Court Denies Prosecutors Access to Defense Notes

SAN FRANCISCO —  Prosecutors cannot use out-of-court conversations between a defense witness and a defense lawyer to impeach the testimony of the witness in court, the state Supreme Court ruled Thursday.

In a 6-1 decision, the court said a 1982 state law allowing prosecutors to see notes from such meetings would ease the burden of proof for the state and thus violates the state Constitution’s protection against self-incrimination.

Chief Assistant Atty. Gen. Steven White said the ruling, which runs contrary to U.S. Supreme Court decisions on similar laws elsewhere, will let the testimony of surprise defense witnesses go virtually unchallenged in court.

“It (the ruling) doesn’t make our job impossible,” he said, “but it does make it harder than it constitutionally has to be. It definitely will result in an occasional acquittal that isn’t warranted.”

The ruling was made in the case of a Los Angeles public defender, William A. Misener, who was cited for contempt for refusing to turn over notes he made while interviewing a witness in a 1983 Van Nuys Superior Court robbery trial.

Prosecutors, seeking to corroborate his story, asked to see the notes after the witness testified in court.

Misener was representing two teen-agers accused of trying to rob a woman in the parking lot of a Northridge supermarket; a mistrial was declared because of the uncertain constitutionality of the disclosure law.

‘Unqualified Right’

In his opinion overturning Misener’s contempt citation, Justice Stanley Mosk cited a 1970 U.S. Supreme Court ruling that said criminal defendants have “an absolute, unqualified right to compel the state to investigate its own case.”

Mosk added: “By requiring the defendant to hand over evidence that will impeach his witnesses, (the 1982 law) undeniably lightens the prosecution’s burden” to prove the defendant’s guilt, and therefore “is not investigating its own case.”

In a dissenting opinion, however, Justice Malcolm Lucas noted that the U.S. Supreme Court has upheld similar so-called “prosecution discovery” laws in other states.

Florida, for example, has enacted a notice-of-alibi law requiring criminal defendants to notify prosecutors of their intended alibis and to disclose such key details as where they will claim to have been when crimes occurred and whom they intend to call as witnesses to the alibi.

Lucas said the U.S. Supreme Court decided unanimously that the disclosures, which are more revealing than what was required by California law, “might substantially enhance the ‘search for truth’ and . . . would not impinge upon defendant’s ‘personal’ privilege against self-incrimination.”

Lucas acidly accused the majority of clinging to “outmoded constitutional concepts,” apparently “based on nothing more than a personal aversion to a perceived increasing conservatism in the decisions of the United States Supreme Court.”

Mosk wrote in his opinion that the majority’s ruling was based on its own interpretation of a provision of the state Constitution, thus apparently precluding any attempt to appeal the decision to the U.S. Supreme Court.

White, chief assistant attorney general and one of the authors of the overturned law, said the decision will make it easier for defendants to rely on surprise witnesses to provide an alibi.

“It means there can be a complete surprise in a trial defense that will go unchallenged because we will have no right to see if it’s true or accurate,” he said.

‘Goal ... Is Laudable’

Mosk apparently anticipated that complaint, and noted in his opinion that “while the goal of full presentation of all the facts is laudable, it cannot be satisfied at the expense of the defendant’s constitutional rights.”

As long ago as 1962, the state court ruled that prosecutors had some right to assess in advance the details of a defendant’s alibi. At the time, it said prosecutors could see X-rays of an accused rapist claiming impotence as his defense.

Since then, however, the court has slowly scaled back prosecutors’ rights in such instances, concluding in 1981 that “almost insurmountable hurdles (are) likely to thwart any attempts to devise constitutionally permissible discovery rules applicable to defendant or defense material.”

Mindful that the ruling would prompt legislative action to define what will and will not be permissible--action that resulted in the 1982 law overturned on Thursday--the court warned at that time: “Ours is likely to be the last word on the subject.”