Hicks v. State

*506 GIVAN, Justice,

concurring in result.

I am compelled to write a concurring in result opinion in this case because I perceive the majority has misconceived the long-standing rules of discovery procedure as applied to criminal cases.

For a thorough understanding of the principles involved in this most important application of the rules of discovery, I would refer the reader to 2 Wiltrout, Indiana Practice § 945(6) (1967). There the author discusses the rule and the exceptions thereto, citing as authority the case of Hickman v. Taylor (1947), 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 for the proposition that work products of counsel are not generally discoverable.

The Hickman case specifically mentions statements taken of potential witnesses as being included within the work-product exception to discoverability. During the 1960s, when Indiana was contemplating the adoption of the Federal Rules of Civil Procedure, the matter was referred to a Civil Code Study Commission. After extensive study and much research, the Commission prepared a volume entitled, Indiana Rules of Civil Procedure Proposed Final Droft, which was submitted to the Bar, to the Legislature, and to the Supreme Court for study and possible implementation. In that draft, starting at page 128, there is an extensive explanation of Rule 26, entitled "General Provisions Governing Discovery." Here we find no debate that work products are not generally discoverable. However, the text informs us of the various exceptions to that rule and again in the comments cites us to many cases including Hickman, supra.

Equipped with this scholarly study, the Legislature first enacted the rules as a statute. This was accomplished through cooperation between the Legislature and the Supreme Court with the understanding of both that the rules contained several statements of substantive law which did not come within the province of the Supreme Court to adopt. After passage by the Legislature, the rules then were submitted to the Supreme Court which, with minor changes to some of the obviously procedural matters, adopted them. Rule 26 was adopted without change.

Following this adoption, we find many cases, most of which are cited by the majority in their opinion, implementing and explaining Rule 26 as applied to criminal cases. The general holding has been that unless there is a criminal rule directly opposed to the civil rules, the civil rules also will apply in criminal cases. However, as to Rule 26, this Court has held in the cases cited by the majority, that as far as criminal cases are concerned, the trial court has a wider latitude in permitting discovery than generally is accepted in civil cases.

In most of the cases cited by the majority, this Court upheld the trial court's discretion whether to order the production of statements which ordinarily would be considered as work product. In some of those cases, it was held that the asking party should be allowed such discovery because they clearly had demonstrated an exception to the general rule, and in order to do justice, the production should be ordered. In other cases, we reversed the trial judge's order to produce where there had been no showing of such necessity, e.g., State ex rel. Keaton v. Circuit Court of Rush County (1985), Ind., 475 N.E.2d 1146 ; State ex rel. Meyers v. Tippecanoe Superior Court (1982), Ind., 438 N.E.2d 989 . I see no contradiction in any of these cases. Though the results differ, the cases demonstrate a clear understanding of the rule and its exceptions and make consistent application thereof.

In cases such as Burns v. State (1987), Ind., 511 N.E.2d 1052 , cited by the majority, we have held that the work-product exception does not preclude discovery of verbatim statements of witnesses once they have testified at trial. Here again, we see a clear articulation of the exceptions and how they are to be applied to the rule. The majority sets out these cases and correctly describes what they hold. However, such observations are by no means authority for the statement in the majority opinion, "We therefore hold that the work-product doctrine is not applicable to shield ver *507 batim witness statements from otherwise proper discovery."

In the case at bar, appellant had filed a motion requesting that the State produce the names and addresses of all the persons the State had interviewed plus written and oral statements, excluding memoranda reporting or summarizing their statements. The trial court granted appellant's motion as to a list of names of all witnesses to be used by the State, but the motion otherwise was denied. There is no showing in this record that an exception to the general work-product rule existed requiring the disclosure of material such as statements of witnesses.

The majority opinion patently ignores the well-founded principle that an exception must be demonstrated to the trial court before any work-product material may be discovered. When such a showing is made, conceivably a trial judge could abuse his discretion by refusing to allow such discovery. When, however, as in the case at bar, there has been no such showing and the trial judge exercised his discretion in refusing to order disclosure of work prod-uet, his ruling should be sustained. Though the majority eventually has reached the correct result in this case, I am concerned that they have muddied the water on this issue and have made a clearly erroneous statement leading members of the bench and bar -to believe that work-product statements taken of prospective witnesses are discoverable under all circumstances regardless of need.

I would hold that the trial court's denial of appellant's broad discovery request was not error.

PIVARNIK, J., concurs.