*1 9, 1981 September Argued affirmed and submitted June OREGON, STATE OF Respondent, YORK, LEE ROSIE Petitioner.
(No. C80-02-30569, 27711) CA SC
James C. Assistant him respondent. the cause for With on the brief were argued General, McCulloch, Jr., Brown, Attorney John R. James M. General, Gary, Deputy and William F. Solicitor Solicitor *2 General, Salem. Denecke, Justice, Lent, Linde, Tongue, and
Before Chief Peterson, Tanzer, Justices.
PETERSON, J.
Tanzer, J., specially concurring.
PETERSON, J. appeals her of theft and assault Defendant conviction arising shoplifting incident after which she stabbed from a employee The case was tried to the confronted her. store court without a who
jury. assigns her as error the denial of She of the on claimed misconduct motion for mistrial based advising prospective that “it be would say anything” defense. The Court of if didn’t to the better we express approval Appeals advice, did not the conviction.1 but affirmed manager called the store and the assault
The state manager refused to as witnesses. The testified that he victim investigators the case defense before trial because discuss with “against policy” it was store to do so. The victim testified: somebody you
“Q [By attorney] call defense Did on say telephone, investigator that he an from the Public was Office, represented Defender’s that he a Ms. Rosie York and i( you? that he wanted to talk about this case with Employe] [By “A Yes.
“Q you him? What did tell said, ‘No,
“A I I won’t talk about it until the trial.’ *3 “Q somebody you say Did tell that?
“A No.
“Q just your That was idea?
“A Yeah.
“Q you? Mr. Ortner never mentioned that to (No response.) “A audible
“Q policy anything It’s not a store like that? They say if
“A No. said it would be better we didn’t anyway. anything, I wouldn’t have but “Q Who said that?
“A The DA. you
“Q deputy attorney] that? district told [A Appeals The Court of stated: may prosecutor, “Though approve there is no we of the conduct of the ground showing an for reversal of defendant’s conviction in the absence of a cooperate in fact resulted in a refusal to instruction not to with the defense which cooperate.” App 51 Or at 160. that, Appeals opinion holding though even conduct read Court of improper, prejudice the defendant. have been there was no Yeah, specifically “A he said we had our choice whether I we wanted to. And chose not to. or not
“Q you say anything? if But he said it was better didn’t — — No, “A He he he didn’t. said said “Q ahead. Go
“A He said it was our choice whether we wanted to or to, up it didn’t want and was to us.
<<* * * * *
“Q Attorney] My question [By Defense is: You said that, ‘they’ somebody meaning from the District said you say Attorney’s anything. if didn’t Office said it would be better just trying they if We’re to find out that’s what said. ‘they’? Who was the Uh-huh, they [By Employe] “A that. The DA’s said — Office, attorney] they deputy district told us. The DA’s [a * *
Office, *, He who we had contact with. said that it was our say anything, if choice whether or not we wanted to that we (cid:127)— anything, against it can be used for us or us at it’s said trial, say anything if don’t until the and then we better off we up (Emphasis then.” talk added.) it then. And then it will come about Defendant’s motion for mistrial was denied. Upon a reconsideration, motion for prosecutor testified that he had told the two it witnesses was their choice whether to talk attorneys for either side. He further testified that he could
not and would not tell them not to talk to the defense. He denied telling the witnesses it would be better not to do so. The trial court nevertheless found:
“* * * The I Court finds based on this record—and am not trying say now finds that the verbatim what was said—but the Court prosecution did state to two wit- they might nesses that be contacted defense counsel or counsel; representatives of defense that he told them that he telling they was not them person, should not talk to the they interviewed, he did tell but that them that if were taped their interview would either be or otherwise recorded against and that their statements could be used them at trial say anything. it and that would be better didn’t if *4 record, “Based this on entire the Court does not feel under these circumstances that that constitutes miscon- duct in this case and does not find that there is a basis for Therefore, a mistrial and continues its decision as before. (Emphasis the motion for reconsideration is denied.” added.)
