Jones v. Superior Court , 58 Cal. 2d 56 ( 1962 )

TRAYNOR, J.

On October 30, 1961, the day set for his trial on the charge of rape, petitioner filed a motion for continuance and an affidavit in which he alleged that he was and for a long time had been impotent and that he needed time to gather medical evidence including medical reports in connection with injuries he suffered in 1953 and 1954. The motion was granted. On November 3 the district attorney filed a motion for discovery, requesting petitioner and his attorney to make available to the prosecution: (1) the names and addresses of any and all physicians and surgeons subpoenaed to testify on behalf of petitioner with respect to certain injuries suffered by him in 1953 and 1954 and bearing on the question of whether or not petitioner is impotent; (2) the names and addresses of all physicians who have treated petitioner prior to the trial; (3) all reports of doctors or other reports pertaining to the physical condition of petitioner relating to said injuries and bearing on the question whether petitioner is impotent; and (4) all X-rays of petitioner taken immediately following the 1953 and 1954 injuries. The court granted the motion over petitioner’s objection. Petitioner seeks a writ of prohibition to restrain enforcement of the trial court’s order.

Discovery is designed to ascertain the truth (see Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 375-377 [15 Cal.Rptr. 90, 364 P.2d 266]) in criminal as well as in civil cases. (People v. Estrada, 54 Cal.2d 713, 716 [7 Cal.Rptr. 897, 355 P.2d 641] ; People v. Cooper, 53 Cal.2d 755, 768-771 [3 Cal.Rptr. 148, 349 P.2d 964]; Cash v. Superior Court, 53 Cal.2d 72, 74-76 [346 P.2d 407]; Funk v. Superior Court, 52 Cal.2d 423, 424-425 [340 P.2d 593]; People v. Durazo, 52 Cal.2d 354, 356 [340 P.2d 594] ; People v. Chapman, 52 Cal. 2d 95, 98-99 [338 P.2d 428]; People v. Cartier, 51 Cal.2d 590, 594 [335 P.2d 114]; People v. Williams, 51 Cal.2d 355, 357-359 [333 P.2d 19]; Tupper v. Superior Court, 51 Cal.2d 263, 265 [331 P.2d 977]; Vance v. Superior Court, 51 Cal.2d 92, 93 [330 P.2d 773]; Mitchell v. Superior Court, 50 Cal.2d 827, 829 [330 P.2d 48]; Priestly v. Superior Court, 50 Cal.2d 812, 819 [330 P.2d 39]; People v. McShann, 50 Cal.2d 802, 806-808 [330 P.2d 33] ; People v. Carter, 48 Cal.2d 737, 752-753 [312 P.2d 665]; Powell v. Superior Court, 48 Cal.2d 704, 706-709 [312 P.2d 698] ; People v. Riser, 47 Cal.2d 566, 585-588 [305 P.2d 1].) In People v. Riser, supra, pages 585-586, we noted that “Originally at common law the accused in a criminal action could not compel production of documents or other evidence in the possession of the prosecution. [Citations.] Production was denied before trial on the ground that to compel the prosecution to reveal its evidence beforehand would enable the defendant to secure perjured testimony and fabricated evidence to meet the state’s case. It was felt, furthermore, that to allow the defendant to compel production when the prosecution could not in its turn compel production from the defendant because of the privilege against self incrimination would unduly shift to the defendant’s side a balance of advantages already heavily weighted in his favor. [Citations.] ... Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and in particular it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits. To deny flatly any right of production on the ground that an imbalance would be created between the advantages of prosecution and defense would be to lose sight of the true purpose of a criminal trial, the ascertainment of the facts. [Citations.] ” Similarly, absent the privilege against self-crimination or other privileges provided by law, the defendant in a criminal ease has no valid interest in denying the prosecution access to evidence that can throw light on issues in the case. Nor is it any less appropriate in one case than in the other for the courts to develop the rules governing discovery in the absence of express legislation authorizing such discovery.

It is contended, however, that the cases permitting discovery by defendants are not based on the power of the court to develop rules of procedure but on the constitutional mandate that defendants be given fair trials, and that since there is no constitutional mandate to extend discovery to the prosecution, the court should not do so in the absence of enabling legislation. There might be merit in these contentions had defendants been permitted discovery only when necessary to insure due process of law. Pretrial discovery in favor of defendants, however, is not required by due process. (See 18 U.S.C. § 3500; Palermo v. United States, 360 U.S. 343, 349 [79 S.Ct. 1217, 3 L.Ed.2d 1287]; Campbell v. United States, 365 U.S. 85, 86 [81 S.Ct. 421, 5 L.Ed.2d 428]; People v. Riser, 47 Cal.2d 566, 585 [305 P.2d 1] ; Louisell, Criminal Discovery: Dilemma Real or Apparent?, 49 Cal.L.Rev. 56, 73-74.) Accordingly, when this court permitted discovery in advance of as well as at the trial (Powell v. Superior Court, 48 Cal.2d 704 [312 P.2d 698] ; Funk v. Superior Court, 52 Cal.2d 423 [340 P.2d 593]; Cash v. Superior Court, 53 Cal.2d 72 [346 P.2d 407]), it was not acting under constitutional compulsion but to promote the orderly ascertainment of the truth. That procedure should not be a one-way street. (People v. Cooper, 53 Cal.2d 755, 771 [3 Cal.Rptr. 148, 349 P.2d 964]; Powell v. Superior Court, 48 Cal.2d 704, 707 [312 P.2d 698].)

