In re WILLIAM A. MISENER on Habeas Corpus.
Crim. No. 23850
Supreme Court of California
May 9, 1985.
Respondent‘s petition for a rehearing was denied July 11, 1985.
38 Cal.3d 543
Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Stuart R. Rappaport, Albert J. Menaster, Deputy Public Defenders, and William A. Misener, Deputy Public Defender, in pro. per., for Petitioner.
Christopher N. Heard as Amicus Curiae on behalf of Respondent.
OPINION
MOSK, J.—In this case we must decide whether
Petitioner Misener is an attorney employed by the Los Angeles Public Defender. He was acting as defense counsel in a prosecution for attempted robbery. The alleged victim in that case testified that on September 17, 1983, two Hispanic men approached her in a grocery store parking lot and, displaying a handgun, demanded her car keys and her money. She had seen these men when she entered the store approximately an hour earlier, at noon. She screamed, ran into the store, and told a box boy what had happened. The box boy had also seen two Hispanic men in the parking lot an hour earlier. On hearing the alleged victim‘s story, he drove around the neighborhood, noticed the defendants, and brought the police to them.
There was some ambiguity about the identification of the defendants and the time of the robbery. The box boy was unable to identify the defendants as the men he had seen in the parking lot because he had not seen their faces. The victim‘s testimony at the preliminary hearing regarding which defendant had the gun and what each defendant was wearing was different from the information she gave the police on the day of the crime. While the box boy stated that the woman had told him of the crime at noon, she testified that she entered the store at noon, shopped for approximately an hour, and then was approached by the defendants. A police officer testified that the police arrived at the store at 12:15 p.m.
The defense called various witnesses, including Mario Alarcon, the coach of the soccer team to which the defendants belong. He testified that on the
After Alarcon‘s testimony, the prosecution moved under
Petitioner refused to reveal the content of the interviews, insisting that to do so would violate the defendant‘s attorney-client privilege, his constitutional right to counsel, and his privilege against self-incrimination. Petitioner explained that the interviews arose out of information that the defendant had given him as his attorney, and thus the defendant‘s statements were completely intertwined with those of the witness.
The court nevertheless required the disclosure, “excluding any statements made between attorney and client, excluding any statements of impressions, conclusions, opinions, legal research, or theories of any defendant. Only statements of the witness concerning matters within the scope of the direct testimony of that witness. . . .” On petitioner‘s further refusal to obey the order, the court held him in contempt. The trial court stayed the imposition of sanctions pending determination of the constitutionality of
Petitioner raises numerous challenges to the validity of
I. History of Prosecutorial Discovery in California
We first noted that discovery in favor of defendants had been substantially liberalized by People v. Riser (1956) 47 Cal.2d 566 [305 P.2d 1], overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, footnote 2, 648-649 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810]. We then reasoned that “[s]imilarly, absent the privilege against self-incrimination or other privileges provided by law, the defendant in a criminal case has no valid interest in denying the prosecution access to evidence that can throw light on the issues in the case.” (58 Cal.2d at p. 59.) “[W]hen this court permitted discovery in advance of as well as at the trial [citations], it was . . . acting . . . to promote the orderly ascertainment of the truth. That procedure should not be a one-way street.” (Id. at pp. 59-60.) Unfortunately the last sentence has been misused, on occasion, to justify improper discovery orders.
