State v. Mai

Decision Date29 December 1982
Citation294 Or. 269,656 P.2d 315
PartiesSTATE of Oregon, Respondent on Review, v. Douglas Ronald MAI, Petitioner on Review. CA 19767; SC 28146.
CourtOregon Supreme Court

Merrill Schneider, Sandy, argued and reargued the cause and filed the brief for petitioner on review.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued and reargued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen. and William F. Gary, Deputy Sol. Gen., Salem.


PETERSON, Justice.

This case involves the question whether a law which permits a trial judge to prohibit a witness from testifying because the defense failed to disclose the name of the witness prior to trial violates the defendant's right to compulsory process under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the federal constitution. We hold that it does not.

ORS 135.805-.873 are comprehensive statutes which provide for reciprocal discovery by the prosecution and the defense. The statutes require, inter alia, the disclosure of the names and addresses of witnesses the party intends to call at trial. ORS 135.865 provides that the trial court, "[u]pon being apprised of any breach of the duty [of disclosure] * * * may * * * refuse to permit the witness to testify * * *."

The defendant was arrested, charged and convicted of driving under the influence of intoxicants (ORS 487.540) and evading a police officer (ORS 487.555). The defendant's attorney refused to comply with the statutes, claiming that his client had an absolute right to call witnesses, a right guaranteed by the compulsory process clause of the state and federal constitutions. The trial court imposed a sanction permitted by ORS 135.865 1 and refused to permit the witness to testify. After conviction, the defendant appealed to the Court of Appeals, which affirmed. 54 Or.App. 334, 634 P.2d 1367 (1981). We affirm.


The Oregon compulsory process clause is found in Article I, section 11, of the Oregon Constitution and provides in part: "In all criminal prosecutions, the accused shall have the right * * * to have compulsory process for obtaining witnesses in his favor * * *." In State ex rel. Gladden v. Lonergan, 201 Or. 163, 269 P.2d 491 (1954), we noted the literal meaning of the compulsory process clause and held that the provision secures to the defendant the right to process to obtain the attendance of witnesses, saying:

"Under Art. 1, § 11, Oregon Const., the accused not only is guaranteed the right 'to meet the witnesses face to face', but also the right of having 'compulsory process for obtaining witnesses in his favor'.

"At common law an accused charged with a felony could not demand as a matter of right compulsory process for his witnesses, but it was the duty of the prosecution to call and examine all persons who had knowledge of material facts connected with the crime, whether favorable or unfavorable to the defendant. But under the federal constitution and the constitutions of most states, the right of compulsory process for witnesses on behalf of defendant is secured. The right is not subject to the discretion of the court; it is usually absolute, at least as to process for necessary and material witnesses, even though the persons needed as witnesses live outside the county of the venue. * * * " 201 Or. at 188, 269 P.2d 491.

See Clinton, The Right To Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind.L.Rev. 711 (1976), and Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71 (1973), for a detailed summary of the history of the compulsory process clause. Compare the concurring opinion of Lent, J., in State v. Douglas, 292 Or. 516, 520-538, 641 P.2d 561 (1982).

The right to subpoena a witness into the courtroom is an empty right absent the related right to obtain the testimony of the witness. We have no hesitation in concluding that the clause protects both the right to the attendance of the witness and the testimony of the witness. In this respect, we construe the state compulsory process clause in the same way as the Supreme Court construed the virtually identical federal counterpart in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). 2 In that case, after first holding that the federal compulsory process clause "is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment," 388 U.S. at 17-18, 87 S.Ct. at 1922, the court stated the issue as follows:

" * * * We are thus called upon to decide whether the Sixth Amendment guarantees a defendant the right under any circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court. * * * " 388 U.S. at 19, 87 S.Ct. at 1923.

Observing that the compulsory process clause was enacted to overcome the early common law rule prohibiting a defendant from calling witnesses on his behalf, the court held that the clause guaranteed the right to obtain the testimony of witnesses as well as the right to secure their attendance. " * * * The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use." 388 U.S. at 23, 87 S.Ct. at 1925.

The specific question involved in this case is whether the preclusion sanction of ORS 135.865 is an unconstitutional limitation upon the right to obtain the testimony of a witness. We now turn to that question. 3


Reciprocal discovery statutes similar to ORS 135.835-135.865 have been enacted in most states. 4 Their purposes include these: "To assure to both the state and the defendant the opportunity, in advance of trial, to be provided with the information required by these statutes so as to enable each party to prepare adequately for trial and to prevent 'surprise' at the time of trial * * * "; " * * * to avoid unnecessary trials, to expedite trials and to prevent the expense and delay of continuances when either party claims to be unprepared to go to trial because of failure by the other party to comply with these discovery statutes. * * *," State v. Dyson, 292 Or. 26, 35-36, 636 P.2d 961 (1981); and to promote pretrial resolution of criminal cases. See Westen,The Compulsory Process Clause, 73 Mich.L.Rev. 71, 138 (1974); Comment, The Preclusion Sanction--A Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342, 1356 (1972).

Reciprocal discovery is a fairly recent development in the field of criminal law. Following the decisions in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), most states enacted reciprocal discovery statutes. Oregon's reciprocal discovery statutes were enacted in 1973. Or.Laws 1973, ch. 836, §§ 213-220. Discovery tends to equalize the investigative power of the parties. As a result, defendants are better able to defend, for to some extent they have the benefit of the vast power of the state in investigating crimes. Such statutes benefit the defendant in particular by tending to take away the edge the state enjoys by virtue of its powerful investigational resources. However, the legislature, in requiring the prosecution to make discovery under ORS 135.845, exacted a quid pro quo--discovery from the defendant under ORS 135.835--in default of which the trial judge could impose the sanction and "refuse to permit the witness to testify." ORS 135.865.

As stated, the fundamental right that the compulsory process clause aims to protect is "the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies." Washington v. Texas, supra, 388 U.S. at 19, 87 S.Ct. at 1923. The ultimate aim of the reciprocal discovery statutes is largely congruent with that goal in the sense that such statutes insure that both sides have access to all the facts so that the jury can best determine where the truth lies.

As an abstract principle, it is doubtless permissible to establish reasonable procedures which must be followed in order to exercise a right guaranteed by the constitution. Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S.Ct. 760, 766, 97 L.Ed. 1105 (1953); Carlile v. Continental Oil Company, 81 N.M. 484, 468 P.2d 885, 887 (1970); Annot., 64 A.L.R.2d 506, § 3, at 513 (1959). The procedures must not, however, result in unfairness. In Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), the Supreme Court set aside the defendant's conviction because the Oregon notice-of-alibi statute then in effect (which required the defendant to notify the prosecution of the place the defendant claimed to be at the time in question, and of the names and addresses the defendant intended to call to prove the alibi) did not make provision for reciprocal discovery to the defendant, and this impaired the defendant's rights to a fair trial under the Due Process Clause of the Fourteenth Amendment. 412 U.S. at 472, 476, 93 S.Ct. at 2211, 2213. Compare Washington v. Texas, supra, in which the Supreme Court invalidated a Texas procedural statute providing that persons charged as principals, accomplices or accessories in the same crime could not be witnesses for each other because the statute interfered with a defendant's compulsory process rights "to present his own witnesses to establish a defense." 388 U.S. at 19, 23, 87 S.Ct. at 1923, 1925.

Oregon's reciprocal discovery statutes, ORS 135.805-.873, do not deny the right to call witnesses. They merely set forth a procedure which must be followed in the trial...

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