Appendix — Carkulis v. Montana

Supreme Court brief1988

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~ Supreme Court, U.S.

APR 4 1988

x %. l 6 5 4 JOSEPH F. SPANIOL, UR.

OLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

JAMES T. CARKULIS, PETITIONER

Vv.

STATE OF MONTANA AND DISTRICT COURT OF THE

THIRTEENTH JUDICIAL DISTRICT OF THE

STATE OF MONTANA, RESPONDENTS

ON APPEAL FROM THE -

SUPREME COURT OF MONTANA

APPENDIX

Jeffrey T. Renz

724 Grand Avenue

Billings, MT 59101

(406) 256-6151

Allen Beck

P.O. Box 21253

Billings, MT 59104

(406) 245-6848

April 1, 1988 COUNSEL FOR PETITIONER

APPENDIX

Opinion of the Montana Supreme

Court, State ex rel. Carkulis

v. District Court, No. 87-164

WOVGEEOOE 2s SPE ecccecsaocaceeses

Order of the District Court,

State v. Carkulis, No.

DC-84-204 (December 20, 1984)...

Order Denying Supervisory Control,

Montana Supreme Court, State

ex rel. Carkulis v. District

Court, No. 86-026 (December

ye | COPE TE Eee TL ee ee rere

Order of the District Court

Denying Motion to Reconsider,

State v. Carkulis, No.

DC 64-204 (April 9, 1987).......

Order Denying Petition for

Rehearing, Montana Supreme

Court, State ex rel. Carkulis

v. District Court, No. 87-164

fy Be ee oy Sar

Notice of Appeal to the United

States Supreme Court

(PFebruamy 29, 1968) ..cccccccccece

Motion for Discovery

Qo a Oe S|.)

Defendant's Response to Motion

for Discovery (December 18,

LOG a cw ecc ees eee ssesenseseones

Chapter 202, Laws of Montana

(1985), Montana Code

Annotated §§ 46-15-321 to

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No. 87-164

IN THE SUPREME COURT

OF THE STATE OF MONTANA

1987

STATE OF MONTANA ex

rel. JAMES CARKULIS,

Relator,

DISTRICT COURT OF THE THIRTEENTH

JUDICIAL DISTRICT OF THE STATE OF

MONTANA, IN AND FOR THE COUNTY OF

YELLOWSTONE, HONORABLE G. TODD

BAUGH, Presiding,

Respondent.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:

For Relator:

Allen Beck argued, Billings, Montana

Jeffrey T. Renz argued, Billings,

Montana

For Respondent:

Hon. Mike Greely, Attorney General,

Helena, Montana; Judy Browning

argued, Asst. Atty General, Helena;

Harold Hanser, County Attorney,

Billings, Montana; Terry

Deputy County Atty., Billings;

McGrath argued, County Attorney,

Helena, Montana

Submitted: September 2, 1987

Decided: November 25, 1987

Filed: November 25, 1987

/s/ ETHEL M. HARRISON

Clerk

Mr. Justice John C. Sheehy delivered the

Opinion of the Court.

In this case, we determine that the

reciprocal pretrial discovery statutory

provisions in criminal cases, for the

purposes of this case and when applied as

herein directed, are amenable to the state

and federal constitutions and not barred

by the provisions of the state and federal

constitutions herein specified.

This is an original proceeding in

this Court. Relator James Carkulis stands

charged with the commission of a crime in

the District Court, Thirteenth Judicial

District, County of Yellowstone. The

State had moved the District Court for an

order requiring reciprocal discovery by

the defendant under §46-15-323(4), MCA

(1985). In an order dated December 20,

1985, the District Court granted _ the

State's motion for pretrial discovery but

made no provision in the - order for

Sanctions in the case of noncompliance.

On January 15, 1986, Carkulis filed

in this Court a petition for writ of

Supervisory control or writ of certiorari

(Cause no. 86-026 in this Court) relating

to the December 20, 1985 District Court

order. We ordered a response, and

received an answer and briefs from the

Attorney General of the State of Montana;

the County Attorney of Yellowstone County;

and amici curiae from the Moses Law Firm

of Billings, Montana; Ungar Law Firm of

Bozeman, Montana; and the Montana County

Attorneys Association, through its

president Mike McGrath of Helena, Montana.

However, on December 1l, 1986, after oral

argument, we denied the petition for writ

of supervisory control without prejudice

upon the grounds that the District Court

had imposed no sanctions, and might never

impose sanctions, and that there was an

adequate remedy by appeal.

Thus, the matter returned to the

District Court. There, on March 9, 1987,

Carkulis moved the District Court to

reconsider its order of December 20, 1985.

On April 9, 1987, the District Court

issued its order denying Carkulis' motion

to reconsider and further ordering that

unless the defendant disclosed the

materials set out in the December 20, 1985

order by May 1, 1987, he would "be

precluded from offering the same at

SFiane" The time for compliance by the

defendant has passed and neither he, his

counsel nor agents, have complied with the

pretrial discovery order of the District

Court. On May 4, 1987, Carkulis, as

relator, filed his second petition for

writ of supervisory control or writ of

certiorari in this Court and thus’ the

issue is before us again.

This time, a sanction has been

imposed against the defendant, the most

drastic available to the District Court

under §46-15-329, MCA, that of barring him

from offering evidence not disclosed

before May l, 1987.