The finding of fact is on The binding appeal. conclu- sion that act was not “misconduct” is a decision of subject law which is to appellate scrutiny. We first, allowed review to consider questions: two whether it is improper for a prosecutor encourage witness to refuse requests for interviews or defense, information from the and second, if this is improper, what remedies are available to the defendant.
I It is improper prosecutor for a instruct prospective they witnesses that
should talk to the defense A district attorney’s duty to prosecute persons charged with crime does not authorize prosecutor frustrate, by improper legitimate means, efforts of the defense to defend Clearly, the case. efforts of the defense to prospective interview legitimate witnesses are activities of a attorney.2 defense pivotal question, The and the principal case, issue in this is whether it improper for a impede defense efforts to prospective interview instructing them not to talk to the attorney, defense or as in “* * * case, by (as this them telling found) the trial court it would be better if say didn’t anything.” Although no statute or rule expressly forbids such prosecutorial conduct, we statutory believe that both law and disciplinary rules, examined collectively, leave little doubt of policy this state’s toward the principle of non-interference with defendant’s 135.815(1) access to witnesses. requires ORS attorney, prior trial, district to disclose to the defendant kinds, materials of various including names “[t]he and addresses of persons whom he intends to call as witnesses at state of the trial.” The con- section [sic] tinues requiring attorney the district to disclose the written or recorded statements of such witnesses or mem- of their 135.815(2). oral statements. oranda ORS It thoroughness attorney’s investigation, including contacting of the defense witnesses, prospective may determine the success of the defense effort. See ABA 4.53-55, Oregon Standards for Criminal Justice Criminal Law § Handbook 1.5
540 require to of this section policy
hardly is consistent with “names and to the defense the to disclose prosecutor other, to hand, and on the witnesses, on the one addresses” of not to be encourage to the witnesses prosecutor authorize the bearing questions defense legitimate concerning interviewed crime. alleged on the Profes- 7-103(B) Code of Oregon's of
Section DR prosecutors specifically is addressed Responsibility sional timely disclosure” to to “make prosecutor a requires DR exculpatory evidence. any of of the existence defense lawyer suppress either to any 7-109, generally, more forbids (in case, the this he or his client any that either evidence or or to “advise produce, to reveal or obliged is government) * * * of purpose for the a to secrete person cause himself policy not parallel A as a witness.”3 him unavailable making 7-102(A)(3).4 in DR expression finds litigation limited to case this prosecutor imply do not We issue were rules. If the disciplinary one of these violated beyond their apply not the rules would discipline, professional Ainsworth, In re See underlying policy. terms, whatever (1980). perspective, But this 493, P2d 1127 479, 614 289 Or reputation is license or professional a appropriate when underlying policy. have no the rules stake, not mean that does 135.815, policy a plainly is rules, in ORS Implicit hostile to and evidence and witnesses to access to favorable In the access. with such interference improper adversarial denies the this principle prosecution, a criminal context of the defense telling witnesses discourage right state the they know. what
3 DR 7-109: legal has a “(A) lawyer suppress he or his client evidence that A shall produce.
obligation to reveal or person to leave “(B) lawyer himself or cause a to secrete not advise or A shall making purpose as a him unavailable jurisdiction for the of a tribunal witness therein.” » <<* * * * *
4 7-102(A)(3): DR “* * * (3) client, lawyer conceal representation shall not: a “In his required by reveal.” law to
knowingly which he is disclose that fail to
541
may decline to
are mindful that some witnesses
We
by the
do not hold that witnesses
be interviewed
defense. We
prior
compelled
speak
the defense counsel
be
with
Long,
Compare
449 F2d
295-296
trial.
United States
(1972).
