State Ex Rel. Keller v. Criminal Ct. of Marion Cty. , 262 Ind. 420 ( 1974 )

ORIGINAL ACTION

Arterburn, C.J.

We have consolidated for consideration these two petitions for Writs of Prohibition since they arise out of a single criminal trial. In an action titled “State of Indiana v. Otis E. Keller a/k/a Otis Kelly,” the Honorable John B. Wilson, Judge of the Marion Criminal Court, Division Four, issued a wide-ranging discovery order. This order required substantially full pre-trial discovery by both the prosecution and the defendant. The order, if not complied with, was to be enforced by the Court’s inherent powers. The prosecutor and the defendant filed separate petitions for writs of prohibition to be directed against certain of the discovery items sought from each of them. We deny both petitions and affirm the discovery order.

I.

The State was ordered to produce the following:

1. The- names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements and a list of memoranda reporting or summarizing their oral statements.

2. - -Any written or recorded statements and the substance of any oral statements made by the accused or by a co-defendant, and a list of witnesses to the making and acknowledgment of such statements.

3'.' A transcript of those portions of grand jury minutes containing testimony of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.

' 4. Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations .and of scientific tests, experiments or comparisons.

5. Any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused.

6. Any record of prior criminal convictions which may be used for impeachment of the persons whom the State intends to call as witnesses at the hearing or trial.

With the exception of names and addresses of prospective witnesses, the State objects to being compelled to disclose this information on the general ground that the discovery order is beyond the traditional scope of criminal / discovery in Indiana. To assert that a court’s action is non-traditional is not a sound argument. The question is, does the Court rationally have the power to do what it did? Most discovery cases that have come to this Court for review have been those in which a defendant has been the party asking for discovery. Cherry v. State (1972), 258 Ind. 298, 280 N.E.2d 818; Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387; Antrobus v. State (1970), 253 Ind. 420, 254 N.E.2d 873; Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536. Our role has been to define standards with which to judge the exercise of the trial court’s discretionary denial of the motion. However, in this case the court granted motions for discovery in a completely balanced order against each side. A trial court may, sua sponte, affirmatively order discovery. We have specifically so held: “Discovery may be provided for by statute, court rule or granted by the inherent power of the trial court.” Bernard, supra, 230 N.E.2d at 539; Accord, Antrobus, supra, 254 N.E.2d at 874. The object of a trial is the discovery of the truth. A trial judge has the responsibility to direct the trial in a manner which facilitates the ascertainment of that truth. The power to order discovery is “grounded in the inherent power of the trial court to guide and control the proceedings.” Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60, 64. When a trial judge orders discovery, the party so ordered must do more than point out that the order is unusual or innovative. The State suggests that in respect to supplying relevant grand jury minutes of witnesses who are to testify at trial the expense would be so enormous as to make the ordering of these an abuse of the trial court’s discretion. Yet, there are no data offered in support of this claim. Of course, the judge may consider expense as one of the factors applicable to the exercise of his discretion. Nevertheless, criminal discovery is designed to improve the efficiency of the criminal justice system. The idea of a trial as a sport or game is not only a reflection on the judicial process, but it is wasteful of human intelligence and technique. The discovery order was within the discretionary power of the trial judge to guide and control the trial in the best interests of justice. No proof was offered or presented in this case in opposition to the order. There is no showing of an abuse of discretion.

H.

The Defendant was subject to the following rules of discovery :

“(a) The person of the accused. Upon written motion by the State and subject to constitutional limitations, the Court may require the accused, among other things, to:

(i) Appear in a line-up;

(ii) Speak for identification by witnesses to an offense ;

(iii) Be fingerprinted;

(iv) Pose for photographs not involving reenactment of a scene;

(v) Try on articles of clothing;

(vi) Permit the taking of specimens of material from under his fingernails;

(vii) Permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof;

(viii) Provide a sample of his handwriting; and

(ix) Submit to a reasonable physical or medical inspection of his body.

(b) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present. Provision may be made for appearances for such purpose in an order admitting the accused to bail or providing for his release.

(c) Medical and scientific reports. Subject to constitutional limitations, the trial court shall, on written motion, require that the State be informed of, and permitted to inspect and copy or photograph, any report or results, or testimony relative thereto, of physical or mental examinations or of scientific tests, experiments or comparisons, or any other reports or statements of experts which defense counsel has in his possession or control, except that those portions of reports containing statements made by the defendant may be withheld if defense counsel does not intend to use any of the material contained in the report at a hearing or trial.

(d) Defenses. Subject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at a hearing or trial and shall furnish the State with the following material and information within his possession and control:

(i) The names and last known addresses of persons he intends to call as witnesses together with their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements, any record of prior criminal convictions known to him; and

(ii) Any books, papers, documents, photographs, or tangible objects he intends to use as evidence or for impeachment at a hearing or trial."

The provisions for full disclosure on behalf of both the State and the defendant are not something new. Beginning in 1964, the American Bar Association has drafted standards for criminal discovery which have an even greater scope than those presented in this case. In October, 1971, Illinois adopted rules of discovery as broad as the rules before us in this case. Since 1972, Arizona has been operating effectively with a set of discovery rules based on the A.B.A. standards. All of these rules require disclosure of defenses, names of witnesses, reports and statements of witnesses, examinations, exhibits and other matters relevant to the trial, insofar as they do not violate constitutional limitations. Persons working under these rules and informed as to their operation state publicly that full disclosure results in the elimination of many trials since each side is well-informed as to its position and may look realistically at the probable results of a trial. 56 Judicature 279 (February, 1973). More recently, amendments to the Federal Rules of Procedure were adopted for the federal system. 42 L.W. 4553-56. These amended federal rules require disclosure comparable to the A.B.A. standards and those presented for our decision here.

