also specially concurring:
While I believe a writ of mandamus should issue in this case, I differ from my colleagues on the command of the writ and the reasons for it. I believe, as does Mr. Justice Clark, that a criminal defendant is entitled to a broader scope of discovery than that permitted in the plurality’s opinion but, in contrast to Mr. Justice Clark, feel this is a proper case for that broader scope. The trial court’s order, requiring disclosure, attempted to strike a proper balance between the confidentiality requirement of article VI, section 15(c), of the Illinois Constitution and the defendant’s guarantee of a fair trial under the fifth and sixth amendments to the United States Constitution. It is the procedural aspects of the order that I would modify.
The Board, in its brief, has enumerated policy reasons for required confidentiality, reasons additional to that of protecting judicial officers from irresponsible charges and complaints. Mr. Justice Clark has aptly observed that neither the reports of the constitutional convention nor relative debates indicate that the confidentiality requirement of section 15(c) was intended to serve any purpose other than to protect the judicial officer under investigation. Additional" purposes for the confidentiality requirement must be inferred from the nature of the Board’s duties.
There is no question that the Board can fulfill its responsibilities only if complainants and witnesses freely come forward with information. Such free flow of information depends, in part, on a person’s expectation of confidentiality to shield him from possible recrimination by an individual subject to investigation. It is this countervailing need to protect complainants and witnesses so as to encourage the voluntary disclosure of information which necessitates the balancing of defendant’s right to a fair criminal trial against the implied policy which justifies nondisclosure. In balancing these needs, the plurality has emphasized the constitutional guarantee of confidentiality, forgetting, however, that “[t]he right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor.’ Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.” United States v. Nixon (1974), 418 U.S. 683, 711, 41 L. Ed. 2d 1039, 1066, 94 S. Ct. 3090, 3109.
In addressing the defendant’s right to disclosure, the plurality has extensively discussed the law regarding discovery in the criminal setting. The prosecutor’s equal or greater access to the same information is, however, in my opinion, here irrelevant, for it is defendant’s right in a criminal trial to the production of all available evidence with which we are here concerned.
The plurality limits disclosure to evidence which “on its face plainly negates defendant’s guilt.” In my opinion, due process requires disclosure of all information or material in the Board’s possession (excluding the Board’s work product) which tends to exculpate the defendant, as well as statements by a complainant or witness which would undermine the credibility of that person’s testimony against the defendant at his criminal trial.
As to exculpatory evidence, the need for confidentiality is minimal. Complainants and witnesses who give exculpatory testimony before the Board have little reason to fear recrimination. Moreover, the need of a criminal defendant for any evidence which might tend to exculpate him is particularly acute. As this court has stated in the past, for the policy of confidentiality to be soundly based, it must be more desirable to risk concealment of the truth than to disrupt the values that such policy supports. (See People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 293.) Here, the need for confidentiality does not outweigh defendant’s need for that which might vindicate him in his criminal trial.
As to statements which undermine the credibility of a witness who testifies against the defendant at a criminal trial, discoverability should also be allowed. The policy of protecting a witness’ expectation of privacy must yield as to those matters to which he has testified in the criminal proceeding. (Accord, People v. Johnson (1964), 31 Ill. 2d 602, 606, regarding the disclosure of secret grand jury testimony.) Evidence which strikes at the credibility of a witness in a criminal case is as crucial to the defendant as that which tends to exculpate his guilt.
It was previously noted that the trial court’s order attempted to balance the countervailing constitutional provisions discussed. The order compelled the Board to, within 14 days, deliver to the court for its inspection all material acquired during the Board’s investigation. That which tended to exculpate the defendant was to be released to the defendant. The order further required that, at the time of trial, the Board was to produce all statements made by any person named in the State’s list of witnesses in the criminal proceeding, the statements to be made available to the defendant for impeachment purposes at the conclusion of a witness’ direct trial testimony. I believe, however, that the order is procedurally too broad.
To accommodate the confidentiality requirement to the fullest, while, simultaneously, effectuating defendant’s right to a fair criminal trial, the initial determination of whether there exists any exculpatory evidence (not just evidence which “on its face plainly negates defendant’s guilt”) should be made by the Board. Where such evidence exists, the Board, on proper order of the court, should release it to the defendant forthwith. If Board members disagree on whether certain material or evidence is, in fact, exculpatory, the disputed material or evidence should be submitted to the trial court for its in camera inspection and its ultimate determination. In this regard, Mr. Justice Clark and I take similar positions.
Statements made before the Board by a witness who testifies in the criminal proceedings should be made available for the court’s in camera inspection. The court should determine that portion of the statement which is relevant to the witness’ in-court testimony and turn only that portion over to defendant’s counsel for possible impeachment purposes.
These procedures, in my opinion, would assure the confidentiality of material that should not be disclosed and afford the defendant his constitutional right to a fair criminal trial.
I would, therefore, award the writ directing the trial court to modify its order to conform to the views here expressed.