Izazaga v. Superior Court

KENNARD, J.

Concurring. I concur in the result reached by the majority opinion, and I agree with most of the majority’s reasoning. I disagree, *384 however, with the majority’s analysis of petitioner’s contention that the discovery provisions of Proposition 115 implicate the Sixth Amendment by violating the work product doctrine. (Maj. opn., ante, pp. 380-381.)

In this case, which is at the pretrial stage, the trial court ordered petitioner to disclose the names, addresses, and statements of witnesses whom the defense intends to call at trial. Petitioner contends the order is illegal, because it requires his attorney to disclose matters that are protected by the work product privilege. Petitioner recognizes that in criminal cases Proposition 115 has limited California’s statutory privilege for an attorney’s work product. He argues, however, that a broader privilege is inherent in his Sixth Amendment right to counsel, and that this broader privilege has been violated by the trial court’s discovery order. Petitioner relies primarily on Hickman v. Taylor (1947) 329 U.S. 495 [ 91 L.Ed. 451 , 67 S.Ct. 385 ], in which the United States Supreme Court established a broad work product privilege for proceedings in federal court.

The majority correctly points out that the work product privilege created by the United States Supreme Court in Hickman v. Taylor, supra, 329 U.S. 495 , is based on federal statutes and the high court’s supervisory powers over the federal judiciary. From this general observation, the majority leaps to the conclusion that “the work product doctrine is not constitutionally founded . . . .” (Maj. opn., ante, p. 381.) But this conclusion finds no support in Hickman or in other decisions of the United States Supreme Court. In Hickman , the high court did not hold that there was no constitutional basis for the work product privilege. Once the court established a nonconstitutional basis for the privilege there was no need to, and the court therefore did not, determine whether the federal Constitution provided a separate basis for the attorney work product privilege. 1

Although the United States Supreme Court has never expressly decided whether the attorney work product privilege is founded on the federal Constitution, in United States v. Nobles (1975) 422 U.S. 225 [ 45 L.Ed.2d 141 , 95 S.Ct. 2160 ], it has strongly hinted that in criminal cases the privilege is grounded in the Sixth Amendment right to counsel. In Nobles , the defense attempted to attack the credibility of a prosecution witness by calling a defense investigator to testify regarding statements that the witness had *385 made to the investigator. The prosecution then sought discovery of the investigator’s written report of his interview with the witness, for use in cross-examining the investigator.

Although in Nobles the high court ultimately found that the defense in that case had waived the work product privilege, it did so only after explaining— quoting from its decision in Hickman v. Taylor, supra, 329 U.S. 495—how the work product privilege plays an essential role in enabling attorneys to properly represent their clients’ interests: “ ‘In performing his [or her] various duties ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. . . . That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways— aptly . . . termed ... as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his [or her] own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.’ ” (United States v. Nobles, supra, 422 U.S. at p. 237 [ 45 L.Ed.2d at p. 153 ].)

After noting that Hickman was a civil case, the Nobles court pointed out that the role of the attorney work product privilege “in assuring the proper functioning of the criminal justice system is even more vital.” (United States v. Nobles, supra, 422 U.S. at p. 238 [ 45 L.Ed.2d at p. 153 ].) Finally, the court discussed the various aspects that form the essence of the privilege. At its core, the court said, are “the mental processes of the attorney.” The court then observed that one of the “realities of litigation” is that attorneys often rely on investigators for assistance. (Ibid. [ 45 L.Ed.2d at p. 154 ].) Accordingly, the court concluded: “It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.” (Id. at pp. 238-239 [ 45 L.Ed.2d at p. 154 ].)

By stressing the fact that the attorney work product privilege is “vital” and “necessary” to ensure that lawyers can properly represent their clients’ interests, Nobles implies that this privilege is an integral part of a criminal defendant’s Sixth Amendment right to counsel. Although the high court in Nobles expressly declined to delineate the scope of the privilege (United States v. Nobles, supra, 422 U.S. at p. 239 [ 45 L.Ed.2d at p. 154 ]), it implied *386 that reports of the statements of witnesses, whether prepared by attorneys themselves or by defense investigators, are included within the privilege. (Id. at pp. 237-238 [45 L.Ed.2d at pp. 153-154].) Thus, in this case, by ordering disclosure of reports of the statements of witnesses the defense intends to call, the trial court may have directed discovery of materials that fall within the protection afforded by the Sixth Amendment.

Even if the work product privilege is grounded in the right to counsel, however, the discovery ordered here may be upheld on the ground of waiver. In United States v. Nobles, supra, 422 U.S. 225 , the high court held that if a defendant calls a witness to testify at trial, the defendant waives the work product privilege with regard to that witness’s statements gathered by the defendant’s attorney and the attorney’s agents. (Id. at p. 239 [ 45 L.Ed.2d at p. 154 ].)

Because this case is at the pretrial stage, the defense has yet to call any witnesses. The trial court has ordered discovery of statements only of witnesses the defense intends to call. But despite the fact that no waiver has occurred (because the defense has not called any witnesses), I see no constitutional impediment to a rule permitting discovery to take place in advance of trial, in anticipation of defendant’s expected waiver of the work product privilege, so that when the waiver actually occurs, the prosecution will be in a position to effectively rebut the evidence presented by the defense. If the defense provides no discovery until the time of trial, when the waiver takes place, the prosecution may not have sufficient time to undertake the investigation necessary to prepare an adequate rebuttal to the defense testimony. To address this problem, Proposition 115 appropriately allows discovery to take place before trial, in order to give the prosecution an opportunity to investigate and prepare a response. Because this discovery is limited to witnesses with regard to whom the defense intends to waive the work product privilege by calling them to testify at trial, it does not violate a defendant’s Sixth Amendment rights.

In my view, however, there is a limitation on the manner in which the prosecution may use the discovery. If the discovery is justified only by the expectation that the defendant will waive the work product privilege, the prosecution should not be allowed to utilize at trial the fruits of such discovery until that waiver actually takes place. If prosecution witnesses testify in an unanticipated fashion, the defense may decide not to call its intended witnesses, and the waiver of the work product privilege thus may not occur. Therefore, it would be impermissible for the prosecution to use, as part of its case-in-chief, evidence gained through discovery of statements of potential defense witnesses.

*387 In this case, there is no reason to believe that the prosecution will use the court-ordered discovery as part of its case-in-chief. Moreover, the trial court’s discovery order was proper. As the majority correctly points out, the order does not violate defendant’s rights under the California Constitution, nor does it violate his Fifth Amendment privilege against self-incrimination. Because defendant’s constitutional rights have not been violated, his petition for writ of mandate should be denied. I therefore agree with the majority’s holding denying the writ, although, for the reasons I have expressed, I cannot concur in the majority’s analysis of petitioner’s Sixth Amendment claim.

The majority claims it “follows” this court’s decision in Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 399-401 [ 15 Cal.Rptr. 90 , 364 P.2d 266 ], and that Greyhound held “that the . . . work product doctrine is not rooted in the federal Constitution.” (Maj. opn., ante, p. 381, fn. 18.) I find no discussion of the federal Constitution in Greyhound. Because Greyhound involved a civil action, and the Sixth Amendment’s right to counsel applies only in criminal cases, any discussion of the relationship between the right to counsel and the work product privilege would have been irrelevant under the facts of that case.