No. 87-164
IN THE SUPREME COURT OF THE STATF OF MONTANA
1987
STATE OF MONTANA, ex rel.,
JAMES CARKULIS,
Relator,
-vs-
DISTRICT COURT OF THE THIRTEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
YELLOWSTONE, HONORABLE G. TODD RAUGH,
Presiding,
Respondent.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relator:
Allen Beck argued, Billings, Montana
Jeffrey T. Renz argued, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Judy Browning argued, Asst. Atty General, Helena
Harold Hanser, County Attorney, Billings, Montana
Terry Swift, Deputy County Atty., Billings
Mike McGrath argued, County Attorney, Helena, Montana
Submitted: September 2, 1987
Decided: November 25, 1987
& y4, 4b
& 1,
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
In this case, we determine that the reciprocal pretrial
discovery statutory provisions in criminal cases, for the
purposes of this case and when applied as herein directed,
are amenable to the state and federal constitutions and not
barred by the provisions of the state and federal
constitutions herein specified.
This is an original proceeding in this Court. Relator
James Carkulis stands charged with the commission of a crime
in the District Court, Thirteenth Judicial District, County
of Yellowstone. The State had moved the District Court for
an order requiring reciprocal discovery by the defendant
under S 46-15-323(4), MCA (1985). In an order dated December
20, 1985, the District Court granted- the State's motion for
pretrial discovery but made no provision in the order f o r
sanctions in the case of noncompliance.
On January 15, 1986, Carkulis filed in this Court a
petition for writ of supervisory control or writ of
certiorari (Cause no. 86-026 in this Court) relating to the
December 20, 1985 ~istrict Court order. We ordered a
response, and received an answer and briefs from the Attorney
General of the State of Montana; the County Attorney of
Yellowstone County; and amici curiae from the Moses Law Firm
of Billings, Montana; Ungar Law Firm of Bozeman, Montana; and
the Montana County Attorneys Association, through its
president Mike McGrath of Helena, Montana. However, on
December 11, 1986, after oral argument, we denied the
petition for writ of supervisory control without prejudice
upon the qrounds that the District Court had imposed no
sanctions, and might never impose sanctions, and that there
was an adequate remedy by appeal.
Thus, the matter returned to the District Court. There,
on March 9, 1987, Carkulis moved the District Court to
reconsider its order of December 20, 1985. On April 9, 1987,
the District Court issued its order denying Carkulis' motion
to reconsider and further ordering that unless the defendant
disclosed the materials set out in the December 20, 1985
order by May 1, 1987, he would "be precluded from offering
the same at trial." The time for compliance by the defendant
has passed and neither he, his counsel nor agents, have
complied with the pretrial discovery order of the District
Court. On May 4, 1987, Carkulis, as relator, filed his
second petition for writ of supervisory control or writ of
certiorari in this Court and thus the issue is before us
again.
This time, a sanction has been imposed against the
defendant, the most drastic available to the District Court
under S 46-15-329, MCA, that of barring him from offering
evidence not disclosed before May 1, 1987.
The first problem is whether this Court should consider
the issuance of a writ, either of supervisory control, or of
certiorari. Under § 27-25-102(2), MCA, if a district court,
exercising judicial functions, has exceeded its jurisdiction,
and if in the judgment of this Court there is no plain,
speedy or adequate remedy, certiorari will lie. Section
27-25-102(2), MCA. In like manner, when a cause of action or
a right has arisen under conditions making due consideration
in the trial court and due appeal to this Court an inadequate
remedy, or when supervision of a trial court other than by
appeal is deemed necessary and proper, a writ of supervisory
control may issue. Rule 17(a), M.R.App.P. A petition
seeking original jurisdiction in this Court must make a
showing of the inadequacy or unavailability of any other
remedy, either in the District Court or by appeal to this
Court. Crist v. Boyd, District Court (1976), 172 Mont. 38,
560 P.2d 531; Petition of Waite (1964), 143 Mont. 321, 322,
389 P.2d 407, 408.
In the first proceedings brought by Carkulis in this
Court, the Attorney General, in his memorandum in support of
his response, agreed we should take jurisdiction of the
proceedings, and pointed out a proper reason:
For example, if the court were to decline to take
jurisdiction of this application, relator would
presumably comply with the District Court's
disclosure order. Should relator then be convicted
and successfully appeal his case, it might prove
unfair to him should a new trial be ordered, since
the State would have the benefit of the very
information which relator believes he should not be
required to disclose. Once disclosures are made,
they cannot be retracted. See Wardius 5 Oregon,
412 U.S. 470, 478 (1973).
Under the record as it is now presented to us in this
second application by Carkulis, since he is barred from
offering evidence pertaining to the materials sought in
pretrial discovery, he may be entirely precluded from
offering a defense. He must risk conviction in order to
effect an appeal, and then risk the uncertainty of our
decision on appeal. Without our intervention now, defendant
has a Hobson's choice: Go back to the District Court, comply
with the pretrial discovery, hope that the District Court
will rescind its order barring the evidence and rely on a
successful appeal; or, alternatively, stand pat, risk
conviction, and the uncertainty of success on appeal.
Moreover, the District Court order is binding not only on the
defendant, but upon his counsel and their agents. They are
also at risk for noncompliance through contempt proceedings
against them.
