ordering psychiatric rights of effective cross-ex- admissibility safeguard further as to its guaranty amination with the constitutional remains. accept of confrontation. If we Dr. Gale’s preparation voluntary attempted confession ease of State v. contention as that the children would lie—he wanted to Jerousek, Ariz. 590 P.2d why. know (1979) contrary per- does not reveal a suasion in the conclusion: discretion, regard the court in Rus- 215-216, sel, Cal.Rptr. 443 P.2d at psychiatric examination of

The need for a comprehensively analyzed: 799-800 generally a victim of a sex crime would explicated concept judi We have “only if no arise little or corroboration cial discretion on innumerable occasions charge if the defense supported the variety in a factual contexts. Ob of the effect of the com- raised the issue viously the term is a broad and elastic plaining mental or emotional witness’ (see 292) p. we have one 27 C.J.S. veracity.” (Emphasis condition her equated judgment with “the sound 159, 176, added.) Ballard, 64 Cal.2d court, according exercised to be 302, 313, Cal.Rptr. 410 P.2d (Lent (1887)72 rules of law.” v. Tillson case, In the instant the victim’s testi- 71, 78.) 404, 422,14 P. We have also Cal. only by not mony was corroborated “only limitation that declared that defendant’s confession but the testi- placed upon the law had the exercise of neighborhood children. mony of several discretionary judicial power it is that (The competency these children was (Clavey abused.” v. Lord must not be was, therefore, challenged.) It 413, 419, 493, 495, (1891) 87 25 P. Cal. of the trial court’s discretion abuse time that “it observing at the same of the vic- psychiatric find a examination exactly difficult to define what unnecessary. tim judicial meant abuse of discretion * * ” * (idem). have said: However we Proper discretion was found exercised “ legal ‘In is abused sense discretion appellate in the consent contested in the exercise of its discretion whenever rape Virgin case of Is- Government of reason, court exceeds the bounds of (3rd Scuito, 623 F.2d 869 Cir. lands v. being all of the circumstances before 1980). Special circumstances for exercised ” (State Farm, etc., considered.’ Ins. were also found to be absent discretion (1956) Superior 47 Cal.2d Co. v. Court 612 P.2d People Estorga, Colo. 13, 15, quoting Berry likewise, Piro, (1980). See, People v. 669, 672, (1946) Chaplin Cal.App.2d (Colo.App.1983). P.2d 1341 453; Bak 169 P.2d see also Continental significant case which clari- The second 542, (1968) 527, 68 A.C. ing Co. v. Katz two-stage process decisional is fied the 761, Cal.Rptr. 439 P.2d 889 and cases 67 210, Russel, Cal.Rptr. 443 P.2d 794. 70 cited.) therein majority reject reasoning for this The judi- never ascribed to The courts have clarity. The Russel court rec- lacks Russel potential re- discretion a without cial in a the involvement of discretion ognized early Bailey In the case of v. straint. psychological 424, the ex- 423, decision whether (1866) page first at 29 Cal. Taaffe limits complainant pains the would be or- to delineate amination of this court took following in discretion the by judicial The requested the defendant. dered 602 intended, how- of its overall determinations relative

terms: “The discretion evi- ever, arbitrary production and admission of such capricious a dis- or however, observed, cretion, discretion, It impartial guid- dence. must be an but for the pertain that some these factors in ed and its exercise fixed controlled part undertaken most to determinations principles. It is mental dis- legal not a upon passing the motion cretion, time of gratia, exercised ex but a to be examination, peculiar- for while some are discretion, legal to be in con- exercised ly to determinations undertaken law, relevant formity spirit and in with of an exami- products when ordered impede a manner to subserve and not sought are to be into nation introduced justice.” ends of defeat the substantial evidence. expressed were in Similar standards Elevated ting judgment within the bounds of word son. Discretion 496-497, the court App.2d a sound Gossman v. Gossman intelligence imports 126 judicial Ry. quoted 195, N.E. 841 the exercise of discrimina- Co. in this 126 P.2d discretion, enlightened from Davis v. Boston (1920) learning, as follows: connection means 235 Mass. (1942) 52 Cal. 178, 184, controlled ted). “ where ‘The rea- Id., (emphasis dence based evidence offered. ordered considerations duced, the When such 70 ^[*] Cal.Rptr. SjS original and an examination has been dealing court, however, ^[*] must it is sought address it[s]elf ^[*] with the 443 P.2d footnotes ! n to be and specific at 800 intro- omit- ^[*] evi- law, cour- principles of of firm sound presented The court in Russel was not age calmness of cool combined improper challenge with a discretion mind, swayed by partiality, free from sustaining since it the ordered examination warped sympathy by prejudice nor nor permitted decision based the any kind of influence save moved admissibility provided on denied passion to overwhelming alone the do reversal. v. basis conviction State ” Cf. just.’ that which is Boutwell, Conn.App. 18 558 A.2d authorities, particu- foregoing 212 Conn. denied certification larly quoted passages Bailey (1989),admissibility A.2d 945 review. Case clear, Gossman, it quite make we test law which has followed Ballard think, legal all exercises of discre- State, 665, 669 includes Pickens v. judg- grounded in reasoned tion must be (Alaska App.1984) examining a basis for by legal principles guided ment “specific showing of need” and that the particular mat- policies appropriate “testimony complainant’s was uncorrob- shall undertake ter at issue. We here untrustworthy.” orated otherwise briefly outline some the considerations prerequisite requirement basic for the discretionary determinations relevant to considered that the court examination concerning production and admission privacy be “sensitive to the interests psychiatric bearing evidence on credi- generally permit and reluctant to witnesses bility. inquiry into a witness’s mental health histo- examination With decision made ry absent clear indication of relevance.” merged connection then in review relate Superior Murphy Id. at also v. See examination decision and the between the Maricopa County, In Court and For evidence, admissibility it was stated: (1984); Ariz. P.2d 532 v. State opinion we set forth in Wahrlich, our Ballard P.2d 727 105 Ariz. (which quoted State, relevant (1969); footnote A.2d 796 McDonald part margin) State, some of the “dan- (Del.Super.1973); Dinkins v. Kahinu, gers” psychiatric use of (Fla.App.1971); involved So.2d State cert, credibility. (1972), impeach As we P.2d evidence 53 Haw. 1126, 944, suggested, there each of the considera- 409 93 35 denied U.S. (1973); 120 weighed People Visgar, 258 tions indicated is factor be L.Ed.2d v. 584, 784, point Ill.App.3d 75 Ill.Dec. 457 N.E.2d by the at some in the course court

603 Glover, 78, 1038, (1975); (1983); People v. 49 Ill.2d Misc.2d 373 N.Y.S.2d 824 1343 (1971), 1984). v. involving (Utah Lairby, State 273 N.E.2d 367 discretion 699 P.2d 1187 compelling where no reason ad ary posture denying denial line of of this cases examination; Easterday v. the vanced for any discretion of the trial court to order the State, 13, (1970); 254 Ind. N.E.2d 901 256 clearly minority ap- the examination is Sullivan, (Minn. v. N.W.2d 418 State 360 proach in in jurisdictions which it is con- Boisvert, v. 174, App.1985); State 119 N.H. See, in generally, sidered. cases listed v, R.W., (1979); State 400 A.2d 48 104 N.J. Franklin, Annotation, 657 229 A.2d Romero, v. 14, (1986); State 1287 514 A.2d supra, 45 310. A.L.R.4th 22, (1980); v. State 94 N.M. 606 P.2d 1116 I am nor neither bothered bewildered 22, (1968); Clasey, 252 Or. P.2d 116 446 application strong requirements for Klueber, 223, State v. 81 132 S.D. N.W.2d justification including ei- demonstration of Ayers, v. (1965); State 847 369 S.E.2d Ballard, compelling ther a reason from 49 (W.Va.1988) to deny 27 n. 4 as a discretion Cal.Rptr. specific 410 P.2d 838 or by a motion second examination “inade Pickens, showing of need Miller, documented;” and State v. quately case, however, 665. In this following first 151 N.W.2d 157 35 Wis.2d discretion, majority’s the consideration I v. in State majority’s posture surveyed adequately would demonstrated ba- find an Walker, (Me.1986) 506 A.2d 1147 consequent sis and abuse of discretion recognized “[cjourts that most which denial under these circumstances. grant have held that the or denial of states conjecture Need remains to address the compel victims of sex abuse to motion that the as dis- psychological testing majority rests allowance within submit judge.” Wyoming the trial cretion is earlier the sound discretion of foreclosed Authority misapprehensions to order these in- precedent. examination Dual are issue, only is not at discretional ex courts In consider- voked that contention. first Franklin, ercise. See ation, 229 A.2d 657. admissibility present issue is not evidence, Russel, Cal.Rptr. recognized are cases essential- It is there prior trial. In P.2d but examination ly rejecting authority order the examina- misconstruction, question second Looney, v. tion. See State 294 N.C. may opinion what evidence admissible be (1978), suggesting statutory ap- S.E.2d 612 v. of Zabel logic expire need Liddell, Likewise, State plication.8 State, (Wyo.1988) P.2d 357 (1984), P.2d 918 211 Mont. dissented, in strongly I I have concurred. provide rape permitted the state to arguments, prior to a whole unsuccessful syndrome expert witness testimo- trauma prosecutorial expert series of witnesses expert examination ny, but denied witness the com- which are used to corroborate See also by the defendant. requested State, Widrick, Brown v. plainant’s testimony. Com. v. 392 Mass. Souvenir, People (1984); (Wyo.1987). posture P.2d 1110 That on the N.E.2d court, however, "[ojbviously, motion for case the denial 8. That noted defendant’s offenses, incest, notably types of sex such examination well within the dis- there are which, very charge, judge nature of the there is cretion trial and should not be danger completely grave false accusations held for error. girls appearance young majority wisely recognizes of innocent but unsound As the wit- minds, susceptible pos- fantasies and given to sexual rights ness’ be must due consideration. malicious, vengeful spirits.” Looney, required sessed be to make a Defendant should Exum, in at 622. Justice concur- 240 S.E.2d strong showing make- witness’ mental rence, indicated: psychiatric up is such that a examination probably would reveal either that the witness well-considered have most of the deci- As credibility incompetent that the witness’ subject, majority on the to which sions subject question. refers, to serious Situa- judges I would conclude that our entry calling an order carefully tions would, of such power, used in the have the to be seems, discretion, be rare indeed. But if called their to order in exercise of sound for, power judges to enter psychiatric our should appropriate ex- circumstances as a order. amination of witness condition receiving Id. at witness. 604 (1972); Brady v.

Zabel rationally 31 L.Ed.2d 104 rule does not decide the S.Ct. Maryland, rights State of Dr. Gale. constitutional 83 373 U.S. State v. 1194, 10 L.Ed.2d 215 Cf. presented with we are evidence Since Hennum, (Minn.1989), 441 N.W.2d 793 look at Za admissibility questions, a close rejected admissibility the court where first bel, Griego P.2d 357 765 as well par syndrome battered woman evidence State, (Wyo.1988); Brown, 761 P.2d 973 State, 732 reject and then ticularized defendant 1110; Scadden P.2d P.2d State, Lessard v. right obtain her mental ed (Wyo.1987); and United States v. (Wyo.1986); P.2d 227 examination. Azure, Cir.1986), (8th provide F.2d 336 authority pretrial for a exami no denial IV(A). DENIED DISCOVERY expert and to extent the nation. How what basically is on a appeal This anchored presented on testify witness is not derived from trial process due examination See, however, Russel, Cal.Rptr. appeal. information for an court denial access to Easterday, 794; 256 N.E.2d adequate recognition defense. the With Butler, 901; A.2d 530. At exist, did prosecution that factual conflict process in ade juncture, the issue was due resulting process inquiry, from this due prepa proper information for quacy of prepara- Bagley, 473 U.S. and deterred trial ration. United States v. denied tion, importance in denied (1985); assumes access L.Ed.2d 481 States, Giglio v. United justice charged for the defendant.9 405 U.S. definitely testimony the MARKS: want that in. If References in the about work MR. I in, Rounsaville, they put want that in accord don't to call him and I schedule of Gene Gale, will call him. demonstrated the witness called Dr. it you before we THE COURT: Let me ask do possible for to have attend- was not Rounsaville that, words, you I morning can find—in other don’t meeting with on the ed a Dr. Gale jury I know want the confused. don’t when de- August 30. This uncontroverted 29th, would he worked on the whether it credibility dating stroys for the entire the 29th, midnight a.m. on the or he from to 8 occurrence. midnight I don’t didn't work shift. know Yes, PATTON: Your Honor. state MS. midnight the whether that occurred from 29th Gene Rounsaville for would like recall Mr. 30th, through a.m. whatever it on the was correction, go I will need to a matter of you I ascertain on the 30th. want get him. downstairs the records and not custodian of bench, May approach the MARKS: we MR. hanging. it should come in leave it I think Your Honor? point. taking I am an extra half hour at some THE COURT: Yes. Hayden, perhaps Mr. noon for between (The following proceedings had at you, you get the the two of can work record bench, hearing jury.) outside get somebody, and can the custodian Honor, I found out MS. PATTON: Your record, it to tie in. August, indicates his work record for copies. MS. PATTON: We have 29th, he was at that was that he work on you somebody THE COURT: Can find 30th, appar- there’s no not at work on the confusing. verify it? You was said it appro- explanation for I believe it's ent that. Honor, MR. GEER: I believe that Your we record, being than priate to correct rather testimony, can obtain utes, not within a few min- withholding exculpatory material. accused of couple within hours. but position your if Mr. THE COURT: What’s he"can THE COURT: Mr. Geer thinks have purpose? Rounsaville recalled for verification, you the him, and then if want to recall you If what are MR. MARKS: I understand way. we will leave it that 29th, morning, saying, he is that you another MR. MARKS: Do wit- work, he was was at and on the 30th home. ness? home, you day that what next he was problem. I MS. PATTON: That’s saying? are going to rest. Well, witness, PATTON: not real clear. The MS. it’s employer Larry The evidence Maier, the 29th he was work- cards indicated that on established that Gene Rounsaville shift, ing graveyard Thursday, August and on the 30th he midnight worked shift a.m.) (11:30 p.m. daylight was not. and the 29th 7:30 (7:00 up morning August Friday, I don’t to come that we a.m. Now want it shift 30th you p.m.). Consequently, He testi- and didn’t have that. he was at work knew let 3:00 day really what time that the morn- that he didn’t know mine at the that he testified fied meeting following ing with Dr. Gale occurred was.

