Lead Opinion
delivered the opinion of the Court.
This ease involves important questions concerning the right of a defendant forced to comply with a “notice-of-alibi” rule to reciprocal discovery.
In Williams v. Florida,
In the case presently before us, Oregon prevented a criminal defendant from introducing any evidence to support his alibi defense as a sanction for his failure to comply with a notice-of-alibi rule which, on its face,
We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner, and his conviction must be reversed.
I
On May 22, 1970, petitioner was indicted under Ore. Rev. Stat. § 474.020 for unlawful sale of narcotics. The sale allegedly occurred the previous day. At trial, after the State had concluded its case, petitioner called one
Petitioner was convicted as charged and sentenced to 18 months’ imprisonment. On appeal, the Oregon Court of Appeals rejected petitioner’s contentions that the Oregon statute was unсonstitutional in the absence of reciprocal discovery rights and that the exclusion sanction abridged his right to testify in his own behalf and his right to compulsory process.
II
Notice-of-alibi rules, now in use in a large and growing number of States,
Although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, but cf. Brady v. Maryland,
We do not suggest that the Due Process Clause of its own force requires Oregon to adopt such provisions. Cf. United States v. Augenblick,
Indeed, neither the respondent nor the Oregon Court of Appeals contests these principles. Nor does the State suggest any significant governmental interests which might support the lack of reciprocity. Instead, respondent has chosen to rest its cаse on a procedural point. While conceding that Oregon law fails to provide for reciprocal discovery on its face, the State contends that if petitioner had given notice of his alibi defense, the state courts might have read the Oregon statute as requiring the State to give the petitioner the names and addresses of state witnesses used to refute the alibi defense. Since petitioner failed to give notice, his alibi defense was not permitted and there were, therefore, no state rebuttal witnesses whose testimony tended to disprove the alibi. Since no such testimony was intro
It is, of course, true that the Oregon courts are the final arbiters of the State’s own law, and we cannot predict what the state court might have done had it been faced with a defendant who had given thе required notice of alibi and then sought reciprocal discovery rights. But it is this very lack of predictability which ultimately defeats the State’s argument. At the time petitioner was forced to decide whether or not to reveal his alibi defense to the prosecution, he had to deal with the statute as written with no way of knowing how it might subsequently be interpreted. Nor could he retract the information once provided should it turn out later that the hoped-for reciprocal discovery rights were not granted.
For this reason, had petitioner challenged the lack of reciprocity by giving notice and then demanding discovery, he would have done so at considerable risk. To be sure, the state court might have construed the Oregon
The statute as written did not provide for reciprocal discovery, and рetitioner cannot be faulted for taking the legislature at its word.
Since the trial court erred and since there is a substantial possibility that its error may have infected the verdict, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
The Chief Justice concurs in the result.
Notes
The requirement was attacked as a violation of the defendant's due process right to a fair trial and an invasion of his privilege against self-incriminaton. But the Court found that “[g]iven the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.”
The Florida rule provided:
“ ‘Not less than five days after receipt of defendant's witness list, or such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the State proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the cause.’ ” See399 U. S., at 104 .
Ore. Rev. Stat. § 135.875 provides:
"(1) If the defendant in a criminal action proposes to rely in any wаy on alibi evidence, he shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of his purpose to offer such evidence, which notice shall state specifically the place or places where the defendant claims to have been at the time or times of the alleged offense together with the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence. If the defendant fails to file and serve such notice, he shall not be permitted to introduce alibi evidence at the trial of the cause unless the court for good cause orders otherwise.
"(2) As used in this section, 'alibi evidence’ means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed.”
Petitioner also argues that even if Oregon’s notice-of-alibi rule were valid, it could not be enforced by excluding either his own testimony or the testimony of supporting witnesses at trial. But in light of our holding that Oregon’s rule is facially invalid, we express no view as to whether a valid rule could be so enforced. Cf. Williams v. Florida, supra, at 83 n. 14.
See Id,., at 82 n. 11; Note, The Preclusion Sanction — A Violation of the Constitutional Right to Present a Defense, 81 Yale L. J. 1342 n. 4 (1972).