Counsel for the State in prosecuting defendant is likely
to have a dilemma here with respect to the law: There is a
split of authority among neighboring states as to the
legality of such pretrial discovery provisions. Unless we
set the course in this case of first impression, there are no
Montana guideposts for counsel advising their clients with
respect to pretrial discovery in criminal cases.
Accordingly, we accept jurisdiction to determine if
supervisory control is proper in this matter.
The District Court's Order
On December 20, 1985, the District Court entered its
order for pretrial discovery which included the following
provisions:
IT IS HEREBY ORDERED that the defendant, James
Carkulis and his counsel or agents, make the
following materials and information available to
the State without delay for examination and
reproduction, subject to constitutional or
statutory limitations:
(1) the names and addresses of all persons, other
than the defendant, whom he in good faith knows he
will call as witnesses at trial, and copies of all
statements made by them related to this case;
(2) the names and addresses of any expert
witnesses whom he in good faith knows he will call
at trial, and summaries of the testimony he expects
the witnesses to give at trial;
(3) all papers, documents, photographs and other
tangible objects which the defendant in good faith
knows will be used as exhibits at trial; and
IT IS FURTHER ORDERED that the defendant shall
promptly notify the State of the existence of any
additional information or material referred to in
the foregoing that is discovered by the defendant
after this Order and make such information or
material available for examination and reproduction
without delay.
On April 9, 1987, the District Court, by a further
order, supplemented the foregoing provisions by providing
that if the defendant Carkulis did not disclose the materials
set out above by May 1, 1987, he would "he precluded from
offering same at trial."
Issues Raised By Defendant
The defendant maintains that the District Court's orders
violate his rights secured by the Fourth, Fifth, Sixth and
Fourteenth Amendments to the United States Constitution, and
Art. 11, 5 11, 17, 24 and 25 of the 1972 Montana
Constitution.
The Applicable Statutes
The legislature adopted in 1985 several provisions
relating to reciprocal pretrial discovery in criminal cases.
Ch. 202, Laws of Montana (1985). The provisions relating to
pretrial reciprocal discovery are now embodied in 5 5
46-15-321 through 46-15-329, MCR. In general, these statutes
contain applicable definitions (5 46-15-321); requirements
for disclosure by the prosecution ( S 40-15-322); requirements
for disclosure by the accused (5 46-15-323); materials not
subject to disclosure ( S 46-15-33.4); a continuing duty to
disclose ( S 46-15-327); a provision for excision or
protective orders ( S 46-15-328); and provisions for sanctions
in the case of noncompliance ( 5 46-15-329).
The orders of the District Court in this case are based
on provisions contained in § 46-15-323, MCA. The important
subsections are:
(4) Simultaneously with the notice of defenses
submitted under subsection (3), the defendant shall
make available to the prosecutor for testing,
examination, and reproduction:
(a) the names and addresses of all persons, other
than the accused, whom he will call as witnesses at
trial, together with all statements made by them in
connection with a particular case; and
(b) the names and addresses of experts whom he
will call at trial, together with the results of
the physical examinations, scientific tests,
experiments, or comparisons, including all written
reports and statements made by them in connection
to the particular case; and,
(c) a list of all papers, documents, photographs,
and other tangible objects that he will use at
trial.
(5) The defendants obligation under this section
extends to material and information within the
possession or control of the d.efendant or his
attorneys or agents.
Disclosure of Witnesses and Statements
Carkulis attacks the provisions of S 45-15-323 ( 4 ) (a),
MCA, which requires the disclosure of witnesses the defendant
will call at trial, together with all statements made by them
in connection with this particular case.
The word "statements" found in the statute ma.y in itself
be overbroad. We construe the word statements to include
tapings, transcriptions, writings or other means used to
memorialize the witness as to his observation or impression
of a situation or event, and which may be used either to
refresh the recollection of the witness or to impeach him at
trial.
Carkulis attacks this statute on the grounds that it
violates the state and federal rights against
self-incrimination and deprives him of due process. 3
With respect to the defenses of alibi and self-defense
and the former defense of insanity, this Court has already
spoken and approved the requirement for a production of a
list of witnesses to be used at trial. State ex rel. Sikora
v. District Court (1969), 154 Mont. 241, 462 ~ . 2 d 897.
Sikora arose under former statute § 46-15-301, now repealed,
(Ch. 202, Laws of Montana (1985)), but the provisions of
which have been subsumed in Part 3, Title 46, Criminal
Procedure. In Sikora, this Court declared that not all
evidence obtained from a defendant is privileged under the
Fifth Amendment of the United States Constitution. The
production by the defendant of a list of his witnesses
relating to those defenses was approved on the grounds that
1 "No person shall be compelled to testify against himself
in a criminal proceeding.. .. Art. 11, 25, 1972
Montana Constitution.
2 "No person ... shall be compelled in any criminal case
to be a witness against himself . . ." Fifth Amendment.
to the United States Constitution.
3 "No person shall be deprived of life, liberty or
property without due process of law." Art. 11, S 17,
1972 Montana Constitution.
"No person ... shall ... be deprived of life,
liberty or property, without due process of law;. . ."
Fifth Amendment to United States Constitution.
". . . nor shall any State deprive any person of life,
liberty or property, without due process of law;.
Fourteenth Amendment. to United States Constitution.
