People v. Holtzman
| Decision Date | 19 February 1999 |
| Docket Number | Docket No. 206614 |
| Citation | 234 Mich.App. 166,593 N.W.2d 617 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Eugene HOLTZMAN, Defendant-Appellee, and Prosecuting Attorneys Association of Michigan, Amicus Curiae. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Terrence E. Dean, Civil Counsel, for the people.
Robert P. Juidici, Gwinn, for the defendant.
Norman W. Donker, John D. O'Hair, Timothy A. Baughman, and Jeffrey Caminsky, amicus curiae, for Prosecuting Attorneys Association of Michigan.
Before: SAAD, P.J., and HOOD and GRIBBS, JJ.
Recently, the Michigan Supreme Court promulgated Michigan's reciprocal criminal discovery rule, MCR 6.201, which mandates, among other things, that a party provide the opposing party with "any written or recorded statement by a lay witness whom the party intends to call at trial" upon request by the opposing party. MCR 6.201(A)(2).
This prosecutor's appeal raises an issue of first impression under MCR 6.201(A)(2): does the term statement as used in this subrule include the attorneys' notes of interviews with witnesses whom the attorney intends to call at trial? 1 Or, does the term statement carry its usual connotations, i.e., a narrative account that the witness either writes out and formally signs or adopts, or that the witness orally delivers for a verbatim transcription or recording? We hold that counsel's notes of an interview with a witness to be called at trial do not constitute a statement for purposes of mandatory disclosure under 6.201(A)(2). We reach this holding for the several important and interrelated reasons that we summarize here and elaborate on later in this opinion:
(1) An attorney's interview notes do not meet the definition of "statement" in the Michigan Court Rules. Although "statement" is not expressly defined in Chapter 6 (Criminal Procedure), it is defined in the rules of civil procedure, which are incorporated into the criminal discovery rule. Indeed, MCR 6.001(D) provides that the civil procedural rules apply to criminal proceedings except where otherwise indicated. Accordingly, to properly interpret Michigan's reciprocal criminal discovery rule, we apply the following definition of "statement" from MCR 2.302(B)(3)(c):
(i) a written statement signed or otherwise adopted or approved by the person making it; or
(ii) a stenographic, mechanical, electrical, or other recording, or a transcription of it, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
On the basis of this definition, notes of an interview, except in the rare occasion where they would come within the purview of this definition, do not constitute a "statement" and are not subject to mandatory disclosure by either the prosecution or defense.
(2) Unless the "statements" sought to be discovered meet the narrow definition of "statement" under MCR 2.302, mandatory disclosure of witness interview notes would run afoul of two deeply ingrained ethical and privilege rules:
(A) Disclosure of an attorney's witness interview notes would subject that attorney to being called as a witness to explain any disparities between her notes of her witness' statement and the witness' trial testimony. This would implicate MRPC 3.7, which provides that an attorney may not act as an advocate at a trial in which she is likely to be a necessary witness, except under narrow, specified circumstances.
(B) Disclosure of interview notes would compromise protected work product under MCR 2.302(B)(3) because these notes invariably reflect an attorney's mental impressions and strategies. Therefore, disclosure of these notes (unless they qualified as statements under MCR 2.302[B][c] ) would compromise the work-product privilege, which this Court has already established applies in criminal proceedings as well as civil cases. Messenger v. Ingham Co. Prosecutor, 232 Mich.App. 633, 591 N.W.2d 393 (1998); People v. Gilmore, 222 Mich.App. 442, 564 N.W.2d 158 (1997).
(3) The goals of criminal discovery for both defense and prosecution are already well served by existing law and procedural rules, without taking an expansive reading of MCR 6.201(A)(2). MCR 6.201(A)(1) requires In this prosecutor's appeal, the trial court declared a mistrial after the prosecutors refused to produce their notes of interviews with witnesses. The parties disagreed with respect to whether the notes were discoverable statements under MCR 6.201, and whether the notes were protected work product under MCR 2.302(B)(3). The trial court subsequently dismissed the case against defendant with prejudice. We reverse and remand for further proceedings.
each party to disclose its trial witness list, enabling the opposing party to conduct its own interviews and take statements. The unique interests of the defendant also are amply protected by existing law and procedures: the defendant is never required to disclose his own statement, MCR 6.201(A)(2); the prosecutor is obliged to disclose exculpatory and mitigating information, MCR 6.201(B)(1); and the prosecutor also must fulfill special ethical responsibilities unique to prosecutors under MRPC 3.8.