Jones acknowledged certain roadblocks that prevent criminal discovery from being a full two-lane highway. First, the defendant cannot be made to turn over private documents in his possession. (Id. at p. 60.) And, “a defendant need make no showing that the answer or document sought may be incriminating [citation], for the very fact that the prosecution seeks it, establishes that in the prosecution‘s view it may be incriminating.” (Ibid.) Second, to the extent the documents sought by the prosecution were prepared by physicians to whom the defendant was sent by his attorney in anticipation of trial, these documents were protected by the attorney-client privilege. (Id. at pp. 60-61.) The prosecution was limited to discovery of “the names of the witnesses petitioner intends to call and any reports and X-rays he intends to introduce in evidence in support of his particular affirmative defense of impotence. . . . [Such an order sets] up a wholly reasonable rule of pleading which in no manner compels a defendant to give any evidence other than that which he will voluntarily and without compulsion give at trial.” (Id. at p. 61.) “It simply requires petitioner to disclose information that he will shortly reveal anyway.” (Id. at p. 62.)1
In light of these fundamental policies, we set forth in Prudhomme the basic considerations governing any motion for discovery by the prosecution: “it is apparent that the principal element in determining whether a particular demand for discovery should be allowed is not simply whether the information sought pertains to an `affirmative defense,’ or whether defendant intends to introduce or rely upon the evidence at trial, but whether disclosure thereof conceivably might lighten the prosecution‘s burden of proving its case in chief. Although the prosecution should not be completely barred from pretrial discovery, defendant must be given the same right as an ordinary witness to show that disclosure of particular information could incriminate him. [¶] An ordinary witness need not actually prove the existence of an incriminatory hazard as that would surrender the very protection which the privilege against self-incrimination was designed to guarantee. Instead, the privilege forbids compelled disclosures which could serve as a `link in a chain’ of evidence tending to establish guilt of a criminal offense; in ruling upon a claim of privilege, the trial court must find that it clearly appears from a consideration of all the circumstances in the case that an answer to the challenged question cannot possibly have a tendency to incriminate the witness.” (Id. at p. 326.) Using this test, we issued a writ of prohibition barring an order to compel the defense attorney to disclose to the prosecutor the names, addresses and expected testimony of the witnesses whom the defendant intended to call at trial.
In Reynolds v. Superior Court (1974) 12 Cal.3d 834 [117 Cal.Rptr. 437, 528 P.2d 45], we made it clear that our decision in Prudhomme did not depend on federal law: “While Williams may have laid to rest the contention that notice-of-alibi procedures are inconsistent with the federally guaranteed privilege against self-incrimination, this privilege is also secured to the people of California by our state Constitution, whose construction is left to this court, informed but untrammelled by the United States Supreme Court‘s reading of parallel federal provisions. . . . [Prudhomme] was in part based on this court‘s reading of pre-Williams federal law. Nevertheless, it cannot be gainsaid that Prudhomme put this court on record as being considerably more solicitous of the privilege against self-incrimination than federal law currently requires.” (Id. at pp. 842-843.) In Reynolds we determined that any notice-of-alibi order must be shaped by the Legislature, not the courts. (Id. at p. 837.) We held that due process was violated by an order that the defense afford the prosecution at least three days advance notice of any alibi witnesses to be called at trial and give the prosecution the names, addresses and telephone numbers of these witnesses. The order was unconstitutional under Wardius because it was not reciprocal. (Id. at pp. 844-845.)
United States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141, 95 S.Ct. 2160], presented to the United States Supreme Court a species of prosecutorial discovery different from the notice-of-alibi procedures it had earlier considered. The defense in Nobles proposed to call its investigator to challenge the validity of the identification of defendant by the prosecution‘s eyewitnesses. The trial court would not allow the investigator to testify unless the defense turned over his written report detailing the interviews he had had with the witnesses. The judge would have examined the report in
In Allen v. Superior Court (1976) 18 Cal.3d 520 [134 Cal.Rptr. 774, 557 P.2d 65], the trial court on its own motion ordered both the prosecution and the defense to disclose the names of their prospective witnesses so that the names could be read to potential jurors to ascertain whether they were acquainted with any witnesses. The court intended to enjoin the prosecution from contacting the defense witnesses thus disclosed. We cited Nobles and Williams, and noted that “the trend of the federal high court‘s decisions on questions of compelled defense disclosure to the prosecution is not wholly consistent with our interpretation of the privilege against self-incrimination.” (18 Cal.3d at p. 524.) However, we emphasized the strength of our own Constitution and “affirm[ed] the continued vitality of the stringent standards set forth in Prudhomme for the protection of the privilege against self-incrimination as embodied in
Our most recent case on these issues is People v. Collie (1981) 30 Cal.3d 43 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776], in which we reiterated our holding in Reynolds that the fashioning of a proper rule of prosecutorial discovery must be left to the Legislature. (30 Cal.3d at p. 56.) We thus disapproved of the trial court‘s order, following a defense witness’ direct testimony, that the defense turn over notes prepared by a defense investigator regarding his conversation with the witness. We also noted that “In recognizing the original primacy of the Legislature in the field of creating rules of criminal procedure, we are not unmindful of the almost insurmountable hurdles likely to thwart any attempts to devise constitutionally permissible discovery rules applicable to defendant or defense material.” (Id. at p. 54.) Furthermore, “if the Legislature undertakes to formulate a comprehensive solution that purports to be practical in application and consistent with the public interest, any legislative error would be subject to judicial review. Ours is likely to be the last word on the subject. . . .” (Id. at p. 56.)