. ."
such production merely enabled the prosecution to perform its
function at trial more effectively, that the right to remain
silent was not violated because production was not required
if the witnesses would not testify, and that the defendant
was not required to reveal anything more than he would
voluntarily and without compulsion give at trial. This Court
also found prot.ection for the defendant in Sikora in that the
statute was directed to the purpose of giving notice to the
state and that "the defendant who chooses to remain silent.
until later than the statute indicates may do so and for good
cause may still interpose his defenses." 154 Mont. at 251,
462 P.2d at 902. The logic of Sikora now controls the
additional defenses now listed in S; 46-15-323(3) for which
the defendant must provide written notice and a list of the
witnesses pertaining thereto that he will call at trial.
The United States Supreme Court in Williams v. Florida
(1970), 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, upheld a
state statute requiring the disclosure of an alibi defense
and alibi witnesses to the state prior to trial as not
violating the federal right against self-incrimination.
Williams is essentially grounded on the "accelerated
disclosure" theory, that is, that at trial, the defendant
would have to reveal his alibi and his witnesses relating
thereto, and that accelerating the disclosure does not affect
his constitutional rights against self-incrimination.
Nonetheless, in Williams, Justice Black took an opposite
tack:
[Federal constitutional rights] are designed to
shield the defendant against state power. None are
designed to make convictions easier and taken
together they clearly indicate that in our system
the entire burden of proving criminal activity
rests on the state. The defendant, under our
constitution, need not do anything at all to defend
himself, and certainly cannot be required to help
convict himself. Rather he has an absolute,
unqualified right to compel the state to
investigate its own case, find its own witnesses,
prove its own facts, and convince the jury through
its own resources. Throughout the process the
defendant has a fundamental right to remain silent,
in effect challenging the state at every point to:
"Prove it!"
399 U.S. 78, 112, 90 S.Ct. 1893, 1912, 26 L.Ed.2d 446, 483
(Black, J., dissenting).
Justice Black's argument for the rights of an accused
has not, for the most part, been followed by other federal
and state courts. More and more, there have been
declarations that a criminal trial is a "search for truth,"
that criminal trials are not a game of surprise, and that the
right of discovery is a "two way street." Montana has
followed that tack since Sikora. It is clear that the
accused must give the State pretrial notice of affirmative
defenses, and produce for the State a list of the witnesses
he will call to establish the defense.
The question that remains regarding witnesses is whether
the defendant must also make a pretrial disclosure of
witnesses that he will call in his general defense of the
crime charged. Immediately, the Sikora ruling comes to the
fore: the defendant is merely revealing in advance of trial
what eventually he would have to reveal during the trial.
Under the order of the court in this case, and under the
statute, Carkulis does not have to reveal to the State
whether he as a defendant will or will not take the stand in
his defense. The requirement is not sel-f-incriminatoryas to
him. With respect to other witnesses for his general
defense, the logic of Sikora and Williams seems to apply:
their names will be revealed in due course in any event. It
is certain that if, without prior disclosure, a devastating
surprise witness for the defendant were to testify, the State
would obtain from the trial judge a continuance in order to
meet the testimony. Pretrial revelation may avoid surprise,
aid the administration of the trial courts and provide an
orderly resolution of the charge. On those grounds, and
because we see protections for the defendant in other
provisions of the discovery statutes, we hold that the
defendant must provide to the State a list of all witnesses
he intends to call at the trial. The District Court
subjected this requirement to "constitutional or statutory
limitations."
We turn now to the question of whether the defendant
must also surrender to the State copies of statements
obtained by the defendant or his agents and counsel
statements of all witnesses he will call at trial.
The State contends that the discovery statutes requiring
copies of statements merely provide for the accelerated
production of evidence that the defendant would voluntarily
and without compulsion provide at trial. The State also
argues that the protections provided by the Fifth Amendment
and Art. 11, § 25 of the Montana Constitution apply only to
the statements of a criminal defendant. The privilege does
not extend to the testimony or statements of third parties.
Therefore, the State contends that the provisions of SS
46-15-323 (3) and (4), MCA, are constitutionally sound.
Carkulis and amici contend, however, that the production
of such items may be incriminating in that they could provide
the State with a "link in the chain" of evidence sufficient
to establish a prima facie case. That, they contend, would
have the effect of lessening the burden of beyond a
reasonable doubt and in effect violate the accused's right to
remain silent.
In considering the question of pretrial production by an
accused of prospective witness statements relating to his
general defense, we are leading into a field where there is
little authority to guide us. For one thing, there is a
critical difference between the discovery and inspection
rules provided under the federal system and those of the
Montana criminal discovery statutes. Under Rule 16,
Fed.R.Crim.P., any discovery must first be defendant
triggered. Discovery from the defendant as to documents and
tangible objects, and reports of examination and tests, are
permitted only if defendant has requested from the government
the same kinds of disclosure. Rule 16 (b)(1)(A), ( R ) ,
Fed.R.Crim.P. Except for these, the federal rule does not
authorize the discovery or inspection of reports, memoranda
or other internal defense documents made by the defendant or
his attorneys in connection with the investigation or defense
of the case, or statements made by the defendant or by
government defense witnesses or by prospective government or
defense witnesses. Rule 16 (b) (2), Fed.R.Crim. P. In fact,
the Congress specifically declined to provide for the
discovery of witness lists in Rule 16. Moore ' s Federal
Practice (1986 Rules Pamphlet at 231).