605 preparatory transcript juvenile hearings The course of efforts and consequent- Dr. discovery denied Gale is pretrial discovery, and a motion for includ- ly significant. The record in estab- itself ing requests eighteen para- in itemized documentation, lished which was not made documentation, graphs for informational counsel, available to defense that “some- April 6, on were 1987. Additional filed one” had told D-PASS talk workers not to 6, April motions filed on 1987 included a to Dr. representative. Gale’s Interviews or, alternative, motion to dismiss in the possible the children were not and suppress testimony of the Rounsaville fam- nothing other written state- than interview ily premised immunity agreement on the ment offi- investigating information by Gene made and Linda Rounsaville with family regarding cers the Rounsaville was prosecutor’s authority; compel a motion available. records; psychiatric the disclosure of a mo- 12, 1986,

On December Dr. Gale filed a impeaching tion for disclosure of informa- general discovery typical notice for in form tion; comprehensive memorandum requesting all available documentation held support brief of these motions for dis- by law prose- enforcement officials and the covery. Every one of these motions were cutor. A for a particulars motion bill of ultimately judicial support denied. No was 27, 5, was filed February 1987. On March given process goal to reach the due 1987, in opposition the State filed motion 667, 3375; Bagley, 473 U.S. 105 S.Ct. Unit- requested particulars, stating to the bill 97, Agurs, ed v. 427 96 States U.S. S.Ct. everything that had been includ- furnished 2392, (1976); 49 L.Ed.2d 342 Davis v. Alas- ing the Wyoming criminal file State 1105, ka, 94 39 L.Ed.2d 415 U.S. S.Ct. Rounsaville, Docket Gene No. 86CR- (1974); and Brady, 373 U.S. 6, 1987, 8813. April On Dr. Gale filed a Quinn, S.Ct. 1194. See Mate- Standards of or, alternative, motion to in the dismiss riality Governing Duty the Prosecutorial suppress testimony preserve for failure to Defense, to Disclose Evidence to the VI evidence. chal- The basis the motion (1989). Alaska L.Rev. 147 lenged by audio failure to record interviews Topics included in the mem- discussion tape, resulting prosecutorial or video in the support orandum the motions brief preserve failure to evi- collect or material discovery for were: 6, 1987, mo- April dence. On an amended particulars points tion for bill of 1. Dr. Gale is entitled immediate filed, re- realleging authorities was discovery; W.R.Cr.P. quirement specificity in the greater statements; (a) Dr. Gale’s own charges. request supported was (b) objects; tangible Documents and analysis detailed case A motion law. (c) reports tests. Scientific examination, psychiatric which was dis- dissent, Gale is discover the III of was 2. Dr. entitled to

cussed section this Additionally, government 1987. conviction record of all wit- April likewise filed recordings tape or nesses. motion for disclosure morning. Apparently ex- Dr. came back in the D-10 ad- the 2:00 a.m. incident. Gale present change was all she knew first mitted she revealed testi- she had been told either D-17 or witness had lied. There no rebuttal was what and, winter, thought mony employer's records her mother. D-7 it was but she conflict with morning. consequently, or re- the next All she knew without cross-examination was not there

buttal, Why dispute Gene was told to her D-17. was what meeting family meeting have to a that did not occur Rounsaville could not attended a testified upon August philosophy he was at at the authenticates the entire 30th because work Furthermore, exculpatory it was is founded so that infor- coal mine. established Alaska, predeter- time had been mation will not be hidden. Davis his schedule for that and, (1974); contrary 94 S.Ct. mined to the intimation U.S. 39 L.Ed.2d 763; Brady, prosecution, Giglio, no basis which he 405 U.S. there was 1194; night Superior Court expected to have U.S. Pitchess v. could have worked Angeles County, alleged Cal. were Los 11 Cal.3d before when the events of Rptr. present she was when 522 P.2d 305 occurred. D-17 testified any and viewing of dis- 4.Production Dr. is entitled to immediate in the tangible possession evidence all covery exculpatory of all evidence expects defendant defendant that the government. possession of the introduce at trial. to government a 4. Dr. is entitled to Gale by Dr. with- Compliance provided was Gale witness list. court of a formal entry out the trial eventually in- Dr. to 5. Gale entitled Oregon, 412 U.S. Wardius order. See all Act and is enti- spect Jencks statements (1973)and 2208, L.Ed.2d 82 inspection of other doc- tled to immediate Florida, 78, 90 S.Ct. 399 U.S. Williams exculpa- Act reflecting uments non-Jencks (1970). Com- L.Ed.2d 446 also See tory statements witnesses. Discovery ment, Limiting Prosecutorial to April Right was a motion Amendment Filed on Under the Sixth also Ef- Hutchin- County D- Assistance Counsel: Campbell of all for disclosure fective (1988) People, 66 Den.U.L.Rev. son v. discovery a for PASS files and motion Israel, LaFave and J. Criminal motions, and W. subpoe- school records. With 19.4 Procedure produce § on to nas were served D-PASS anticipated hearing; motion records for the hearing April 1987 on A was held on psychiatric to furnish May Sheriff Subsequently, on pretrial all motions. Rounsaville, concerning 1, 1987, opposi- records Linda the State filed a motion Rounsaville, D-10, D-17, and psychiatric S-ll for Gene tion Dr. Gale’s motion to Dr. D-7; attorney pro- examination; opposition to prosecuting on the a motion books, tape record- tangible for disclosure of documents or Gale’s motion duction of juvenile court ings transcript of the relating juvenile materials to the admission opposition to Dr. a motion in hearings; agreements between the State Gene or, to in the alterna- Gale’s motion dismiss Rounsaville; the Clerk of the and Linda to to tive, suppress testimony failure to proceed- produce juvenile District to Court evidence; opposition motion in preserve a children; to the school ing files for or, in the to Dr. motion to dismiss Gale’s files; private to the school district for alternative, suppress to her by D-17 for school school attended family; response to Rounsaville subpoenas, an Responsive to the records. pretrial discovery, Dr. motion for Gale’s objection quash subpoena motion to all contending generally that documenta- by the State in be- duces tecum was filed tion had been or would furnished organization. D-PASS half confessions, reports, requested involving 23, 1987, prosecuting attor- April On of Dr. Gale and other avail- all statements notice of alibi and for an ney moved for May 8, Dr. able documentation. On reciprocal discovery, re- requiring order response opposi- filed a to State’s for ex- quiring Dr. Gale make available or, in the tion the motion to dismiss inspection, photocopying, amination and alternative, testimony for fail- suppress following: etc. the evidence; witness preserve ure and his that the defen- 1. List of all witnesses filed a lists in detail. Dr. Gale and exhibit trial in this to call at the dant intends defense; response his notice of matter. disclo- opposition to motion for State’s 2. and all written state- Copies tape recordings transcripts sure of by the to be called ments made witnesses response juvenile hearings; (excluding by the statements defendant alibi; demand for notice State’s defendant), tape copies of all compel. A affi- motion to further further 3 minor vic- interviews of the recorded support previously davit filed in all was transcripts thereof. tims and discovery requests filed detail psychologist employed reports, consulting or medical Any 3. scientific licensed books, documents, tangi- stating premise a factual or other Dr. Gale papers, produce A motion to expects pro- request. further objects the defendant ble notes, May filed obtain was trial. duce at memoranda, relating discovery etc. to contact be- was answered comment tween members Sheriffs office with that either the item had been resolved any designated proposed by witness Dr. rulings furnish, oral agreed or the State Gale. which subject segment is the instant of this of this dissent: requested

Each item of was opinion May denied letter filed requested The defendant has that there equivalency criteria of Wardi be furnished to him the substance of the basis timony been furnished and the additional basis that examined immaterial and irrelevant in us, strable inducement. The motion for disclo mination that evance existed. The motion for disclosure of the miss sure of school records was denied on the Williams, would have been different. A ‘reason- the materials reviewed was determined that, able pursuant This has been done ing in Pennsylvania v. [39], 94 L.Ed.2d contained in the Pennsylvania v. Ritchie (1987). case, required. 412 U.S. or, of an in defense, probability if there is a reasonable was had D-PASS in the part 399 U.S. to the definition of premised camera, camera review and the deter nothing materiality stated “evidence material materiality Denial of the motion to dis alternative, of the files had evidence been disclosed to files was denied on is a result on the lack of demon pursuant 93 S.Ct. 2208 and probability was asserted to be Ritchie, and relevance of ^[107] stating: suppress to the hold- materiality proceeding probability [ ] S.Ct. previously sufficient material, 480 U.S. or rel ^[989] tes the impeaching said: permit tance known, The material in the instant case does not custody, or control of the exercise of due copies connection with the which has for the tify to and the factual produced by mandated subsection or ion. Rule scientific tests or opinions factual denied to that regard the objected relevant “results of accordingly [sic] the the defendant to substance of the thereof, opinion factual basis for each such to the motion for disclosure of information, of which is expert 18(a)(ii)requires the State is requested by to the defendant’s Rule 18 under the prosecuting attorney of the any expert the defendant’s motion within the diligence may extent. is other experiments expected particular expert. known, expert opinion inspect the trial court expected portion basis State, reports the defendant witness to be appear the State to possession, The State for each the exis- made in case, request become thereof quoted of ... testify to tes- to be opin- ...”. copy The Court has considered the defen-