The Legislature rose to the challenge, enacting
II. Analysis Under the California Constitution
We note at the outset the competing policies at issue. On the one hand is the “search for truth,” emphasized by the district attorney and amicus curiae for the respondent. “The search for truth is not served but hindered by the concealment of relevant and material evidence. Although our system of administering criminal justice is adversary in nature, a trial is not a game. Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal.” (In re Ferguson (1971) 5 Cal.3d 525, 531 [96 Cal.Rptr. 594, 487 P.2d 1234].)2
On the other hand, “any view that discovery should be simply a `two-way street’ overlooks the fact that certain constitutional protections, particularly the fifth amendment privilege against self-incrimination, are conferred on only one party.” (Blumenson, Constitutional Limitations on Prosecutorial Discovery (1983) 18 Harv.Civ. Rights-Civ.Lib. L.Rev. 122, 176.) “It is no answer to this argument to suggest that the Fifth Amendment as so interpreted [to prevent notice-of-alibi procedures] would give the defendant an unfair element of surprise, turning a trial into a `poker game’ or `sporting contest,’ for that actual advantage to the defendant is inherent in the type of trial required by our Bill of Rights. The Framers were well aware of the awesome investigative and prosecutorial powers of government and it was in order to limit those powers that they spelled out in detail in
It is a fundamental tenet of California law that a statute must be construed to avoid doubts as to its validity, and must be upheld in the face of a constitutional challenge if it is reasonably possible to do so. (Carlos v. Superior Court (1983) 35 Cal.3d 131, 147-148 [197 Cal.Rptr. 79, 672 P.2d 862]; People v. Smith (1983) 34 Cal.3d 251, 259 [193 Cal.Rptr. 692, 667 P.2d 149]; In re Kay (1970) 1 Cal.3d 930, 942 [83 Cal.Rptr. 686, 464 P.2d 142].) We must also assume that in passing a statute the Legislature acted with full knowledge of the state of the law at the time. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified School District (1978) 21 Cal.3d 650, 659 [147 Cal.Rptr. 359, 580 P.2d 1155].)
With these principles in mind, petitioner‘s argument that
But Prudhomme did not foreclose the possibility of a valid prosecutorial discovery rule: “A reasonable demand for factual information which, as in Jones, pertains to a particular defense or defenses, and seeks only that information which defendant intends to introduce at trial, may present no substantial hazards of self-incrimination and therefore justify the trial judge in determining that under the facts and circumstances in the case before him it clearly appears that disclosure cannot possibly tend to incriminate defendant.” (Prudhomme, supra, 2 Cal.3d at p. 327.) “[I]t also would seem . . . that other information which cannot conceivably assist the prosecution in proving its case in chief is unprotected by the privilege, whether or not the defense intends to use it.” (Collie, supra, 30 Cal.3d at p. 52.)
Similarly, although the language of
Various Courts of Appeal have addressed this issue. In People v. Bais (1973) 31 Cal.App.3d 663 [107 Cal.Rptr. 519], the court ordered discovery after the prosecution had rested and two defense witnesses had testified. The court did not make a Prudhomme inquiry, evidently believing it unnecessary in this context. The Court of Appeal discussed the contention in support of this position, which the district attorney has advanced in the present case as well: “`This argument is based upon the language of the Prudhomme decision (quoted supra), which defines the applicable test as to whether the requested disclosure “conceivably might lighten the prosecution‘s burden of proving its case in chief.” [Citation.] The Attorney General states the argument as follows: ”Prudhomme approves by implication the discovery of matters not properly part of the prosecution‘s case in chief. Negating an alibi defense is not part of the case in chief. Impeaching the credibility of alibi witnesses is proper rebuttal.“‘” (Id. at p. 671, italics added.)