(8th
1971),
do not hold
cert den
Pennsylvania, willing made in a case in which the witness was only attorney consented, interviewed, to but if the district be point: is in authority gives in
“We are aware of no the law which the attorney general, deny right, district the in to defense counsel Under the ethical access to Commonwealth’s witnesses. profession, special in standards of our the absence of circum- allude, stances to which we hereinafter the consent of necessary attorney insure defense district should not be to prior right counsel’s to interview a witness to the trial. The convict, attorney primary duty but to see of a district is not to 7-103(B), 7-109(A) justice [Citing is done. DR DR and that (B).]
u* * * * * vigorously urged has been that there is a substantial
“It affirmatively ordering a witness not to difference between counsel, merely advising and the witness with defense talk We prosecution does not consent to the interview. are instances, In in case persuaded. majority of not bar, expressed disapproval effect of the would prevent speaking from with the to defense counsel witness be until the witness unsatisfactory. This at trial. result is
testifies attorney interference a district are concerned with the We willing of a to interview an otherwise with the defendant The issue is not the form which interference witness. takes, attorney it is A district but rather whether effective. employ may bar interview one of three who wishes to such an witness; may may he he hide or incarcerate the order methods: may not speak; not to or he ‘advise’the witness the witness attorney certainly adopted speak. The either district has not method, of the first two methods. His choice the third even of faith, good nevertheless was error. though exercised that, in the an “We are of the view absence of affirmative convincing showing exceptional circumstances com- of reasons, may attorney with pelling a district not interfere persons pre-trial interrogation by defense of who counsel * * Unquestion- upon may be called as witnesses case.* ably, attorney approve of we cannot force a district such however, certainly may him commu- questioning; we bar from hereby nicating disapproval his witness. We are speak compelled to saying that witnesses themselves be merely prior trial. intend defense counsel with attorney interfering with prevent prosecuting this (Emphasis preparation aspect the defendant’s for trial.” of theirs; omitted.) Lewis v. Court CommonPleas footnote (1969).5 County, 188-189 Lebanon 436 Pa A2d *7 The state position characterizes the defendant’s aas “* * * request declare, that this court on constitutional grounds, that all criminal defendants be able to interview all the state’s every holding witnesses in case.” Our is not upon based constitutional grounds, nor do we hold that 5 “exceptional in which quoted circumstances” material makes reference attorney may apply. district can show arise which the would not Situations the rule attorney compelling why defendant’s “exceptional reasons” or circumstances prospective permitted witness. Aside contact a to interview or not be should attorney, case, probable with is that the district such it this is not fact court, needed, appropriate fashion an appropriate can from the trial assistance Cases, Collins, Discovery Compare, remedy in Criminal contained in such cases. J. 1969). 377, (B. Sourcebook, George & I. Cohen ed 383-384 Vol The Prosecutor’s
543 made intends to call must be prosecutor witnesses whom stated to interview. As available for all criminal defendants or advise a above, only hold that the state cannot order we attorneys.6 defense speak not to to the witness II The defendant was prejudiced not Having determined that it improper for a prosecu tor to instruct a witness not to be defense, interviewed we consider whether the case must be reversed for violation of rule. When access to witnesses is impaired by pros misconduct, ecutorial the defendant must first take appropri ate action to overcome the obstacle sought imposed by to be prosecutor, if the opportunity exists. For if example, prior to trial the defense attorney becomes aware of improper prosecutorial prevent efforts interviewing witnesses, of assistance of the court could be requested. Upon discovery of improper prosecutorial conduct may impede which the defen dant’s trial preparations presentation evidence, of if oppor tunity exists to remedy invoke a which eradicate possible prejudice, timely defendant must act taking appropriate steps to attempt problem. cure the Defense attorneys cannot sit hands, on their doing nothing, and later complain misconduct.
In an appropriate
case, a recess or postponement
might be the proper
remedy. See United States v. Cook. 608
(9th
F2d 1175,
den,
cert
1979),
1181
Cir
(1980).
