1 - Voice For The Defense Online

prosecutor; there is no sdar statutoryequivalent protecting the defense counsel'swork product. Thus, the key question iswhether a court order compelling the testimonyand disclosure of defense-bired"g.erts'.who will not testify for the defse, wfil violate dbe process standards.The focus of inquity begins withW~lf~urns v. Ir2ondii.51 There, the SupremeCourt upheld the constitutionality ofFlorida's notice-of-alibi rule. That rule requiredpretrial notification to the vrosecutionby the defendant of the anticipateddefense of alibi. The defendant was requiredto notify the prosecuti~n of theplace at which a defendant claimed to beat the time in question and the names andaddresses of the witnesses to be called insupport of the alibi. The Court emphasizedthat due process was not violatedwhen "the defendant eniovs reciorooalAdiscovery against the state:";^In Wurdzus v. Oregori,53 the SupremeCourt was confronted with an issue un-parently grounded on the same theorythat led to the Supreme Court's holdingin United States u. Nobles, which is thatthe use of the document or the testimonyof the witness involves a waiver of thework product doctrine.Reliance for this due process argumentcan also be had upon Unrted Statesv. Wright39 There, the defense retainedan investigator to intetv'iew potentialwitnesses and he subsequently submitteda report to the defense attorney. At trial,the investigator testified for the defenseand the trial court ordered the defense toturn over a copy of his entire report tothe government. Upon review, the courtof appeals held that[tl he defendant has a right underthe Fifth Amendment tocompel the state to investigateits own case, find its own evi-FOOTNOTESl~hls arttcle does not rnclude a discussmn ofVernon% Ann. CiV. St., Article 4413 (29bb),Section 28 (a), which states.Any ltceasee or off~cer, director, part-fatiYe, any information he may acquireas to any criminal offense, buthe shall not drvulge to any other pmsonexcept as he may be required bylawm to do. any informatron acuuiredby him exc&at the direction of theemployer or client for whom the informationwas obtained.Howevw, the four constitutional arguments ad-~anced in this article an fully applicable to thestatute. Moreover, there are additional constitutionalproblems with the statute that meritSeparate attention.2This article will not attempt to include a discussionof potential violations of the FifthAmendment's prohibition against self-insrimination.3Artlcle 38.06, C.C.P., states that all personsere competent to testify except1 Insane persons who ar* tn an indence, and prove its own facts.The defense has no duty tothe prosecution convict the deresolvedin Wrlllums which was whether fendant. We therefore reject any sane conditron of mmd at the timethe due process clause of the Fourteenth rule which would require the de- when they are offered as a witness,Amendment forbids the enforcement of fense to turn over to the prosecu- or who were in that condit~on whenthe events happened of whtch theynotice-of-alibi rules in the absence of re- tiou prior statements of defenseare called to testify; andciprocal discovery rights for the defend- witnesses which could be used 2. Chtidren or other persons who,ant. The Supreme Court, in holding that by the prosecution as evidence after being enammed by the court,due process is violated in the absence of against the accused.60 appear not to possess suffiolent m-tellnet to relate transaetmnb withreciprocal discovery rights, stated that Wright, howe~er, may have been implicit- respect to which they are interroga-[tlhe State may not insist that ly overruled by Un~tedStutes v Nobles a ted, or who do not understand thetrials be run as a "search for The Nobles Court did not expressly over- obllgatmn of nn oath.truth" so far as defense witnesses rule wrwht, but did &tinwish it on the Them are furlher exceptions to the general rulewhich are not relevant to the purposes of thisare concerned, while maintaining ground that no general xfwhi ng expedi- article. See Artides 38.101 & 38.11,C.C.P."poker game" secrecy for its tion" into defense files or into the de- 4, DR (B), T,tle 14 Art. 12,own witnesses. It is fnndamen- fense iniWtigat0r'~ report was involved Section 8, Vernon's Ann. clv st. [hereinaftertallv ~ ~ unfair . ~ to ~. , -~~ reouire n defend- in Nobles 62 Thus. it is unclear if Wri~ht noted simply by D R I .A~.-- - -------ant to divulge the details of his is still good law.6350, 4.101 (C).own oase while at the same time Prosecutorial compulsion of defense- 60K 4 101 (0).subjecting him to the hazard of7DR 7-109 (A).surprise concerning refutation of8Tha court order, it should be noted, could beenteredthe very pieces of evidence whichon the bas= of competency or on Arfade 4413 (29bb). Sectron 28 (a), tf a defensehehas disclosed to the State.54hrred private investigator was mvolvrd.(Footnotes omitted)9~~ 7-106 (A).According to the Court, the lack of sig-lOlt can also be argued that prosceutor~al disnificantgovemmental mterests in not af-covory of reports nf defense hmd experts, asfording reciprocity clearly justified itswell as the compulsion of then testimony forthe State, vtolates Sectmnholding that an absence of reciprocity in31.44, Penal Code[Theft of SrmcesI, whlch states m part thstsuch a situation resulted in a deprivationa) A pemon commtts theft of semcesof due process to the defendant.if, w~th lntent to avoid payment farThe principle of Wurdius is analogoussenrlces that he knows is provldedonly for compensatton.to the instant analysis. It is easy to con-I.***+ceptualize the deprivation of due process2. havmg control over the dlspowttonoccasioned by the compelled discovery ofof services of another to which he istestimony and reports falling within thenot entitled, he mtcntianally ordefense attornev's work nroduct whenknowindv diverts the other's servicesthe prosecutor's work product is speclfi-to hi &n bcncfit or to the benefttcally exempted from disoovery.55Moreover, neither the %se beforethe jury" rule56 nor the Gaskin rule57obviate the analogy, even though theserules control over the work product exceptionof Article 39.14, C.C.P.58 Thatthe "use before the jury" and Gaskin rulescontrol over Article 39.14, C.C.P., is ap-hired exoert testimonv and reoorts. there- - ,fore, may be violative of due process. Ifthis is true. then the result will be to eitherforbid prosecutorial attempts to obtainthe testimony of or reports by defensehiredexperts who will not testify for thedefense, or to permit the compulsory discoveryand compelled testimony of expertsby both the prosecution and defense.Since Article 39.14, C.C.P., forbids thecompelled disclosure by prosecution expertsof their reports, the formet practicewould be the better. Another considerationin support of the former practice isthat the sanctity of the work product ofan attorney may be more important thanmutual discovery by the parties. Whilethere does not appear to be any reasonwhy the prosecutor could not waive theprotection of Article 39.14, C.C.P. andrequest reciprocal discovery, a reasondoes exist, as will be discussed beIow insection 111 (Dl.The conclusion of Mr. Botsford's articlewill appear in the May issue of theVOICE.of another not entitled to themThe theory wxth regard to Sectmn 31 04 is thatthe defendant owl for the services of ha experts, yet the &ate is recemng the use and henefittheroof As s practical matter, the onlypossible benefit such a theory could have wouldhe in canvlnnng the tnaland/or appellate courtsthat the compulsion of tcstmony or reports is~ilegdl.Aho, it could beafgurd that the State wasdrpnvmg the defendant nf ha property withoutApril 1978/VOICE for the Defense