to undermine confidence the out- dant’s “Motion for Disclosure of Im- come’.” peaching prin- Information”. Under the The trial court considered the motion to ciples Supreme set forth Court in or, alternative, suppress dismiss previous opinions and reiterated Penn- preserve testimony for failure to evidence Ritchie, supra, sylvania v. defense coun- and found that the defense failed to meet right sel has no constitutional to conduct Supreme the test United States his own search of the files to State’s Trombetta, 467 U.S. Court California argue relevance. Unless the defense 2528, 2529, 81 L.Ed.2d counsel becomes aware that other excul- (1984) by statement that the material “ patory brings evidence was withheld and possess exculpatory ‘must an value that * * * attention, prosecu- it to the Court’s apparent before the evidence was If tor’s decision on disclosure is final. destroyed, and be of such a was [must also] specific informa- defendant is aware that the defendant would unable nature be file, contained in a he is comparable tion confidential to obtain evidence other rea- request directly free to from the sonably available means.’ It is obvious in Court argue materiality. in favor of its the instant case that these two conditions Moreover, pre- duty ongo- The motion for to disclose is have not been met.” 668, 104 may ington, 466 U.S. S.Ct. ing; information deemed original U.S. reh’g immaterial examination L.Ed.2d denied (1984); Bab important proceed- 82 L.Ed.2d 864 become as Court, ings progress cock, Play: Favorable and therefore Fair Evidence having of the confidential denied certain Assistance Accused and Effective rulings Counsel, in its and also it’s matters above 34 Stan.L.Rev. below, subsequent ruling still feels obli- prosecu- in the records of the Somewhere any information that gated to release officialdom, police there are torial files and appear may later material the fairness where Rounsa- interview statements Gene trial, will so. do morning August on the ville stated that request psychi- then Disposing drinking then first he went out examination, trial court atric concluded mid-morning meeting home came require appropriate that it was Somewhere also in those with Dr. Gale. under- children to the trauma of to submit files are time cards which demonstrate going indignity psychiatric exami- question, without determined 5, swpra. n. nation. See significance in testi- another witness whose obviously by the mony partici- was missed problem this and the The conclusion trial, pants at that none of this occurred discovery denied is the sequence entire morning Au- that time and on not have oc- fact the events could 30, drinking, going gust instead of out curred in accord with the Rounsaville went work attend Gene and, if presented prosecution proper in dis- safety meeting employ- held his session allowed, covery dispositive proof had been scheduled er was the reason for the appropriately more been devel- could have working graveyard change from his normal oped prosecution before the time during period. Somewhere also hours in to close and found that records about found are school records which would be perjury had had revealed that her hands directly presence relate to the absence already regard in been committed mid-morning children in that hour (unless employ- mid-morning meeting Davis, 308, August 94 1985. 415 U.S. possessed prosecu- ment time records (cid:127) Materiality would not be S.Ct. than the record fur- tion were different question. U.S. S.Ct. Bagley, 473 105 supervisor the mine and intro- nished 2392; 3375; 427 Agurs, U.S. 96 S.Ct. objection). evidence without duced into Quinn, supra, VI Alaska L.Rev. 147. discovery and relationship The between specificity, process generalizations due process and inaneness of the blase due 429 Bursey, from U.S. Weatherford right critique that there is no constitutional (1977) 837, 51 30 L.Ed.2d should process discovery as a of due constituent Fletcher, dispositive. Dis- Pretrial be 2 vividly more W. cannot be illustrated. Cases, 12 Stan. covery State Criminal Israel, at 481. supra, 19.3 LaFave & J. § (1960); Developments 293 L.Rev. prosecutorial relationship between the The Law, Discovery, Harv.L.Rev. conduct and accounta standard of denial (1961). ignored. bility by immunity also cannot Exculpa Beatty, Ability Suppress IV(B). AND D-PASS FILES the Prosecu tory Evidence: Let’s Cut Off COURT JUVENILE (1981); Hands, 17 Idaho L.Rev. tor’s RECORDS Brennan, The Prosecution: Criminal Quest Truth?, majority say It is not true to as stated Sporting Event or had Comment, opinion pre-1984 that all D-PASS files Wash.U.L.Q. (1963); Brady Only to Dr. Gale. certain Duty been furnished Maryland and the Prosecutor’s Clearly, Disclose, Ef documents had been furnished. 40 U.Chi.L.Rev. 112 period for the after record informa- be better of counsel cannot fectiveness been informative tion which would have process opportunities for ade the due than complete preparation was denied and quate v. Wash preparation. Strickland present emerges problem is not It is also Herein file material here. the real about clear the files themselves sanitation show inspection. the in camera There has to be agen- so that involvement and decisions of judicial ig- justifying a limit to discretion cies other than D-PASS could be concealed. responsibilities nored and due fairness Generally, category of information re- process litigant. for the Even with the non-activity lates to from the first incest discount for the smaller base of informa- report finally of 1979 until action was un- judge tion available to the trial from what dertaken in 1986 and then terminated writer, is now available to this there was pursue order to Dr. Gale.10 no reasonable basis denial of availabili- school, real issue D-PASS ty of these records to counsel for Dr. Gale juvenile proceeding records is how much except knee-jerk either determination to prosecution was the and the trial court or, deny alternatively, all to coun- going protect family the Rounsaville county tenance the officials’ conduct which perjury pro- in trial up covered the incestuous offenses of a ceedings. Directly presented are both the young daughters. father To be Ritchie, Pennsylvania v. U.S. by the Dr. hidden conviction of Gale was (1987) process L.Ed.2d 40 due year the seven course of offenses Gene Brady, and the 373 U.S. 83 S.Ct. 1194 against Rounsaville those same children. production confirmation issues denial of There are two attitudes about exercise of justifica- kinds of That these records. for trial court in discretion camera review. encompassing privacy tion as interests adaptation judge One leaves the to be the weight of the minor victims has no here analyst advocacy aptitude critical in and since what information was available had consequently tends the decision to a denial already general the outline of established litigant of access to the unless clear and the criminal misconduct of Gene Rounsa- significant justification is discerned the against Availability ville his children. invade, judge. philosophy This is to in be observed priva- all documentation would not Ritchie, in plurality writing 107 S.Ct. 989. cy, only it could serve to advance second, clearly and more attenuated to pending search for truth in a criminal com- finding adjudicato- in fact fairness full and plaint. Superior Pitchess v. Los Court of ry process, analysis is to leave critical County, 11 Angeles Cal.3d Cal. (1974); inspection spe- counsel for or review unless Rptr. People P.2d privacy Ill.App.2d cial harm or invasion without bal- Crawford, 252 N.E.2d (1969). ancing benefit is evident. Denial of dis- large questionable against 10. A amount of can be ob- event den- information chase one comprehensive tist, exist, disputes tained from a review of the in date where obvious is also by comparison what camera documents undisclosed. question remaining was revealed with about Comprehensive review of the school records obvious, "completeness” production. It is interesting provides an conclusion. There is example, that the school district did not "create” nothing absolutely provided about the school for documentation of sexual abuse re- records personnel district contacts with D-PASS or oth- porting that either their were documents public agency showing er involvement of its destroyed telephone the school had a district personnel reporting responsibilities in accord to policy file so that it could remain hidden family problems. for the Rounsaville incest D- beyond reporting respon- from identification its at least PASS records show contact with school We know that the authorities sibilities. school personnel, provided, the non- but school in reported, report but the school records do not records, disclosed in camera no evidence of they apparent did. It is also deci- contacts and no documents. non-prosecution by county attorney, sion of court, present In fairness to the review of only for the incest but the sexual offenses documentation, not once but at least total rape on other children as well as the committed times, without an time limitation D-17, four absolute is sanitized non-inclusion of doc- completion comparison of careful clearly did exist before removal uments that preliminary hearing perjury obvious trial Any record that would from the D-PASS files. family provides op- a different forego prosecution Rounsaville explain Gene decisions to (or five) portunity pretrial what was available with- Rounsaville for sexual assault on three year in the in camera review. of his children as a seven course of events Ritchie, Pennsylvania covery Appears post-defense about victim counsel- After perpetra- 33 S.D.L.Rev. 437

ing where the defendant was the example properly pro- tor is an such significant for D- authority There is event, discovery.11 in scribed In either compatible is PASS record disclosure which rational, inspection re- camera should be a confidentiality provisions W.S. with the and fair-minded examination and alistic exception in access sub- 14-3-214 its Here, analysis. I find a clear abuse would (b)(vi) providing in for the camera section lacking any persuasive reason of discretion inspection before disclosure use.12 except preparation use for trial for denial in public records sum- status of assistance subsequent cross-examination and with reported analyzed is in mary of decisions availability im- justification for in clear Prac- Reynolds, Emerging Trends Civil finding. neither defend- proved fact Since Confidentiality Public Assistance tice: counsel, ing appellate nor trial counsel Records, Clearinghouse Review 540 different, material, in have ever seen (1989): rejection puts fashion a due camera stated, they that where Briefly establish totally process and fairness review on the public recipients assistance themselves require the appellate opinion writers. To files, where the seek disclosure of their litigant appellate to write an brief where sought pertinent are to the sub- records creates part of the record undisclosed judicial inquiry related ject of delivery justice mockery or facade public assistance administration system. example, difficulty For I have question, produc- program where the investigating believing that officers manageable in request tion limited and investigate Campbell County failed compelling, scope, and where coun- its no were on D-17 and Gene Rounsaville where tervailing interest has been demonstrat- August If morning this was agency, the balance of inter- ed done, why not? ests mandates disclosure. Perhaps strongest reason for availabili Finally, majority’s I am discus- lost early New York ty was stated in an case Perjury of this issue. was committed sion recipient permit the family. Records which would otherwise by at trial the Rounsaville “and time seal the prosecution permit testify to de- to at same were available to may successfully explore perjury lips was of those who contra fense to whether com- Feuerstein, People 161 jury. Access dict them.” v. mitted for information of 239, 426, (1936). 241 293 See Perjury at trial does seem Misc. N.Y.S.. was denied. exacting pursuit of me in mor- the careful and majority does also to bother —it Reidout, al, People release in and terms. I do informational v. ethical constitutional (1988) 632, disposition 140 Misc.2d 530 N.Y.S.2d 938 majority not read Ritchie 409, Prim, promote v. 47 A.D.2d 366 People trial conduct to and its issues (1975). Certainly, 726 no absolute perjury countenance of N.Y.S.2d contrary or seek Juras, presented. directly privilege is v. particularly so when involved Stivahtis and 519, (1973). 421 The reputa- Or.App. 511 P.2d in a test of man’s constitutional adopted tion, policy by in- this court in liberty interest when rule and the career and Dept, County criminal convic- rel. Laramie by a sexual offense Price ex fected Pearson, Hutton, Confrontation, Public v. tion. Cross-Ex- Welfare (Wyo.1968) poli is consistent with the same Discovery: Bright A Line amination Privilege confidentiality, applied repetitive, requests 12. when To for documenta- be records, have used in- communications or terchangeably been Dr. Gale related offenses com- tion made linguistic have but a different upon the Rounsaville children their mitted Confidentiality secrecy refers derivation. Dr. if documentation relates to father and Gale, non-public document. or lege ed, nature Privi- summaries, investigative except fewa exempt- to the status of the actor as relates is not now here and remained such information W. or not-accountable. See Bur- excluded inspection by the for the in camera undisclosed 99, ton, Legal Black's Thesaurus Cf. judge. 269, 1979). (5th Dictionary Law ed. destroyed way.” My recitation of has not been the truth “some cy process go or denied court decision authority prosecution statute in criminal need specifically recognized the where this court no further than clear text of both responsi in camera process and disclosure Wyo- and the United States Constitution trial court. bility of the principle unin- ming Constitution and clear majority say also seems to terruptedly The announced that conviction challenges adequacy defendant perjury unacceptable. Napue People compliance, inappropri- it becomes Brady 264, Illinois, 360 U.S. State strengthen challenge by access ate to 1173, (1959); Mooney 3 L.Ed.2d 1217 S.Ct. documents for a demonstration of to other Holohan, 294 U.S. 55 S.Ct. says: non-compliance. majority The 294 U.S. reh’g L.Ed. denied authority supporting his cites no Gale (1935); Crawford, 79 L.Ed. 1261 S.Ct. materiality of the constitutional criticism 252 N.E.2d 483. used being standard as devised to be of the entire Discovery production hindsight. Bagley, 473 U.S. Cf. proceeding records addresses an juvenile at 87 L.Ed.2d again inquiry. broader I am confused even Rather, ap- the standard 494-95. like majority’s reasoning. The with the basis ap- plied prosecution Brady, it requirement prepare to dem- pears to have intended to focus been per- that some perjury. onstrate fact on an in trial court's attention camera is, record, jury did occur within this undeni- privileged search for information the chil- juvenile proceedings able. change the outcome of a defen- could hearing apply preliminary and the criminal eager trial. seems dren dant’s type to the Rounsaville would proceeding standard Gene their they compa- he assumes have not met provided directly once information obligations Brady, under but he does testimony of those wit- rable to the trial apply to him the trial court to want the constitutional context nesses. Within privileged information when it reviews Davis, no 415 U.S. pivotal in his de- speculates he except an reason for denial is reflected ways. have it both fense. He cannot Dr. rejection of to assist adamant consequent preparation with a Gale’s trial my persuasion that rather than It is perju- perhaps unintended insulation to “have it both attempt of the defendant ry responsibility.13 effort to have access to ways,” this was an subject juris- majority children are discussion named minor understand the 13. I do not juvenile proceed- diction of this court as follows: existence of court about the 17], age only pleadings of ings. Obviously, a minor child of the there were not 1. is [D— documents, (17) years, having been born on a few which found their seventeen and file of record, transcripts pro- August all way but of 1969. into this [S-ll], age required by of ceedings 2. is a minor child of the trial court as before (11) having tape years, been born on record- There would also be éleveen [sic] court rules. ing county appearance April of Gene 1975. of the court [D-10], age hearing of ten preliminary when he is a minor child of at his 3. Rounsaville (10) having April years, 1976. initially charged been born on with the incest-sexual was children, [D-7], age of the of by is a minor child one or more 4. abuse offenses (7) year[s], having born on Febru- may Since existence of been it have been. seven ary whichever realistically year is 1979. course of offenses the seven record, [D2-3], age perjury child of the of his is a minor unquestionable on this 5. (3) having years, on June probably that other been born appearance with of three that testified, family, if must 1983. members [Dl-3], age of is a minor child of 6. exist. also (3) years, having June been born on three games unbecoming play and avoidance We 1983. copies prosecution has question whether the of the minor children is records, 7. That the father can- juvenile existence of which Rounsaville, resides who Elmer Jean "Gene” samples found in are to be be doubted since Hills, Rozet, Campbell County, # 12 Silver stating: by petition, as witnessed this record * * *, Wyoming. Campbell Deputy NOW COMES hereby the minor children Prosecuting Attorney, That the mother of and 8. County and Rounsaville, # 12 who resides at is Linda Sue court that the above petitions and states to the go into the and this court need no further properly Once we have confined is- subject. abjures categori- prosecutorial obligation Clearly, Ritchie sues for review to in cal denial without determination identify consequent camera in- motion what, court, any, reason- it seem records exist if spection by would necessity shown, subsequent Ritchie, then dispositive able that 107 S.Ct. 989 Hills, Rozet, partment County, Wyo- Ser- Campbell of Public Assistance Social Silver ming. dating involving excessive vices back currently punishment possible That minor children are in corporal 9. sexual Campbell protective custody County pun- by corporal Mr. abuse Rounsaville. Department Public and Social Assistance has taken the form of ishment the children Gillette, County, Wyo- Campbell Services beatings hangers as well as leather with coat ming. Additionally, straps. has Mr. Rounsaville minor children are 10. above named weapons inside the home been known to fire pursu- subject jurisdiction this to the reported gun against placed a and was to have 6—203(a)(i), Wyoming § ant to Statute 14— head. wife[’]s they neglected as defined that are child[ren] [D-17], age reported extensive has 14-6-201(a)(xvi)(B), by Wyoming § Statute father, by being sexually history of abused her inflicting they by the or that causing have been abused years beginning [D-17] when she was 8 old. physical injury, or harm or mental years indicated that she was old also when danger physical or mental imminent mother an incident of sexual her molestation, witnessed or of the children other than health by welfare for it. but instead blamed [D-17] means, wit: the infliction of accidental point mother At one indicated her [D-17] corporal punish- excessive or unreasonable Utah as sent her to her home in aunt[’]s Rounsaville; father, ment "Gene" being punishment responsible the sex- for against one a sexual offense commission of return, Upon father her her ual molestation. children the father "Gene" more of the again. report- her also [D-17] molested once Rounsaville, allowing of and the the commis- [D-7], younger age he had ed that sister against of a offense one or more sion sexual early her 1982. been molested father mother, Linda Sue of the children their time told her mother about at that [D-17] Rounsaville. fa- and her mother than confronted her [sic] FOR PROBABLE CAUSE: On Novem- 11. having mo- Mr. Rounsaville admitted to ther. 17, 1986, Investigator Monty Trenary, of ber [D-17], molesting any of'the lested but denied Campbell County Office and Ter- Sheriff’s girls re- also [D-17] other or their friends. Waldorf, Campbell ry a social worker for the ported approximately she was when Department County of Public Assistance and age, photo- years took nude her father Services, met at the Rozet School to Social graphs of her. When her mother discovered child, [D-7], pursuant to a minor interview “being photographs, she accused [D-17] sexually complaint had molest- that she been photos. burned the bad” and then father, Rounsaville. The ed her “Gene” occurred 12. The above described events minor, old, years Trenary told who is 7 Inv. County, Campbell Wyoming. begun father Mrs. Waldorf that her had * * * guardian appointed ad has been 13. approxi- sexually molesting her when she was litem for said minor children. old, mately years and the latest incident was WHEREFORE, your petitioner prays 28, 1986. The minor on or about October hearing for such matter be set [t]his sleeping in a room said that she had been proceedings proper other year when her father with her old brother matter. pulled down her into the bedroom and came November, day DATED this vagi- rubbing began her then bed covers. He /s/_ while, and then left the bed- nal area if her father The minor uncertain room. placed County Attorney Deputy Campbell vagina, finger because inside of her n * *, I, Attorney Deputy Campbell County past her so much in the she he had touched duly being that am the first sworn state I did or didn’t. The recall the times he can’t matter; petitioner foregoing that I have when her father also indicated that minor petition, foregoing under know and read past, has her her in the he told that molested stand the contents and that statements anyone. ever her” if she told he would “kill therein are true. brother, made 11], also witnessed The minor's [S— /s/___ evening on the of October the sexual assault 28, 1986. County Attorney Deputy Campbell Trenary investigation by Inv. Further this 1R and sworn to before me Subscribed an extensive his- Waldorf have revealed Mrs. November, day 1986. physical tory and sexual abuse father, /s/_ passive accept- and a their children NOTARY PUBLIC Mrs. Waldorf has of it their mother. ance Expires: Aug. 15, My reports Commission 1988 the De- documented obtained

