On Motion for Rehearing. [16] A motion for rehearing has been filed by the state, based upon the proposition that there is error in paragraph 4 of our opinion. The argument is that communications between an informer and the public prosecutor are privileged, and, as such, are not a proper subject for cross-examination, and the refusal of the court to allow cross-examination was therefore not erroneous, even if a wrong reason was assigned therefor. There is considerable confusion in the discussion of this proposition in the books. There are two principles involved. One is that, where the subject inquired about a state secret, the interests of the public are involved, and, in such a case, the communication is exempt from inquiry and disclosure on the ground of public policy. The exemption in such a case is not based upon the confidential relation between attorney and client, but upon the right of the state to protect its secrets for the purpose of effectively serving the interests of all the citizens. In such a case the exemption is absolute. The other *Page 334 principle, often involved, is the right of the citizen who has informed the public prosecutor of the commission of a crime to be secure from exposure when he is afterwards sued for libel, slander, or malicious prosecution. In such a case, he is directly concerned in maintaining the exemption, being a party to the proceeding, and he may rely upon the confidential character of the communication made by him to the prosecuting officer. This is the true privileged communication between prosecuting attorney and a citizen; the latter having the right to rely upon the advice of the former. This doctrine encourages the citizen to inform the prosecuting officer of criminal offenses, which otherwise might go unpunished.
Though not always made clear, that the general doctrine is that communications by an informer to the prosecuting officer are generally privileged. In an action for slander or malicious prosecution against an informant based upon the communications, they are generally, if not always, so considered. 5 Jones on Ev. (2d Ed.) §§ 2168, 2203; Vogel v. Gruaz, 110 U.S. 311, 4 S. Ct. 12,28 L. Ed. 158; Worthington v. Scribner, 109 Mass. 487, 12 Am. Rep. 736; In re Quarles Butler, 158 U.S. 532, 15 S. Ct. 959,39 L. Ed. 1080; State v. Wilcox, 90 Kan. 80, 132 P. 982, 9 A.L.R. 1091, and note 1112; Michael v. Matson, 81 Kan. 363, 105 P. 537, L.R.A. 1915D, 1; Centoamore v. State, 105 Neb. 452, 181 N.W. 182; Attorney General v. Tufts, 239 Mass. 458, 131 N.E. 573, 132 N.E. 322, 17 A.L.R. 274; Lindsey v. People, 66 Colo. 343, 181 P. 531, 16 A.L.R. 1250, and note See, also, 5 Wigmore on Ev. (2d Ed.) § 2374.
The case at bar, however, is not a case of a civil action for libel or slander. This is a case where a witness on the stand for the prosecution was sought to be probed as to his credibility by examining him as to whether in his account to the district attorney he had included the important statements testified to by him at the trial. The witness claimed no exemption for himself; the objection was made by the district *Page 335 attorney. No claim was made that any state secret was involved, nor that the interest of the state could in any way be impaired. Under such circumstances, there would seem to be no reason for the exemption, either for the protection of the witness or to guard the interests of the state. The broad statements in some of the cases to the effect that such communications can in no case be disclosed without the consent of the government are to be taken into consideration with the facts before the court. They were all, or nearly all, cases where the defendant was being sued for slander or malicious prosecution. There is one case, though, which seems to go further and to announce the doctrine that such communications are absolutely privileged. Arnstein v. United States, 54 App. D.C. 199, 296 F. 946. In that case defendants were on trial in the District of Columbia for bringing into the District stolen stock in violation of a local statute. They caused a subpoena duces tecum to be served on the district attorney of the county and state of New York to produce written statements made to him by one Gluck, a witness for the government. The district attorney appeared with the statements, but claimed they were privileged, because made to him in his official capacity in the course of an investigation by him in a matter which was pending and undisposed of in the New York courts involving some of the defendants then before the court. The exemption was sustained on the broad ground that such communications may not be inquired into without the consent of the state. No reliance, in terms, is attached to the fact that this was a state secret; the criminal charges being pending and undisposed of, which alone would have justified the holding. But the court seems to have interpreted the cases of the United States Supreme Court to establish the privileged character of the communications in all cases