Opinion
Rehearing Denied Jan. 3, 1962.
Hearing Granted Jan. 31, 1962.
Opinion vacated 22 Cal.Rptr. 879, 372 P.2d 919.
Tindall & Tindall, Auburn, for petitioner.
Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Edsel Haws, Deputy Atty. Gen., for respondents.
PEEK, Presiding Justice.
Petitioner, charged with rape, moved for and was granted a continuance, his supporting affidavit alleging that he was then, and for a long time theretofore had been, impotent and unable to obtain a penile erection; and that he required additional time to obtain medical proof thereof, including past medical reports.
Thereafter, on November 3, 1961, the district attorney moved for an order requiring defendant, the petitioner herein, or his attorney, to produce the following documentary material: (1) all medical, or other, reports; (2) all X-rays; (3) names and addresses of all physicians who had treated petitioner; (4) who had examined petitioner prior to trial, and (5) who have been subpoenaed to testify on behalf of petitioner. Respondent court granted this motion.
Petitioner seeks prohibition to restrain enforcement of said order. The petition is based on the guaranty against the self incrimination provision that 'no person shall be * * * compelled, in any criminal case, to be a witness against himself; * * *.' The Attorney General, resisting said motion, argues that the privilege against self incrimination is limited to 'testimonial compulsion.' He also argues that the matters contained in the order do not necessarily tend to incriminate petitioner; that the information sought is not requested to be offered in evidence, but only to assist the district attorney in the legitimate purpose of preparing for trial so that petitioner's defense can be tested by proper crossexamination, thus aiding, rather than impeding, ascertainment of truth, a legitimate aim of proper prosecution of a criminal case.
Since 'It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon' (Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746), the possibility of self incrimination is sufficient to require a denial of the discovery order.
Wigmore has examined the historical background and has spotlighted the evolutionary reason for the privilege against self incrimination. (8 Wigmore, Evidence (3d ed. 1940) sec. 2251, p. 304.) After stating that the policy of the privilege is not to provide the guilty with immunity, but to give protection to the innocent, the author states that: '* * * it exists mainly in order to stimulate the prosecution to a full and fair search of evidence procurable by their own exertions, and to deter them from a lazy and pernicious reliance upon the accused's testimony extracted by force of law.' (Sec. 2263, at p. 363.) Wigmore further states that: '* * * the main object of the privilege * * * is to force prosecuting officers to go out and search and obtain all extrinsic available evidence of an offence, without relying upon the accused's admissions.' (Sec. 2265, at p. 375.) He then states that:
'The real objection is that any system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources. The exercise of the power to extract answers begets a forgetfulness of the just limitations of that power. The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer,--that is, to a confession of guilt. Thus the legitimate use grows into the unjust abuse; ultimately, the innocent are jeopardized by the encroachments of a bad system. Such seems to have been the course of experience in those legal systems where the privilege was not recognized.' (Sec. 2251, at p. 309.)
He then concludes: 'It follows that the production of documents or chattels by a person * * * in response to a subpoena, or to a motion to order production, [last italics ours] or to other form of process treating him as a witness * * * may be refused under the protection of the privilege; and this is universally conceded.' (Sec. 2264, at p. 363.)
Similar observations were made by the United States Supreme Court in the Boyd case. That case has been followed as recently as March 1961, in Mapp v. Ohio, 367 U.S. 643, 646, 81 S.Ct. 1684, 1686, 6 L.Ed.2d 1081, stating: 'Seventy-five years ago, in Boyd v. United States, * * * considering the Fourth and Fifth Amendments as running 'almost into each other' * * * this Court held that the doctrines of those Amendments 'apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. * * * any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation * * * (of those Amendments).'
There is no question that the search and seizure limitations of the Fourth The tenor of the above decisions dictates that all of the respondent district attorney's requests be denied.
Let the writ issue.
SCHOTTKY, J., concurs.
PIERCE, Justice.
I concur in the judgment above, but, without further study and consideration, I am unwilling to join in the opinion expressed on the constitutional question (violation of the constitutional privilege against testimonial compulsion).
It has been said, with reference to statutes (passed by 14 states) requiring an accused to furnish notice of his alibi (including, usually, the names and addresses of alibi witnesses), that: 'Statutes of the kind under consideration are generally held to be constitutional.' (30 A.L.R.2d 481, and cases cited.) The reason expressed is: '[T]he information sought by the district attorney from the defendant is not as to matters which the defendant says may incriminate him but as to matters which the defendant says will exonerate him.' (Italics added.) (People v. Schade, 161 Misc. 212, 292 N.Y.S. 612, 615.) The Attorney General makes precisely the same argument here and I am presently unable to distinguish the 'notice of alibi witnesses' cases from this case relating to notice of witnesses alleged to establish impotency or to assert an opinion whether the 'notice of alibi' statutes do, or do not, violate the privilege against self-incrimination. To satisfy myself I would need a more comprehensive study of the problem.