In addition, Rule 12.1, Fed.R.Crim.P. provides for a
notice of alibi, but it is government triggered. Rule 12.1
requires the government to provide the defendant with a
demand statirlg the time, date and place where the alleged
offense was committed whereupon the defendant must serve
within 10 days a notice of intention to offer the defense of
alibi and within an additional 10 days provide a list of the
names of witnesses who establish the alibi. The defendant
must also state the specific place at which he claims to have
been at the time of the alleged offense. Montana's statutes
have no such provisions.
Thus, the State has relied on a number of cases from the
federal system which are not on point. In those cases, the
defendants are not required to produce statements until the
government has completed its case and if the statements are
being used by the defendant in his defense or to impeach a
witness. See, for example, United States v. Nobles !1975),
422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141.
Two sister states have refused to permit a pretrial
disclosure of witness lists or statements. One is Alaska,
expressing its decision in Scott v. State (Alaska 1974), 519
P.2d 774. There the Superior Court, apparently without
direct statutory authority, had required a defendant charged
with rape to disclose to the prosecution the names of all
prospective defense witnesses other than the defendant
himself, the production for inspection and copying of any
written or recorded statements of those witnesses, and
advance notice of an alibi defense. The defendant sought
interlocutory appellate review in the Alaska Supreme Court
which was granted. The Supreme Court struck down the
Superior Court order, including the requirements relating to
the alibi defense. The Alaska Supreme Court decided to
interpret the Alaska Constitution more broadly than the
United States Supreme Court construed the Fifth Amendment in
Williams v. Florida, supra. It determined that the pretrial
transfer of witness lists and witness statements was
testimonial because a document containing such facts
transmitted from one party to another constituted a
communication of cognizable information from one source to
another. The Supreme Court was of the opinion that such
information may in some instances tend to be incriminating;
and because a court order was involved, it found that the
production was compelled. Thus, in the opinion of that
Supreme Court, the criteria for self-incrimination was met in
the Superior Court order.
At odds with the Alaska decision in Scott v. State,
supra, is the rationale of the District Court in Carkulis'
case. While agreeing that the protection against
self-incrimination applies to testimonial or communicative
evidence, State v. Armstrong (1980), 189 Mont. 407, 421, 616
P.2d 341, 349, the District Court held that the disclosure
required by the court order was not compelled, State v.
Anderson (Mont. 1984), 686 P.2d 193, 197, 41 St.Rep. 1357,
1360. The District Court held that there was no compulsion
in the Montana statute because Carkulis was not compelled to
reveal that which he did not intend to reveal at trial
anyhow.
California also held against the disclosure of witness
lists and statements in In Re Misner (Cal. 1985), 698 P.2d
637. In that case the California history of prosecutorial
discovery (advocated by the late J. Traynor) was examined,
beginning with Jones v. Superior Court (Cal. 1962), 372 P . ? d
919; through the backing away from Jones in Prudhomme v.
Superior Court (Cal. 1970), 466 P.2d 673; down to the facts
before it in Misner. That case involved the
constitutionality of a statute which permitted the
prosecution to discover from the defendant or his counsel,
following testimony under direct examination of defense
witnesses other than the defendant, other statements made by
those witnesses. The California appellate court examined
Williams v. Florida, supra, and United States v. Nobles,
supra, but rested its decision on California state law. It
determined that the California statute was directed only to
prior statements of witnesses produced by the defense and
though limited to the scope of their direct testimony, the
statute obviously contemplated that the discovery permitted
by the statute would provide the state with evidence to
impeach the defense witnesses. Misner determined that it
violated a defendant's privilege against self-incrimination
to extract impeachment evidence from him.
Further in Misner, the prosecution argued that even if
the privilege against self-incrimination covered prior
statements of defense witnesses, the defendant waived the
privilege by putting the witnesses on the stand, at least to
the extent of the permissible scope of cross examination.
The California Supreme Court said the state could not rely on
this rule, stating:
... while it may be true that by putting
witnesses on the stand the defendant waives any
right to object to their vigorous cross examination
by the prosecution, he does not waive his right to
refuse to supply the prosecution with the means to
conduct that cross examination.
Within the last quoted sentence of the Misner court, we
find the kernel of difference between California law and
Montana law on this subject. In Sikora, supra, we quoted
with approval (admittedly dictum, but bearing on the Montana
view of the law) from People v. Damon (N.Y. 1969), 247 N.E.2d
651, as follows:
"It is argued first that there was a possible
violation of the right against self-incrimination.
We do not agree. These statements were not those
of the defendant but of witnesses offered by the
defendant. In no sense can it be said that he is
being compelled to produce incriminating statements
of his own. The privilege against
self-incrimination applies only to evidence of a
testimonial or communicative nature obtained from
the defendant himself. I'
154 Mont. 241, 249, 462 P.2d 897, 901.
While admitting the question is close, and with
deference to sister states holding otherwise, we hold that
the pretrial disclosure by the defendant of statements of
witnesses he intends to call at trial does not offend his
rights against self-incrimination under state or federal
grounds. Undoubtedly at trial time, such statements would be
used to refresh the recollection of defense witnesses. As
such they ought as well to be available to the state. Our
holding is also based on the reciprocity provided in the
state's statutes, and on the limitation of disclosure to
those statements only of witnesses defendant intends to call
at trial.
