I dissent.
The majority opinion states one of the questions involved in this case as follows: “Was it prejudicial error to require def ense counsel to supply names and addresses and expected-testimony óf defense' 'witnesses ? ’ ’ The answer given by the majority was “No,” and'the reasons advanced to support such a startling doctrine were “This information would, necessarily be disclosed at the trial and the witnesses would be subject to cross-examination. Jones v. Superior Court, 58 Cal.2d 56 [22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213], permits the People to obtain discovery in advance of trial. Discovery enables the prosecution to perform its trial function more effectively. Disclosing this information does not interfere,, with the defendant’s right of privacy, freedom from self-incrimination, or the lawyer-client relationship. Absent the *610privileges afforded by law, the defendant has no valid interest in denying the prosecution access to evidence that can throw light on the issues. ’ ’
This statement of the prosecution’s right to pretrial discov.ery is far too broad, is not supported by Jones, and demonstrates a callous disregard of a defendant’s constitutional, statutory, and common law rights. This claimed interpretation of Jones justifies the fears expressed by Justice Dooling in his dissent in the Jones case. He there stated at page 68 : ‘ ‘ Historically and by constitutional safeguards the right of defendants in criminal cases 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 eompelledj 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 ease 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 his 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 ease to determine the defense or defenses, if any, which he might then interpose.
*611“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 case to remain silent, if he chooses, at every stage of the proceeding against him. ’ ’
Jones does not stand for the broad rule stated in the majority opinion. Even in its broadest application Jones holds that where, before trial, the defendant voluntarily discloses that he intends to rely on an affirmative defense, he may be compelled to divulge his witnesses. The cases relied upon in the majority opinion in Jones were all eases where by statute it was provided that if the defendant relies on the defense of alibi he must disclose the names of his alibi- witnesses. Jones does not hold that a defendant in a criminal case can be compelled, generally, to disclose the “names and addresses and expected testimony of defense witnesses.” The majority seem to believe this should be done .because it will permit the prosecution “to perform its trial function more effectively.” So would the processes of the inquisition, the rack and the screw and all other forms of coerced confessions. These would make the prosecutor’s job an easier one, and more effective, but until today it has never been, implied, far less held, that constitutional and statutory rights may be forgotten or disregarded simply because so to do renders the prosecution more effective.
Jones does not hold, as the majority imply, that because pretrial discovery is allowed a defendant that in fairness it .also must be allowed to the prosecution. Jones did not and constitutionally could not make discovery a two-way street. Constitutionally and by statute limits are placed on pretrial discovery by the prosecution so that discovery is in fact a one-way street. The state is required to prove a defendant guilty beyond a reasonable doubt before a defendant can be forced to *612disclose his defense. The very silence of the defendant cannot even be commented on (Griffin v. California, 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]). Constitutionally the prosecution cannot prove a defendant’s guilt out of his own mouth, unless he consents. This is a constitutional right that is fundamental, unlimited and absolute. It is so fundamental that a defendant cannot be compelled in any significant way to give evidence against himself until the prosecution has established a prima facie case that citation for such an obvious principle is unnecessary. Compelling a defendant to give the names and addresses of his proposed witnesses and to disclose their testimony in advance of trial does just that.1
Although Jones may have involved only a minor impairment of constitutional rights, what I there said in my dissent in that case is doubly applicable here. It is there stated: “It is the constitutional right of the defendant, who is presumed to be innocent, to stand silent while the state attempts to meet its burden of proof, that is, to prove the defendant’s guilt beyond a reasonable doubt. The defendant, up until now, did not have to take an active part in the ascertainment of the facts. The majority opinion does not merely enlarge a simple judicial principle of pretrial procedure, it fundamentally alters our concepts of the rights of the accused, and forces him to come forward with information before the prosecution has presented a case against him. . . . While, of course, a criminal trial should be ‘fair’ to the prosecution as well as to the defense, it should not be forgotten that the defendant has additional constitutional and statutory rights not given to the prosecution. The right not to incriminate himself, the right to remain absolutely mute until a prima facie case has been established, the right to the presumption of innocence until proved guilty beyond a reasonable doubt, are a few of these rights that completely refute the ‘one-way street’ argument.” (58 Cal.2d at pp. 64-65.)
As also pointed out in my dissent in the. Jones case the contention that a defendant can be forced to disclose his defense testimony prior to trial is patently fallacious. It is there stated at page 66: “This type of ‘reasoning’ overlooks the possibility that the compelled revelation by the defendant that he may have only a weak defense may itself be self-incriminating. Until today, in California, a defendant could *613weigh Ms proposed defensé against the prosecution’s case, and not make np his mind until he heard the strength or weakness of the. case against him whether he would rely on a straight not guilty defense or urge an ‘affirmative’ defense. Now he must make that decision before the state’s presentation. If the majority opinion were sound, it would mean logically that the prosecution could serve interrogatories upon a defendant demanding to know whether or not he intends to rely on an ‘affirmative’ defense, what it is, and what evidence he has to support it. I am not willing to see fundamental constitutional rights emasculated in this fashion. ’ ’
For these reasons I am of the opinion that it was constitutional and prejudicial error to compel defendant prior to trial to disclose the names and addresses and the testimony of his witnesses.
I think the judgment should be reversed.
The solicitude of tlie United States Supreme Court for the Fifth Amendment is shown not only by the Griffin ease, but by such eases as Marchetti v. United States, 390 U.S. 39 [19 L.Ed.2d 889, 88 S.Ct. 697]; Grosso v. United States, 390 U.S. 62 [19 L.Ed.2d 906, 88 S.Ct. 709]; *613Haynes v. United States, 390 U.S. 85 [19 L.Ed.2d 923, 88 S.Ct. 722]; Leary v. United States (decided May 19, 1969) 395 U.S. 6 [23 L.Ed.2d 57, 89 S.Ct. 1532], and United States v. Covington (decided May 19, 1969) 395 U.S. 57 [23 L.Ed.2d 94, 89 S.Ct. 1559], all decided since the Jones case.