This Court has therefore been particularly suspicious of state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial. See, e. g., Washington v. Texas,
As the Oregon Court of Appeals has recently pointed out, “Oregon’s criminal code is almost completely lacking in pretrial discovery procedures.” State v. Kelsaw,
The only discovery rights Oregon appears to permit are the rights to view written statemеnts made by state witnesses and by the defendant, in the hands of the police. See State v. Foster,
Indeed, the State’s inherent information-gathering advantages suggest that if there is to be any imbalance in discovery rights, it should work in the defendant’s favor. As one commentator has noted:
“Besides greater financial and staff resources with which to investigate and scientifically analyze evidence, the prosеcutor has a number of tactical advantages. First, he begins his investigation shortly after the crime has been committed when physical evidence is more likely to be found and when witnesses are more apt to remember events. Only after the prosecutor has gathered sufficient evidence is the defendant informed of the charges against him; by*476 the time the defendant or his attorney begins аny investigation into the facts of the case, the trail is not only cold, but a diligent prosecutor will have removed much of the evidence from the field. In addition to the advantage of timing, the prosecutor may compel people, including the defendant, to cooperate. The defendant may be questioned within limits, and if arrested his person may be searched. He may also be compelled to participate in various non-testimonial identification procedures. The prosecutor may force third persons to cooperate through the use of grand juries and may issue subpoenas requiring appearance before prosecutorial investigatory boards. With probable cause the police may search private areas and seize evidence and may tap telephone conversations. They may use undercover agents and have access to vast amounts of information in government files. Finally, respect for government authority will cause many people to cooperate with the police or prosecutor voluntarily when they might not cooperate with thе defendant.” Note, Prosecutorial Discovery under Proposed Rule 16, 85 Harv. L. Rev. 994, 1018-1019 (1972) (footnotes omitted).
Before this Court, respondent presses the related argument that petitioner failed to object to the exclusion of his alibi testimony at trial and that his conviction therefore rests on an independent state procedural ground. See Brief for Respondent 5 n. 2. But, as the transcriрt makes clear, the issue arose when the trial court sustained the State’s objection to introduction of the alibi testimony. Petitioner then proceeded to make an “offer of proof” in order to protect the record on appeal. Respondent cites us to no Oregon cases which would require petitioner to object to the sustaining of an objection in this context, and the state appellate court’s willingness to reach the merits of petitioner’s federal claims provides convincing proof that the judgment does not rest on adequate state grounds. See Warden v. Hayden,
Nor did petitioner’s attorney rest entirely on his own reading of Oregon’s discovery provisions. As the attorney argued at trial,
“Several weeks ago this came up again — this came up in the Circuit Court here with Judge Perry, and Judge Perry allowed the alibi testimony in based upon [Williams v. Florida] and said that he at that time, based on our statute and based on this opinion, that he didn’t feel that our criminal code and our statute should allow a substantive evidence [sic] that the defendant might have to be kept out due to this, and that is the reason that notice was not given. I relied somewhаt upon that and my own interpretation of this case also.” App. 6.
The State cites us to State v. Kelsaw, supra, a recent Oregon Court of Appeals decision holding that a defendant must be given reciprocal information as to the time and place of the alleged offense before he can be required to comply with the notice-of-alibi rule. But
Concurrence Opinion
concurring in the result.
In Williams v. Florida,
The Court views the growth of “such discovery devices” as a “salutary development” because it increases the evidence available to both parties. Ante, at 474. This development, however, has altered thе balance struck by the Constitution. The Bill of Rights does not envision an adversary proceeding between two equal parties. If that were so, we might well benefit from procedures patterned after the Rules of the Marquis of Queensberry. But, the Constitution recognized the awesome power of indictment and the virtually limitless resources of government investigators. Much of the Bill of Rights is designed to redrеss the advantage that inheres in a government prosecution. It is not for the Court to change that balance. See Williams v. Florida, supra, at 111-114 (Black, J., dissenting).
I agree with the Court that petitioner's conviction must be reversed, but for the reasons stated by Mr. Justice Black in his dissent in Williams. To reverse it because of uncertainty as to the presence of reciprocal discovery is not to take the Constitution as written but to embellish it in the manner of the old masters of substantive due process.