Commonwealth v. Brinkley

NIX, Chief Justice,

concurring.

I concur in the result of the majority affirming the trial court’s overruling of defense counsel’s objection to the order that he disclose certain defense memoranda concerning the statements of four defense witnesses on the limited grounds that the only reason offered in support of the objection was properly rejected. I strenuously disagree with the majority’s suggestion that the Commonwealth was entitled to this information.

I.

The sole argument raised before the trial court and on this direct appeal with respect to the court-ordered discovery of the statements in question was that this material was the attorney’s work product and was, therefore, privileged against disclosure. As the majority correctly concludes, the material disclosed would not fall within any accepted definition of “attorney work product.” Pa.R. Crim.P. 305(G); Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565 , 393 A.2d 306 (1978); see also Goldberg v. United States, 425 U.S. 94 , 96 S.Ct. 1338 , 47 L.Ed.2d 603 (1976); United States v. Nobles, 422 U.S. 225, 242 , 95 S.Ct. 2160, 2172 , 45 L.Ed.2d 141 (1975) (White, J., concurring); Hickman v. Taylor, 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947). By basing his objection on privilege, defense counsel waived all other grounds on which to attack *460 the propriety of the disclosure order. See Commonwealth v. Berrios, 495 Pa. 444 , 434 A.2d 1173 (1981); Commonwealth v. Williams, 476 Pa. 557 , 383 A.2d 503 (1978); Commonwealth v. Rivera, 470 Pa. 131 , 367 A.2d 719 (1976); Commonwealth v. Stoltzfus, 462 Pa. 43 , 337 A.2d 873 (1975). The argument that the discovery was not available under our Rules, therefore, was not before the trial court and cannot be properly considered by this Court.

II.

If defense counsel had preserved that issue for review by objecting on the grounds that disclosure of the subject statements was outside the parameters of Pennsylvania Rule of Criminal Procedure 305, the admission of the statements would have been error. Absent a specific authorization by the Rules of Criminal Procedure, the prosecution is not entitled, as a matter of right, to the discovery or inspection of any evidence in the possession of the defense. Lewis v. Court of Common Pleas of Lebanon County, 436 Pa. 296 , 260 A.2d 184 (1969). No decision of this Court before today has ever interpreted Rule 305 as conferring such a right either expressly or by reasonable implication. Although a majority of the Court may now consider it appropriate to create such a right, that right was non-existent when the instant trial occurred. Thus, there was no basis on which to permit discovery of the statements.

III.

What compels me to write separately is the majority’s unnecessary attempt to bolster its conclusion that the statements were not “work product” with dicta which implies that the Commonwealth should be entitled to full reciprocal discovery in criminal prosecutions. I strongly disagree with such a suggestion. The right to discovery of the prosecution witnesses’ prior statements after they testified on direct examination was granted to the defense because those statements might be material to the jury’s credibility determination and thus critical to a determination of guilt or *461 innocence. In The Matter of Pittsburgh Action Against Rape, 494 Pa. 15 , 428 A.2d 126 (1981); Commonwealth v. Hamm, 474 Pa. 487 , 378 A.2d 1219 (1977); Commonwealth v. Cain, 471 Pa. 140 , 369 A.2d 1234 (1977); Commonwealth v. Grayson, 466 Pa. 427 , 353 A.2d 428 (1976); Commonwealth v. Morris, 444 Pa. 364 , 281 A.2d 851 (1971); Commonwealth v. Kontos, 442 Pa. 343 , 276 A.2d 830 (1971); Commonwealth v. Smith, 417 Pa. 321 , 208 A.2d 219 (1965). Since the prior statements might prove to have an exculpatory purpose, we ruled that fairness demanded disclosure to defense counsel. Commonwealth v. Hamm, supra. No corresponding consideration of policy justifies the granting of a reciprocal prosecutorial right.

Ultimately the state’s information gathering advantage belies the contention that discovery rights between the prosecution and defendant should be coextensive. It would be a mockery of due process if the state could, in addition to relying on its infinitely more effective position as an investigating body and its superior resources, compel the defendant to lighten the prosecution’s burden of proving its case through the discovery process. Murphy v. Waterfront Comm., 378 U.S. 52, 55 , 84 S.Ct. 1594, 1596 , 12 L.Ed.2d 678 (1964). Indeed the United States Supreme Court recognized this proposition in Wardius v. Oregon, 412 U.S. 470 , 93 S.Ct. 2208 , 37 L.Ed.2d 82 (1973), wherein it stated that “the State’s inherent information gathering advantages suggest that if there is to be any imbalance in discovery rights, it should work in the defendant’s favor.” Id. at 475 n. 9, 93 S.Ct. at 2212 n. 9. That fundamental proposition was further emphasized by Mr. Justice Douglas in his concurring opinion:

The Bill of Rights does not envision an adversary proceeding between two equal parties. If that were so, we might well benefit from procedures patterned after the Rules of the Marquis of Queensberry. But the Constitution recognized the awesome power of indictment and virtually limitless resources of government investigators. *462 Much of the Bill of Rights is designed to redress the advantage that inheres in a government prosecution. Id. at 480 , 93 S.Ct. at 2215 (Douglas, J., concurring).

Therefore, I must emphasize that any suggestion of the existence of a reciprocal discovery right in this instance would ignore the realities of our criminal justice system, and would impermissibly tip the balance of advantage even more heavily in the prosecution’s favor. *

It should be noted that Pa.R.Crim.P. 305(C) does provide for some degree of reciprocity in situations where disclosure by the defense would not be unfair.