Petitioner contends, however, that the discovery order in this case violates the privilege against self-crimination (Cal. Const., art. I, § 13; Pen. Code, §§ 688, 1323, 1323.5) and the attorney-client privilege. (Code Civ. Proc., § 1881, subd. 2.) It is settled that a defendant in a criminal ease may not be compelled to testify (Pen. Code, § 1323.5), and it has generally been held that he may not be required to produce private documents in his possession. (People v. Royce, 106 Cal. 173, 184-185 [37 P. 630, 39 P. 524]; People v. Jackson, 24 Cal.App.2d 182, 198 [74 P.2d 1085]; People v. Rubens, 11 Cal.App.2d 576, 585 [54 P.2d 98, 1107]; 8 Wigmore on Evidence [McNaughton rev. 1961] § 2263, pp. 379-380.) Unlike an ordinary witness, a defendant need make no showing that the answer or document sought may be incriminating (People v. Talle, 111 Cal.App.2d 650, 666-667 [245 P.2d 633], and eases cited), for the very fact that the prosecution seeks it, establishes that in the prosecution’s view it may be incriminating. (See 8 Wigmore on Evidence [McNaughton rev. 1961] § 2260, p. 369.) When the prosecution has ample evidence of the existence, identity, and authenticity of documents in the defendant’s possession and thus does not need to rely on his knowledge to locate and to identify them or on his testimony to authenticate them, it may be that his implied admission alone that the documents produced were those he was ordered to produce would involve too trivial a degree of incrimination to justify invoking the privilege. (See Maguire, Evidence of Guilt, pp. 22-23; Meltzer, Required Records, The McCarran Act, and the Privilege Against Self-Incrimination, 18 U.Chi.L.Rev. 687, 699-701.) We are not confronted with such a case, however, for the prosecution has no independent evidence of the existence of the reports and X-rays it seeks or the names of the witnesses who have treated or will examine petitioner and who could authenticate any reports or X-rays they have made or will make. The prosecution seeks more than to require petitioner tacitly to admit that the materials are those requested ; it seeks the benefit of his knowledge of the existence of possible witnesses and the existence of possible reports and X-rays for the purpose of preparing its case against him.

Moreover, insofar as the prosecution seeks reports made or to be made by physicians to whom petitioner “was sent by his attorney for examination, as distinguished from advice and treatment,” it would violate the attorney-client privilege, for such reports are communications from petitioner to his attorneys through such physicians. (San Francisco Unified School Dist. v. Superior Court, 55 Cal.2d 451, 455 [11 Cal.Rptr. 373, 359 P.2d 925]; City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 236-238 [231 P.2d 26, 25 A.L.R.2d 1418].)

The prosecution, however, is entitled to discover 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. A number of states have statutes permitting or requiring discovery in criminal cases of the identity of witnesses who are to be called to testify for a defendant in connection with a particular defense, such as an alibi. (See Louisell, Criminal Discovery: Dilemma Real or Apparent?, 49 Cal.L.Rev. 56, 61, n. 13; 6 Wigmore on Evidence [3d ed.] § 1855 (b), pp. 418-420; 30 A.L.R.2d 480.) Although such discovery may require a defendant to disclose information that would lead to effective rebuttal of his defense, these statutes have uniformly been upheld against the claim that they violate the privilege against self-crimination. (State v. Smetana, 131 Ohio St. 329 [2 N.E.2d 778]; State v. Thayer, 124 Ohio St. 1, 4 [176 N.E. 656, 75 A.L.R. 48]; People v. Shulenberg, 279 App.Div. 1115 [112 N.Y.S.2d 374, 375]; People v. Rakiec, 260 App.Div. 452 [23 N.Y.S.2d 607, 612-613]; People v. Schade, 161 Misc. 212 [292 N.Y.S. 612, 615-619]; State v. Kopacka, 261 Wis. 70, 75-76 [51 N.W.2d 495, 30 A.L.R.2d 476].) The identity of the defense witnesses and the existence of any reports or X-rays the defense offers in evidence will necessarily be revealed at the trial. The witnesses will be subject to cross-examination, and the reports and X-rays subject to study and challenge. Learning the identity of the defense witnesses and of such reports and X-rays in advance merely enables the prosecution to perform its function at the trial more effectively. Thus, “the alibi statutes do not infringe on the privilege against self-incrimination. Rather, they set 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. Such statutes do not violate the right of a defendant to be forever silent. Rather they say to the accused: If you don’t intend to remain silent, if you expect to offer an alibi defense, then advance notice and whereabouts must be forthcoming; but if you personally and your potential witnesses elect to remain silent throughout the trial, we have no desire to break that silence by any requirement of this statute.” (Dean, Advance Specification of Defense in Criminal Cases, 20 A.B.A.J. 435, 440.)

Insofar as the trial court’s order herein requires petitioner to reveal the names and addresses of witnesses he intends to call and to produce reports and X-rays he intends to introduce in evidence to support his defense of impotence, it does not violate the privilege against self-crimination. Nor to this extent does it violate the attorney-client privilege. It simply requires petitioner to disclose information that he will shortly reveal anyway. Such information is discoverable. The order, however, is not limited to the discovery of such information, and therefore cannot be enforced in its present form.

Let a peremptory writ of prohibition issue restraining the trial court from proceeding in a manner inconsistent with the views expressed herein.

Gibson, C. J., McComb, J., and White, J., concurred.