The first problem is whether this

Court should consider the issuance of a

writ, either of supervisory control, or of

certiorari. Under §27-25-102(2), MCA, if

a district court, exercising judicial

functions, has exceeded its ~-jurisdiction,

and if in the judgment of this Court there

is no plain, speedy or adequate remedy,

certiorari will lie. Section

27-25-201(2), MCA. In 1ike manner, when a

cause of action or a right has arisen

under conditions making due consideration

in the trial court and due appeal to this

Court an inadequate remedy, or when

Supervision of a trial court other than by

apr :al is deemed necessary and proper, a

writ of supervisory control may issue.

Rule 17(a), M.R.App.P. A petition seeking

original jurisdiction in this Court must

make a showing of the inadequacy or

unavailability of any other remedy, either

in the District Court or by appeal to this

Court. Crist v. Boyd, District Court

(1976), 172 Mont. 38, 560 P.2d 531;

Petition of Waite (1964), 143 Mont. 321,

322, 389 P.2d 407, 408.

In the first proceedings brought by

Carkulis in this Court, the Attorney

General, in his memorandum in support of

his response, agreed we should take

jurisdiction of the proceedings, and

pointed out a proper reason:

For example, if the court were

to decline to take jurisdiction

of this application, relator

would presumably comply with the

District Court's disclosure

order. Should relator then be

convicted and successfully

appeal his case, it might prove

unfair to him should a new trial

be ordered, Since the State

would have the benefit of the

-_"

very information which relator

believes he should not be

required to disclose. Once

disclosures are made, they

cannot be retracted. See

Wardius v. Oregon, 412 U.S. 470,

478 (1973).

Under the record as zt is now

presented to us in this second application

by Carkulis, since he is barred from

offering evidence pertaining to the

materials sought in pretrial discovery, he

may be entirely precluded from offering a

defense. He must risk conviction in order

to effect an appeal, and then risk the

uncertainty of our decision on appeal.

Without our intervention now, defendant

has a Hobson's choice: Go back to the

District Court, comply with the pretrial

discovery, hope that the District Court

will rescind its order barring the

evidence and rely on a successful appeal;

or, alternatively, stand pat, risk

conviction, and the uncertainty of success

On appeal. Moreover, the District Court

order is binding not only on the

defendant, but upon his counsel and their

agents. They are also at risk_ for

noncompliance through contempt proceedings

against them.

Counsel for the State in prosecuting

defendant is likely to have a dilemma here

with respect to the law: There is a split

of authority among neighboring states as

to the legality of such pretrial discovery

provisions. Unless we set the course in

this case of first impression, there are

no Montana guideposts for counsel advising

their clients with respect to pretrial

discovery in criminal cases.

Accordingly, we accept jurisdiction

to determine if supervisory control is

proper in this matter.

The District Court's Order

On December 20, 1985, the District

Court entered its order for. pretrial

discovery which included the _ following

provisions:

IT IS HEREBY ORDERED that the

defendant, James Carkulis’9 anda

his counsel or agents, make the

following materials and

information available to’ the

State without delay for

examination and reproduction,

subject to constitutional or

statutory limitations:

(1) the names and addresses of

all persons, other than the

defendant, whom he in good faith

Knows he will call as witnesses

at trial, and copies of all

statements made by them related

to this case;

(2) the names and addresses of

any expert witnesses whom he in

good faith Knows he will call at

trial, and summaries of the

testimony he expects the

witnesses to give at trial;

(3) all papers, documents,

photographs and other tangible

objects which the defendant in

good faith Knows will be used as

exhibits at trial; and

IT IS FURTHER ORDERED that the

defendant shall promptly notify

the State of the existence of

any additional information or

material referred to in the

foregoing that is discovered by

the defendant after this Order

and make such information or

material available for

examination and reproduction

without delay.

On April 9, 1987, the District Court,

by a further order, supplemented the

foregoing provisions by providing that if

the defendant Carkulis did not disclose

the materials set out above by May 1,

1987, he would "be precluded from offering

same at trial."

Issues Raised by Defendant

The defendant maintains that the

District Court's orders violate his rights

secured by the Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States

Constitution, and Art. II, §§ll, 17, 24

and 25 of the 1972 Montana Constitution.

The Applicable Statutes

The legislature adopted in 1985

several provisions relating to reciprocal

pretrial discovery in criminal cases. Ch.

202, Laws of Montana (1985). The

provisions relating to pretrial reciprocal

discovery are now embodied in §§46-15-321

through 46-15-329, MCA. In general, these

Statutes contain applicable definitions

10a

(§46-15-321); requirements for disclosure

by the prosecution (§46-15-322);

requirements for disclosure by the accused

(§46-15-323); materials not subject to

disclosure (§46-15-324); a continuing duty

to disclose (§46-15-327); a provision for

excision or protective orders

(§46-15-328); and provisions for sanctions

in the case of noncompliance (§46-15-329).

The orders of the District Court in

this case are based on provisions

contained in §46-15-323, MCA. The

important subsections are:

(4) Simultaneously with the

notice of defenses submitted

under subsection eer the

defendant shall make available

to the prosecutor for testing,

examination, and reproduction:

(a) the names and addresses of

all persons, other than the

accused, whom he will call as

witnesses at trial, together

with all statements made by them

in connection with a particular

case; and

(b) the names and addresses of

experts whom he will call at

trial, together with the results

of the physical examinations,

lla

scientific tests, experiments,

Or -comparisons, including all

written reports and statements

made by them in connection to

the particular case; and,

(¢) a list of all papers,

documents, photographs, and

other tangible objects that he

will use at trial.

(5) The defendants obligation

under this section extends to

material and information within

the possession or control of the

defendant or his attorneys or

agents.

