*430Concurring and Dissenting Opinion
DeBruler, J.I concur in the Court’s order denying both petitions for extraordinary relief, but dissent from the affirmance of the discovery order.
I.
The State and the accused complain in their petitions before this Court that the discovery order of the trial judge was too broad and required the disclosure of too much information and information of a privileged nature. Here the burden is upon the petitioners to successfully demonstrate that theirs is a case in which it is appropriate for us to exercise our extraordinary powers. In State ex rel. Gibson General Hospital v. Warrick Circuit Court (1966), 247 Ind. 240, 214 N.E.2d 655, we set the standárds for such a showing as follows:
“As a general rule, there must be a clear and unquestioned right to relief before mandate or prohibition can be invoked. The determination of complicated legal issues can be done much more satisfactorily in the appeal process, where there is better opportunity for both sides to be represented, where the trial court need not become a party or an advocate, and where the briefing process is much more conducive to a proper legal determination.
Likewise, it is generally required that in order to be entitled to mandate or prohibition, it must be shown that the person seeking it has no adequate remedy other than mandate or prohibition.”
It is particularly important in this case to consider whether the right of appeal affords an adequate remedy to petitioners. If we were to exercise jurisdiction to regulate the scopé of discovery orders such a decision would substantially increase the number of original actions. A single case may include several discovery orders, each of which could be presented to us by separate petition and at different times. An increasing amount of the judicial resource of this Court would be used in resolving such cases. Neither petitioner has stated specifically in what manner the cast of appellate remedies is insufficient to vindicate the rights each feels has been unlawfully *431infringed by the order. Neither has supplied persuasive argument to support the conclusion that appéllaté review of this allegedly erroneous order is too limited or too late.
It was likewise necessary for petitioners to demonstrate that the order was made without jurisdiction. As I view the claims of both petitioners they are not jurisdictional. The State concedes that some items of information were lawfully ordered disclosed. The defendant does not challenge the rule as it might result in an order to produce scientific or medical reports, or an order to appear for a line up. Both petitions have challenged the scope of the order and rule. This is not jurisdictional under the facts here.
For the reason that neither petitioner has successfully met the burden of demonstrating that this is a case in which this Court should exercise original jurisdiction, I would deny both petitions.
II.
Following the curious procedure adopted in the majority opinion I must next consider the merits of the parties’ legal and constitutional arguments challenging the validity of the discovery order. Having done so, I must conclude that both the State and the accused, appearing as petitioners here, have made prima facie showings that the order in its scope is both unlawful and unconstitutional.
The State has pointed out in its well reasoned brief the many ways in which the trial court’s order fails to meet the requirements of the present law governing discovery in criminal cases as it has developed in our case law. I do not think that this Court can simply ignore those cases. They are the law alive in the courts handling criminal cases today. Of course this Court can make modification in the law of criminal discovery, but it should not do so except for persuasive reason and while synthesizing the existing law with the new modifications. There is no showing here that limited defense discovery has reduced the ability of the State to carry *432out its prosecutorial function. In the foundation case of Bernards. State (1967), 248 Ind. 688, 230 N.E.2d 536, we said:
“We do not require that the State lay bare its case in advance of trial nor that the criminal defendant be allowed a fishing expedition.”
Yet that is exactly what this order sanctions. This order as I understand it requires the State to open its file to the accused upon a simple unspecific request to do so. In Antrobus v. State (1970), 253 Ind. 420, 254 N.E.2d 873, and Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387, we set forth specific procedures that the accused must follow in order to successfully move for discovery. The interests of the accused and the State were carefully considered at each step. On the other hand, this order which the majority sanctions, subjects the State, without a showing of particularized need and a showing that the information being sought is not otherwise available to the accused, to a vague and overbroad command the perimeters of which are not discernible, resulting in needless waste, frustration and expense. This is an extension of the discovery rights of criminal defendants in which I do not concur.
The accused contends that the trial court’s rule, quoted in the majority opinion, and the order of the trial court infringe his well established right to counsel and his right not to be compelled to testify against himself, under Art. 1, §§ 13 and 14, of the Constitution of Indiana and under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. I can only presume that the majority has found these contentions to be without merit.
Specifically, the accused challenges the requirement of the rule and order which mandates that “trial counsel shall inform the State of any defenses which he intends to make at a hearing or trial.” He argues that the “any defenses” rule compels him to incriminate himself. He likewise considers the requirement of the order that he produce witness lists, statements of witnesses, books, papers, memoranda and other *433items, for the prosecution, an infringement upon his privilege against self-incrimination. He also contends that the requirement of pre-trial disclosure of defenses deprives him of the guiding hand of counsel. In addition to the Federal constitutional claim, petitioner seeks to invoke the protection of Art. 1, §§ 13 and 14, of the Indiana Constitution. The relevant portion of those provisions provides:
“In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.” Art. 1, § 13, Indiana Constitution.
