remand for in camera determination of whether prosecution witness’ prior statements were inconsistent with his trial testimony
How later courts described this case
- remand for in camera determination of whether prosecution witness’ prior statements were inconsistent with his trial testimony
- copies of police reports of testifying officer
Written by the judges who cited it.
Distinguished
Distinguished by State v. Nowlin, 1976 Iowa Sup. LEXIS 1218 (1976)
Defendant contends the Mayhew principle is inapplicable here because the order under which he was examined provided that defense counsel alone receive a copy of the doctor’s report.
The opinion
BECKER, Justice.
I respectfully dissent.
I. I agree with the holding in Division III that defendant is entitled to receive, examine and use for impeachment purposes prior statements of prosecution witnesses. However, I do not agree that such right is subject to prior in camera determination by the trial court of relevancy and admissibility of the contents of the report. This is especially unfair where, as here, the State makes no claim the report contains anything which would in any way prejudice its law enforcement function. The Arizona supreme court in State v. Ashton, 95 Ariz. 37 , 386 P.2d 83, 84 , analyzes the matter correctly : “ * * * It is not this court’s province to inquire into the possibilities for impeaching the officer’s testimony from information contained in his narrative report. We cannot speculate as to what use might have been made of it by defense counsel. Clancy v. United States, 365 U.S. 312 , 81 S.Ct. 645 , 5 L.Ed.2d 574 (1961). This is a matter which can only be determined by defense counsel, who is entitled to make his independent evaluation from examining the narrative report after hearing the direct testimony of the State’s witness. To require defense counsel to show a conflict between the witness’ direct testimony and the narrative report, without having seen the report would be to require the impossible. For until the trial judge accords him an opportunity to inspect the report, defense counsel will have no knowledge of its contents. State v. Lavallee, 122 Vt. 75 , 163 A.2d 856 (1960). Neither can an appellate court make assumptions as to how an effective use of the narrative report would have affected the witness’ credibility in the eyes of the jury.”
This is simply another way of saying the responsibility for the defense of an accused is on defense counsel, not on the judge, and the judge, in the absence of compelling social reasons for the State’s protection, has no business prejudging the materiality of the admissibility of the evidence.
No such in camera restriction is put on the State’s use of the psychiatric report made available to the State in Division IV. Why then, in the absence of special circumstances shown by the State, should the trial judge be required to prescreen the police report?
What was said by way of special concurrence in State v. Eads, Iowa, 166 N.W. *621 2d 766, 775 , seems to me to apply even more strongly at trial than at the pretrial stage.
This in camera type inquiry was at first accepted by the Supreme Court of the United States as indicated by the majority. At least as to electronic surveillance, that court has now concluded such a rule is unworkable, Alderman v. United States, 394 U.S. 165 , 88 S.Ct. 961 , 22 L.Ed.2d 176 (March 10, 1969). While the reasoning is not controlling as to the situation we have here, the majority opinion by Mr. Justice White recognizes the ultimate responsibility to determine the usability of the evidence is on counsel, not the court. We should not go through the same exploratory steps when the way is so clearly pointed by cases preceding and including the Aider-man case.
II. I do not understand the procedure. If the trial court examines the report in question in camera and decides the material contained therein does not contain “one or more statements inconsistent with the material testimony of Braatz on direct examination which is admissible for impeachment purposes”, what happens next? The majority holds the material is to be certified to this court. Is defense counsel entitled to argue the matter in this court? Is he expected to so argue without knowledge of the contents of the report or statement?
Requiring such a “blind” procedure will make it incumbent upon conscientious counsel to appeal every such ruling since he cannot otherwise discover if good cause therefor exists.
III. What if the statement contains material inconsistent with statements made by Braatz on cross-examination? According to the majority this material would not be available.
Suppose the report contains material not usable on cross-examination but arguably beneficial to defendant, either as found in the report or by additional investigation? Wouldn’t such a situation require divulging such information to defendant under the doctrine set forth in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 ?
It is submitted the only reasonable ruling in this case is that a fair trial was denied when defendant was denied access to the information requested. This necessitates a new trial.
RAWLINGS, J., joins in this dissent.
LeGRAND, J., joins in Division II of this dissent.