Scott v. State
| Decision Date | 01 March 1974 |
| Docket Number | No. 1968,1968 |
| Citation | 519 P.2d 774 |
| Parties | Roy Anthony SCOTT, a/k/a Roy Anthony Stropkai, Petitioner, v. STATE of Alaska, Respondent. |
| Court | Alaska Supreme Court |
Herbert D. Soll, Public Defender, Larry A. Jordan, Asst. Public Defender, Anchorage, for petitioner.
John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Louis Agi, Asst. Dist. Atty., Anchorage, for respondent.
Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER, and FITZGERALD, JJ.
This petition for review raises the question of the constitutionality of a superior court pretrial order authorizing broad prosecutorial discovery.
The petitioner Scott was arraigned in superior court on an indictment charging him with rape. 1 The court in conformity to Rule 16(f) of the Alaska Rules of Criminal Procedure scheduled a pretrial omnibus hearing. A few days before the hearing, the respondent State of Alaska filed a motion for a sweeping discovery order. Petitioner filed opposition to the motion, but his objections were overruled. The superior court granted respondent's motion such ordered petitioner to disclose: motion and ordered petitioner to disclose:
(1) the names and addresses of all prospective defense witnesses, other than defendant himself.
(2) the production or inspection and copying of any written or recorded statements in defendant's possession of prospective defense or government witnesses, other than defendant himself.
(3) advance notice of an alibi defense, together with information indicating the place or places defendant claims to have been and the names of witnesses upon whom he intends to rely.
Petitioner promptly sought interlocutory appellate review of the discovery order by way of a petition for review.
We granted the petition for review in this case because we concluded that postponement of appellate review until a final judgment may 'result in injustice because of impairment of a legal right' and because 'the order . . . sought to be reviewed is of such substance and importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of this court.' 2
In his petition for review, Scott claims error on the part of the trial court in several respects. He suggests that the court in ordering the pretrial production of certain information not expressly provided for in Rule 16(c) of the Alaska Rules of Criminal Procedure, promulgated a new rule of criminal procedure. This is, he argues, constitutionally impermissible since article IV, section 15 of the Alaska constitution placed the rule-making authority in this court. Petitioner also claims that the discovery order infringes upon his privilege against compulsory self-incrimination under article I, section 9 of the Alaska constitution and the fifth and fourteenth amendments of the United States Constitution. Furthermore, he argues that the discovery order violates his right to effective confrontation and cross-examination secured by article I, section 11 of the Alaska constitution and the sixth and fourteenth amendments to the United States Constitution. Petitioner also advances one claim of procedural error. He argues that the superior court abused its discretion in making a discovery order which goes beyond the express provisions of Criminal Rule 16(c).
We find no merit in Scott's claim that the superior court, in ordering the production of certain information not expressly mentioned in Criminal Rule 16(c), 3 effectively promulgated a new rule of criminal procedure and thereby usurped this court's constitutional rule-making authority. The record does not establish that the superior court intended to promulgate new rules to govern pretrial procedure in criminal proceedings. Moreover petitioner's reliance upon Lee v. State 4 is misplaced. While in Lee we did observe that the 'superior court has no responsibility or authority to promulgate rules of practice and procedure,' 5 the statement was not made in the context of a pretrial order by the superior court. In Lee the appellants contended that the trial court was in error for having failed to promulgate rules of procedure by which appeals could be taken from the magistrate's court. In the case before us now, the trial court was ruling upon a motion for discovery brought under existing rules of criminal procedure. Since the underlying facts of the Lee case are essentially different, its rationale is not applicable to the case at bar.
We also disagree with petitioner's contention that since the order in question exceeds the scope of materials discoverable under Criminal Rule 16(c), it constitutes an abuse of trial court discretion. Criminal Rule 16(c) permits the trial court, upon proper motion by the prosecution, to order the accused to submit to certain non-testimonial identification procedures, to allow discovery of experts' reports or statements and to require notice if the accused intends to raise insanity as a defense. The discovery order before us, however, goes beyond the material enumerated in the rule and orders the petitioner to produce the names and addresses of defense witnesses, written statements taken from defense and government witnesses, advance notice of an alibi defense, together with names of prospective alibi witnesses and information concerning the locations to be relied upon for alibi purposes.
In our opinion, broad latitude must be accorded a trial court in the conduct and management of pretrial procedures. This interpretation is in keeping with the spirit and purpose of discovery rules generally, and comports with the expressed term of Criminal Rule 16(a).
(a) Scope of Discovery. In order to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, and the adversary system. (emphasis added)
Reading sections (a) and (c) of Rule 16 together, we conclude that a ruling compelling the production of items not expressly mentioned in section (c) of the rule is within the 'broad discretion of the trial court.' We find no abuse of discretion merely because information not specifically included in the rule is ordered to be disclosed.
The most serious constitutional claim advanced by petitioner is that the broad prosecutorial discovery order contravenes his privilege against self-incrimination 6 under the fifth and fourteenth amendments to the United States Constitution 7 and article I, section 9 of the Alaska constitution. 8 In other words, we must determine whether petitioner has a constitutional right to refuse to disclose some or all of the evidentiary material required to be disclosed by the discovery order.
We begin our analysis by examining the historical development of criminal discovery in the context of the privilege against self-incrimination under the fifth amendment to the United States Constitution. The common law recognized no right of discovery in a criminal case by either the prosecution or the defendant. Nor was such a right said to exist under traditional concepts of due process. 9 In recent years, however, several exceptions have emerged. The prosecution has an affirmative duty to disclose to an accused any information within its control which tends to negate defendant's guilt. 10 It has now become well-settled in many jurisdictions that trial courts have broad discretionary power to order the prosecution to disclose to the defendant any relevant information in the possession or control of the prosecution. 11
Prosecutorial discovery was strongly condemned in early American jurisprudence. The United States Supreme Court in 1886 announced strong opposition to compulsory self-incrimination through discovery orders. In Boyd v. United States, 12 Mr. Justice Bradley, speaking for the court, stated:
Now it is elementary knowledge that one cardinal rule of the court of chancery is never to decree a discovery which might tend to convict the party of a crime, or to forfeit his property. And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom. 13
Similar views have since been expressed by Professor Wigmore:
It follows that the production of documents or chattels by a person (whether ordinary witness or party witness) in response to a subpoena, or to a motion to order production, or to other form of process relying on his moral responsibility for truthtelling, may be refused under the protection of the privilege (against self-incrimination). This is universally conceded. (emphasis in original) 14
As recently as 1967, a federal district court observed that the fifth amendment privilege against self-incrimination operated to bar prosecutorial discovery of evidence to be used in the government's case-in-chief. 15 The constitutional questions arising out of prosecutorial discovery are reflected in Rule 16(c) of the Federal Rules of Criminal Procedure. That rule by its terms does not directly compel the defendant to provide prosecutorial discovery. Rather, it permits the court to condition discovery when sought by the defense by requiring the defense to make a reciprocal exchange with the government. 16 Any possible conflict with fifth amendment rights is thought to be avoided on theories of implied consent or waiver by the defendant. Thus the Federal Rules of Criminal Procedure have preserved without resolving the constitutional questions raised by...
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