“No person shall be put in jeopardy twice for the same offense. No person, in any criminal prosecution, shall he compelled to testify against himself.” (Emphasis added.) Art. 1, § 14, Indiana Constitution.
No one can seriously question the conclusion that the “any defense” order requires the accused to give that which is testimonial and that which is incriminating or which tends to incriminate. Haskett v. State (1970), 255 Ind. 206, 263 N.E.2d 529; Scott v. State (1974), Alaska, 519 P. 2d 774. It is testimonial because the accused could falsify the information supplied to the prosecutor. WIGMORE, § 2264 at 379-80 (1961). It is incriminating because it aids the prosecution in securing a conviction. McGinnis v. State (1865), 24 Ind. 500. There is a serious question as to whether pre-trial disclosure by the accused under this rule is being “compelled” in the constitutional sense.
The majority rests its case upon the conclusion that the rule in operation does not compel the accused to disclose its defense, since the accused can absolutely prevent forced disclosure by giving up his right to obtain pre-trial discovery from the State. It remains to consider Indiana cases which reveal what degree of compulsion, if any, is tolerable under our State Constitution.
*434In McGinnis v. State, supra, this Court held that in a prosecution for larceny of bank notes, the State cannot give a notice to defendant to produce the notes. The Court observed that a notice to the defendant to produce a written instrument which he is charged with having stolen would not serve in a criminal case to compel production of that written instrument. The Court stated:
“It is well settled in criminal cases, that the court cannot compel the defendant to produce an instrument in writing, in his possession, to be used in evidence against him, as to do "so would be to compel the defendant to furnish evidence against himself, which the law prohibits. And it is also evident, where the instrument in writing is the subject of the prosecution, and is described in the indictment in such a manner as to give the defendant an advantage on the trial by producing it, that he will do so. The description of the instrument in the indictment must be such that it would always serve to notify the defendant of the nature of the charge against him, save him from surprise, and enable him to be prepared to produce the writing when it was his interest to produce it. But when its production would likely work an injury to the defendant, by aiding in his conviction, it could not be expected that he would produce it in response to the notice. It is, therefore, difficult to perceive what benefit could result, either to the state or the defendant, from the giving of such a notice, while to the defendant it is liable to work a positive injury, by producing an unfavorable impression against him, in the minds of the jury, upon his refusal to produce it after notice.”
This is the classic Indiana application of the privilege against self-incrimination. The State has its collection of facts. The defendant has his. If the defendant’s evidence is made known to the State, it shall be at a time when the defendant conceives that it is in his interest and chooses to produce it, and at no other. The State in McGinnis could not fetter that choice with another choice forced upon him by the notice to produce procedure: namely, whether he would be better off producing the document and facing it at the trial or whether he would be better off to refuse to produce it and to accept the resulting unfavorable impression against him. Under this *435classic view, if the accused chooses to disclose testimonial evidence (exculpatory or inculpatory) prior to trial, that choice must be made freely and voluntarily. The McGinnis case then shows that Art. 1, § 14, safeguards the time of the decision to disclose and the voluntariness of that decision. Disclosure at the trial shall be at a time when the defendant feels that he shall have an advantage in producing it. Obviously such disclosures must occur before the defense rests its case.
In Cassidy v. State (1929), 201 Ind. 311, 168 N.E. 18, this Court held that the privilege against self-incrimination in Art. 1, § 14, prohibited a trial judge from questioning an accused at all about his knowledge of the facts, surrounding the charge, in order to determine whether the court should appoint counsel. Important parallels exist between that case and the one at bar. There the trial court at arraignment immediately following a guilty plea, delved into possible defenses. And like the case at bar, the questions and answers were not posed at a trial. The information imparted at the faulty arraignment was not used directly by the trier of fact to determine guilt or innocence, but was used by the' trial judge in denying the accused court-appointed counsel. In the case at bar the information is to be given to the prosecution to assist it in countering any defenses. In Cassidy, this Court held that the defendant was induced by the Judge’s questions to plead guilty and that such plea was therefore involuntary and the accused’s motion to set aside the guilty plea should have been granted as violative of Art. 1, § 14. In Kokenes v. State (1937), 213 Ind. 476, 13 N.E.2d 524, we held that Art. 1, § 14, prohibited the State from using an involuntary confession of the accused as evidence in its case-in-chief. In so holding we observed that denying the State the use of such evidence,
“works no injury upon the State, since it is contemplated that, when charged with crime, a defendant may stand mute, even when put upon his defense; and that he must be con*436victed upon evidence other than that furnished by himself, unless he freely and voluntarily elects to give evidence.” (Emphasis added.)
In Roddy v. State (1970), 254 Ind. 50, 257 N.E.2d 816, we stated:
“There is also a general rule that the statements of a defendant relating to the crime or connected therewith are . always competent unless made under duress or threats.” (Emphasis added.)
