State v. Foster

• Decision Date: 24 November 1965
• Citation: 242 Or. 101,407 P.2d 901
• Parties: The STATE of Oregon, Respondent, v. Archie Emil FOSTER, Appellant.
• Court: Oregon Supreme Court

Page 901

407 P.2d 901

242 Or. 101

The STATE of Oregon, Respondent, v. Archie Emil FOSTER, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 28, 1965.

Decided Nov. 24, 1965.

Charles Burt, Salem, argued the cause for appellant. On the brief were Burt & Ertsgaard, Salem.

J. R. Thomas, Deputy Dist. Atty., Klamath Falls, argued the cause for respondent. With him on the brief was Sam A. McKeen, Dist. Atty., Klamath Falls.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and SCHWAB, JJ.

SLOAN, Justice.

Defendant was convicted of manslaughter. His appeal from the conviction poses a question not previously considered by this court. To put the problem in perspective it will be better to relate the basic facts.

Defendant was charged with shooting and killing a woman during the course of a spree at a rural residence in Klamath county. It was claimed, in his defense, that defendant was not present when the shooting occurred. Some of the state's evidence was that the shooting may have occurred at about 10 p. m. of the day of the event. One of the alleged eye-witnesses, Thompson, testified that it had happened at about 3 p. m. Defendant was present at the scene in the afternoon but was not there after about 5 p. m. The difference in time was, therefore, very material to the defense. There was some evidence that in a pretrial written statement of the eye-witness, Thompson, he had stated that the shooting was later in the evening. During the cross-examination of Thompson defendant asked to have the pre-trial statement made available to him so that he could use it on cross-examination to impeach the witness' direct testimony. The court refused. The question presented is: Did the court err in denying defendant access to the pre-trial written statement of the state's witness for the purpose of cross-examination?

Although there are cases to the contrary, the rule now generally accepted is that a previous written statement of a witness should be made available to defendant for possible impeachment on cross-examination of the witness. State v. Hunt, 1958, 25 N.J. 514, 138 A.2d 1, is a treatise on the subject. The opinion, by Mr. Justice Jacobs, examines all of the contending authorities and concludes that '* * * where it appears that a State's witness had made prior notes or statements relating to the subject matter of the direct testimony which he has given, the defense is entitled to inspect and use on cross-examination the prior notes or statements if they are or can be made available. * * * And the principle is generally applicable without any preliminary showing of inconsistency * * * or any resulting right in the State to introduce the notes or statements as corroborative evidence on its behalf.' 138 A.2d 10. The Hunt opinion is so exhaustive that it would be fruitless repetition to again discuss the authorities and reasons which justified the quoted conclusion. A similar opinion is found in People v. Riser, 1956, 47 Cal.2d 566, 305 P.2d 1.

It is contended that the statements or documents should not be produced unless it can be shown that they would be admissible into evidence if they are made available. The fallacy of the argument is obvious. Neither counsel or court can determine the admissibility of a writing until it is examined. It is more than likely that statements by witnesses could contain matter that would provide usable impeaching statements but also contain prejudicial irrelevances that could not go to the jury. Gordon v. United States, 1953, 344 U.S. 414, 416, 73 S.Ct. 369, 97 L.Ed. 447. People v. Riser, supra, 305 P.2d 14. If the statement were to be admitted, the screening out of irrelevant matter would present no more difficulty than the ocurt frequently consider in admitting written material. The fact that the statement might not be admissible does not justify a refusal to permit the use of the statement for proper impeachment purposes.

It has been urged that the rule we approve is of recent origin and comes as an aftermath of Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, and the subsequently enacted Jencks Act (18 U.S.C.A. § 3500, (1957)), and is, therefore, limited to practice in the Federal courts. In essence the Jencks Act only codifies the rule that had been of long standing in both federal and many state courts. Orfield,...