Disclosure of Statements of Experts
What is said foregoing applies with equal force to
pretrial disclosure of prospective experts as witnesses.
There is however, a necessary caution to be stated.
In the preparation of and the examination by such
experts, the defendant may be encouraged to communicate
freely and candidly with them. Thus experts' reports, notes
and other written materials may contain potentially
incriminating information to which the state should not be
entitled. Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489,
12 L.Ed.2d 653. Particularly, the reports of psychologists
and psychiatrists may contain such incriminatory statements.
In ordering the exchange of disclosure of statements of
expert witnesses therefore, it may be expedient for District
Courts to weigh the issues of self-incrimination carefully
under the protective procedures hereafter discussed.
It is noted that in this case the order of the court is
carefully limited. Carkulis is ordered to give summaries
only of the testimony he expects the expert witnesses to give
at trial.
Disclosure of Documents
Carkulis has been ordered by the District Court to
disclose to the state "all papers, documents, photographs,
and other tangible objects" which he in good faith knows will
be used. as exhibits at the trial.
Carkulis claims that this order violates the Fourth
Amendment of the Federal Constitution4 , and Art. 11, S 115 of
the 1972 Montana Constitution.
Carkulis contends that the order is a compulsory
production of documents and so it violates his Fourth
Amendment rights within the meaning of Boyd v. United States
(1886), 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. He argues
that the seizure is void because the description of the place
to be searched and things to be seized is not made with
particularity, that the request is not made on probable
cause, and that it is not made on written affirmation. Art.
11, § 11, 1972 Montana Constitution.
The State counters that the authority of Boyd v. United
States, supra, has been diminished, and there is no authority
to support Carkulis that the Fourth Amendment applies to
pretrial discovery.
The case which the State contends watered down the
holding of Boyd, supra, is Hale v. Henkel (1906), 201 U.S.
4 "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and nc
Warrants shall issue but upon probable cause, supported
by Oath or Affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized." Fourth Amendment to the United States
Constitution.
5 "The people shall be secure in their persons, papers,
homes and effects from unreasonable searches and
seizures. No warrant to search any place, or seize any
person or thing shall issue without describing the place
to be searched or the person or thing to be seized, or
without probable cause, supported by oath or affirmation
reduced to writinq. " Art. 11, S 11, 1972 Montana
Constitution.
43, 26 S.Ct. 370, 50 L.Ed. 652, wherein it was stated that
"the Fourth Amendment was not intended to interfere with the
power of Courts to compel, through a subpoena duces tecum,
the production, upon a trial in court, of documentary
evidence." However, the United States Supreme Court also
said in Hale that an order for the production of book and
papers may constitute an unreasonable search and seizure
within the Fourth Amendment whether the seizure occurred
under a search warrant or a subpoena duces tecum. In Hale,
the Supreme Court decided that the subpoena duces tecum was
far too sweeping because of the vast extent of documents
required to be produced from many different places under the
subpoena.
Here the order of the court is moderate in comparison to
the subpoena duces tecum in Hale. Carkulis is required to
produce, for examination or reproduction, papers, documents,
photographs, and tangible objects which he "in good faith
knows will be used as exhibits at trial." The order in its
terms is definitive, and cannot be a burden upon the
defendant, since he will use those same objects at trial. In
consideration of the language used by the District Court
order, we hold it meets the test of reasonableness, under
Fourth Amendment tests, and is equally amenable to Art. 11, 5
11 of the 1972 Montana Constitution. Carkulis' arguments
that the place to be searched or the things to be seized or
that probable cause has not been set forth nor supported by
oath or affirmation, are state constitutional requirements
for the issuance of a warrant. In this pretrial discovery
procedure, the use of a warrant is not involved. For the
efficient administration of justice, the court's order here
is directed to the production of objects for examination and
reproduction which must eventually come to light at trial.
Even if the order for production is regarded as a seizure of
sorts, it is nevertheless reasonable. The constitutional
prohibitions are against unreasonableness.
Due Process
Carkulis argues that the imposition of sanctions if he
fails to abide by the discovery order of the District Court.
deprives him of due process. The due process provision of
the Fifth Amendment is applicable to state action through the
Fourteenth Amendment. Malloy v. Hogan (1964), 378 U.S. 1, 84
S.Ct. 1489, 12 L.Ed.2d 653.
The grinding surface of the due process question in this
type of issue is whether reciprocity for discovery exists.
In Williams v. Florida, supra, the United States Supreme
Court indicated that nothing in the due process clause
precludes any states from using broad discovery procedures
designed to increase evidence available to both sides in
criminal cases and to enhance goals and fairness in the
adversary system. In Wardius v. Oregon (1973), 412 U.S. 470,
93 S.Ct. 2208, 37 L.Ed.2d 82, the United States Supreme Court
reaffirmed this point in reversing a conviction of an Oregon
defendant based on an Oregon statute. The Oregon defendant
had not given notice to the prosecution that he intended to
use the defense of alibi and at trial his alibi witness as
well as his own testimony was stricken. He appealed his
conviction on the ground that he had been deprived of due
process because under the Oregon statute there is no
provision for reciprocal discovery, that is that the accused
had not the same rights of pretrial discovery as did the
State. The U.S. Supreme Court held that the Oregon statute
did not provide reciprocal rights of discovery and that
thereby due process was violated.
