Spears v. State, 179S13
Citation | 272 Ind. 647,403 N.E.2d 828 |
Decision Date | 30 April 1980 |
Docket Number | No. 179S13,179S13 |
Parties | Harry SPEARS, Appellant, v. STATE of Indiana, Appellee. |
Court | Supreme Court of Indiana |
Steven L. Artrusi and Robert F. Gonderman, South Bend, for appellant.
Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant petitions this Court for rehearing in this cause pursuant to Ind.R.Ap.P. 11(A). Defendant alleges that the opinion is erroneous for various reasons. The only meritorious allegation relates to our treatment of statements of witnesses taken by an attorney under the work product doctrine. We grant rehearing solely for the purpose of correcting this error.
The following is substituted for and supersedes our discussion of issue IV of our prior opinion in this cause, dated February 27, 1980.
IV.
Defendant claims that the trial court's discovery order compelling him to provide the state with copies of statements taken from witnesses violated his right against self-incrimination, his right to counsel and the work product privilege.
Reciprocity is the key element of criminal discovery in Indiana. In other words, this Court will require that discovery requirements be fairly balanced between the state and defendant. State ex rel. Keller v. Criminal Court of Marion Co., (1974) 262 Ind. 420, 317 N.E.2d 433. Defendant does not challenge the discovery order in the case at bar under the "reciprocity" rule adopted by this Court. Instead defendant claims the order violated his right against self-incrimination.
The issue raised by defendant's allegation is whether witnesses' statements are protected under the Fifth Amendment to the United States Constitution. The United States Supreme Court has held that the Fifth Amendment constitutes a personal privilege which adheres basically to the person, not to incriminating information. Couch v. United States, (1973) 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548. The Supreme Court has specifically held that compelling disclosure of a statement taken by defense counsel's investigator during an interview with a witness does not constitute a Fifth Amendment violation. United States v. Nobles, (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141.
Defendant's allegation that he was denied his right to counsel is substantially the same as his claim that the work product privilege was violated. The work product doctrine can be traced to the United States Supreme Court's decision in Hickman v. Taylor, (1947) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. In that case, the Supreme Court held that written statements of witnesses and memoranda an attorney has made of oral statements of witnesses cannot be the subject of a discovery order absent a showing that the denial of production would cause undue hardship or injustice:
329 U.S. at 510-11, 67 S.Ct. at 393-4, 91 L.Ed. at 462.
The Supreme Court's holding in Hickman v. Taylor, supra, was not of constitutional magnitude. Rather, the Court acted in its supervisory role over the federal courts in interpreting the Federal Rules of Civil Procedure. However, Indiana has incorporated the work product doctrine in Ind.R.Tr.P. 26(B)(2) which provides in part:
The rules of civil procedure do not govern discovery in criminal matters; matters of criminal discovery are committed to the discretion of the trial court as within the inherent powers of a trial court to guide and control the proceedings. State ex rel. Keller v. Criminal Court of Marion Co., supra. But the United States Supreme Court has held that the work product doctrine is applicable to criminal proceedings in the federal courts:
United States v. Nobles, (1975) 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141, 153.
In Nobles, the Court held that the privilege derived from the work product doctrine is a qualified privilege and, as such, may be waived. In Nobles, the defense called to the stand an investigator to impeach...
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