Disclosure of Witnesses and Statements

Carkulis attacks the provisions of

§45-15-323(4)(a), MCA, which requires the

disclosure of witnesses the defendant will

call at trial, together with all

statements made by them in connection with

this particular case.

The word "statements" found in the

statute may in itself be overbroad. We

construe the word statements to include

tapings, transcriptions, writings or other

means used to memorialize the witness as

to his observation or impression of a

situation or event, and which may be used

either to refresh the recollection of the

witness or to impeach him at trial.

Carkulis attacks this statute on the

grounds that it violates the state? and

federal rights against self-incrimination

and deprives him of due process.>

1 "No person shall be compelled to

testify against himself in a criminal

proceeding. .. ." Ast. 2, G2;

1972 Montana Constitution.

2 "No person . . . shall be compelled

in any criminal case to be a witness

against himself ; , ‘- Fifth

Amendment to the United States

Constitution.

3 "No person shall be deprived of life,

liberty or property without due

process of law." Art. II, §17, 1972

Montana Constitution.

“No person ... Shall . =. . be

deprived of life, liberty or

property, without due process. of

law;. . ." Fifth Amendment to United

States Constitution.

", . . nor shall any State deprive

any person of life, liberty or

property, without due process’ of

law;. . ." Fourteenth Amendment to

United States Constitution.

With respect to the defenses of alibi

and self-defense and the former defense of

insanity, this Court has already spoken

and approved the requirement for a

production of a list of witnesses to be

used at trial. State ex rel. Sikora v.

District Court (1969), 154 Mont. 241, 462

P.2dad 897. Sikora arose under former

Statute §46-15-301, now repealed, (Ch.

202, Laws of Montana (1985)), but the

provisions of which have been subsumed in

Part 3, Title 46, Criminal Procedure. In

Sikora, this Court declared that not all

evidence obtained from a defendant is

privileged under the Fifth Amendment of

the United States Constitution. The

production by the defendant of a list of

his witnesses relating to those defenses

waS approved on the grounds that such

production merely enabled the prosecution

to perform its function at trial more

effectively, that the right to remain

l4a

Silent was not violated because production

was not required if the witnesses would

not testify, and that the defendant was

not required to reveal anything more than

he would voluntarily and without

compulsion give at trial. This Court also

found protection for the defendant in

Sikora in that the statute was directed to

the purpose of giving notice to the state

and that "the defendant who chooses to

remain silent until later than the statute

indicates may do so and for good cause may

Still interpose his defenses." 154 Mont.

at 251, 462 -.P.2d at 902. The logic of

Sikora now controls the additional

defenses now listed in §46-15-323(3) for

which the defendant must provide written

notice and a list of the witnesses

pertaining thereto that he will call at

trial.

The United States Supreme Court in

Williams v. Florida (1970), 399 U.S. 78,

15a

— ee eS SL ee

90 S.

Ct. 1893, 26 L.Ed.2d 446, upheld a

state statute requiring the disclosure of

an alibi defense and alibi witnesses to

the state prior to trial as not violating

the

federal right against

incrimination. Williams 1s essent

grounded on the "accelerated disclo

theory, that is, that at trial,

self-

ially

sure"

the

defendant would have to reveal his alibi

and his witnesses relating thereto,

and

that accelerating the disclosure does not

affect his constitutional

self-

incrimination. Nonetheless,

rights against

Williams, Justice Black took an opposite

tack:

[Federal constitutional rights]

are designed to shield the

defendant against state power.

None are designed to make

convictions easier and_ taken

together they clearly indicate

that in our system the entire

burden of proving criminal

activity rests on the. state.

The defendant, under our

constitution, need not - do

anything at all to defend

himself, and certainly cannot be

required to help convict

himself. Rather he has-~ an

l6a

absolute, unqualified right to

compel the state to investigate

its own case, find its own

witnesses; prove its own facts,

and convince the jury through

its own resources. Throughout

the process the defendant has a

fundamental right to remain

Silent, in effect challenging

the state at every point to:

"Prove it!”

399 U.S. 78, 112, 90 S.Ct. 1893, 1912, 26

L.Ed.2da 446, 483 (Black, J., dissenting).

Justice Black's argument for’ the

rights of an accused has not, for the most

part, been followed by other federal and

state courts. More and more, there have

been declarations that a criminal trial is

a “search for truth," that criminal trials

are not a game of surprise, and that the

right of discovery is a "two way street.”

Montana has’ followed that tack since

Sikora. It is clear that the accused must

give the State pretrial notice of

affirmative defenses, and produce for the

State a list of the witnesses he will call

to establish the defense.

l7a

The question that remains regarding

witnesses is whether the defendant must

also make a pretrial disclosure of

witnesses that he will call in his general

defense of the crime charged.

Immediately, the Sikora ruling comes to

the fore: the defendant is merely

revealing in advance of trial what

eventually he would have to reveal during

the trial. Under the order of the court

in this case, and under the statute,

Carkulis does not have to reveal to the

State whether he as a defendant will or

will not take the stand in his defense.

The requirement is not self-incriminatory

as to him. With respect to other

witnesses for his general defense, the

logic of Sikora and Williams seems to

apply: their names will be revealed in

due course in any event. It is certain

that if, without prior disclosure, a

devastating surprise witness for the

18a

defendant were to testify, the State would

obtain from the trial judge a continuance

in order to meet the testimony. Pretrial

revelation may avoid surprise, aid the

administration of the trial courts. and

provide an orderly resolution of the

charge. On those grounds, and because we

see protections for the defendant in other

provisions of the discovery statutes, we

hold that the defendant must provide to

the State a list of all witnesses he

intends to cal]j at the trie@i. The

District Court subjected this requirement

to "constitutional or statutory

limitations."