The statutes now enacted in this State relating to
pretrial discovery in criminal cases provide for full
discovery within constitutional and privilege limitations to
both sides. After this Court approved the requirement that
the defendant give notice of an alibi defense in Sikora,
supra, the case went back to the District Court where the
defendant, Radford, was convicted. He brought an action for
habeas corpus in the federal system, in the United States
District Court for the District of Montana. There the united
States district judge upheld the notice of alibi statute and
he was affirmed on appeal in the Ninth Circuit. Radford v.
Stewart (9th Cir. 1973), 472 F.2d 1161, 1162. The circuit
court said:
The State operated in good faith in this action and
did not use the discovery required merely to build
its case. No investigation was made of the
witnesses named by the defendant. In fact,
defendant was allowed, without objection, to call
two witnesses whose names had not been noticed.
Defendant also knew prior to trial of the
prosecution's only rebuttal witness (a
psychiatrist). Judge Battin thus found that under
the facts of this case reciprocity existed.
Since under the cases due process in this kind of case
hinges on reciprocity, and reciprocity is provided in the
statutes, Carkulis' due process argument falls.
This Court noted the presence of reciprocity in the
statutes which were precursors to the present pretrial
discovery statutes as providing due process in State v.
Bentley (1970), 155 Mont. 383, 472 ~ . 2 d
864.
Obligation of Defense Counsel Work-Product
The order of the District Court for pretrial discovery
is bindina not only upon Carkulis himself, but upon his
agents and attorneys. Questions arise as to the impact of
such an order upon the attorney-client relationship and its
effect upon the work-product rule.
First, the work-product rule. It is a qualified
evidentiary privilege recognized in Hickman v. Taylor (1947),
329 U.S. 495, 67 S.Ct. 385, 91 L.Ed 451. The work-product
rule is different from the attorney-client privilege. The
latter protects communications between the client and his
attorney or the attorney's agent. The work-product doctrine
protects against the disclosure of specific documents and
tangible items prepared in actual anticipation of litigation
or for trial. The exemption from discovery is intended to
insure the privacy of a party's attorney from unnecessary
intrusion by opposing parties or counsel. However, the
"privilege" is not absolute. It is not personal to the
client. It can be waived by an attorney's course of conduct.
See People v. Small (Colo. 1981), 631 P.2d 148, 159.
There is no doubt that if an attorney uses at trial a
statement he obtained and prepared in anticipation of
litigation in interrogating or cross examining a witness, the
full statement, even though work-product, must be produced a t
the demand of the other side. See People v. Small, supra.
By the use of the statement at trial, the attorney has waived
the work-product protection, since the material in the
statement has become substantive evidence. On this ground
Justice Bryon F. White specially concurred in Williams v.
.
Florida, supra, he contended that the work-product rule does
not apply to evidence, and therefore no waiver of
work-product rule by the attorney was involved. The majority
in Williams held the attorney had waived the work-product
rule by using the statement to impeach on cross-examination.
In any event, the statement becomes discoverable when used at
trial.
The order of the District Court in this case was
tailored to require the plaintiff and his counsel and agents
to produce all documents and tangible objects which the
defendant in good faith knows will be used as an exhibit at
the trial. If the defendant knows that such objects will be
used at trial, whether we regard the same as evidence, or the
use of them as a waiver of the work-product doctrine, since
they are discoverable in any event, the timing of the
discovery is the only question involved. The logic of
Williams, that "accelerated disclosure" is permissible if the
objects will come to light in any event applies here. If
counsel, in representation of this client, acquires
work-product objects which the defendant knows in good faith
will not be used at trial, they are not subject to discovery
under the order of the court. Further they are protected by
the provisions of § 46-15-332, MCA, that all matters which
are privileged upon the trial are privileged against
disclosure in the discovery procedure.
A close question may arise in some instances as to
whether observance of the discovery order by a defendant's
attorney in the production of documents or tangible objects
would in themselves incriminate his client. It appears to us
that there are safeguards in that a protective order may be
sought under S 46-15-328, MCA, as we will hereafter discuss.
Excision and Protective Orders
Section 46-15-328, MCA, allows any party to obtain
orders denying, deferring, or regulating pretrial discovery.
The statute provides for excision of nondiscoverable material
and for applications to the district court - camera for
in
protective orders.
Carkulis contends that 5 46-15-328, MCA, violates his
right against self-incrimination because subsection 3
requires the counsel of both parties be present during all
protective order presentations.
"A statute derives its meaning from the entire body of
the words, taken together." Wyse v. District Court of Fourth
Judicial District (1981), .
Mont , 636 P.2d 865,
866. Section 46-15-328(1), MCA, gives the District Court the
power to regulate disclosure:
(1) Upon a motion of any party showing good cause,
...
the court may order that any other disclosure
as required by sections 46-15-321 through
46-15-329(b) ... ...
be regulated when it
finds:
(b) that the risk cannot be eliminated by a less
substantial restriction of discovery rights.
It is possible for occasions to arise where applications
for protective orders are made to the court, and where if
counsel for all parties are present, "the cat is then out of
the bag, never to be recaptured. " Subsection 1 in the
statute gives the court the flexibility to employ appropriate
protection procedures. The provisions of subsection 3, that
the court may permit the moving party to present the material
or information for the inspection of the judge alone in the
presence of all counsel, merely provides one method of
accomplishing the legislative purpose. It is not exclusive.