regardless of the circumstances. This is probably too broad a view. When it is necessary to protect the interests of the state, or when it is necessary to protect a citizen from an action of libel, slander, or malicious *Page 336 prosecution based on his communication to the prosecuting officer, which he should always feel free to make, then the communication is privileged. When no such circumstances are present, there is no reason for the privilege and it should not prevail. There are some well-reasoned cases to this effect. In People v. Davis, 52 Mich. 569, 18 N.W. 362, the defendant was on trial for adultry with the wife of one O'Rourke. The defendant called the district attorney who was acting when the prosecution was begun and asked him whether, in a statement made to him by O'Rourke, the latter did not say that on the occasion when he now testifies he saw the defendant and his wife flagrante delicto he had seen nothing wrong between the parties. Objection on the ground that the communication was privileged was made and sustained by the court. In the discussion of the matter, the court, speaking through Cooley, Chief Justice said:
"If, then, there is any privilege in the case, it must be the privilege of the state in whose interest O'Rourke assumed to act when making his communication to the prosecuting officer. And we are not called upon in this case to consider whether there may not be cases in which the prosecuting attorney would be excused, in the interest of the state, from disclosing what had been told to him with a view to the commencement of criminal proceedings. There would be strong reasons in many cases why the counsel of the state should be inviolably kept; and nothing we shall say in this case will be intended to lay down a rule except for the very case at bar and others standing upon the same facts.
"In this case the prosecutor testified that on a particular day and at a place specified he witnessed the commission of the crime charged. The defense then offered to show that in laying the case before the prosecuting officer the prosecutor stated that on the day and at the place specified he witnessed nothing wrong between the parties. If he did so state at that time when he was laying before the public authorities the very case they were to prosecute, and if he now swears to a case altogether different, it may well be argued that he is unworthy of belief; and the state has no interest in interposing any obstacles to the disclosure of the facts, unless it is interested in convicting accused parties, on the testimony of unworthy persons. But surely the state has no such interest; its interest is that accused parties shall be acquitted, unless upon the facts they are seen to be guilty; and if there shall be in the possession of any of its officers information that can legitimately *Page 337 tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence, the defense should be given the benefit of it. There was therefore no privilege to preclude the giving of the testimony for which the defense called."
A well-considered case is Riggins v. State, 125 Md. 165,93 A. 437, Ann. Cas. 1916E, 1117. Attached to the report is a valuable note at page 1121. The defendant in that case was convicted of sexual intercourse with a girl between the ages of 14 and 16 years. A question was asked her on cross-examination as follows: "Didn't you tell the state's attorney that you never had intercourse with Walter Riggins?" Objection was interposed and sustained by the court. The Supreme Court of Maryland held that this was error and makes a lengthy analysis of many of the cases. See, also, Marks v. Beyfus, 25 Q.B. Div. (Eng.), 494-498, wher it is said that, when it is made to appear to the court that a disclosure might show the prisoner's innocence, the general rule of privileged communications must yield.
In this connection it is to be noted that we are not considering a question as to whether a district attorney may be put on the stand to contradict a witness for the state who has made communications to him in furtherance of the prosecution. Such a procedure would seem to present such administrative difficulties frequently, as to impair the effectiveness of the prosecution and to involve the administration of the criminal laws in great confusion. What we are determining is whether a witness for the state is subject to cross-examination for the purpose of probing his conscience and testing his memory and reliability by questions as to what he communicated to the district attorney in regard to the facts in the case, and we hold that it can be done.
It is to be regretted that such an objection should have been interposed and sustained. The matter was trivial, and should not cause a reversal of the judgment. But when a legal right has been invaded, we have no reason to ignore it in case we cannot say *Page 338 the error was harmless.
It follows from the foregoing that our former opinion is to be adhered to, and it is so ordered.
BICKLEY and WATSON JJ., concur.