We turn now to the question of

whether the defendant must also surrender

to the State copies of statements obtained

by the defendant or his agents and counsel

statements of all witnesses he will call

at ¢rial.

The State contends that the discovery

;

statutes requiring copies of statements

merely provide for the accelerated

production of evidence that the defendant

would voluntarily and without compulsion

provide at trial. The State also argues

that the protections provided by the Fifth

Amendment and Art. II, §25 of the Montana

Constitution apply only to the statements

of a criminal defendant. The privilege

does not extend to the testimony or

statements of third parties. Therefore,

the State contends that the provisions of

§§46-15-323(3) and (4), MCA, are

constitutionally sound.

Carkulis and amici contend, however,

that the peuiietsen of such items may be

incriminating in that they could provide

the State with a "link in the chain" of

evidence sufficient to establish a prima

facie case. That, they contend, would

have the effect of lessening the burden of

beyond a reasonable doubt and in effect

20a

;

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}

— -~

r ,

i - -

violate the accused's right to remain

Silent.

In considering the question of

pretrial production by an accused of

prospective witness statements relating to

his general defense, we are leading into a

field where there is little authority to

guide us. For one thing, there is a

critical difference between the discovery

and inspection rules provided under the

federal system and those of the Montana

Criminal discovery statutes. Under Rule

16, Fed.R.Crim.P., any discovery must

first be defendant triggered. Discovery

from the defendant as to documents and

tangible objects, and reports of

examination and tests, are permitted only

if defendant has requested from the

government the same kinds of disclosure.

Rule 16(b)(1) (A), (B), Fed.R.Crim.P.

Except for these, the federal rule does

not authorize the discovery or inspection

ee ee 2la

of reports, memoranda or other internal

defense documents made by the defendant or

his attorneys in connection with the

investigation or defense of the case, or

statements made by the defendant or by

government defense witnesses or by

prospective government or defense

witnesses. Rule 16(b)(2), Fed.R.Crim.P.

In fact, the Congress specifically

declined to provide for the discovery of

witness lists in Rule 16. Moore's Federal

Practice (1986 Rules Pamphlet at 231).

In addition, Rule 12.1, Fed.R.Crim.P.

provides for a notice of alibi, but it is

government triggered. Rule 12.1 requires

the government to provide the defendant

with a demand stating the time, date and

place where the alleged offense was

committed whereupon the defendant must

serve within 10 days a notice of intention

to offer the defense of alibi and within

an additional 10 days provide a list of

22a

the names of witnesses who establish the

alibi. The defendant must also state the

specific place at which he claims to have

been at the time of the alleged offense.

Montana's statutes have no such

provisions.

Thus, the State has relied on a

number of cases from the federal system

which are not on point. In those cases,

the defendants are not required to produce

statements until the government has

completed its case and if the statements

are being used by the defendant in his

defense or to impeach a witness. See, for

example, United States v. Nobles (1975),

422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.24d

141.

Two sister states have refused to

permit a pretrial disclosure of witness

lists or statements. One is Alaska,

expressing its decision in Scott v. State

(Alaska 1974), 519 P.2d 774. There the

23a

Superior Court, apparently without direct

statutory authority, had required a

defendant charged with rape to disclose to

the prosecution the names of all

prospective defense witnesses other than

the defendant himself, the production for

lanmestion and copying of any written or

recorded statements of those witnesses,

and advance notice of an alibi defense.

The defendant sought interlocutory

appellate review in the Alaska Supreme

Court which was_ granted. The Supreme

Court struck down the Superior Court

order, including the requirements relating

to the alibi defense. The Alaska Supreme

Court decided to interpret the Alaska

Constitution more broadly than the United

States Supreme Court construed the Fifth

Amendment in Williams v. Florida, supra.

It determined that the pretrial transfer

of witness lists and witness statements

was testimonial because a document

24a

iat

wll

containing such facts transmitted from one

party to another constituted a

communication of cognizable information

from one source to another. The Supreme

court was of the opinion that such

information may in some instances tend to

be incriminating; and becaus@® a court

order was involved, it found that the

production was compelled. Thus, in the

opinion of that Supreme Court, the

criteria for self-incrimination was met in

the Superior Court order.

At odds with the Alaska decision in

Scott v. State, supra, is the rationale of

the District Court in Carkulis' case.

While agreeing that the protection against

self-incrimination applies to testimonial

or communicative evidence, State Vv.

Armstrong (1980), 189 Mont. 407, 421, 616

P.2d 341, 349, the District Court held

that the disclosure required by the court

order was not compelled, State v. Anderson

25a

(Mont. 1984), 686 P.2d 193, 197, 41

St.Rep. 1357, 1360. The District Court

held that there was no compulsion in the

Montana statute because Carkulis was not

compelled to reveal that which he did not

intend to reveal at trial anyhow.

California also held against the

disclosure of witness lists and statements

in In Re Misner (Cal. 1985), 698 P.2d 637.

In that case the California history of

prosecutorial discovery (advocated by the

late J. Traynor) was examined, beginning

with Jones v. Superior Court (Cal. 1962),

372 P.2d 919; through the backing away

from Jones in Prudhomme v. Superior Court

(Cal. 1970), 466 P.2d 673; down to the

facts before it in Misner. That case

involved the constitutionality of a

statute which permitted the prosecution to

discover from’ the defendant or his

counsel, following testimony under direct

examination of defense witnesses other

than the defendant, other statements made

by those witnesses. The California

appellate court examined Williams v.

