I concur in the judgment.
I respectfully dissent, however, from that portion of the majority opinion which announces that henceforth no further prosecutorial discovery may be ordered in any case, because of the supposed “complexity” of the constitutional issues presented, and the absence of enabling legislation. Such a sweeping injunction constitutes an unprecedented abdication of our judicial responsibility to resolve constitutional issues (even “complex” ones). It is an inexplicable rejection of our inherent power, long exercised by us, to develop fair and reasonable discovery procedures to assist in the search for the truth in both civil and criminal cases. The majority refuses, or professes to be unable, to provide needed guidance either to the Legislature or to the lower courts. In my view, today’s action is both unnecessary and unreasonable.
Almost 20 years ago, speaking through Justice Traynor in Jones v. Superior Court (1962) 58 Cal.2d 56 [22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213], we set the proper course in this area by expressing these fundamental principles: “Discovery is designed to ascertain the truth [citation] in criminal as well as in civil cases. [Citations.]” (P. 58.) ‘“To deny flatly any right of production on the ground that an imbalance would be created between the advantages of prosecution and defense would be to lose sight of the true purpose of a criminal trial, the ascertainment of the facts. [Citations.]’ Similarly, absent the privilege against self-incrimination or other privileges provided by law, the defendant in a criminal case has no valid interest in denying the prosecution access to evidence that can throw light on issues in the case.” (P. 59.) Pretrial discovery “should not be a one-way street.” (P. 60.)
Although Jones is eminently sound, the majority continues its recent steady retreat from the fixed and primary purpose of the criminal trial itself—discovery of the truth. The principal reason which it gives for overturning Jones is that “the courts are not the proper bodies to initially formulate prosecutorial discovery rules” (ante, p. 52), and the issue “is more appropriately left to the Legislature for initial consideration” (id., p. 54). Justice Traynor anticipated the answer to this contention in Jones: “Nor is it any less appropriate ... for the courts to develop the rules governing discovery in the absence of express legislation authoriz*66ing such discovery.” (58 Cal.2d, at p. 59.) But, lest prosecutorial discovery actually receive legislative attention, the majority then fearfully warns that the development of constitutionally permissible rules faces “almost insurmountable hurdles” (ante, p. 54), because the proper standards are “unavoidably shrouded in constitutional doubt” (ibid.), and involve “monumental complexity” (id., at p. 55). The majority then cautions “we have grave doubts that a valid discovery rule affecting criminal defendants can be devised.” (Id., at p. 56.) The clear message to the Legislature is “It’s up to you, but don’t try it.” As a consequence the majority disapproves not only the trial court’s well reasoned order herein, but reaches the extreme position of declaring invalid in advance “all other judicial attempts to frame prosecutorial discovery orders” by reason of “the difficult and awkward responsibility placed on the judiciary” in articulating correct legal principles in prosecuting discovery. (Ibid.)
In my view, the majority exaggerates, but even if it did not, any difficulty in resolution is no excuse for avoiding a problem. The majority insists that “the courts are the final interpreters and guardians of the Constitution” (ibid.). If this is true, surely it is our solemn responsibility to devise rational solutions to constitutional problems no matter how troublesome their resolution might appear. Moreover, while welcoming the majority’s deference in this instance to the legislative will, I must observe the context within which this appears. For almost 25 years, as noted in Jones, courts have exercised their inherent powers to develop, within constitutional limits, rules of discovery aimed at facilitating the administration of criminal justice and ascertaining the truth. Without any express statutory authorization, courts have permitted liberal discovery by the defendant from the prosecution (See, e.g., Powell v. Superior Court (1957) 48 Cal.2d 704, 707-708 [312 P.2d 698].) In the absence of some privilege, criminal defendants have no valid interest in denying the prosecution reciprocal discovery rights. Accordingly, in Jones we had no difficulty in upholding a discovery order to the extent that it required disclosure to the prosecution of the names and addresses of the witnesses whom defendant intended to call, and the medical reports he intended to introduce, in support of his defense of impotence in a rape case. (See also Fletcher, Pretrial Discovery in State Criminal Cases (1960) 12 Stan.L.Rev. 293, 319-322.)
Surely, in the past we have not found that the issue of prosecutorial discovery was too complex for us to resolve. In Prudhomme v. Superior Court (1970) 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673], for exam-*67pie, we readily discharged our responsibility by announcing a standard which assured defendant constitutional protection from potentially incriminatory disclosures while at the same time permitting the People reasonably limited discovery in an appropriate case. We there concluded that “A reasonable demand for factual information which ... pertains to a particular defense or defenses, and seeks only that information which defendant intends to introduce at trial, may present no substantial hazards of self-incrimination and therefore justify the trial judge in determining that under the facts and circumstances in the case before him it clearly appears that disclosure cannot possibly tend to incriminate defendant.” (2 Cal.3d at p. 327.)