If a trial judge calls the defendant to the witness chair at arraignment or at time of entering a plea of guilty and simply interrogates him concerning the alleged criminal acts which he is charged with having committed, such answers are not voluntary. Batchelor v. State (1919), 189 Ind. 69, 125 N.E. 773. A confession is not voluntary if it is made by reason of fear, threats, intimidation, coercion, fraud or undue influence. Marshall v. State (1948), 227 Ind. 1, 83 N.E.2d 763; Rohlfing v. State (1952), 230 Ind. 236, 102 N.E.2d 199. In Burton v. State (1973), 260 Ind. 94, 292 N.E.2d 790, we held that a statement given to the police by a person in custody would be involuntarily given if there was a showing that it was the result of tricks, threats, cajoling or that the accused was under the influence of drugs. These cases illumine the continued concern of this Court for safeguarding the accused’s right not to be compelled to incriminate himself. None of these cases has permitted significant systemized compulsion to be applied upon an accused. Compulsion in the case at bar stems from the restricting of the choice of the accused when preparing his defense.
The need of the defense to have some means of probing and testing the evidence produced in the State’s case-in-chief is obvious. Without prior statements of trial witnesses the defense has few effective tools to deal with the flat statements of the witnesses at trial. Without them counsel for defense can only ineffectually test the firmness of the witness’ recollection of the. experience which that witness is describing *437verbally from the witness stand. A fair trial does not occur when counsel for defense is relegated to the oft-fruitless task of trying to show internal inconsistencies in the in-court testimony of the State’s witnesses, or questioning blindly in an attempt to establish possible bias and prejudice, while the prosecution’s file across the courtroom contains the witnesses’ grand jury testimony. It is the effective probing and testing on cross-examination which is at the core of our belief in the efficacy of the adversary trial as being the best system of getting at the truth. Without effective probing and testing, there is no clash of fact or statement. It must be concluded that this need of the defense to have pre-trial disclosure from the prosecution and to acquire the means of conducting a decent cross-examination places a considerable pressure upon the accused to relinquish his privilege against self-incrimination and thereby satisfy that need. This is not the free and voluntary relinquishment of a right. This right is being extracted from the accused for a benefit extended by the State.
If the Constitution sanctions this procedure, it would sanction a waiver given by the accused in return for an investigator to assist the defense at public expense, in return for a daily trial transcript at public expense, or in return for an expert witness to serve the defense. I do not believe that our Indiana Constitution tolerates the waiver of the privilege against self-incrimination under these terms.
III.
Sections 13 and 14, of our Constitution erect for Indiana a prosecutorial system and reject an inquisitional one. The broad reciprocal discovery rule being challenged by both the State and the accused here will, in practical operation, transform this system from an essentially adversary one into one in which the values inherent in the adversary system are substantially impaired. The adversary system in its ideal conception is one which is fair and can be trusted because *438.the roles of counsel are clearly opposing and personally protective of the individual party. Appearing before the impartial tribunal each counsel skilfully marshalls the facts in a manner which places his client in the most favorable light. Each addresses the legal issues and provides the court with considerations he deems relevant to their just resolution. From this clash of fact and legal argument, conducted in a reasonable manner, we believe that a reliable reconstruction of events and a fair judgment will be produced; This is the system to which we are accustomed. This is the system which we trust will guard each of us. It should be refined and encouraged. In the cases of Bernard, Antrobus and Dillard, the interests of the State and the accused were carefully considered and balanced to the end that the adversary system be not severely hampered in its operation. Those cases and the principles they relied upon responded to the commands of the Constitution that ours be an adversary system. The trial court’s rule does not so respond. The adversary system was enhanced by the limited defense discovery which recent cases have provided. Underlying these cases was a recognition that the State has an advantage over the accused through its use of the subpoena power, the grand jury, and the right to make reasonable searches and seizures for discovery purposes, and through the use of the police as an investigative resource to obtain statements. In those cases, we intended to, and I believe in fact did, establish a balance between the rights of the accused and the State to obtain pre-trial discovery, and at the same time maintained the . essential values of the adversary system. The rule challenged here does neither of these things. This rule can have two results.
1. The accused will decide not to seek disclosure from the prosecution and the case will be tried under pre-Bernard rules, which this Court has condemned, or,
2. The accused will seek pre-trial disclosure from the State, resulting in each side opening its files. An increasing number of these cases will be resolved by plea bargaining.
*439In the latter instance, greater and greater discrepancies in the scenarios revealed in the two files will become resolvable by plea bargaining as both counsel become less and less interested in pressing their views to trial, and therefore getting at the truth. Once the defense is revealed to be empty handed, the police and prosecutors will cease their investigative efforts and be content to rely upon the edge revealed. Such developments will not enhance the “search for truth”.
On these bases, I would keep our present system of limited defense discovery and reject the rule of broad reciprocal discovery.
Note.—Reported at 317 N.E.2d 433.