Defendant was charged with two counts of first-degree criminal sexual conduct. 2 The prosecution charged that defendant, a forty-year-old man, raped a fourteen-year-old girl after she became intoxicated at his home. The prosecution's witness list included several persons who were to testify that defendant frequently invited teenage girls to his home, encouraged them to drink excessively, and touched them sexually while they were intoxicated. On the second day of trial, the prosecution called witness TS to testify about these bacchanals. 3 During cross-examination, defendant's attorney questioned her about a conversation she had had in the hallway with Jennifer Mazzuchi, one of the prosecutors. The following colloquy took place:
Q. Now, you discussed [with Mazzuchi] the testimony that you just gave, correct?
A. Yes.
Q. Did you review any police reports?
A. No, just the statement that I gave.
Q. Gave to whom?
A. We--Mr. Wiese [the other prosecutor].
Q. You gave a prior statement to Mr. Wiese prior to this trial?
A. He had--I don't know, he asked me what happened and I told him.
Q. You gave--
A. Like my--The questions that they just asked me, I answered them before this had happened and--
Q. Okay. Was your statement written down?
A. I think so, I don't know, I'm sure.
Q. Did they show--
A. I just seen it, yeah.
Q. Oh, you saw it?
A. Well, it was typed out when, like, I don't know.
Q. This was a statement you gave to Mr. Wiese prior to today's trial?
A. Yes.
Q. And you reviewed it with him this morning before your testimony, or with Ms. Mazzuchi?
A. Yes.
Mr. Juidici [defendant's attorney]: Your Honor, I would like to ask the jury to be excused.
Immediately following this exchange, defendant's attorney moved to strike TS' testimony and requested that the court "consider a mistrial." He argued that TS' testimony established that she had given a statement to the prosecutors before trial and that the prosecutors violated MCR 6.201 by failing to provide defendant with a copy of the statement. Defense counsel further argued that he was entitled to a copy of the notes under MRE 612 because TS and DN used them to refresh their memories before testifying. 4 In The trial court incorrectly concluded that factual information obtained from witness interviews in the prosecutors' notes was a statement subject to discovery and was not protected by the attorney work-product privilege. 5 The court ordered the prosecutors to redact portions of the notes relating to their mental impressions and then produce the notes for in camera review. The court stated that it would examine the notes to determine if they duplicated the police report, which defendant already possessed, in which case the discovery violation should be deemed harmless. As an alternative, the trial court gave the prosecutors the option of concurring in the mistrial motion and seeking appellate review of the issue. Finally, the court mistakenly ruled that the notes were also discoverable as documents used to refresh recollection under MRE 612.
response, the prosecutors argued that notes they took during witness interviews were not "statements" for discovery purposes, and, in any event, the notes constituted protected attorney work product. As for MRE 612, the prosecutors argued that the witnesses did not use the notes to refresh memories, but rather to see what questions would be asked and to verify that the prosecutors had the correct information.
The prosecutors declined to submit their notes to the trial court, but instead exercised the option suggested by the trial court, i.e., to concur in the mistrial motion and seek appellate review. Thereafter, the court, in order to "facilitate appellate review" of the contested issues (see MCR 6.201[C] [c] ), took testimony from the two prosecutors and from the two prosecution witnesses who had allegedly used the prosecutors' notes to refresh memories. The court ultimately dismissed the case with prejudice, reasoning that because defendant's motion for a mistrial was prompted by the prosecutors' misconduct in refusing to comply with the discovery rules, double jeopardy barred a retrial. The people now appeal from the order of dismissal.
MCR 6.201(A)(2) requires parties in criminal proceedings, upon request, to provide all other parties "any written or recorded statement by a lay witness whom the party intends to call at trial, except that a defendant is not obliged to...
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