The court held this contention untenable for two reasons. First, it was possible the prosecution could move to reopen its case or in the event of a mistrial it would have a “new” case; in either way the discovered evidence would indeed aid the prosecutor‘s case-in-chief. (Id. at pp. 671-672.) Second, “the Attorney General‘s narrow interpretation of `case in chief’ is too technical to be applied in derogation of a constitutional privilege. In our view, the Prudhomme court‘s reference to the prosecution‘s `case in chief’ was appropriate because the court was dealing with a pretrial discovery order. However, the reference may not be construed to mean that a discovery cannot `lighten the prosecution‘s burden,’ in the constitutional sense,
In People v. Thornton (1979) 88 Cal.App.3d 795 [152 Cal.Rptr. 77], the court went further than Bais to hold explicitly that “the prosecution may not discover a prior statement in the hands of a defendant for the purpose of impeaching an alibi witness.” (Id. at p. 802.) In part this holding was based on a footnote in Allen, supra, 18 Cal.3d 520, which discusses the ways in which disclosure of defense witnesses’ identities at the beginning of trial could incriminate the defendant; it reads in part: “The trial judge‘s qualification of the instant order [enjoining the prosecution from contacting the witnesses until their names were revealed at trial] in no way prevents the People from investigating the background of the designated witnesses or questioning their friends or acquaintances. Such investigation may reveal the details of the alibi or other defenses, or may yield other evidence useful to the prosecution including impeachment witnesses, inconsistent statements, and admissible evidence of specific instances of misconduct by the prospective witnesses.” (Id. at p. 526, fn. 4, italics added.) Thus we indicated that it violates a defendant‘s privilege against self-incrimination to extract impeachment evidence from him.
We agree with the court in Bais that Prudhomme‘s mandate cannot be arbitrarily limited to the prosecution‘s case-in-chief, and with the court in Thornton, as summarized in Collie, that “anything that would be of use to the prosecution in securing a conviction would for that reason be incriminatory, and thus privileged.” (Collie, supra, 30 Cal.3d at p. 53.)
By requiring the defendant to hand over evidence that will impeach his witnesses,
Additional support for this conclusion is found in one of the companion cases of Prudhomme, Bradshaw v. Superior Court (1970) 2 Cal.3d 332 [85
The argument is made by the district attorney that even if the privilege against self-incrimination covers prior statements of defense witnesses, the defendant waives the privilege by putting the witnesses on the stand. This claim is based on the rule that “A defendant by testifying in his own behalf waives his state constitutional privilege against self-incrimination to the extent of the permissible scope of cross-examination.” (People v. Perez (1967) 65 Cal.2d 615, 622 [55 Cal.Rptr. 909, 422 P.2d 597].) Reliance on this rule is misplaced. While it may be true that by putting witnesses on the stand the defendant waives any right to object to their vigorous cross-examination by the prosecution, he does not waive his right to refuse to supply the prosecution with the means to conduct that cross-examination.
The vice of compelled discovery was demonstrated by the district attorney in the course of oral argument to this court. He maintained that discovery could be required not only of an attorney for defendant, but also of a defendant himself if he appears in propria persona. Thus we could experience the remarkable spectacle not only of a defense attorney being cited for contempt for failing to aid the prosecution in the presentation of its case, as here, but even a defendant in propria persona being found in contempt for not assisting in his own prosecution.
The district attorney finally directs our attention to United States v. Nobles, supra, 422 U.S. 225, in which the United States Supreme Court held that the Fifth Amendment privilege against self-incrimination, being personal to the defendant, did not bar the court from ordering the defense to
The rationale in Nobles failed to consider the aspect of the privilege against self-incrimination that requires the prosecution to carry the entire burden of convicting a defendant. The privilege forbids compelled disclosures from the defendant that will aid the prosecution. To the extent they are useful to the prosecution the disclosures required by
An order of contempt cannot stand if the underlying order is invalid. (In re Blaze (1969) 271 Cal.App.2d 210, 212 [76 Cal.Rptr. 551].) Let a writ of habeas corpus issue as prayed.
Bird, C. J., Broussard, J., Reynoso, J., and Grodin, J., concurred.
KAUS, J., Concurring.—I have for some time felt that the absolutist formulation of Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326 [85 Cal.Rptr. 129, 466 P.2d 673]—that the privilege against self-incrimination
The answer to my problem may lie in a reappraisement of just what it is that makes a communication “compelled” in the self-incrimination sense. Were it necessary, I would have no problem drawing a line between the offer of proof in support of a motion for a discretionary ruling and the compelled disclosures demanded by
With this reservation, I agree with the majority that
LUCAS, J.—I respectfully dissent. In my view, newly adopted
Nearly 10 years ago, the United States Supreme Court unanimously upheld a trial court order compelling a criminal defendant to disclose, during trial, relevant portions of a defense investigator‘s report for purposes of cross-examining him. (United States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141, 95 S.Ct. 2160].) Speaking through Justice Powell, the court determined that the investigator‘s report (which contained statements by prosecution witnesses) appeared highly relevant to “crucial” credibility issues, that production of the report might substantially enhance the “search for truth,” and that compelled disclosure of the report would not impinge upon defendant‘s “personal” privilege against self-incrimination. (Pp. 232-233 [45 L.Ed.2d, p. 150].)