Florida, supra, and United States v.

Nobles, supra, but rested its decision on

California state law. It determined that

the California statute was directed only

to prior statements of witnesses produced

by the defense and though limited to the

scope of their direct testimony, the

statute obviously contemplated that the

discovery permitted by the statute would

provide the state with evidence to impeach

the defense witnesses. Misner determined

that it violated a defendant's privilege

against self-incrimination to extract

impeachment evidence from him.

Further in Misner, the prosecution

argued that even if the privilege against

self-incrimination covered prior

statements of defense witnesses, the

defendant waived the privilege by putting

the witnesses on the stand, at least to

the extent of the permissible scope of

cross examination. The California Supreme

Court said the state could not rely on

this rule, stating:

- « »« While it may be true that

by putting witnesses on the

stand the defendant waives any

right to object to their

vigorous cross examination by.

the prosecution, he does not

waive his right to refuse to

Supply the prosecution with the

means to conduct that cross

examination.

698 P.2d 637, 647.

Within the last quoted sentence of

the Misner court, we find the kernel of

difference between California law = and

Montana law in this subject. In Sikora,

Supra, we quoted with approval (admittedly

dictum, but bearing on the Montana view of

the law) from People v. Damon (N.Y. 1969),

247 N.E.2d 651, as follows:

"It is argued first that there

was a possible violation of the

right against self-

incrimination. We do not agree.

These statements were not those

of the defendant but of

28a

witnesses offered by the

defendant. In no sense can it

be said that he is being

compelled to produce

incriminating statements of his

own. The privilege against

self-incrimination applies only

to evidence of a testimonial or

communicative nature obtained

from the defendant himself."

154 Mont. 241, 249, 462 P.2d 897, 901.

While admitting the question is

close, and with deference to sister states

holding otherwise, we hold that’ the

pretrial disclosure by the defendant of

statements of witnesses he intends to call

at trial does not offend his-~ rights

against self-incrimination under state or

federal grounds. Undoubtedly at trial

time, such statements would be used to

refresh the recollection of defense

witnesses. As such they ought as well to

be available to the state. Our holding is

also based on the reciprocity provided in

the state's statutes, and on the

limitation of disclosure to those

statements only of witnesses defendant

29a

intends to call at trial.

Disclosure of Statements of Experts

What is said foregoing applies with

equal force to pretrial disclosure of

prospective experts as witnesses. There

is however, a necessary caution to be

stated.

In the preparation of and the

examination by such experts, the defendant

may be encouraged to communicate freely

and candidly with them. Thus experts'

reports, notes and other written materials

may contain potentially incriminating

information to which the state should not

be entitled. Malloy v. Hogan (1964), 378

U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2a 653.

Particularly, the reports of psychologists

and psychiatrists may contain such

incriminatory statements.

In ordering the exchange of

disclosure of statements of expert

witnesses therefore, it may be expedient

30a

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for District Courts to weigh the issues of

self-incrimination carefully under’ the

protective procedures hereafter discussed.

It is noted that in this case the

order of the court is carefully limited.

Carkulis is ordered to give summari_s only

of the testimony he expects the expert

witnesses to give at trial.

Disclosure of Documents

Carkulis has been ordered by the

District Court to disclose to the state

"all papers, documents, photographs, and

other tangible objects" which he in good

faith knows will be used as exhibits at

the trial.

Carkulis claims that this- order

violates the Fourth Amendment of the

3la

Federal Constitution’, and Art. II, §11>

of the 1972 Montana Constitution.

Carkulis contends that the order is a

compulsory production of documents and so

it violates his Fourth Amendment rights

within the meaning of Boyd v. United

States (1886), 116 U.S. 616, 6 S.Ct. 524,

29 L.Ed. 746. He argues that the seizure

is void because the description of the

4 "The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable

searches and seizures, shall not be

violated, and no Warrants shall issue

but upon probable cause, supported by

Oath or Affirmation, and particularly

describing the place to be searched,

and the persons or things to be

seized.” Fourth Amendment to the

United States Constitution.

5 "The people shall be secure in their

persons, papers, homes and effects

from unreasonable searches and

seizures. No warrant to search any

place, or seize any person or thing

shall issue without describing the

place to be searched or the person or

thing to be seized, or without

probable cause, supported by oath or

affirmation reduced to writing.” Art.

II, §11, 1972 Montana Constitution.

32a

place to be searched and things to be

seized is not made with particularity,

that the request is not made on probable

cause, and that it is not made on written

affirmation. Art. II, §l11l1, 1972 Montana

Constitution.

The State counters that the authority

of Boyd v. United States, supra, has been

diminished, and there is no authority to

support Carkulis that the Fourth Amendment

applies to pretrial discovery.

The case which the State contends

watered down the holding of Boyd, supra,

is Hale v. Henkel (1906), 201 U.S. 43, 26

S.Ct. 370, 50 L.Ed. 652, .wherein it was

stated that "the Fourth Amendment was not

intended to interfere with the power of

Courts to compel, through a subpoena duces

tecum, the production, upon a trial in

court, of documentary evidence." However,

the United States Supreme Court also said

in Hale that an order for the production

of book and papers may constitute an

unreasonable search and seizure within the

Fourth Amendment whether the seizure

occurred under a search warrant or a

subpoena duces tecum. In Hale, the

Supreme Court decided that the subpoena

duces tecum was far too sweeping because

of the vast extent of documents required

to be produced from many different places

under the subpoena.