613 submission to the trial court for camera after an analysis Myers, extended Bays, review. Becker, Berliner, Corwin, Saywitz, & Ex- (as

We find that Ritchie’s interest well pert Testimony in Child Sexual Abuse Commonwealth) as that of the in ensur- Litigation, (1989): 68 Neb.L.Rev. 145 ing protected a fair trial can be fully by Expert testimony plays important requiring that the CYS [Children role in litigation. child sexual abuse Youth files be submitted Services] testimony Such can jury assist to the trial court for in camera review. Yet, many ways. issues raised Although this rule denies Ritchie the expert testimony are exceedingly com- benefits of an eye,” “advocate’s we note plex, and clinical and scientific under- the trial court’s discretion is not standing of child sexual abuse is still unbounded. If a defendant is aware of developing. proceed Courts should cau- specific information contained in the file tiously considering when the admissibili- 0e.g., report), the medical he is free to ty of expert testimony on child sexual request court, directly from the vitally abuse. It important pro- argue in materiality. favor of its More- offering fessionals testimony such be over, duty ongoing; disclose is highly qualified. Courts should insist on may information that be deemed immate- thorough showing expertise upon original rial before examination be- important permitting come proceedings testify individuals to as ex- progress, obligat- Furthermore, and the court would perts. courts should re- ed to release information material to the quire proponent expert fairness of the trial. lay complete foundation so that the Ritchie, precisely 107 understands how the evi- S.Ct. at 1003. dence is appropriate relevant. When perceive I clearly. this court dis- exercised, caution qualified experts regards Amendment, the Sixth constitu- can in attaining justice. assist confrontation, tional and the Fourteenth Amendment, process requirement, due re- accept I do not the attitude that “what Ritchie, lated in 107 S.Ct. 989 and earlier yet should be untimely is however to be” in Davis, addressed 415 U.S. 94 S.Ct. procedural equivalency jus- as a search for Napue, also 360 79 See U.S. tice. The issue of this case is not whether compulsory process S.Ct. 1173. The clause average Dr. Gale received a fair trial. No compliance in criminal would examiner, unbiased whether learned in the juncture. also least reach to the same not, likely law or would examine the record Ritchie, 1001; Bagley, S.Ct. presented. and find a fair result The issue 3375; Agurs, U.S. 427 U.S. unconstitutionally is whether an unfair re- 2392; Brady, S.Ct. 373 U.S. lationship for defense was created 1194.14 S.Ct. rejection trial court’s uniform of Dr. Gale’s discovery motions. REQUEST

V. FOR SUMMARY OF EXPECTED EXPERT WITNESS Differing majority, from the I would ex TESTIMONY tend the obvious unfairness to reach a de gree prohibited unconstitutional unfair pervasive problem expert This wit- litigation summary expected nesses criminal is summarized ness. Denial of a analysis Bagley, chological 14. The three scenario records do exist and the examination knowing prosecutor U.S. 105 S.Ct. 3375 as directed to contents had occurred perjured testimony, Napue, use of 360 U.S. so that whatever relevant information Mooney, consequently U.S. S.Ct. exist was undisclosed. United 340; 858, 874, Valenzuela-Bernal, specific prosecutori- request of defense and States v. U.S. evidence, 3440, (1982), responsive Brady, al failure to disclose 102 S.Ct. 73 L.Ed.2d 1193 alien 83, 1194; 668, Strickland, thirdly, deportation; 373 U.S. 83 S.Ct. and witness 466 U.S. 2052, See, Brady request defendant does not make a and 104 S.Ct. ineffectiveness of counsel. however, prosecutor tion, Giglio, fails to volunteer favorable informa- 405 U.S. 92 S.Ct. Agurs, provided by prose- 427 U.S. at 96 S.Ct. at 2401 are where false information was psychiatric only applicable psy- here if the or cutor. terribly that three dec- expert testimony was one of find obnoxious state witness in significant steps nationally adjudicated toward unfairness and millions of ades justice.15 to even-handed later, contradistinction obvi- argue we about what is cases reject premise I the subsurface First exchange summary for ously fair in only justice procedural and fairness should testimony. It was expected expert witness prose litigation be to civil and available prosecu- to the quest out of fairness Comment, in criminal su cutor cases. See rules, 16.1 and that the alibi W.R.Cr.P. tion pra, The entire 66 Den. U.L.Rev. 123. 16.2, reciprocal discovery provisions, modernized of the federal rules and thesis 18(d), were created. W.R.Cr.P. practice, procedures which include motion here de- made cannot be decision equal to pretrial provide justification in of exercised discretion fined equivalency knowledge in opportunity criminal defendants it is said that unless pre consequent trial and a rational before guaranteed civil rights be denied should of the facts at trial. Trial sentation Co., 626 litigants. v. Ford Motor Smith eliminated. accident was ambush and be cert, Cir.1980), (10th denied 450 F.2d 784 urgently Reference to W.R.C.P. 67 L.Ed.2d U.S. 1 states: required. W.R.C.P. Rules for the District Uniform govern procedure in all These rules part 601, pretrial practice, pro- in Courts Wyo- in the State courts of record vides: actions, proceedings ming, in suits or all (a) con- pretrial In in which a all cases nature, statutory special a civil in all notice of ference is ordered reasonable except provided as Rule proceedings place given. shall be the time and appeals in and in all criminal cases. In all cases statutes civil ^{[*] [*] [*] [*] [*] [*]} applicable by statute procedure are made (c) pretrial shall: counsel Before and are not the trial of criminal cases n n : n n # Wyoming Rules of superseded (4) names opposing Furnish counsel Procedure, these rules shall Criminal witnesses with a and addresses of supersede are they as or govern insofar summary expected testimo- their They statutes. in conflict with such ny!;.] just, to secure the be construed shall inexpensive determination speedy and recognizing right to have access every action. court, witnesses, the names of Jack added.) State, (Wyo. adopted by (Originally son v. (Emphasis 1974), Supreme De- Wyoming Court effective said: thirty-two years ago.) cember develop required a de- Counsel is trial, time fense for the first perhaps purpose, that noble Despite attempted to any attorney I who do so only platitude, to be trials criminal objection testimony Lacking appropriate trial 15. and non- Having read and re-read the now appeal, worker Geral Blanchard as we of clinical social as an issue on can inclusion (B.A. sociology prosecution's wind-up witness fairly consequent consider undisclosed text psychology), I anthropology and a minor in inadequate preparation. An in limine attack on prosecu- understand the reluctance of can testimony scope entire should have been pretrial expert provide basis for wit- tion credibility bolstering directly made raise testimony. summary of classification and ness then See character of what was said trial. issue, appellate I as an but It is not raised York, 564 A.2d 389. Neither caution admissi- anything pertinent, or ma- find relevant cannot receipt apparent bility nor here. relevance clearly generalized discussion direct- terial but Becker, Berliner, Say- Myers, Bays, Corwin & reliability provide to the an umbrella ed to testimony witz, supra, 68 Neb.L.Rev. State v. Per- Cf. children, although di- so son, (1989), Conn-App. 564 A.2d 626 State, Stephens rectly 774 P.2d 60 done as in type defendant. This of evi- when undenied challenge entire testi- (Wyo.1989). would I twilight zone the witness dence in a where essentially mony direct- of the social worker knowledge special skill and should have credibility provide an atmo- bolster ed to helpful York, make their information guilt. believability State sphere of (Me.1989). jury. 564 A.2d 389 stage justifiably late would his just have cases and not because it is a criminal questioned litigant present case. Neither nor competency majority open and be to authority cites provides cogent or reason- interviewing criticism at the least. The ing why, as an attitude adaptation on of witnesses, prospective any party of or required justice what litiga- in civil may knowledge who have some of the provided a matter tion, it need not be —as event, subject procedure such a basic course —in criminal Casual read- cases. of proper preparation in the of either a civil appellate reports ers of state court cannot or criminal case that it is axiomatic. any perspective to degree the properly Discretion exercised involves experts have prosecutions invaded criminal arguably appropriate choice within alterna- ease, particularly so, and like this where exercise, opportunity tives. it is charged.16 sexual offenses are deny equivalency to fundamental and fair- To subject forcibly address the with- then litigant. Martin, ness for each 720 P.2d rights granted by the the 1957 rules of 894. procedure, rights expert civil were wit- There be could reasons for discretional summary ness extinguished extricated or expected expert of denial witness testimo- by procedure? the 1968 rules of criminal ny 18,17 summaries criminal cases which We have conjecturally W.R.Cr.P. W.R. should be no less nor more empirically no than civil Cr.P. W.R.Cr.P. 16.119 fense, Excluding request one 16. the defensive effort and that the is reasonable. Ex- cases, spouse provided (a)(2) abused homicide the cept use of ex- as in subdivision this rule perts predominantly cases are these limited inspection does not authorize the or prosecutorial advantage. Examination of the reports, govern- of or memoranda other internal just opinions criminal might nationwide for one week by governmental mental documents made appellate twenty reveal fifteen to agents reviews investigation in connection with the or rape expert case, where use of the offense is notewor- prosecution of or the of statements made thy by spe- in discussion. Prosecution forensic prospective state witnesses or state witnesses Wyoming. cialist is not unobserved in See (other defendant) governmental than the Brown, Scadden, 732 P.2d (c) agents except provided in subdivision of examples. 1036 as non-exclusive this rule. (c) production Demands statements of (a) statement; report 17. exami- Defendant's of reports witnesses. of tests; grand jury nations and testi- defendant’s (1) After a witness called state the has defendant, mony. Upon motion of a the court — examination, on testified direct the court may attorney permit order the for the state to shall, defendant, the motion of order the inspect copy photo- the defendant or (as produce any state to defined) statement hereinafter any graph relevant: possession of the witness the of (1) or Written recorded statements or con- subject the state which relates matter as to copies fessions made thereof, the or defendant the which witness has testified. the entire If possession, custody the within or con- of contents such statement relate to the state, trol of the the existence of which is witness, subject testimony matter of of the known, diligence or of due exercise directly shall order to be court delivered known, may prosecuting become to the attor- to the defendant examination use. ney; (2) If the state claims statement (2) reports physical Results or mental produced to be ordered under this subdivision experi- and of tests examinations scientific or matter contains subject which does not relate to the particular made ments in connection with witness, testimony matter of the of the case, thereof, copies possession, within the or shall the state court order to deliver such state, custody or control of the existence inspection statement for the known, of which is diligence may or the exercise of due Upon delivery camera. such the court shall known, prosecut- become to the portions excise the of such statement which ing attorney; and subject do relate to the matter of the (3) Recorded defendant be- testimony of the witness. With such material grand jury. fore a excised, delivery then court shall direct (b) books, documents, papers, tangible Other such statement to the defendant for his use. objects places. Upon of a or motion defendant — If, pursuant procedure, any portion to such prosecuting attorney the court permit order statement such is withheld from the defen- inspect copy the defendant or objects dant and the holding, with- defendant to such books, documents, papers, tangible photograph objects, adju- and the trial is continued places, copies buildings por- or defendant, guilt dication thereof, possession, are tions within pre- text of statement entire such shall state, showing custodyior control 18,19. materiality preparation page his de- See notes 18 and 19 on may priate. Upon by the state the court Note 17—Continued motion state, showing, by permit to such in whole served the and in event the defendant the state make part, appeals, appellate a to shall be made available to the or in in the form of written statement determining inspected by purpose camera. the of the cor- be the court in If court the following ruling judge. granting a of an order relief rectness the of the trial When- court enters camera, showing any of state- is delivered to the defendant the entire text the ever statement rule, discretion, pursuant preserved court ment be sealed and in the record to this the in its shall defendant, may appel- upon application to be to the recess of the court made available proceedings may appeal by as the of the in the trial for such time it late court event reasonably required determine to be for the defendant. by (g) this examination of such statement said defen- Time motions.—The motion under (10) may only days preparation its made ten dant in his use in the trial. rule be within (3) comply arraignment later If state elects not to with an after or at such reasonable the (1) (2) may permit. of the court under subdivision or time as the court The motion shall order any sought relief this A hereof to deliver to the defendant such include all under rule. portion subsequent may upon such as the motion be a statement or thereof court made direct, showing may why the court shall from the of cause such motion would be strike justice. testimony of the and the the interest of record the witness disclose; (h) Continuing duty proceed the dis- to to trial shall unless court its failure comply. subsequent compliance to with an cretion shall determine that the interests of —If rule, pursuant justice require prior this and to that a mistrial be declared. order issued trial, (4) during party as a discovers additional ma- The term "statement” used subdivi- or (1) (2) (3) relating previously requested or sions and and of this rule terial ordered which state, any by subject discovery inspection the witness called the means: or under rule, (a) notify by promptly party or A statement said wit- he shall the other written made signed adopted ap- attorney and or his or the court of the existence of the ness otherwise or him; during by any proved or additional material. If at time the mechanical, (b) brought stenographic, proceedings A course of the it is electrical thereof, recording transcription party a other a attention of the court that has failed to or or substantially comply is a verbatim recital of an with this rule or with an order issued which rule, may by pursuant made said witness to an to this the court order such oral statement permit discovery inspection agent contempora- party to mate- of the state and recorded or disclosed, neously making previously grant not a continu- with the of such oral state- rials prohibit introducing party ance or the ment. disclosed, may (d) or it Discovery by grants evidence the material the state.—If the court just sought enter other order as it deems under by such the defendant under subdivi- relief rule, (b) (a)(2) may, the circumstances. sion or subdivision state, W.R.Cr.P. 18. by its order on motion of the condition permit requiring the the defendant state filing any the 18. At time after the indictment copy inspect photograph or or and scientific upon or information the court motion of documents, books, papers, reports, medical (1) may party upon or order its own motion one thereof, tangible portions objects copies or or more to consider such matters as or conferences produce the which the defendant intends at promote expeditious trial. will a fair and At the possession, and are within his custo- pre- conclusion of conference the court shall control, showing materiality dy upon a or pare and file a of the matters memorandum case, preparation of the state's and that the the by agreed upon. de- No admissions made Except request is as to scientific or reasonable. attorney his at the conference shall fendant or reports, does au- this subdivision medical against the be used defendant unless the admis- discovery inspection reports, or thorize writing signed by are reduced sions defense or other internal doc- memoranda attorney. defendant and his This rule shall not attorneys his made the defendant or uments is not be invoked case of defendant who investigation agents in connection or represented counsel. case, made defense of the or statements or witnesses, defendant, byor or defense state W.R.Cr.P. 19. witnesses, by prospective state or defense or defendant, (a) agents attorneys. Upon de- his or Notice written defendant.— Time, (e) attorney stating discovery for the state place and manner mand time, date, place granting alleged re- at which the of- inspection. order of court —An committed, specify the time and fense was the defendant shall serve under this rule shall lief (10) making days, place discovery within ten or such different time and manner direct, attorney may may prescribe inspection permitted such just. to offer a as are state written notice of intention terms conditions (f) Upon of alibi. Such notice the defendant Protective sufficient show- defense orders.— specific place places ing time order that the shall state the at which the court denied, inspection to have at th’etime of restricted or the defendant claims been deferred, alleged appro- as is offense and the names and addresses or make such other order appears which specific prosecutorial even-handedly which are to apply, and 16.220 as W.R.Cr.P. 1721 discovery rules as well sciousness, automatism, or traumatic Note 19—Continued automa- rely upon alleged of the witnesses whom he intends to tism at the time the of offense. copies report to establish such alibi. clerk of court shall deliver of the (b) Disclosure and witness.-— attorney for the state and the accused or of information thereafter, (10) days event Within ten but no his counsel. trial, (10) days less than ten before unless the (c) Disclosure and witness.— of information directs, attorney court otherwise the for the (10) days report Within ten after the examiner’s upon state shall serve the defendant or his attor- him, upon is served but in no event not less ney stating a written notice the names and ad- (10) days than ten before trial unless the court upon the witnesses whom the state dresses of directs, attorney otherwise the for the state shall rely pres- intends to to establish the defendant’s upon attorney serve the defendant or his a writ- alleged any ence at the scene of the offense and stating ten notice the names and addresses of other witnesses to be relied on to rebut testimo- upon the witnesses the intends to whom state ny any of the defendant’s alibi witnesses. of not, rely to establish that the defendant did (c) Continuing duty prior or to disclose.—If to offense, alleged the time of the suffer from trial, during party learns of an additional unconsciousness, automatism, or traumatic au- known, identity, witness whose should have witnesses, any other to be relied tomatism upon been included in the information furnished un- testimony any to rebut of of the defen- (a) (b) party der or the shall subdivision relating dant’s witnesses to such a defense. promptly notify party attorney his the other or (d) Continuing duty prior to disclose.—If to or identity of the existence and of such additional trial, during party learns of an additional witness. known, identity, if should witness whose (d) comply. Upon to the failure of Failure — included in the been information furnished un- comply requirements party the of either to (a) (b) party der subdivision or shall rule, may testimony this the court exclude the promptly notify party attorney the other or by any par- of undisclosed witness offered such identity of such of existence additional ty pres- as to the defendant’s absence from or witness. at, alleged ence the scene of the offense. This (e) comply. Upon the failure Failure to of — right to rule shall not limit the of the defendant comply party requirements either with the of testify in his own behalf. rule, may testimony the court exclude the shown, (e) good Exceptions. cause —For any par- undisclosed witness offered such of ty any may grant exception an court unconsciousness, defense of automa- as to the (a) (d) through requirements of subdivisions tism, or traumatic automatism. This rule shall this rule. testify right not limit the of the defendant to (f) Inadmissibility withdrawn alibi.—Evi- his own behalf. rely upon dence of an intention to defense, an alibi shown, (f) Exceptions. good cause withdrawn, —For or of statements made later any may grant exception intention, is not admis- in connection with such (e) (a) through requirements of subdivisions against any proceeding sible in civil or criminal this rule. person gave who notice of the intention. (g) Inadmissibility withdrawn defense.—Ev- W.R.Cr.P. 16.1. rely upon the defense idence of an intention (a) Upon Notice written de-