It may be seen that our Prudhomme test was easily satisfied in the present case because there was no possible risk of incrimination from disclosure of the investigator’s notes at issue. The majority freely acknowledges that “we find [the subject] discovery harmless with regard to the privilege against self-incrimination ...” (Ante, p. 58.)
Given the supposed “monumental complexity” of the constitutional issue, the majority reached its conclusion of harmlessness with surprising ease. It is precisely such an inquiry into incriminatory “harm” which governs a trial court in applying Prudhomme: Prosecutorial discovery may be allowed where it could not possibly aid the prosecution in proving its case in chief. Is that standard really so difficult to apply? I think not. In the case before us the notes were entirely benign and unoffending, being useful only as potential impeachment of a defense witness, and adding nothing whatever of value to the prosecution’s case in chief. The prosecution’s burden of proving its case was not “lightened.” (Ante, pp. 57-58.)
Disregarding our well established Jones principles, the majority now attacks even Prudhomme as “uncritical,” having “failed to properly assess the ... responsibility placed on the judiciary.” (Ante, p. 56.) Again, the danger is overstated. Certainly, the federal courts have had no problem developing rules in this area. As the majority concedes, the United States Supreme Court has made it abundantly clear, in a statement directly applicable to our case, that “defendant’s Fifth Amendment rights do not extend to statements made by third parties to the defense. [Citations.]” (Ante, p. 51, fn. 2.) Thus, in United States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141, 95 S.Ct. 2160], the high court made the following observations in a case squarely on point: “The [lower court] concluded that the Fifth Amendment renders criminal *68discovery ‘basically a one-way street.’ [Citation.] Like many generalizations in constitutional law, this one is too broad. The relationship between the accused’s Fifth Amendment rights and the prosecution’s ability to discover materials at trial must be identified in a more discriminating manner.” (P. 233 [45 L.Ed.2d p. 150].) The high court carefully explained that, as disclosure of the investigator’s report was limited to statements of third parties who were available as witnesses at trial, and as the reports contained no information conveyed by defendant himself, “[Requiring their production from the investigator therefore would not in any sense compel [the defendant] to be a witness against himself or extort communications from him.” (P. 234 [45 L.Ed.2d p. 151].) The reasoning of the Supreme Court is eminently sound.
Disdaining ample precedent, the majority further tilts the evidentiary scales against the People, closing the Jones street of discovery, and replacing Prudhomme's strict “no possible risk” standard in favor of an even more rigid absolute prohibition in the absence of legislation. And, as noted, the realistic likelihood of such legislation is dim indeed when the majority refuses to provide any guidance to the “complex” constitutional issues which it conjures.
I must stress that the net effect of today’s decision is to prohibit indefinitely any prosecutorial discovery, even where, as here, such discovery would be entirely harmless in terms of possible incrimination. By this extension the majority prevents the jury from learning that the witness’ testimony as to defendant’s alibi was contradicted by the earlier statement as to the critical dates in question. Such increased “solicitude” toward the defendant charged with crime is wholly unnecessary and unfair. The effect in the instant case is to wrap a further curtain of secrecy around evidence which the jury may have found very useful in its deliberations. The consequence in future cases is to hide from the fact finder an ever-widening area of nonincriminatory relevant information which may well assist the trier in its essential functions.
A defendant charged with a criminal offense is presumed to be innocent. He may remain totally silent. The burden of proof rests upon the prosecution and the burden is to prove every essential element of the crime beyond a reasonable doubt and to a moral certainty. The Constitution does not require him to be a witness against himself. Neither, however, does it require that the fact finder, be it judge or jury, in ascertaining the truth of the charge, wear judicially constructed blinders *69which prevent it from viewing evidence that is otherwise material, competent, relevant and nonincriminatory.
Today’s decision entirely blocks the People’s access to “Discovery Street” by judicial fiat, leaving them without knowledge as to what constitutional principles, if any, have created the roadblock, or how the obstruction can be cleared. In my view, this is justice defeated.
Andreen, J.,* concurred.
Respondent’s petition for a rehearing was denied November 13, 1981. Richardson, J., was of the opinion that the petition should be granted.
Assigned by the Chairperson of the Judicial Council.