The defendant, however, claims that to compel the disclosure of his witnesses or the type of his defense violates a constitutional right. U.S. CONSTITUTION, Fifth Amendment. The United States Supreme Court has set to rest this argument. Wardius v. Oregon (1973), 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82; Williams v. Florida (1970), 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446.

The Williams Court had before it the constitutionality of an alibi-statute. Such statutes, common in many jurisdictions, require a defendant to disclose prior to trial that he intends to rely on an alibi as a defense and to list the names of witnesses he intends to call at trial to prove the alibi. See Williams, supra, 26 L. Ed. 2d at 450, F.N. 11. In upholding such a statute the Court commented: “Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State’s case before announcing the nature of his defense, any more than it entitles him to await the jury’s verdict on the State’s case-in-chief before deciding whether or not to take the stand himself.” Williams, supra, 26 L. Ed. 2d at 452. In the later case of Wardius v. Oregon, supra, the Court refined the principle by holding that there must exist a reciprocity between the discovery rights of the state and those of the defendant; In other words, disclosure requirements must be fairly balanced between the parties. Thus, for example, an alibi statute may not require information only from one side, the defendant, and not balance it with a requirement that the state also give information as to where the alleged crime took place and the names of witnesses who will so testify. In Indiana, the alibi statute is clearly balanced as to the rights of the accuser and the accused in the respects mentioned. IC 1971, 35-5-1-1 through 35-5-1-3 [Burns Ind. Ann. Stat. § 9-1631—35 (1974 Supp.)].

In the Wardius case, the Supreme Court stated, concerning the principle of liberal discovery which is now before us, that:

“Notice-of-alibi rules, now in use in a large and growing number of States, are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial.

* * *

The growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system. As we recognized in Williams, nothing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals. ‘The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as “due process” is concerned, for [a rule] which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.’ ” (Our emphasis) Wardius, supra, 37 L. Ed. 2d at 86-87.

Defendant suggests that disclosure of a defense would be, in some situations, an admission of certain elements of a crime and thus incriminating. However, pre-trial discovery to the extent required in the case before us does not eliminate the proof beyond a reasonable doubt standard nor does it shift the burden of proof. The State still must prove to the trier of fact each and every element of the crime charged. Pre-trial discovery merely regulates the timing of disclosures. Williams, supra. Absent pre-trial discovery, a defendant can spring a surprise defense and witnesses in support thereof. The State’s only recourse is to seek a continuance in order to meet this defense. The discovery procedure simply says that if a defendant chooses to employ a certain defense, perhaps one that admits elements of the crime, the State will not be surprised; the trial will not be delayed.

A second argument to the effect that the defendant is incriminating himself by giving a list of his witnesses and their statements must fall for the same reason. The defendant is not testifying when he gives the names of witnesses who may testify. There is no constitutional provision against compelling witnesses in general to testify. When we consider that it is well-established that the State has a right to fingerprint the defendant, to photograph him, to examine him physically, to take samples of blood, hair and other like materials from Ms body, and to secure samples of his handwriting, it can scarcely be argued that to ask for a list of witnesses he expects to produce at the trial is an invasion of his constitutional right against self-incrimination. What was said in Williams with respect to alibi-witnesses is applicable to witnesses in general.

. “The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State’s evidence may be severe but they do not vitiate the defendant’s choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However ‘testimonial’ or ‘incriminating’ the alibi defense proves to be, it cannot be considered ‘compelled’ within the meaning of the Fifth and Fourteenth Amendments.” (our emphasis) Williams, supra, 26 L. Ed. 2d at 451.

The Fifth Amendment is not a bar to any conviction resting on self-incrimination. It prohibits only compelled self-incrimination. These discovery requirements leave to the defendant, who will have the benefit of reciprocal discovery from the State, the ultimate choice of whether to risk self-incrimination.

We think the same rationale applies to the contention that the compelled production of memoranda, books, papers, documents, photographs or tangible objects, medical and scientific reports, or reports or statements by experts which the defense intends to use at trial is a violation of the privilege against self-incrimination.

The key to the entire principle of discovery in criminal cases is that of reciprocity, the balancing of the right to discovery on both sides. We feel that just such a situation exists in the case presented to us. Wardius makes the following statement:

“[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State. Wardius, supra, 37 L. Ed. 2d at 88.

We hold, as a matter of state law, that a trial court has the inherent power to balance discovery privileges between parties. Thus, if any statute should deny or fail to provide for full discovery within constitutional safeguards, the trial court may balance the discovery procedure regardless of any omission or prohibition in the statute.

In the past we have been inclined to develop the rights of discovery in more or less a piecemeal manner. Certain members of this Court at times have dissented from decisions requiring discovery on the ground, among others, that the required discovery was not reciprocal. We must concede that the better approach is by rules laying out a broad, well-balanced system of discovery. However, this Court up to this time has not been able to perfect such rules. Since the exigencies of this case require a decision, we have attempted to set forth general principles concerning discovery procedure as a guide for the trial courts of this state until more exact written rules in that area may be promulgated.

For all of the above reasons, the “Verified Petition for Temporary Writ of Prohibition Against Order Compelling Pre-Trial Discovery by State” and the “Verified Petition for Alternate Writ of Mandate or Prohibition Against Order Compelling Pre-Trial Discovery By Criminal Defendant” are denied.

Givan, Hunter, Prentice, JJ., concur; DeBruler, J., concurring and dissenting with opinion.