20. defendant.— automatism, unconsciousness, or traumatic state, attorney stating for the mand of the withdrawn, automatism later or of statements time, date, place alleged at which the of- intention, not, with such made in connection committed, shall fense was the defendant serve proceeding, civil or criminal admissible (10) days, or at such different time within ten gave against person of the inten- who notice direct, may upon attorney for the the court state, tion. a written notice of his intention to offer W.R.Cr.P. 16.2. unconsciousness, automatism, or defense of (a) pro- appears When taken.-—If it that a de- automatism. Such 'notice traumatic spective witness be unable to attend or particularity the facts fendant shall state with attending hearing, prevented from a trial or justify upon the defendant relies to that his is material and it is unconsciousness, automatism, or defense of necessary deposition to take his in order to and the names and ad- traumatic automatism justice, prevent a the court at failure witnesses whom he intends dresses of the filing an indictment or infor- time after the rely establish such defense. any party may upon mation motion of (b)Examination Upon the fil- of defendant.— parties order that his testi- notice to the other mony defendant, ing the court of such notice by deposition any desig- and that be taken an examination of the defendant shall order books, tangible papers nated or documents designated report examiner. A written produced objects, privileged, at the same be filed with the clerk of such examination shall court, place. committed for time and If a witness is report include detailed find- and the shall testify give appear at a trial bail to ings opinion as to failure and an of the examiner hearing, court on written motion of the did suffer from uncon- whether the accused 3500; State, (Wyo. Unfortunately grandiose character- Jones v. 568 P.2d 837 § 1977); State, P.2d Deluna past opinions, ization in it is said that no (Wyo.1972). Specifically, counsel for the right to general constitutional argue majority does State does not But this court has never re- guaranteed. 18(c)excludes, that W.R.Cr.P. conclude 1 to criminal rules to lated W.R.C.P. 18(b) in- or the exclusion W.R.Cr.P. analyze process, equal protection and due cludes, expert summaries of witnesses rights denial of to the proper discretion 26(b)(1)requirements. within W.R.C.P. effectively or cas- criminal defendant prosecutor ually available to the are It here that II ABA Standards for is prop- litigant. process cannot be civil Due (2d 1982) Criminal Justice 11-2.1 ed. fol- § ignoring modern erly by shunted the aside legal heritage lows our found modern pro- finding in modernized thesis of fact procedure: rules of Brennan, supra, 1963 Wash. cesses. defense, (a) Upon of request the the U.L.Q. 279. attorney to prosecuting shall disclose the defense counsel of the material and all surely justified argue to rule It is both prosecutor’s pos- the information within application requirement and constitutional including or not limit- session control but explication that the criminal defendant ed to: prosecutor rights equal to the should have (i) of the names and addresses wit- litigant rights all of the civil unless nesses, together with their relevant by equivalency expressly is denied rule statements; written or recorded questionable statute and even then with or (ii) validity. any written or recorded state- How then does constitutional any the of oral does, ments and substance right it deny, the to W.R.Cr.P. by or statements made the accused summary assured expert witness which is codefendant; by made a by by rules? We are not informed our civil by citation in in the briefs nor (iii) discussion portions grand jury of those however, are, majority. directed to testimony the We containing minutes (b) testimony which becomes of proviso the of subsection accused and relevant wit- nesses; proviso. (c) Act as the Jencks U.S.C. may parties request may at the a direct notice to the court of defendant witness and deposi- deposition deposition interroga- After the direct be taken. that a be taken on written subscribed, may the court dis- tion has been provided in the manner in civil actions. tories charge the witness. (e) upon any hearing a Use.—At the trial or (b) taking. party at whose in- Notice part deposition or all of a so far as otherwise of —The give deposition taken evidence, the is be shall stance may the of be admissible under rules every party written notice of other reasonable dead; appears: is used if it That the witness or taking deposition. place the the time and state, the that the witness is out of unless shall the name address of The notice state appears the absence of the witness person of to be examined. On motion a each party upon party offering deposition; procured the the served, is and for whom the notice testify or or that the witness unable attend hearing, the cause may on notice and court shown infirmities; of or or that the because sickness taking or shorten the time the extend party offering deposition has been unable deposition. procure the of the witness sub- attendance (c) payment ex- counsel and Defendant’s poena. deposition may A also used be counsel,

penses. is without defendant —If contradicting party purpose im- for the or right assign court shall advise him his peaching deponent as a represent him unless defendant counsel only part deposition If witness. offered proceed able without counsel or is elects to party, party may in evidence an adverse appears that a If it defendant obtain counsel. require him to offer all of it which is relevant expense depositions, cannot bear the may part any party offered and offer other may expenses travel and direct that parts. attorney for at- of the defendant's subsistence (f) admissibility. Objections Objections to paid — at the examination shall tendance deposition receiving part or evidence the county county. shall make In that event provided in civil ac- thereof be made as accordingly. payment (d) deposition tions. shall be taken taken.—A How provided W.R.Cr.P. 17. in civil actions. The manner (iv) any participated investigation or reports statements made or evalu- by experts par- regular- with the ation of the either connection case and who case, or, including physi- ly report ticular partic- results with reference to the case, reported prosecu- cal or mental and of sci- ular to the examinations tests, compari- entific experiments, or tor’s office. sons; We need not consider fearsome ca- (v) books, documents, papers, lamities witness intimidation con- photographs, tangible objects, build- congressional tamination considered in ac- ings, places prosecuting which mandatory addressing general tion witness attorney hearing use intends to listing. or trial obtained from or which were (1976), But see U.S.C. 3432 § accused; belong provides for mandatory disclosure of the (vi) any prior criminal record of con- capital in witness list cases any victions or of the defendant of days” “at least three before entire trial. codefendant. Supreme The proposal to Court amend (b) When the information is within the the federal rule to disclosure of include