It does not exclude - parte presentations.
ex The District
Court can exert its judicial authority in its adjudicatory
function so as to protect constitutional and statutory
rights.
Among the inherent powers of the court is "the right of
the court to receive information in private so that it can
intelligently assess its adjudicatory function." Phoenix
Newspapers, Inc. v. Superior Court (Ariz. 1983), 680 P.2d
166, 169. The determination of whether material is
discoverable or not is a necessary facet of the adjudicatory
function. People v. Stevens (Ill. 1981), 430 N.E.2d 331,
333.
The United States Supreme Court has never squarely
addressed the issue of - camera hearings conducted ex parte.
in
Yet, it has seen fit to approve of such procedure by
implication. See Taglianetti v. United States (1969), 394
U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (approving of - in
camera inspection of unlawful electronic surveillance case as
not being violative of the Fourth Amendment where the
defendant was provided with all tapes in which he took part
in the conversation.) ; Dennis v. United States (19661, 384
U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (recognition of - in
camera procedure when national security or clear-cut threat
to individuals is identified).
While the 1975 Amendments to the Federal Rules of
Criminal Procedure were pending, the United States Supreme
Court proposed a mandatory - parte proceedings upon request
ex
of a party seeking a protective order. Moore ' s Federal
Practice, Section 1604 at 16-63. The House of
Representatives changed the mandatory language to permissive
in order to prevent burdening the trial courts. The amended
proposal was codified in Rule 16(d)(1), Fed.R.Crim.P.
It provides:
Protective and modifying orders.
Upon a sufficient showing the court may at any time
order that the discovery or inspection be denied,
restricted, or deferred, or make such other order
as appropriate upon motion by a party. The court
may permit the party to make such a showing in
whole or in part, in the form of a written
statement to be inspected by the judge alone. If
the court enters an order to grant relief following
such an ex parte showing, the entire text of the
party's statement shall be sealed and preserved in
the records of the court to be made available to
the appellate court in the event of an appeal.
Not all protective order requests will require the use
of the - parte procedure.
ex - parte proceedings are
Ex
generally disfavored and are not to be employed lightly. The
procedure would be appropriate only if an adversary hearing
would defeat the purpose of the order sought.
Sanctions Fair Trial
The sanction applied by the District Court in its order
for disclosure is that if the materials are not disclosed,
the defendant will be precluded from offering the same at
trial.
Carkulis argues that the imposition of such a sanction
deprives him of the right - to present a defense and thus
violates the Sixth 2irnendmentb of the Federal Constitution and
Art. 11, S 247 of the Montana Constitution.
Carkulis argues that the Sixth Amendment is a guaranty
to an accused of a right to call witnesses in his favor,
6 "In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and the district wherein the crime
shall have been committed,. .. and to be informed of
the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to
have the Assistance of counsel for his defense." Sixth
Amendment to the United States Constitution.
7 "In all criminal prosecutions the accused shall have the
right to appear and defend in person and by counsel; to
demand the nature and cause of the accusation; to meet
the witnesses against him face to face; to have process
to compel witnesses against him face to face; to have
process to compel the attendance of witnesses in his
behalf, and a speedy public trial by an impartial jury
of the countv or district in which the offense is
alleged to haje been committed ..." Art. 11, S 2 4 ,
1972 Montana Constitution.
without qualification or restraint. Washington v. State of
Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18
L.Ed.2d 1019, 1023. The State relies on Rowan v. Owens 17th
Cir. 1984), 752 F.2d 1186, 1191, which held that to prevent
the witness from testifying is not a per - unreasonable
se
interference with the defendant's right to defend himself.
Again, in U.S. v. Nobles, supra, it was held that the Sixth
Amendment does not confer the right to present testimony free
from the legitimate demands of the adversarial system; "one
cannot invoke the Sixth Amendment as a justification for
presenting what might have been a half-truth."
Once it is determined, as we have determined here, that
reciprocal pretrial disclosures subject to constitutional or
statutory limitations are permissible, it goes hand in hand
with that determination to say that the District Court may
exercise its judicial discretion in enforcing such
permissible disclosures.
We do not in this opinion pass upon the appropriateness
of the sanctions set forth in the District Court in the
Carkulis case, for the reason that the sanctions have yet to
be applied. See State v. Fendler (Ariz. App. 1980), 622 ~ . 2 d .
23, 41, for a discussion of appropriate sanctions.
Application of Section 46-15-323(3)
We find no substance in Carkulis' argument that before 5
46-15-323 (4) can be operative, defendant must have acted
under subdivision (3) of that statute.
Disposal
Accordingly, we have considered Carkulis' petition under
our power of supervisory control. Upon consideration the
application of Carkulis for a writ of supervisory control
directed to the District Court is DENIED, and these
proceedings are dismissed.
Justice
We Concur: -b
Mr. Justice William E. Hunt, Sr., dissenting:
I dissent from the majority's holding that before the
trial the defendant in a criminal proceeding must make
available to the prosecution a list of witnesses and exhibits
expected to be used at trial. To do this is to go one step
further to make the government more powerful than its
citizens&
Our government was founded as a reaction to the
oppressive and tyrannical actions of the British government
in the eighteenth century. The founding fathers knew of the
abuses of human rights that easily coupled with an overly
authoritarian government and sought to protect the citizens
of their newly formed nation-state by a recognition of
certain inalienable rights enumerated in the Rill of Rights.
