Wе accepted this petition for special action to consider the actions of the Judge of the Superior Court of Maricopa County, The Honorable C. Kimball Rose, in declining to restrain the Justice of the Peace of the Northeаst Phoenix Justice Court, The Honorable Harold Lee, from proceeding in excess of his jurisdiction.
We have only one question to consider and that is: Does Rule 5.3(a) of the Rules of Criminal Procedure 1973, 17 A.R.S., provide for discovery prior to direct examination at a preliminary hearing ?
“The Defendant, Herbert Mogel, by and through his attorney undersigned, pursuant to Rule 5.3(a) of the Arizona Rules of Criminal Procedure, respectfully requests this Court to enter an order requiring the State to produce for inspection all of the transcripts of purported tape-recorded telephone conversations and in person conversаtions between and among the Defendants and Camilla Behrens. Additionally, the Defendant requests that the Court enter an order cоmpelling the prosecution to turn over for inspection prior to the preliminary hearing any and all written statements in relаtion to the above-entitled case.”
The codefendant Kathy DeVane joined in this motion. The Honorable Harold Lee, Justice of the Peace, granted the order for production requiring discovery before 7 April 1975 of all departmental rеports and any tape recordings to be used at the 10 April preliminary hearing.
Petitioner filed a writ of special actiоn in the Superior Court of Maricopa County and after hearing the court dismissed the complaint. From said dismissal petitioner brоught a special action in this court. We accepted jurisdiction because of the importance of the questiоn in interpreting our Rules of Criminal Procedure 1973 and because there was no adequate remedy by appeal. Zarate v. Jennings,
Rule 5 of the Rules of Criminal Procedure 1973 is concerned with the procedure to be followed at the preliminary hearing. Rule 5.3(a) provides in part:
“ * * * All parties shall have the right to cross-examine the witnesses testifying personally against them, and to review their previous written statements prior to such cross-еxamination. * * * ”
The Comment to Rule 5.3 reads in part as follows:
“The defendant retains his right to full cross-examination including the use of Jencks statements; * * *”
This portion of the rule and the Comment thereto merely restates what has been the general rule in this State that when a person testifies he may be cross-еxamined by use of previously written statements which must be made available for that purpose. State v. Green,
“We therefore hold that the defendant was not entitled to see the investigative reports of the officers whom the state intended to call as witnesses.” State ex rel. Corbin v. Superior Court, supra,99 Ariz. at 385 ,409 P.2d at 549 .
The Arizona Rules of Criminal Procedure 1973 provide for liberal discovery after the defendant has beеn arraigned in the Superior Court, Rule 15.1(a), or after the indictment or information has been filed. Rule 15.2(a). The rules do not provide fоr full discovery at the preliminary hearing stage. We therefore hold that the Justice of the Peace, The Honorable Hаrold Lee, exceeded his authority under the rules in ordering discovery prior to testimony at the preliminary hearing, and that
In considering the matter before the court, we are not unmindful that reviеwing the rulings on discovery of a Justice of the Peace at a preliminary hearing could well encourage, if not invite, further рetitions for special actions in this court and in the Superior Court from discovery and evidentiary rulings in a preliminary hearing. This we do not wish to do. We took this ■natter only because we felt there was some confusion regarding the applicability of the wide discovery provisions of Rule 15 of the Rules of Criminal Procedure 1973 to. the preliminary hearing. Were it not for what we believe tо be the compelling reasons for making a statement on this subject at this time we would have followed the statement of Judge Stevens of the Court of Appeals:
“The ruling of the Respondent Jennings is a professional ruling relative to the admissibility of evidence. The Court of Appeals is not in a position to reverse the Respondent Jennings even should we be convinced that under all the circumstances the ruling was error. The Court of Appeals is not in a position to direct the manner in which the Respondеnt Jennings rules upon any particular evidentiary objection. If there be a directive that the departmental report is tо be examined that directive at the preliminary hearing phase of the case must be made by the presiding magistrate and it cannot be by order of the Superior Court or this Court directed to the presiding magistrate or to the County Attorney.
“We are of the opinion that we are not in a position to enter an enforceable order in relation to Respondent Jennings’ exercise of his judicial discretion in his ruling upon the request for leave to examine the departmental report. Under thesе circumstances the relief requested by this special action is denied.” Zarate v. Jennings, supra,17 Ariz.App. at 407 ,498 P.2d at 481 .
The matter is remanded to the Superior Court of Maricopa County for further proceedings consistent with this opinion.