prosecutor’s control, or possession the names and addresses of witnesses shall prosecuting attorney inform de- adopted, was not apparently because fense counsel: Congress feared witness intimidation and (i) grand jury if relevant recorded Committee, contamination. Conference transcribed; testimony not been has Federal Rules of Criminal Procedure Act (ii) 1975, 94-414, if the conversations of H.R.Rep. defendant’s No. 94th premises subjected Cong., or been 1st Compare Sess. 11-12 (including Judiciary, electronic surveillance wire- House Committee on the Fed- tapping); eral Rules of Criminal Procedure Amend- Act, 94-247, H.R.Rep. ments No. 94th (iii) prosecutor if the intends to con- (1975), Cong., 12, reprinted, 1st Sess. 14 tests, experiments, duct scientific or comparisons stroy subject of may test, consume or de- or intends in 674, 686. ^[1975] U.S. Code Cong. & Ad. News dispose physical objects; of relevant Justice, ABA II Standards for Criminal su- only 11-2.1 at 17. We are pra, 11.19 n. § (iv) in prosecutor analysis expert if the intends to offer wit- concerned (as part proof anticipated that the defen- and summaries their nesses justice charged) dant offense contribution committed the forensic to deliver request by evidence no less fair in defendant as well of other offenses. prosecution. (c) attorney prosecuting The shall dis- material

close defense counsel Although release of witness statements prosecutor's pos- information within the testimony, be denied until after W.R. negate session or control which tends to 18(c), Cr.P. Jencks Act—18 U.S.C. guilt as to of the accused the offense expected expert 3500—summaries of wit- § charged or tend to reduce which would pretrial ness should be available punishment of the accused. application present Wyoming rules (d) prosecuting attorney’s by recognition validity The obli- and gations extraordinary under this extend to ABA standards standard unless posses- prose- material and information denial in of either cause behalf prose- provided members of the cution or defense resistance sion control of any others who have the disclosure cutor’s staff and of motion.22 Procedure, covery prescience I do not without walk in Criminal 16 U.Fla.L.Rev. reach this (1963); Fletcher, 293; garden ing supra, of acade 163 12 Stan.L.Rev. somewhat in the watered Goldstein, analysis. example, Accused: mia examination and For State and the Balance 1133; Procedure, Babcock, Advantage supra, see nan, Stan.L.Rev. Bren in Criminal 69 Yale LJ. 34 279; Datz, (1960); Hutton, 437; Wash.U.L.Q. supra, supra, Dis 33 S.D.L.Rev. con issue of disclosure of existence is not VI. NON-DISCLOSURE OF PSYCHO- sidered, by stage relevancy OR PSYCHIATRIC we are lead LOGICAL OF THE skipping inspection RECORDS ROUNSAVILLE examina camera CHILDREN finally trial litigant request tion subjects are the evidence utilization which None of and disclosure briefing majority opinion. addressed cases, 3375; Bagley, U.S. 105 S.Ct. Ritchie, requirements of The disclosure 2392; or Bra Agurs, 427 U.S. 96 S.Ct. 989; Bagley, 107 S.Ct. U.S. 1194, can be dy, 373 U.S. Brady, 3375; U.S. applied justify preliminary denials protection due equal S.Ct. 1194 as well as medical issue. presented on this record Wyo. Const. art. process requirements of what counsel can find out Defendant’s 6; 10; should Bag art. and art. asking, § exists which was done § § to resolve denial ley, 473 U.S. Since serve constitutional 105 S.Ct. 3375.23 charged criminally defendant of excul the initial conjecture we are left to when Krantz, Discovery production denied in Criminal Cases: A record when resulted Pretrial Justice, Necessity Impartial 42 Neb. Fair and concurrent denial access to records Louisell, (1962); Theory Crim L.Rev. 127 of these the mental health center none Law, Discovery and Criminal inal the Practice in camera or otherwise records were considered Louisell, (1961); Criminal Vand.L.Rev. 921 by Actually, since decision the trial court. the Apparent?, Discovery: Dilemma Real or 49 Calif. consequent by was the court and deferred trial Moran, (1961); Federal Criminal L.Rev. 56 the health center records of mental Indigent Changes: Rules Aid or Illusion the for nothing really denied was determined about Quinn, (1965); supra, Defendant?, 51 A.B.A.J.64 periods what were in- what records existed or Rezneck, 147; Feder VI L.Rev. The New Alaska context, except that in it was clear that volved Procedure, al Rules Criminal 54 Geo.L.J. of juvenile proceed- were the result of records (1966); Traynor, Lost and Found in Ground ings recognized which were result of the (1964); Discovery, Criminal N.Y.U.L.Rev.228 incest committed the Rounsaville offenses Carr, Zagel Discovery and the & State Criminal by their father. children Rules, (1971); New 1971 U.Ill.L.F. 557 Illinois presentation decision In the of the State and 123; Comment, supra, and De 66 Den.U.L.Rev. court, authority discus- of this no citation of or Law, velopments supra, 74 Harv.L.Rev. discoverability directly presented sion is about Discovery, Bibliography, Criminal 940. See also reports their the existence medical and (1968). 5 Tulsa L.J. availability as from examination differentiated say completely It accurate to that no is not is after existence disclosed. prelim- A psychological records existed. known privilege in consti- of these records either subpoe- inary hearing was held where Dr. Gale statutory certainly indeter- tutional or terms is hearing) (preliminary naed Heineke motion Dr. minate. In addition to constitutional considera- production reports on of his for decision by presented the United States and tions both Wyoming Mental test in Northern results constitutions, Wyoming we have W.R.E. 501 psychologist. aas Whatever Health Center staff constituting priv- rule evidence asserted may relating in his records have been included ilege. juvenile came from to the Rounsaville children adopted law founda- W.R.E. 501 the common adjunct proceedings proceedings to the criminal privilege. tion of federal rules for Em- against the father and which had been instituted placed statute, psychologist privilege statutes are a in by trial court was neither reviewed file 33-27-103, lawyer physician W.S. available Dr. Gale. The final deci- nor made statute, 12—101(a)(1), privilege W.S. and crisis 1— by production hearing the trial sion made in statutes, advocacy privilege center W.S. 1—12— delay court decision those records was 116 and 14-3-210. W.S. 14-3-210 states: letter, opinion final it and then in decision (a) regarding any judi- a child Evidence any that had not shown was held Dr. Gale proceeding resulting report cial from a made investigation psychiatric or records existed. No pursuant through W.S. 14-3-201 14-3-215 was called for the mental health center witness ground shall not be excluded on the it consti- may testify have trial and whatever records privileged tutes a communication: by action existed remained undisclosed (i) wife; Between husband juvenile denying trial consideration court (ii) any provision law Claimed under by discovery Dr. Gale. motion of court records 12—101(a)(i) (ii); other W.S. or motion, than prose- request was for In initial 1— (iii) pursuant Claimed to W.S. 1-12-116. inspec- and make available cutor to disclose This court considered these in deter- subpoe- statutes Subsequently, was Dr. Heineke tion. mining privilege hearing. limited in all cases motion The State never naed the text of W.S. Matter Parental responded or not other exam- 14-3-210. as to whether PP, Rights (Wyo.1982). known to exist. Juvenile were P.2d 512 ination records information, patory including file existence that no rights exist proof because reports. of medical existence of the records pro has not been party vided whom disclosure has A broad collection of cases been has cited not been adjudicatory made. This is non rights discovery, about constitutional lunacy sense and along sheer with wasted privilege, and materiality, relevance but time. If the do records not exist or were question none address the faced here. prosecution, unknown to why should we question That whether taxpayer’s waste determining resources required should be to reveal if medical hypothetical question about what we reports they exist and what so are might do if something there is with which usage can be considered defendant we have available to it. do con request inspection by order camera stage text at this and particularly since Trammell, court. State v. Cf. none of the in camera records tendered Neb. 435 N.W.2d 197 Confron- documentation anything establishes about tation under the Sixth Amendment cannot may psychiatric what exist as psycholog analysis into until come it is first estab- developed ical records which were before lished whether there is to be anything con- event, or after the 1986 we reach not much Ritchie, sidered. See conjecture further in than re-examining the which said: history inquiry many angels ancient of how Ritchie is entitled to have the CYS [Chil- pin. can dance on the head of a dren Youth file reviewed Services] nothing There all of this to the trial reason- determine whether it ably beyond demonstrate whatever test of probably contains information would inquiry certain whether other records changed the outcome his trial. and, does, to determine they exist do exist if given If he must be new trial. so, where. Dr. If the Gale concluded brief: records maintained contain CYS information, no such or if the nondisclo- In summary, this court should find beyond sure was harmless a reasonable that under certain circumstances the con- doubt, the lower court free will be fidentiality psychiatric that attaches to prior reinstate the conviction. yield records must to a criminal defen- rights process, dant’s due confronta- case, the context of that I find a due * * * tion, compulsory process and process repeatedly issue and wonder both Wyoming States United and process empiri- due in is Wyoming whether Furthermore, constitutions. under the cally litigation practice confined to in civil good circumstances of this case cause only. Bond v. In and For District Court justify had been shown a disclosure of (Colo.1984). County, Denver Hence, requested records. the trial travesty adjudicato Discussion of this in ordering court erred in not the records to process due ry approaches at times produced be disclosing them to the swatting piece achievement of flies awith reviewing defense or at least them in goal wet paper. tissue review camera. escapes significant by peram consideration responded: The State bulating Bruno, nonsense. State v. Cf. (1985), If Appellant 197 Conn. 497 A.2d 758 cert. believed that the existence established, of such had been denied U.S. records he (1986). Pages certainly the opportunity L.Ed.2d 181 of discussion had to so in- began, in form appear the State’s brief and references the court. Before trial de- specific inquiries majority question directed to the fense counsel made re- proof psychiatric garding rulings Dr. Gale’s some of the or court’s apparent rulings, yet for the Rounsaville children lack of took records no exception not exist or are not demonstrated exist. to the black and white state- Having psychiatric access informa ment of been denied the court that no required to determine what records records had shown Coun- tion been to exist. exist, controversy is then answered sel did not avail himself of court’s and ener- quivalency against in re- the flexible

willingness conduct an camera * * * secondly re- gized attorney view such material. defense es: (Emphasis juvenile because Dr. er review. ability under Gale’s motion for court Ritchie Appellant’s interest privacy and the State’s maintaining confidentiality, outweighed Even if there should have sued to Dr. Heinecke and concluded that addressed At the motions When juvenile R ^[*] Heinecke children were to the defense would is Appellant had interest court records. any examinations or treatment applied, ^[*] original.) This psychiatric balancing subpoena ^[*] proceedings, their avail- in hearing, the compelling interest the victims’ pursuant have conducted with been no in camera psychiatric shown to test of Davis and # records * * duces tecum is- release of the court * to the earli- # be decided significant trial the trial records, setting. existed, confus- court ^[*] validity see the soning and review. developed ing mark of the gation cant to camera where no merit or imaginative time, era examination high challenge and not ter to be at hand are demonstrable. semi-public examination quires study by the trial court of a charac- serves Consequently, recognized for the sun. confidential information is a moon if the examination is to portray and always proper expected opportunity complex trial in trial superior scrutiny the rational in trial that the trial court cannot in camera examination admissible evidence counsel. Detective work Likewise, responsibility relevancy to the issues camera examination preparation examiner of interrelated stimuli develop veracity litigator preparation. of trial court in application of rea- litigant recognize what energized At the is from the the hall- the obli- counsel It signifi- leads same look- as a cam- is to ap- re- tion ing invitation to that such records let that it could do. fense. evidence Gale has never alone ^[*] constitutionally material to his de- * showing establish ^[*] * * existence of present ^[*] put that such records might contain informa- some It district forth gave evidence ^[*] basis Gale an psychological court did all ^[*] for a claim additional establish- exist, ^[*] open sarily ny court. ipated trial records. propriately approached should evaluation either only directed to exclude from should be done by harmful judge both Otherwise, exercised trial counsel. In camera is counsel soothsayer by counsel and responsibility of the what is unneces- thoughtful subject review and adjunct not make scruti- antic- juvenile part not a records record, nothing provided There is in this information within such records file and witnesses, by the State’s which the State or constitutionally material to psychological no establishes that there are advantage never took his defense. Gale psychiatric records. The involvement of offer; consequent- of the district court’s Heineke, majority Dr. referenced he his burden to ly, has not fulfilled knowledge responsi- opinion, and modest a record that present this court with bility personnel professional health care appellate him review would afford maintenance, preparation preserva- this issue. suggests probabil- a tion records of defined ity. should have The trial court could and that no is intrinsic to this discussion It what, if required to state inspection. challenge is made to camera exist, any, were known to resources, records applied to medical Not to be where, pursued and what and then Ritchie, whom adaptation 107 S.Ct. 989 but argument be re- whether contents would private docu- surely for other appropriate not, and, if least Hutton, in camera con- supra, viewed consideration. mentation text be available for ex- sideration and would Proper Rev. 437. camera 33 S.D.L. Consequently, competitive enjoins first une- review in this record. amination

