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

DOOLING, J.

I dissent from the majority opinion insofar as it authorizes discovery against a defendant in a criminal case. Admittedly discovery in criminal cases in .this state is court-created. Heretofore, as noted in the majority opinion, it has been limited to discovery by the defendant. Historically and by constitutional safeguards the right of defendants' in criminal eases to be free of any procedure savoring of judicial inquisition has been jealously protected. As Justice Peters points out in his dissenting opinion, at least absent some legislative provision such as those with regard to the defense, of alibi referred to in the majority opinion, a defendant in a criminal case has never been compelled, in advance of the production of the prosecution’s evidence against him, to determine upon what if any defenses he may ultimately rely. The opinion of the majority in this case makes a breach, even if a comparatively small one, in this right of this defendant and compels him now to commit himself to refrain from interposing the affirmative defense of impotency unless he makes certain disclosures to the prosecution in advance of the trial. I am fearful, not so much of the step taken in this case, as of its possible implications. It is purely by virtue of' the accidental fact that the defendant in this case asked for a continuance to procure evidence to support a claim of impotency that the prosecution was aware of the possibility that such a defense might' be interposed. Normally the nature of Ms .defenses would not be disclosed by the defendant in advance of trial. Are we laying down a rule in this ease limited to similar cases, i.e., to cases in which for some reason the defendant in advance of trial chances to disclose in some manner his intention to rely upon some affirmative defense? If so the cases will be rare indeed in which the prosecution will be entitled to discovery. Or are we opening the door, as Justice Peters suggests, to a general inquiry by the prosecution whether the defendant intends to rely on any affirmative defense and if so what the nature of such affirmative defense may be? If the latter, and this seems the logical conclusion from the majority’s holding, by court-made rule we are depriving the defendant of the right which he heretofore always enjoyed of waiting until the close of the prosecution’s case to determine the defense or defenses, if any, which he might then interpose.

If the defendant’s traditional freedom of action is thus to be curtailed, that curtailment seems to me to be preeminently a legislative and not a judicial function. The majority opinion cites no case from any jurisdiction in which any court has undertaken' without statutory' sanction to curtail this traditional right of a defendant, and- I consider it unwise and dangerous for this court to enter upon such delicate ground.

I have some doubt of the constitutional limitations on our judicial power to subject a defendant in a criminal case to any form of discovery. Justice Peters has elaborated the basis of that doubt. But putting constitutional questions aside I am fearful as a, matter of policy of the future outcome of even so small an initial court-created inroad upon the heretofore unquestioned right of a defendant in a criminal ease to remain silent, if he chooses, at every stage of the proceeding against him.

Peters, J., concurred.

' Petitioner’s application for a rehearing was denied July 25, 1962. Dooling, J.,^* participated in place of Traynor, J. Peters, J., and Dooling, J.,^* were of the opinion that the application should be granted.

* Assigned by Chairman of Judicial Council.