Here the order of the court is

moderate in comparison to the _ subpoena

duces tecum in Hale. ~ Carkulis is

required to produce, for examination or

reproduction, papers, documents,

photographs, and tangible objects which he

"in good faith knows will be used as

exhibits at trial.” The order in its

terms is definitive, and cannot be a

burden upon the defendant, since he will

use those same objects at trial. In

consideration of the language used by the

IAs

> fete we

‘9

;

‘

District Court order, we hold it meets the

test of reasonableness, under Fourth

Amendment tests, and is equally amenable

to Art. II, §11 of the 1972 Montana

Constitution. Carkulis' arguments’ that

the place to be searched or the things to

be seized or that probable cause has not

been set forth nor supported by oath or

affirmation, are state constitutional

requirements for the issuance of a

warrant. In this pretrial discovery

procedure, the use of a warrant is not

involved. For the efficient

administration of justice, the court's

order here is directed to the production

of objects for examination and

reproduction which must eventually come to

light at trial. Even if the order for

production is regarded as a seizure of

sorts, it is nevertheless reasonable. The

constitutional prohibitions are against

unreasonableness.

5 & ae

eee ey

SoA Sak OTE AS a

Due Process

Carkulis argues that the imposition

of sanctions if he fails to abide by the

discovery order of the District Court

deprives him of due process. The due

process provision of the Fifth Amendment

is applicable to state action through the

Fourteenth Amendment. Malloy v. Hogan

(2908), 376 U.S. 1, 84 S.Ct. 1489, 12

L.Ed.2d 653.

The grinding surface of the due

process question in this type of issue is

whether reciprocity for discovery exists.

In Williams v. Florida, supra, the United

States Supreme Court indicated that

nothing in the due process clause

precludes any states from using broad

discovery procedures designed to increase

evidence available to both’ sides in

criminal cases and to enhance goals and

fairness in the adversary system. In

Wardius v. Oregon (1973), 412 U.S. 470, 93

36a

s.ct. 22086, 37 U.B4.24 $2, the United

States Supreme Court reaffirmed this point

in reversing a conviction of an Oregon

defendant based on an Oregon statute. The

Oregon defendant had not given notice to

the prosecution that he intended to use

the defense of alibi and at trial his

alibi witness as well as his own testimony

was stricken. He appealed his conviction

on the ground that he had been deprived of

due process because under the Oregon

statute there is no provision for

reciprocal discovery, that is that the

accused had not the same _ rights’) of

pretrial discovery as did the State. The

U.S. Supreme Court held that the Oregon

statute did not provide reciprocal rights

of discovery and that thereby due process

was violated.

The statutes now enacted in this

State relating to pretrial discovery in

Criminal cases provide for full discovery

37a

i= 7 7

Ta ies ee

a ith LAT Wa ii lig SLU nal en Wad DORI i taal i ei

tnsatods?

within constitutional and privilege

limitations to both sides. After this

Court approved the requirement that the

defendant give notice of an alibi defense

in Sikora, supra, the case went back to

the District Court where the defendant,

Radford, was convicted. He brought an

action for habeas corpus in the federal

system, in the United States District

Court for the District of Montana. There

the United States district judge upheld

the notice of alibi statute and he was

affirmed on appeal in the Ninth Circuit.

Radford v. Stewart (9th Cir. 1973), 472

F.2d 1161, 1162. The the circuit court

said: ‘

The State operated in good faith

in this action and did not use

the discovery required merely to

build its case. No

investigation was made of the

witnesses named by the

defendant. In fact, defendant

was allowed, without objection,

to call two witnesses whose

names had not been noticed.

Defendant also knew prior to

trial of the prosecution's only

rebuttal witness (a

38a

;

)

;

psychiatrist). Judge Battin

thus found that under the facts

of this case reciprocity

existed.

Since under the cases due process in

this kind of case hinges on reciprocity,

and reciprocity is provided in the

statutes, Carkulis' due process argument

eubia.

This Court noted the presence of

reciprocity in the statutes which were

precursors to the present pretrial

discovery statues as providing due process

in State v. Bentley (1970), 155 Mont. 383,

472 P.2d 864.

Obligation of Defense Counsel Work-Product-

The order of the District Court for

pretrial discovery is binding not only

upon Carkulis himself, but upon his agents

and attorneys. Questions arise as to the

impact of such an order upon the attorney-

client relationship and its effect upon

the work-product rule.

First, the work-product rule. It is

a qualified evidentiary privilege

recognized in Hickman v. Taylor (1947),

329 U.S. 495, 67 S.Ct. 385, 91 L.Ed 45l.

The work-product rule is different from

the attorney-client privilege. The latter

protects communications between the client

and his attorney or the attorney's agent.

The work-product doctrine protects against

the disclosure of specific documents and

tangible items prepared in actual

anticipation of litigation or for trial.

The exemption from discovery is intended

to insure the privacy of a party's

attorney from unnecessary intrusion by

Ooppos' ng parties or counsel. However, the

"privilege" is not absolute. It is not

personal to the client. It can be waived

by an attorney's course of conduct. See

People v. Small (Colo. 1981), 631 P.2d

148, 159.

There is no doubt that if an attorney

uses at trial a statement he obtained and

necbbis en lm a ttt a ney aa hill te nn 8 a ae ili neath ali d ORaaainian nie sini

prepared in anticipation of litigation in

interrogating or cross examining a

witness, the full statement, even though

work-product, must be produced at the

demand of the other side. See People v.