The trial of this case, however, is now set for December 11, 1961. Further delay would seriously jeopardize the defendant's constitutionally-guaranteed right of a speedy trial. (Calif.Const. Art. I, sec. 13.) My colleagues are satisfied the order under attack violates the defendant's privilege against self-incrimination. Whether it does or does not, I am equally well satisfied that the order must be vacated for another reason: Because it has no statutory sanction and because he court had no inherent power to make the order.
In California, by statute, a defendant in a criminal case is entitled to certain information: Names of witnesses before the grand jury (Penal Code, sec. 943), a transcript of the testimony there (Penal Code, sec. 938.1), and at the preliminary hearing (Penal Code, sec. 869), and of all depositions (Penal Code, sec. 870).
Also in California, without any statute so providing, a defendant in a criminal case has, by case law, been held entitled at the trial to a statement given the police by a prosecution witness (People v. Riser, 47 Cal.2d 566, 305 P.2d 1); to pretrial inspection of an admission or confession in the prosecution's possession (Cash v. Superior Court, 53 Cal.2d 72, 346 P.2d 407; Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698); to a pretrial listening to a tape recording of defendant's statement (Vance v. Superior Court, 51 Cal.2d 92, 330 P.2d 773); to a pretrial inspection of a statement by a probable witness for the prosecution (People v. Chapman, 52 Cal.2d 95, 338 P.2d 428; Funk v. Superior Court, 52 Cal.2d 423, 340 P.2d 593; Tupper v. Superior Court, 51 Cal.2d 263, 331 P.2d 977; and at the trial to notes used by a prosecution witness to refresh his memory (People v. Estrada, 54 Cal.2d 713, 715, 7 Cal.Rptr. 897, 355 P.2d 641).
In citing the foregoing cases the Attorney General argues here, in effect, that what is sauce for the goose is sauce for the gander. This proposition, however, overlooks the fundamental differences between the basic rights of an accused in a criminal case and those of the prosecution.
The Fourteenth Amendment of the United States Constitution prohibits deprivation of a person's liberty 'Without due Morgan v. United States
No similar inherent judicial power can be implied to assist the prosecution--however desirable it may be. Therefore, to declare such a right to be inherent, at least at the trial court level, would be to declare to be intrinsic that which is not only novel but has traditionally been forbidden.
There has been only one case in which the district attorney in a criminal case has been the moving party. That was McCain v. Superior Court, 184 Cal.App.2d 813, 7 Cal.Rptr. 841, in which the petitioning defendant in a charge under Penal Code section 288 sought a writ of prohibition to enjoin further prosecution of the case under Penal Code section 1324. In that case the court in denying the writ held that the privilege had been waived since production of the evidence had been an exchange of information with the district attorney stipulated to by defendant. The case is not in point.
It is significant that in at least two of the cases cited in which the accused sought, and the Supreme Court granted, discovery, there was recognition that similar production of documents of names of witnesses by the prosecution was prohibited. In People v. Riser, 47 Cal.2d 566, 585, 305 P.2d 1, 13, it was argued by the district attorney as a reason supporting his refusal to furnish documents to defendant that it would 'unduly shift to the defendant's side a balance of advantages already heavily weighted in his favor.' In Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698, this lack of mutuality was recognized by the Supreme Court.
The Legislature, by the recent enactment of elaborate discovery procedures ([Code Civ.Proc. § 2016 et seq.] adopting and enlarging upon the Federal Civil rules 26 et seq., 28 U.S.C.A.) in civil cases has evidenced its preoccupation in this field of trial procedure as an aid to the goal of discovery of truth. (Greyhound Corp. v. Superior Court, 56 A.C. 353, 369, 15 Cal.Rptr. 90, 364 P.2d 266.) It, and the People of the State, have also evidenced some relaxation of a policy which Professor Wigmore has indicated is a sometimes overlyprotective sentiment towards accused persons in criminal cases (see 6 Wigmore, Evidence, 3d ed., sec. 1846, et seq.) by expressly extending certain rights of the prosecution in the trial of criminal cases, e. g., the refusal of a defendant to testify, formerly sacrosanct by mandate, that it 'shall not in any manner prejudice him nor be used against him on the trial or proceedings' (Penal Code sec. 1323 [1872 to 1935]) is now subject to the limited permission, 'his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel * * *.' (Italics added.) (Calif.Const. Art. I, sec. 13; see also Penal Code sec. 1323.)
It has been expressly held that discovery legislation in the Code of Civil Procedure is inapplicable in criminal cases (Powell v. Superior Court, 48 Cal.2d 704, 707-708, 312 P.2d 698; People v. Wilkins, 135 CalApp.2d 371, 377-378, 287 P.2d 555; People v. Ratten, 39 Cal.App.2d 267, 271, 102 P.2d 1097; see, also, Gonzales v. Superior Court, 3 Cal.2d 260, 262-263, 44 P.2d 320.)
But the Legislature has not elected to tackle the ticklish problems of discovery in criminal cases directed against defendants and within that inconsiderable area bounded by the constitutional privilege against self-incrimination. I do not find any inherent judicial power to preempt this excursion into procedural reform. I believe that if the innovation is to come it should