023 assuming something prosecu- existed that substantively different involving as tor, and, public result, institutions even post-offense treatment. Similarly, see Peo the trial court desired to immunize from ple v. District City Court and For involving review either the offenses com- Denver, County (Colo. 719 P.2d 722 against mitted the Rounsaville children or 1986) People Foggy, v. 121 Ill.2d guilt doubt of of Dr. Gale for his 118 Ill.Dec. 521 N.E.2d cert. denied offense, charged I pursue will not this sub- 486 U.S. 100 L.Ed.2d ject generally except to demonstrate that (1988). Cusick, 628 N.J.Super. State v. existence and identification should have (1987)provides 530 A.2d 806 little con required. Thereafter, been in camera ex- verse authority, any, if since the trial court amination pursued should have been did make an in inspection camera and a realistic trial court review.24 specific finding that there was necessity no I only properly can examine the authori- to disclose since “almost all of the informa precedent ties to review as to whether the tion that reports those is obtainable availability of records should have been and can be obtainable from other sources.” permit identified requested the course of Id. at 809. compared Cusick is to be stage at least of in camera People Reber, Cal.App.3d 523, examination the trial court. Anything Cal.Rptr. 139, (1986) for failure to less makes the entire meaningless. review proper make a inspection camera Anything more ephem- renders discussion where, was found to constitute error as hypothetical. eral and also decision, stated the frequently cited authority Cited case does stated: not demon logical strate a persuasive basis for Accordingly, the trial court erred to affirming majority what does here. (1) the extent it failed to obtain and ex- Esposito, State v. 192 Conn. 471 A.2d amine in all camera the materials under (1984) recognized the constitutional (2) subpoena, weigh defendants’ constitu- confrontation consequent interest and ef- tionally based claim of against need fectuation appropriate by where striking statutory privilege invoked the Peo- privilege witness if the (3) ple, determine privileged mat- was not waived.' The case was decided on ters, any, were essential to the vindica- proof the failure of for defendant to dem tion of rights defendants’ of confronta- onstrate problem mental of the witness (4) tion and adequate create record which affected capacity her testimonial review ruling. its “relevancy” requirement a threshold People Pack, Cal.App.3d See also stating that are not inclined to con “[w]e 240 Cal.Rptr.

jure up picture abnormality of mental out State, nothing more substantial than Bobo v. 256 Ga. the defen 349 S.E.2d (1986) gossamer Id,., dant’s illusions.” also support A.2d affords no on the 484, Kyle, Pa.Super. presented at 957. Com. v. 367 subject issue since the of the (1987),appeal 533 A.2d 120 proposed testimony denied 518 Pa. was made available 617, (1988) 541 A.2d 744 factually was both inadequate showing and an necessity for 24. What this means majority, is that the whole arena of discourse of the it would be that privilege, admissibility, proper preparation, trial simple assertion of non-existence of informa- discovery, impeachment confrontation and is psychological psychiatric tion and records of or solely ephemeral hypothetical as to lack examination of the Rounsaville children is not any justification scrutiny for in this case as now Consequently, credible. I assume such docu- presented. subjects On those not now ad- exist, mentation did but remains undisclosed dressed, Trammell, see 435 N.W.2d at 200. See approach appel- the burden of this issue in Boutwell, also 558 A.2d 249 and State v. late discussion to consider a denial of access to Hankins, 608, 854, 232 Neb. 441 N.W.2d 870 Dr. Gale for his defense within these facts of a (1989). near decade of sexual abuse of the same chil- anything If there is rational to what the trial father, non-prosecu- dren their after which a obligation did in court might denial of to state what arrangement tion absolved the father from his inadequacy exist and the continued of the course of criminal behavior. appellate State in brief as well the distended

624 Nixon, 3090, 711, 683, for 418 S.Ct. denied its use wit U.S. 94 the 3109, (1974). apparent It is the impeachment. ness 41 L.Ed.2d 1039 Zuniga, 714 foundational nized: courts have N.E.2d 86 post-event nied in cent 464 U.S. United States Constitution ble.25 this Esposito, City Lando, 441 U.S. ity cised with caution. in privilege. This Court Ritchie, Clearly (1983), dates of treatment. litigation regard. due If it is to be considered that has noted process inspection recognize County 471 A.2d 107 S.Ct. 989 is victim then, are identical and which addressed identification been F.2d case in Herbert v. are not favored.” District Court the Court has the author- particularly protective counseling authority “[ejvidentiary privileges 153, 176, Denver, 949; philosophy is (6th Cir.), psychiatrist-patient As the not in on the must be exer- 99 S.Ct. assistance the most In and For decisive, distinguisha Foggy, 78 L.Ed.2d Supreme cert. de subject recog In re 722; 521 re in Id. vanced States, must ing sidered. rimeters made recognition of taken on scope Clearly necessarily ancing the interests cessity sized the instant action. at 637-40. Having recognized the privilege n Court the evidence in of a here to define the for the in this of the 66 L.Ed.2d 584 scope to determine See, Upjohn Co. v. United n constitutional privilege, disclosure. so U.S. itself, case-by-case regard privileges must be under- because the privilege, of the ‡ privilege. sought with those ad- is It like protected by that no determined 396-97, should its n privilege context, appropriate compelling ne- it remains applicability basis, Just as propriety appropriate n attempt be 101 S.Ct. be empha- This so shield- ^[*] con- bal- too for de pe- is is availability by privilege is nial of evidence (1979), 60 L.Ed.2d and “[w]hat- States Lind United not absolute. exceptions origins, their these ever strom, (11th Cir.1983), 698 F.2d every man’s are the demand for evidence against court said balanced expansively con- lightly created nor “[w]hen weight psychiatric of the derogation great probative they are in strued case, search for the truth.” United States records the issues subject testimony privilege out- general mas and result such controversial Law, Developments in the Privi- comes. discussed in Nonetheless, Communications, principles do leged some broad Harv.L.Rev. 1450 camps (1985), study emerge. privilege debate Both as the in introduction entire self-contradictory. hampered by uncertainty. prophetic empirical are One quotes or " prove outweigh origins, exceptions to the can that costs benefits 'Whatever their these never lightly regard privi- every particular are not to a demand for man’s evidence or vice-versa with construed, expansively they degenerate lege: arguments inevitably are nor created such derogation unsupported simple the search for truth.'" Id. de- into assertions. The Nixon, (quoting States v. 418 U.S. United on the bate must instead focus values 683, 710, (1974)). particular L.Ed.2d 1039 society protect seeks to area And, conclusion, particular identified, undefinable: relationship. Once are these values privilege must the evaluation demonstrate, preceding the law As Parts merely attempted rest on an cost-benefit any single, unifying princi- privilege defies analysis, person- but also on considerations hardly ple justification. This conclusion privacy acceptability al of a social surprising; privileges cut across all classes legal system particular ar- that intrudes into relationships, and society and all manner of eas. lie at the center of the con- raise "issues that privilege likely law is to continue to The of temporary the foundations of debate about thrive, justifications may as be. unstable its years society.” In ten that have liberal the require that be Social realities some balance the Federal passed the enactment of since Evidence, truth-seeking the forces of and found between privilege has the law of Rules of privacy. complexity pow- to and continued exhibit the Law, supra, Developments underlying in the 98 Harv.L.Rev. that com- er of the social forces (footnote quoting privilege provi- and Levin- specific at 1665-66 son, omitted bined to eliminate Few, any, Privileges of and the rules. areas Testimonial sions from those Preferences (1984)). Friendship, L.J. dilem- 1984 Duke law raise such fundamental evidence of justifications disposed repose of to in its district court’s cumulative confidence protection. knowledgeable remoteness are insubstantial.” Those not so ness and Society States v. Inde will often find it a snare and a delusi See also United on.[26] America, pendent Gasoline Marketers of (4th Cir.1979), 624 F.2d 461 cert. denied authority for in denied Additional error States, Kayo Oil

sub nom. Co. United the medi- identification of existence of the L.Ed.2d 449 U.S. inspection by cal records in camera the and trial court relevant to rela- as this factual analysis, we consider properly In McCor- tionship is included in the discussion (3d ed.1984) mick on Evidence 105 at 259 Bobo, Georgia § 690. 349 S.E.2d (footnote omitted) sweeping as curtain the preparation pre- The trial and function of privilege accomplishing uniquely sentation different here than is is the complete by opinion justi- the failure to consider other illustrated in order to shield, namely, the loss which In fy privilege. side of the the veil of the non-removal any context, courts of depriving comes from the process the broad due we are necessary source of facts for the reliable pretrial faced with events which “undercut right decision cases. right and are the of cross-examination” Ritchie,

then the essence of confrontation. Brennan, J., dissenting. 107 S.Ct. at analytical the weaknesses of Some of cannot here the medical We know whether privilege, the the utilitarian rationale of record file “contains information that context, except psychotherapeutic in the had changed have the outcome of [the] these noted earlier. To must have been disclosed,” even to it been Id. and perplexities and be added the confusions special meet the Blackmun concurrence legislative arising judicial at test: render a rule which tempts to tolerable my view, there well be a con- against grain of essentially jus runs if, here, as a defen- frontation violation truth, tice, dealing. The and fair uncer pretrial is to informa- dant denied access application privilege of a so tainties of possible tion that would make effective variously extensively qualified prosecu- of a cross-examination crucial conclusively should suffice to restricted tion witness. justify any continuing effort rebut advantage grounds, for no one famil Id. 1004.27 The difference on utilitarian vagaries operation prosecution opportunity of its will iar with Note, Discovery undisputed future.” Criminal State in factual record that It is 26. —The Law, (1959). "It analysis 6 Utah L.Rev. case law medical treatment about readily apparent that the accused programs becomes children and Rounsaville rights equal the criminal case does results from medical records or documentation case, in a no those of a defendant civil abuse of children Gene the sexual those * * * equal means rights he be considered to have can and not Gale. It is context Rounsaville Dr. Datz, prosecution.” supra n. with the principle prosecutorial mis- absolution 16 U.Fla.L.Rev. at 165. arguable of the criminal creant and redirection here, bystander Discovery word devotees of the bad application to the where dis- hide-and-go-seek. It theater of old-time covery, Brady and medical record information surprise time to ask whether element of singular production assume relevance case they most set store is not one of the (Pa. such Lloyd, significance. Com. v. 567 A.2d 1357 judicial process. It overrated elements 1989). acknowledge thing usefulness in is one testing credibility, its anticipation of the au- It is obvious glorify quite but another ago text writers of two decades thorities and adversary system. keystone If it as the completely opti- unusually wrong and were keystone, would in it were the arch indeed accepted principles their would be likely mistic that truth The truth is most be fallen. to have same emerge criminal defendants order for take the other when each side seeks to litigants protection rights surprise. all civil more than reason rather it, open eliciting in criminal cases. less need process cases and surprise. any inevitable that criminal there is of "In event seems expansion Traynor, at 249. significant supra n. N.Y.U.L.Rev. discovery, has 39 seen Goldstein, at 1172 develop supra n. 69 Yale L.J. years, in the See will continue to in recent 626 concepts citizens national of a different

convict and fairness to each contestant justice finding advance fact should not document. court derived from a different ignored. II ABA Standards for Jones, See provide 568 P.2d 837 did not a defin Justice, 11-2.1, 11-1.1, supra, Criminal §§ answer since their lists of able witnesses 11-2.2, 11-2.4 11-2.3 and as well as the pro provided by were each side and that countervailing prosecution. disclosure to Act duction was not an issue as the Jencks 18(c)(1) (3) statement review W.R.Cr.P. At issue is the fundamental fairness that judicial adapted of all in- since never reached. Con must be the touchstone was not McBride, quiry. 213 materiality See State v. NJ.Su- is intrinsic to the sideration of (1986), per. 517 A.2d 152 where at lack of identification from which con least an in camera review should have been The manufac clusion could be drafted. report made to determine whether the State, 706 tured evidence issue of Wilde v. any part thereof was discoverable. See 1985) (Wyo. P.2d 251 is likewise absent 272 Wainwright, v. 634 F.2d also Greene the records and documentation would since (5th Cir.1981) Partin, and United v. States generally custody be within the of other (5th Cir.1974). F.2d In even more 493 750 product agencies and instrumentalities as a review, subject and avail- recent of use juvenile proceedings. The broad court comprehensive- ability of medical records is conception that the trial court has discre ly Lloyd, addressed in v. 567 A.2d Com. determining requirements tion in (Pa.1989). pretrial adherence to orders following analysis, In criminal both where, application lacks here civil cases Reber, Ritchie, 107 S.Ct. 989 and 223 Cal. Wyoming, an enforceable a civil case Caplan, Rptr. People the case of v. right expected man to lists of witnesses is Cal.Rptr. 486- Cal.App.3d practice. general dated rules and See (1987) adaptive persuasive, is both 1985). Dieringer, (Wyo. 708 P.2d 1 State v. enunciated that where court State, Aguilar (Wyo.1988) v. 764 P.2d 684 process, and not the constitutional due weight in provides no additional considera confrontation, compels right to the Peo- record and trial facts tion of confused ple possession turn evidence in its over that the document was for cross- available to the ac- pretrial that is both favorable only admissibility examination and as an guilt punish- cused and material to an issue. The document had exhibit was procedures ment. Both cases set out impeach been furnished and its use for the trial court to follow for in camera Privilege is more ment is deterred. no sought-after review of the material. appropriate when used to insulate the com trial here did not review the plainant questions perjured testi records, of Dr. Brennan notes or files mony litigation than is the case for the civil subpoenaed by Caplan argued plaintiff implied. where waiver necessary prepara- for the Caplan to be Bond, applied. same balance should be presentation of his defense. tion and 682 P.2d 33. The dicta of the “non-dis merely upheld Cindy’s privi- The court covery” Wyoming cases is outdated and There- lege not to allow disclosures. contrary precepts due both modern fore, again the court erred. process present procedure. and our rules of I no in those find basis cases to coun authority which would even Preclusive perjury deny adequate tenance result for confrontation require a different State, preparation. Fitzgerald v. 601 P.2d process rights Wyoming under the and due 1979); State, (Wyo. Dodge v. P.2d protective be less constitution which would State, (Wyo.1977); Coca v. Constitution is not than the United States (Wyo.1967). Compare hypnosis by briefing or statement of authenticated duty State, opinion. Additionally, cases and to reveal in majority Gee cases (Wyo.1983) lim 662 P.2d 103 Wyoming Chapman need not be Constitution State, 1982). right Wyoming protective (Wyo. 638 P.2d 1280 ited its Israel, Kamisar, (5th 1980). LaFave & J. Modern Criminal Procedure ch. 20 at and Y. W. ed. sum, rected D-17 other the Constitution of the as to and the children neither States, investigative Constitution of the State until the first real action United Wyoming precedential legal case law 1984 action then reviewed nor when was process justify years the due denial of two later. serves but instituted until documentary consequent totally and identification One does not need be informed materi- inspection prejudice, camera methodology preparation by of record D- ality and factual content relatable accu- quickly PASS offices to discern that the their satory defense their witnesses camera file has been sanitized someone prosecution of father and substantive appear It would partly collected. bystander. reports party interview records generally

are not included. What did occur VII. THE PROCEEDING JUVENILE forms were extracted was that D-PASS