544 In Lewis v. Common Pleas Lebanon Court of County, 436 Pa (1969), court, 260 A2d 186 the trial “ * * motion, the defendant’s ordered that the District upon Attorney enjoined prohibit not to from dis- [the witness] testimony for cussing the and the evidence with counsel the * * *” motion, a Upon might defendant. trial court appropriate to the order withdraw instructions to witness. 136.080-136.100, provide also note of which for take ORS discretionary depositions of witnesses condition of Here, requested steps none of these were postponement.7 or requested. taken victim testified manager and the the store
Both representatives, the defendant’s have talked to they would not the defendant’s hearing on any post-trial At in event. that a opined reconsideration, judge the trial motion to the avail of no have been or recess would postponement ideas about “strong had defense, that the witnesses observing defen respect to this “very strongly with felt case” and any evidence us pointed has not The defendant dant.” case or of the outcome upon the had effect misconduct of a presentation for trial preparation her interfered with us to which leads the record nothing find defense. We a fair her of deprived misconduct that the believe (Amended), 3; Const, Art VII § Or affirm. We therefore trial. 138.230.8 ORS 7 citing cases, procedural vary In jurisdiction such we note that statutes
jurisdiction. jurisdictions necessarily appropriate Procedures invoked other are not Oregon practice under rules.
8 provides: ORS 138.230 appeal, hearing give judgment, regard “After the court shall without to the questions decision of which were discretion of the below or court errors, exceptions rights technical defects or which affect the do not substantial parties.” Chapman California, 18, 24, 87 824, 17 Defendant cites S Ct L 2d US Ed (1967), state, proposition beneficiary error, for the that the as the aof constitutional “* * * prove beyond complained must a reasonable doubt that the error of did not holding upon any contribute to the verdict obtained.” Our based is not “constitutional Chapman upon relies, applying error.” Even standard we which defendant are satisfied, beyond any doubt, complained reasonable that the error of did not contribute guilty finding. to the TANZER, J., concurring. specially I majority opinion because prefer join I would prosecutorial imply judicial approval would not wish *9 occurred. Unless trial court found to have which the conduct does however, approval disapproval our rulemaking, arewe I trial court action. requires of law which not have the force a new rule cannot it has divined majority because join majority rule. support that does not that Neither from law implies which has offered a source of law nor the defendant of their erred, and I will review each the trial court in theories turn.
I. Ethics acts were prosecutor’s first that the argues Defendant cites us to the American Bar Association unethical. She suggest Justice which that such advice Standards of Criminal 3.1(c) improper. provides: is Section communications prosecutor
“A should not obstruct prospective and defense counsel. It between any person give unprofessional conduct to advise to decline to to the defense.” information newly published ABA Discussion
She also refers us to also Professional Conduct which Draft of the Model Rules of 3.10(e) provides: would bar such conduct. Section discourage prosecutor in shall not “The a criminal case person the defense.”1 giving relevant information to it is however, propriety; is not one of question,
The these ABA studies one of law. The recommendations of Professional future modifications of the Rules of influence the ethics of promulgated by regulate this court Conduct effect in law, controlling have no practice but rules of as ethical standards or as authoritative Oregon either enforce an ethical the court inclined to law. Even were law, State as we would a rule of constitutional standard cf. (1977), no enforcea- Jones, 55, 60, P2d 867 there is 279 Or conduct standard violated ble ethical this case. part Proposed provision appear Final Draft of a rule in the does not as a This Ibid, convey
May 30,1981. similar content. There are comments to Rule 3.8 which 157. Oregon’s sections of
The relies on certain majority acknowledges then Responsibility, Professional but Code of in this case: do not bar the conduct that the sections imply this case violated do not that the “We * * *” disciplinary rules. these one of anticipate little reason to lawyer A for trial has preparing rule will non-applicable disciplinary of a his non-violation a mistrial. Nor “improper” trigger and thus later be deemed anticipate appellate that an expected court be should a trial such authority its to determine has not exercised court which by promulgation it of disci- unethical and bar conduct to be in the ad hoc review of rules, spontaneously so rule plinary will of our I that the non-violation a criminal conviction. conclude for the major- rules no basis disciplinary gives non-applicable ity holding.
II. Statutes 135.815, one of the ORS majority also cites *10 suggestion There is no discovery statutes. procedure criminal way fully comply with failed in that the Rather, majority, discovery. statutory requirements rules, all of which disciplinary to the statute and looking a which with, “policy” finds what it calls complied were forbid. of those laws far more than the words forbids newly upon reliance this problems two with There are mas- First, judicial legislation it is bald policy. discovered If is to be such policies. there as enforcement querading promulgate enact it or we should legislature should policy, byit rule. and are enormous
Second,
implications
the unstated
majority
upon
rules
which
disciplinary
unacceptable.