Now we seem to be captivated by the idea of efficiency at the
expense of safety.
As Justice Black stated in his dissent in Williams v.
Florida (1970), 399 U.S. 78, 112, 26 L.Ed.2d 446, 483, 90
1 of these rights are designed to shield the
fendant against state power. None are designed
Imake convictions easier and taken together they
clearly indicate that in our system the entire
burden of proving criminal activity rests on the
State.
He continues:
[The founding fathers] were well aware that any
individual might some day be subjected to criminal
prosecution, and it was in order to protect the
freedom of each of us that they restricted the
Government's ability to punish or imprison any of
us.
Williams, 399 U.S. at 116 (dissenting op.).
The effect of the majority opinion is to sacrifice
constitutional rights for the sake of "efficient
administration of justice." In doing so it gives in to the
rhetoric we often hear that the courts are to blame for the
increasing crime problem in this country and that only a
"hardline" approach by the courts will solve the problem.
Whatever the cause of our increasing crime it is not an
-2 C I - L ~ K c?c~(
inefficient judicial or - ~ l ; O O u ~ ~ U s y s t e In. 1985, the m
prisons in thee United States conkained twice as many
-f& , 2 0 &-&-
detainees as &he United Kingdom's, four times as many as
A ew
France's n d eight times as many as Portugal's.
Encyclopaedia Britannica, Book of the Year (1986) at 188.
Chief Justice Wachtler of the New York Court of Appeals has
said in a talk in Montana last July that N ~ V York alone has J
40,000 prison inmates, up 26,000 from 1975. The Montana
Lawyer, September, 1987, at 3. According to the Annual
Report of the Department of Institutions, Montana has
increased its prison population by an average of 376 in 1976
to 937 in 1987. Conversation with officials of the Montana.
Department of Institutions (November 23, 1987) . These are
not the numbers of an inefficient court system that require
citizens to surrender rights for additional productivity.
In any event,
[Tlhe Framers decided that the benefits to be
derived from the kind of trial required by the Bill
of Rights were well worth any loss in "efficiency"
that resulted. Their decision constitutes the
final word on the subject, absent some
constitutional amendment. That decision should not
be set aside as the Court does today.
Williams, 399 U.S. at 114 (J. Black, dissenting op.).
Justice Black accurately predicted how the Flilliams holding
would he expanded by the state courts to force the defendant
to assist in the prosecution of his own case. It is not just
t h e d e f e n d a n t b u t a l l o f u s who F v e l o s t ground t o d a y i n t h e
s t r u g g l e between s t a t e c o n t r o
-- - .Relator,
-VS-
DISTRICT COURT OF THE THIRTEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, .IN AND FOR THE COUNTY OF
YELLOMSTONE, HONORABLE G. TODD BAUGH,.'.
.'
Presiding,
Respondent.
-9
-, .
; -*.-
,
& i
*
ORIGINAL PROCEEDING:
z.J:
.- COUNSEL OF RECORD: .-
For Relator:
TF
-- - -Q
Allen Beck argued, Billings, Montana
Jeffrey T. Renz argued, Billings, Montana
-. ' ->u
%. , - - For Respondent:
I
Hon. ~ i k e
Greely, Attorney General, Helena, Montana
38dy Browning argued, Asst. Atty General, Helena
Harold Hanser, County Attorney, Billings, Montana
Terry Swift, Deputy County Atty., ~illings
Mike McGrath argued, County Attorney, Helena, Montana
- - ..
~uhmitted: ~eptember. 1987
2; .
.
.-,-
-,
- . L b - &. - Decided: November 25, 1987 '
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The effect of the majority opinion is to sacrifice
constitutional rights for the sake of "efficient
administration of justice." In doing so it gives in to the
rhetoric we often hear that the courts are to blamlz for the
increasing crime problem in this country and that only a
"hardline" approach by the cou-rts will solve the problem.
Whatever the cause of our increasing crime it is not an
a i ? f - \ a \
inefficient judicial or system. In 1985, the
prisons
detainees
7g& zS&l
united States contained twice as many
e United Kingdom's, four times as many as
France's and eight times as many as Portugal's.
Encyclopaedia Britannica, Book of the Year (1986) at 188.
Chief Justice Wachtler of the New York Court of Appeals has
said in a talk in Montana last July that New York alone has
40,000 prison inn~ates, up 26,000 from - - 1975. The Montana
Lawyer, September, 1987, at 3 . According to the Annual
Report of the Department of Institutions, Montana has
increased its prison population by an average of 376 in 1976
to 937 in 1987. Convessation with officials of the Montana
Department of Institutions (November 23, 1987) . These are
not the numbers of an inefficient court system that require
citizens to surrender rights for additional productivity.
In any event,
[Tlhe Framers decided that the benefits to be
derived from the kind of trial required by the Bill
of Rights were well worth any loss in "efficiency"
that resulted. Their decision constitutes the
final word on the subject, absent some
constitutional amendn~ent. That decision should not
be set aside as the Court does today.
g;3
$4' .
, -. . - Williams, 399 U S at 114 (J. Black, dissenting op.).
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' Justice Black accurately predicted how the Williams holding
.
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.
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- t o assist in the prosecution of his own case. It is not just .
p'