Small, supra. By the use of the statement

at trial, the attorney has waived the

work-product protection, since the

material in the statement has become

substantive evidence. On this’ ground

Justice Bryon R. White specially concurred

in Williams Vv. Florida, supra, he

contended that the work-product ruie does

not apply to evidence, and therefore no

waiver of work-product rule by the

attorney was involved. The majority in

Williams held the attorney had waived the

work-product rule by using the statement

to impeach on cross-examination. In any

event, the statement becomes discoverable

when used at trial.

The order of the District Court in

4la

LS ae RASS Oy alas Sal GN LS MCLE IT AT icy Taal si thea

this case was tailored to require the

plaintiff and his counsel and agents to

produce all documents and tangible objects

which the defendant in good faith knows

will be used as an exhibit at the trial.

If the defendant knows that such objects.

will be used at trial, whether we regard

the same as evidence, or the use of them

as a waiver of the work-product doctrine,

Since they are discoverable in any event,

the timing of the discovery is the only

question involved. The logic of Williams,

that "accelerated disclosure" is

permissible if the objects will come to

light in any event applies here. If

counsel, in representation of this client,

acquires work-product objects which the

defendant knows in good faith will not be

used at trial, they are not subject to

discc very under the order of the court.

Further, they are protected by the

provisions of §46-15-332, MCA, that all

matters which are privileged upon the

trial are privileged against disclosure in

the discovery procedure.

A close question may arise in some

instances as to whether observance of the

discovery order by a defendant's attorney

in the production of documents or tangible

objects would in themselves incriminate

his client. It appears to us that there

are safeguards in that a protective order

may be sought under §46-15-328, MCA, as we

will hereafter discuss.

Excision and Protective Orders

Section 46-15-328, MCA, allows any

party to obtain orders denying, deferring,

Or regulating pretrial discovery. The

statute provides for excision of

nondiscoverable material and for

applications to the district court in

camera for protective orders.

Carkulis contends that §46-15-328,

MCA, violates his right against self-

43a

cpniaiek Aine epee pe as ee

itt Kaas

incrimination because subsection 3

requires the counsel of both parties be

present during all protective order

presentations.

"A statute derives its meaning from

the entire body of the words, taken

together." Wyse v. District Court of

Fourth Judicial District (1981), Mont.

, 636 P.2d 865, 866. Section

46-15-328(1), MCA, gives the District

Court the power to regulate disclosure:

(1) Upon a motion of any party

Showing good cause, the court

may order . . . that any other

disclosure as required by

sections 46-15-321 through

46-i5-2329(3) « «1 «, MO «2 * »

regulated when it finds:

(b) that the risk cannot be

eliminated by a less substantial

restriction of discovery rights.

It 1s possible for occasions to arise

where applications for protective orders

are made to the court, and where if

counsel for all parties are present, "the

cat is then out of the bag, never to be

recaptured." Subsection 1 in the statute

gives the court the flexibility to employ

appropriate protection procedures. The

provisions of subsection 3, that the court

may permit the moving party to present the

material or information for the inspection

of the judge alone in the presence of all

counsel, merely provides one method of

accomplishing the legislative purpose. It

is not exclusive. It does not exclude ex

parte presentations. The District Court

can exert its judicial authority in its

adjudicatory function so as to protect

constitutional and statutory rights.

Among the inherent powers of the

court is "the right of the court to

receive information in private so that it

can intelligently assess its adjudicatory

function." Phoenix Newspapers, Inc. v.

Superior Court (Ariz. 1983), 680 P.2d 166,

169. The determination of whether

material is discoverable or not is a

ASNa

necessary facet of the adjudicatory

function. People v. Stevens (I11l. 1981),

430 N.E.2d 331, 333.

The United States Supreme Court has

never squarely addressed the issue of in

camera hearings conducted ex parte. Yet,

it has seen fit to approve of = such

procedure by implication. See Taglianetti

v. United States (1969), 394 U.S. 316, 89

S.Ct. 1099, 22 L.Ed.2d 302 (approving: of

in camera inspection of unlawful

electronic surveillance case as not being

violative of the Fourth Amendment where

the @efendant was provided with all tapes

in which he took part in the

conversation.); Dennis v. United States

(1966), 384 U.S. 855, 86 S.Ct. 1840, 16

L.Ed.2d 973 (recognition of in camera

procedure when national security or

clear-cut threat to individuals is

identified).

While the 1975 Amendments to the

46a

Federal Rules of Criminal Procedure were

pending, the United States Supreme Court

proposed a mandatory ex parte proceedings

upon request of a party seeking a

protective order. Moore's Federal

Practice, Section 1604 at 16-63. The

House of Representatives changed the

mandatory language to permissive in order

to prevent burdening the trial courts.

The amended proposal was codified in Rule

16(d)(1), Fed.R.Crim.P.

It provides:

Protective and modifying orders.

Upon a sufficient showing the

court may at any time order that

the discovery or inspection be

denied, restricted, or deferred,

Or make such other order as

appropriate upon motion by a

party. The court may permit the

party to make such a showing in

whole or in part, in the form

of a written statement to be

inspected by the judge alone.

If the court enters an order to

grant relief following such an

ex parte showing, the entire

text of the party's statement

shall be sealed and preserved in

the records of the court to be

made available to the appellate

court in the event of an appeal.

47a

Not all protective order requests

will require the use of the ex parte

procedure. Ex parte proceedings are

generally disfavored and are not to be

employed lightly. The procedure would be

appropriate only if an adversary hearing

would defeat the purpose of the order

sought.