7-103(b)
merely codifies
which
for DR
(except
relies
1194,
Defendant also
proper
of a
“balance of forces
deprived
act
defendant
ecutor’s
by due
required
and
accuser” as
the accused
his
between
intended
phrase
that the
was
process.
Defendant also contends
provi
under the same constitutional
abridged
right
duct
her
against her
and to meet the witnesses
sions to confrontation
consistently held that the constitutional
face
face. We have
essentially a
to cross-examine
right
is
right to confrontation
of their
jury
allow
evaluation
at trial and to
the witnesses
(1979).
293,
1166
Smyth,
Or
593 P2d
credibility. State v.
286
held that “The
also has
Supreme
States
Court
United
a trial
It includes both
basically
right.
to confrontation
right
jury
for the
and the occasion
to cross-examine
opportunity
Page,
v.
390 US
of the
Barber
the demeanor
witness.”
weigh
(1968). These cases
1318,
LEd2d 255
719, 725,
20
88 S Ct
necessarily
at trial do not
of confrontation
applying
right
pretrial
this is not
case
scope
right,
but
restrict the
extending the
justify
such as would
adversarial confrontation
Wade,
see,
v.
388
e.g., United States
pre-trial stage,
right to
have held
1926,
18 LEd2d
87 S Ct
US
for the
hearing
provide
preliminary
need not
that the state
Or
421 P2d
v.
discovery,
Stanford,
State
purpose of
(1981),
Clark,
231,
The Gregory application process of the due clause is persuasively First, reasoned. the notion that a criminal trial necessarily is “a quest for truth” is more an ideal than a premise legal for reasoning. premise As a application for due process clause, it does not withstand analysis. even scant An innocent defendant puts who the state to proof its or attempts prove his both, innocence or may well be said to search for truth. A lawyer defense who suppress moves to evidence, properly performs duty client, his to his but cannot be said to questing be for truth. Particularly if the defendant actually did the acts charged, lawyer may his reasonably pursue a defense strategy more advantageous to his client than truthseeking. Gregory tendency conclusion that “the current require criminal law” to discovery by rule and statute
yields a doctrine of constitutional magnitude whereby,
a
process,
as matter of due
defense counsel must be “pro-
opportunity
vided
fair
for interview” of witnesses to deter-
prior
mine
to trial
is,
ques-
“how firm” the witness
is also
Surely
tionable.
due process
impose
duty
does not
prosecution
to provide
opportunity
a fair
for interview
of a witness whose personal
family
safety would be
endangered or a sensitive witness (e.g.,
victim),
a child or rape
yet
necessity
for defense counsel to determine the firm-
ness of such a witness would be just
great.
Opportunity to
test
analytical
firmness
too weak an
reed upon which to
create a
corollary
new
of the constitutional
right of counsel. In
contrast,
the United States Supreme Court has held that
“There is no general constitutional
discovery
in a
* *
criminal case
v. Bursey,
545, 559,
429 US
Weatherford
*13
(1977).3
97 S Ct
In summary, like the Court of Appeals, should not be understood approving or authorizing practice by any attorney case of discouraging witnesses from to talking Rather, other side. despite the valiant effort of defense provide counsel to theory valid supporting contrary result, I conclude that under the case, circumstances of this there is no legal prohibition against the advice of the prosecutor and cognizable right no of the defendant which was violated it.
I concur in the portion of the majority opinion which concludes that defendant suffered prejudice no arising the prosecutor’s act.
Lent, J.,
joins
specially
this
concurring opinion.
apt
Brady Maryland
quoted excerpt.
This citation is more
than that
to
process
Gregory.
Due
was one basis of
The other was an extension of the
statutory requirement
prosecution provide
that the
a list of names and addresses of
135.815(1).
power
witnesses.
ORS
This court has declined
use
its inherent
Cf.
promulgate
discovery beyond
required by
discovery
Brady
a rule of
statutes or
Maryland.
Koennecke,
169, 182-83,
n.
State v.
274 Or