dissenting:
The majority states that the public defender is not entitled to cause a subpoena duces tecum to be served upon the police department to obtain police reports until he first has moved for production under the Supreme Court discovery rules. Because Supreme Court Rule 411 provides that discovery procedures “shall not be operative prior to or in the course of any preliminary hearing” (Ill. Rev. Stat. 1975, ch. 110A, par. 411), the majority consequently denies arrested persons the right to obtain police reports until they have been formally charged with an offense. This opinion deprives arrested persons of their prehearing rights in clear violation of fundamental fairness, without any statutory basis. Therefore, I respectfully dissent from the majority.
There is no statutory basis for the majority’s conclusion that the public defender must first proceed under the rules of discovery, before causing a subpoena duces tecum to issue. The provision in the criminal code which states that it is the clerk of the court’s duty to “issue subpoenas, either on the part of the people or the accused” (Ill. Rev. Stat. 1975, ch. 38, par. 155 — 2), is independent of the supreme court discovery rule quoted by the majority. The statute confers an absolute right to the issuance of subpoenas on both parties in a criminal proceeding, and that right is unaffected by the additional supreme court discovery rules. Thus, the majority has completely failed to explain why a subpoena duces tecum should not be used until after an accused person can take advantage of the discovery rules; that the availability of discovery procedures in this State is limited to the period subsequent to indictment is a correct statement of the law but it is irrelevant here. The right to the issuance of subpoenas duces tecum is simply not granted or created by a discovery rule. And the supreme court’s holdings in Schmidt and Horton and the Committee Comments on Rule 411 declining to extend an accused’s rights to discovery to preliminary stages of criminal proceedings have no bearing on this case. Accordingly, in view of the legislative intent, as expressed in section 7 of division XIII of the Criminal Code of 1874 (Ill. Rev. Stat. 1975, ch. 38, par. 155 — 2), to permit the use of subpoenas by both parties to a criminal proceeding, the force of that statute and the value of the right it confers should not be undermined by judicial fiat through the application of irrelevant discovery rules.
Moreover, fundamental notions of justice and common sense require the rejection of the majority’s decision. In effect, in the guise of judicial efficiency and statutory interpretation, the majority is ruling that an arrested party cannot see a police report until after he has been formally charged with the offense for which he was arrested. And, having gone that far, the next logical step would be to preclude an accused from subpoenaing witnesses to a preliminary hearing. Such a holding ignores the crucial value a preliminary hearing may have for an arrested person in the course of a criminal proceeding against him. It is essential to the administration of justice that a defendant be given a full opportunity at this “critical stage” of the criminal process (Coleman v. Alabama (1970), 399 U.S. 1, 26 L. Ed. 2d 387,90 S. Ct. 1999; People v. Adams (1970), 46 Ill. 2d 200, 263 N.E.2d 488) to prove that he is not guilty, as well as for the State to have a fair chance to demonstrate probable cause. Yet, under the majority opinion, a defendant would be deprived of the opportunity to impeach an arresting police officer by pointing to contradictions between the officer’s testimony at the preliminary hearing and his original police report, or to show contradictions between a witness’ testimony and what the police report indicated he had previously told to the police. The result would be that, for this reason alone, an innocent party might languish in jail for many months. See People v. Barney (1965), 60 Ill. App. 2d 79, 208 N.E.2d 387.
Police reports fall within the definition of public records set forth in section 3 of the Local Records Act (Ill. Rev. Stat. 1975, ch. 116, par. 43.103) which provides:
“ ‘Public record’ means any book, paper, map, photograph, or other official documentary material, regardless of physical form or characteristics, made, produced, executed or received by any agency or officer pursuant to law or in connection with the transaction of public business and preserved or appropriate for preservation by such agency or officer, or any successor thereof, as evidence of the organization, function, policies, decisions, procedures, or other activities thereof, or because of the informational data contained therein.”
Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 428, 206 N.E.2d 709, held that courts take judicial notice of public records. A person faced with a criminal charge should, if it assists him in establishing his innocence, have access at any stage of the proceeding to any document of which the court is permitted to take judicial notice, including particularly a nonprivileged document such as a police report.
Finally, under the supreme court ruling in People v. Tennant (1976), 65 Ill. 2d 401, 358 N.E.2d 1116, the preliminary hearing testimony of a witness unavailable at trial may be introduced as evidence at trial. Given this rule, fairness demands that a defendant be given the opportunity to examine and use police records before his preliminary hearing so that his cross-examination of such a witness at the hearing can be meaningful.
Thus, there is no good reason why full disclosure of the contents of police reports should not be made available to the public defender at the preliminary hearing stage of a criminal proceeding. The majority opinion eliminates the only way the law provides for accomplishing this result— by use of a subpoena duces tecum. For all these reasons, then, I agree with the arguments urged on this court by the public defender, and believe that the opinion of the trial court should be reversed in part, so that the public defender is given the opportunity to obtain police reports through the service of subpoenas duces tecum, without first having to move for the production of such reports under the supreme court discovery rules.
In addition, I take issue with the portion of the majority opinion holding that after the preliminary hearing has been completed, if the State objects to the scope of the subpoena, it then becomes the trial court’s duty to “review the documents and give to the defense that material which is relevant, material and not privileged.” I disagree with this statement primarily because as I interpret it, this gives the trial judge the authority to examine material before the defendant even sees it, and then determine what is and is not proper for the defendant’s viewing. Despite the Wolff and Wright decisions the majority cites, I do not think the trial court should see any police report which the opposing party is not also allowed to see. Such a practice places a judge in an unjustifiably exalted position, too free from checks and balances — in a position too open to abuse. In addition, a defendant who, as often is the case before trial, knows more about his case than the judge, would not be able to advise the court that a police report which the judge concluded was immaterial or irrelevant, in fact also had aspects which were material and relevant. And I do not see, in any event, how a police report could be withheld from one accused of crime on the ground it was privileged. (People v. Moses (1957), 11 Ill. 2d 84, 89, 142 N.E.2d 1.) In short, the practice adopted by the trial court and approved by the majority although vastly better than the procedure urged by the State’s Attorney, is still too susceptible to abuses caused by the inevitable human fallibilities of arrogance, ignorance and time pressures to which all human beings who exercise authority are susceptible. These are maladies from which even the wisest judges are not always immune, and for which no sure vaccination ever has been discovered.
It seems to me that the proper procedure where the State objects to the scope of a subpoena demanding production of a police record is to require the production of the record in the presence of the defendant’s counsel where the State’s objection can then be argued. To the extent that the circuit court’s order as interpreted by the majority opinion approves the procedure of delivering subpoenaed police records to the court when the defendant or his counsel is not present, I would reverse the order.