As the high court in Nobles observed, “The [trial] court‘s order was limited to statements [in the report] made by third parties who were available as witnesses to both the prosecution and the defense. Respondent [defendant] did not prepare the report, and there is no suggestion that the portions subject to the disclosure order reflected any information that he conveyed to the investigator. The fact that these statements of third parties were elicited by a defense investigator on respondent‘s behalf does not con-
The Nobles court concluded that “the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial.” (P. 234 [45 L.Ed.2d, p. 151].) This unanimous holding clearly should control disposition of the present case. Accordingly, I cannot join in the majority‘s refusal to apply the federal constitutional rule or in its reliance upon state constitutional self-incrimination principles to invalidate
The new section, enacted in 1982 in response to this court‘s express refusal to approve any judicially created prosecutorial discovery procedures (see People v. Collie (1981) 30 Cal.3d 43, 54-56 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776]), is carefully framed to meet the standards set forth in Nobles. Disclosure is limited to statements of defense witnesses “other than the defendant,” so no self-incrimination is involved. Moreover, disclosure takes place after that witness has testified on direct examination at trial, “thereby distinguishing the present procedure from the more controversial area of pretrial criminal discovery. Indeed, under the statute disclosure takes place after the People have closed their case in chief and any defense motions for dismissal or acquittal have been made. In this sense, the discovery contemplated by
In addition, the new section provides the safeguard of an in camera inspection by the trial court to assure that disclosure is properly limited to matters within the scope of direct examination. Moreover, such disclosure may not include any work-product material of the defendant or his counsel. Finally, the prosecution must disclose to defendant any evidence obtained as a consequence of reviewing the defense statements provided for under the section. In short, the Legislature has undertaken a careful balancing of the competing interests involved, with a close view toward accommodating the self-incrimination concerns which so trouble the majority herein. Nonetheless, the majority clings to outmoded constitutional concepts and strikes down
The majority misinterprets and misapplies the seminal case of Prudhomme v. Superior Court (1970) 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673],
Moreover, as we carefully stated in Prudhomme, “We do not intend to suggest that the prosecution should be barred from any discovery in this, or any other, case. A reasonable demand for factual information which . . . pertains to a particular defense or defenses, and seeks only that information which defendant intends to introduce at trial, may present no substantial hazards of self-incrimination and therefore justify the trial judge in determining that under the facts and circumstances in the case before him it clearly appears that disclosure cannot possibly tend to incriminate defendant.” (2 Cal.3d at p. 327, fn. omitted, italics in original.)
I respectfully suggest that
The majority‘s stance of total prohibition against compelled disclosure, whether pretrial or “posttrial,” is in marked contrast to the extensive discovery developments in the federal and sister state courts. According to a
As Justice Clark observed in his dissenting opinion in Allen, supra, the majority‘s reliance upon the “independent state ground” of the state Constitution‘s self-incrimination privilege seems based on nothing more than a personal aversion to a perceived increasing conservatism in the decisions of the United States Supreme Court. (18 Cal.3d at p. 537.) Certainly, reliance upon the state Constitution is not based upon any elaborate or reasoned analysis of the policies underlying the self-incrimination privilege. (See, e.g., Collie, supra, 30 Cal.3d at pp. 52-56, where the majority found the entire issue of prosecutorial discovery too “complex” to resolve.)
By reason of the majority‘s reliance upon “independent state grounds” under the state Constitution (effectively precluding high court review of our decision), there now exist in this state two separate privileges against self-incrimination: (1) The privilege contained in the Fifth Amendment, applicable to the states by incorporation into the Fourteenth Amendment, as interpreted and applied by the United States Supreme Court, and (2) a second privilege, under the state Constitution,
As a result of the majority‘s reliance upon the “separate” self-incrimination privilege contained in the state Constitution, the prosecution henceforth will be deprived of the opportunity, available in federal and other state courts, of effective impeachment and cross-examination of key defense witnesses. Perjury brought to light under the federal procedure will remain undetected in California courts by reason of today‘s decision.
I would uphold the constitutionality of
Respondent‘s petition for a rehearing was denied July 11, 1985.