“IMMUNITY” AGREEMENT materi- and other detail documentation only partially al were made available even my Differing majority, con- question- to the trial court. This status saga family science is shocked ably con- incomplete provides records little public official’s failure to incest delivery justice system fidence in the effectively protect act to the children from operation regarding the in its Rounsaville immunity agree- except father an their family. This for the father mother. ment case, paid This bought and for. perjury, involved, Everyone including specifically augmented an record which dis- within court, knew the trial from examination in in documents and much closed camera preliminary hearings and this record that consequently that is not disclosed and more had juvenile proceedings occurred prosecution and the except unknown actual knowl- and records existed. Besides with incestuous perpetrators, swims both edge, judicial' notice is not unknown perjury. This abuse and trial time sexual Campbell County. Obviously, either the from which real is not a bald assertion camera or documents were examined drawn. It commences inference cannot be incomplete complete because this record is by entry in records form in 1979 D-PASS files included. are not cap- July dated 1979 under SS-219 samples avail- To make clear what are D-17, grader, involving a fourth tion of pro- able to authenticate evidence made, protection with statement child ceedings, record reveals: nurse on last “complaint lodged school Complaints dated March Criminal I was out of town and day of school. Since against 86-7128 86-CR-88-13 and info, up enough follow didn’t have sheriff, deputy Gene Rounsaville Sept. complaint, tabled until School I’ve D-7. Monty Trenary, sexual assault on should on it for us then. This be will check agree juvenile Two court admission R for reference.” logged as I & future ments, In the Interest Rounsaville 4, 1980, of: by a June This was then followed 1029,1032, 1033, Children, Nos. Juvenile SS-219, captioned form Gene D-PASS 16, 1987, 1034, 1035, January filed Rounsaville, comments: with signed by Linda Rounsaville the sec reported alleged sex- S.O. office] [school being signed by ond Gene Rounsaville. by Gene of ual molestation [D-17] petition In the Interest Juvenile entitled party. her friends at a slumber two of D-7, D-17, S-11, D-10, D1-3, and initial attempted investigate, but S.O. 18, 1986. dated D2-3 November anything up. turn more failed to efforts investigation. us It is turned back of the as- Transcript examination April attorney taken prosecuting sistant involving held Gene A conference 24, 1987, juvenile pro- discussing both Rounsaville, and D- Linda Rounsaville proceedings ceedings criminal by reports personnel to followed PASS against Rounsaville. Gene 1980, 1981, and other documentation in late Dr. indicates: Gale’s exhibit list the evil continued uncbr- reveals that 628 authenti- preliminary hearing

All exhibits in the events and circumstances reveals were matter of and State v. from records which State cated (these inspection Elmer Rounsaville doc- available for camera Jean made never given uments were made available never counsel. This does not to Louisell, prosecution for trial introduction Dr. process test. Crimi- meet a due Gale). Discovery: Appar- nal Dilemma Real Louisell, (1961); ent?, 49 Calif.L.Rev. 56 camera documents. In Interest of Theory Discovery and D-10, D2-3, The Criminal D-17, S-ll, D-7, Dl-3 and of Law, 14 Vand.L. Practice Criminal order for shelter care filed December of (1961). 921 Rev. 1986. setting In the Notice of entitled Interest IX. UNAVAILABLE EVIDENCE Children], hearing Rounsaville [the of (dispositional April scheduled a are post-script, almost we faced As

hearing). argument by investi- with an about non-use S-ll, D-10, D-7, D-17, In the Interest recordings gators, police D-PASS of of D2-3, appear filed Dl-3 and order Roun- for interviews members -of the with 18, 1986. November or, matter, family for that other saville knowledgeable which could witnesses VIII. DISMISS MOTION TO OR guests were included the classmate who TESTIMONY SUPPRESS of the 1980 sexual offense also members party. at the Analysis requires framing Rounsaville slumber of issue Gene recorded, Obviously, nothing a was noth- the denial for review within of ing produced. reject implicitly I landscape clearly by trial testi- can be established most, ma- explicitly if not absolution of this mony unrequited perjury broad not, all, investigating It do family. jority that officers of the Rounsaville Constitution, Wyoming prosecution knew under arguable first least when pro- "discrepancies” participative responsibility scope of un- have about the full process investigation it vide due in the during trial when became obvious til person People a crime. hap- charged not have to be critical facet could one conference, (Colo.1986). I do morning Pope, after P.2d pened—the apparent negligence to neces- intrinsic to the of all not excuse which was sarily deny violation of the defendant’s prosecution, witnesses. available, right process law. v. Les- many to due the minimal records State even lie, defense, Ariz. P.2d 719 This not available of which were process due court serves assure knew or have known both Gene should just explain ques- justice and not how a never testified truth- and Linda Rounsaville justified by scope can be ex- fully year of incest tionable conviction about the seven that office corre- cuses for affirmation. Neither Arizona v. It is curious occurrences. 51,109 333, 102 non-prosecu- Youngblood, 488 U.S. about spondence to D-PASS — (1988), reh’g U.S. Intrinsic the sta- L.Ed.2d denied tion cannot be found. (1989) -, testimony at L.Ed.2d anticipated perjurious tus Supreme agreements recent United States non-prosecution nor other trial was the repeal Wyo- not write about Court decisions serve which were executed. I do ming justify mini- or to the decision Examination reveals Constitution bald assertion. presented Although examination here.28 different as production and mized record my exacting empirical probabili- file hours. tie-in factors It is not the conclusion of ty rationally determinably can be made which decision Gale is innocent review that Dr. Consequently, involving rejects date for occurrence. misconduct Rounsa- some kind of something that if ever did time. I would see we are led reason ville children at another probability happen, was and this sce- degree as far less certain six months earlier within prosecution wholly anything concocted that if ever nario of than reasonable doubt occurred, family to deter the fall of the Rounsaville it did not occur in resulting early morning namely August the father and his incarceration relating interrogation suspect non-availability of a in of witnesses for interviews complainants, stead of I would follow by representatives of Dr. Gale for his trial State, ideal of Stephan v. process the due preparation. The State should (Alaska 1985) 711 P.2d 1156 and not the denied access to witnesses. Sosebee v. legislature’s approval of People v. Ever State, 190 Ga.App. 380 S.E.2d ette, — Ill.App.3d 135 Ill.Dec. cert. denied -, U.S. (1989) 543 N.E.2d 1040 State Gor (1989). 107 L.Ed.2d 313 ton, 149 Vt. 548 A.2d 419 To preserve record is to certainty. for future X. CONCLUSION Stephan, problem 711 P.2d 1156. The process, equal Due magnified protection this case was since not was fair- ness have not documentary proceed- evidence not been served in available defense, ing but the record which ended with reflects active conviction. Conse- program I quently, school to assure dissent. D-PASS files, factually happened. Among what other documentation in these I do not find rea- aspects testimony, many doubt, there are too probable sonable I find innocence.

basic tests of evidence which relate to a winter occurrence, including time and summer not late testimony. Dr. Gale’s In review all available URBIGKIT, Justice, dissenting from 75 N.Y.2d 552 N.Y.S.2d (1990) N.E.2d 131 should buttress our deci rehearing denial. Wyoming sion as the Zabel standard of law rehearing par requests a based require rehearing and now for Gale. State, 765 P.2d 357 ticular on Zabel v. (Wyo.1988) which was rendered original appellate

court after briefs were Although agree I would

filed here.

appellant misplaced in ma Zabel was

jority opinion justify rejection Superior Diego

Ballard v. Court San Cal.Rptr. County, 64 Cal.2d (1966) Russel, People 410 P.2d 838 DYNAN, (Plaintiff), Appellant John Cal.Rptr. 69 Cal.2d 393 U.S. cert. denied FEDERAL (1968) ROCKY MOUNTAIN SAV- psychi 21 L.Ed.2d 132 rationales for LOAN; Rocky AND Mountain INGS examination, repeated mistake atric Lucas, Capital Corporation; and Bill majority incomprehen- made is now (Defendants). Appellees prece- sively more severe where Zabel dentially addresses Gale trial introduc No. 89-92. totally inappropriate testimony of a tion of Supreme Wyoming. Court testimony clinical social worker. witness, Blanchard, the wind Geral 8,May performer explicit up Zabel, although argu ly inadmissible under Wyoming

ably not under earlier reversible State, including

case law Brown v. J., Urbigkit, dissent (Wyo.1987),

P.2d 1110

ing. should plain error found Zabel provide plain clearly error now au-

equally

thenticated from the trial of Richard Gale.

Although appellant did not earlier include contention, lacking prescience

this Zabel,

anticipate a such as decision

wrongfulness admitting was not unnoticed

the social worker time to review for

writer with reflective J., Urbigkit, n. page

dissent. See

dissenting. court, and consti provide

This fairness process, grant the re

tutional due should justice in

hearing simple the interest accused, my opinion who

behalf innocent, recognition that Za

probably in itself mandate reconsideration

bel should reargument. The ex rehearing and persuasive differentiation be

haustive and testimony which is admissible as

tween syndrome evidence and non-

rape trauma proof occurrence evidence

admissible as

decisively People Taylor, delineated in notes 488-91, 2529-30, at 81 L.Ed.2d at 104 S.Ct. vic- and the cross-examine interviewer 421-24). ruling par- Here, the trial court’s tims; alleged faith. police he has never bad in alleled our conclusions Wilde. regard. process in this Due was satisfied expose the assertion would Gale’s Affirmed on all issues. dismissal for risk of automatic state every initial interview tape record failure J., THOMAS, specially files a alleging a minor victim it conducts with CARDINE, concurring opinion in which duty has a assault. The state sexual C.J., joins. evi only disputed preserve evidence URBIGKIT, J., dissenting files a to have been constitutional dence is shown opinion. possessed it known ex ly material because Justice, concurring specially, THOMAS, if the could culpatory defendant value CARDINE, Justice, whom Chief with using other comparable evidence not obtain joins. Wilde, at P.2d 255 means. 706 reasonable 479-80, Trombetta, agree of this case 104 I the decision (citing U.S. I am 416-17). according majority opinion. to the L.Ed.2d at Wilde cacious, point affording any there no in holdings, its is aspects with all content holdings, except regard, for in this rationale for those discretion to the trial courts Independent For say clearly “I. Motion no part Gale’s and this court should that the Minor Psychological Examinations of in recognized such discretion is the law. dispositive statement The final Victims.” opinion perceive dissenting I as es- provided majority that issue as sentially a call for reform of the rules (“The properly acted opinion trial court pertain in criminal case. that it denied Gale’s within its discretion when 619-620, dissent, In the n. 22 at it is men- examinations.”) sug compel the motion to prescience tioned that the for this call is gests by implication that the trial court through a walk in the “watered obtained granted that motion as a matter could have presci- that garden of academia.” While only attaching of discretion. It is appropriate ence and call be for majority opinion that I significance to the academicians, be must remembered agreement with the dissent. myself find any garden depends on fertilizer as much contrary specific implication That appellate An court should water. theory articu rejection of California case in an ad attempt adjust rules Court, 64 Superior lated in Ballard fact an hoc and after the fashion. Such 159, Cal.Rptr. Cal.2d nothing more than chaotic and approach is (1966), People v. Rus A.L.R.3d 1416 judicial evidences an abandonment sel, Cal.Rptr. 69 Cal.2d example It stands as the truest function. P.2d cert. denied 393 U.S. men, government by not law. 21 L.Ed.2d 132 It is also incon State, dissenting opinion is committed ruling in sistent with our Zabel establishing I con the innocence of Gale and (Wyo.1988). P.2d can parents dif- majority opinion culpability inadvert of the victims’ clude that the crimes, obviously a ma- that the trial court ferent which is ently indicated psychiat resolving to order a this case. That with discretion terial concern vested a victim psychological evaluation of innocence is articu- ric conclusion of Gale’s reiterated, goal witness. and the lated and perceived what is dissent is to establish criticism of quarrel I have no with the that would have been just be the result rationale found the Ballard Russel had the rules been different achieved jurisdictions. I add opinions of other parents tried for or had the been this case court can my It is certain that no own. against the victims. offenses sexual psycho- require any person to submit to short, the dissent determines or evalu- logical psychiatric examination innocent, from that con- and then reasons cooperation of the sub- Without the ation. any ap- appropriate It clusion. is not conclusions can be ject, meaningful no court, court, supreme pellate particularly diagnosis be appropriate can an drawn nor ad hoc manner adjust the rules could, however, order sub- made. A court crime. There case to case or crime to penalty of procedure under mission to the

Case Details

Case Name: Gale v. State

Court Name: Wyoming Supreme Court

Date Published: May 2, 1990

Citation: 792 P.2d 570

Docket Number: 87-192

Court Abbreviation: Wyo.