Sanctions Fair Trial

The sanction applied by the District

Court in its order for disclosure is that

if the materials are not disclosed, the

defendant will be precluded from offering

the same at trial. |

Carkulis argues that the imposition

of such a sanction deprives him of the

right to present a defense and thus

48a

;

kof

‘

violates the Sixth Amendment of the

Federal Constitution and Art. II, §24

the Montana Constitution.

Carkulis argues that the Sixth

Amendment iS a guaranty to an accused of a

right to call witnesses in his favor,

6 "In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the State and the

district wherein the crime shall have

been committed, j ~~ > OS 6 4e.-°! Ue

informed of the nature and cause of

the accusation; to be confronted with

the witnesses against him; to have

compulsory process of obtaining

Witnesses in his favor, and to have

the Assistance of counsel for his

defense." Sixth Amendment to the

United States Constitution.

7 "In all criminal prosecutions’ the

accused shall have the right to

appear and defend in person and by

counsel; to demand the nature and

cause of the accusation; to meet the

witnesses against him face to face;

to have process to compel witnesses

against him face to face; to have

process to compel the attendance of

witnesses in his behalf, and a speedy

public trial by an impartial jury of

the county or district in which the

offense is alleged to have _ been

committed . . ." Art. II, §24, 1972

Montana Constitution.

;

without qualification or restraint.

Washington v. State of Texas (1967), 388

Meee) aay) 2S, 87 S.Ct. 1920, 1923, 18

L.Ed.2d 1019, 1023. The State relies on

Rowan v. Owens (7th Cir. 1984), 752 F.2a

1186, 1191, which held that to prevent the

witness from testifying is not a per se

unreasonable interference with the

defendant's right to defend himself.

Again, in U.S. v. Nobles, supra, it was

held that the Sixth Amendment does not

confer the right to present testimony free

from the legitimate demands of the

adversarial system; "one cannot invoke the

Sixth Amendment as a justification for

presenting what might have been a

half-truth."

Once it 1s determined, as we have

determined here, that reciprocal pretrial

Gisclosures subject to constitutional or

Statutory limitations are permissible, it

goes hand in hand with that determination

50a

to say that the District Court may

exercise its judicial discretion in

enforcing such permissible disclosures.

We do not in this opinion pass upon

the appropriateness of the sanctions set

forth in the District Court in the

Carkulis case, for the reason that the

Sanctions have yet to be applied. See

State v. Fendler (Ariz. App. 1980), 622

P.2d aay 4l, for a discussion of

appropriate sanctions.

Application of Section 46-15-323(3)

We find no substance in Carkulis'

argument that before §46-15-323(4) can be

operative, defendant must have acted under

subdivision (3) of that statute.

Disposal

Accordingly, we have considered

Carkulis' petition under our power of

Supervisory control. Upon consideration

the application of Carkulis for a writ of

Supervisory control directed to the

5la

SE ERA in Di geet Rat pe sled

PATRAS OLS GE:

weer, we pl ake

District Court is DENIED, and these

proceedings are dismissed.

/s/ JOHN C. SHEEHY

Justice

We Concur:

/s/ J.A. TURNAGE

Chief Justice

/s/ JOHN CONWAY HARRISON

/s/ FRED J. WEBER

/s/ L.C. GULBRANDSON

/s/ R.C. MCDONOUGH

Justices

AR BG SS:

tte he

Mr. Justice William E. Hunt, |

dissenting:

I dissent from the majority's holding

that before the trial the defendant in a

criminal proceeding must make available to

the prosecution a list of witnesses and

exhibits exvected to be used at trial. To

do this is to go one step further to make

the government more powerful than its

citizens.

Our government was founded as a

reaction to the oppressive and tyrannical

actions of the British government in the

eighteenth century. The founding fathers

knew cf the abuses of human rights that

easily coupled with an overly

authoritarian government i“ sought to

protect the citizens of their newly formed

nation-state by a recognition of certain

inalienable rights enumerated in the Bill

of Rights. Now we seem to be captivated

by the idea of efficiency at the expense

of safety.

53a

—_

;

As Justice Black stated in his

dissent in Williams v. Florida (1970), 399

U.S. 78, 112, 26 L.Ed.2d 446, 483, 90

S.Ct. 1893, 1912:

All of these rights are designed

to shield the defendant against

state power. None are designed

to make convictions easier and

taken together they clearly

indicate that in our system the

entire burden of proving

criminal activity rests on the

State.

He continues:

(The founding fathers] were well

aware that any individual might

some day be subjected to

criminal prosecution, and it was

in order to protect the freedom

of each of us that they

restricted the Government's

ability to punish or imprison

any of us.

Williams, 399 U.S. at 116 (dissenting

op.).

The effect of the majority opinion 1s

to sacrifice constitutional rights for the

sake of “efficient administration of

justice." In doing so it gives in to the

rhetoric we often hear that the courts are

54a

to blame for the increasing crime problem

in this country and that only a "hardline"

approach by the courts will solve the

problem. Whatever the cause of our

increasing crime it is not an inefficient

judicial or procuratorial system. In

1985, the prisons in the United States

contained twice as many detainees as the

United Kingdom's, four times as many as

France's and eight times as many as

Portugal's. Encyclopaedia Britannica,

Book of the Year (1986) at 188. Chief

Justice Wachtler of the New York Court of

Appeals has said in a talk in Montana last

July that New York alone has 40,000 prison

inmates, up 26,000 from 1975. The Montana

Lawyer, September, 1987, at 3. According

to the Annual Report of the Department of

Institutions, Montana has increased its

prison population by an average of 376 in

1976 to 937 in 1987. Conversation with

officials of the Montana Department of

55a

ss ea

Swe ee th eet et oS %

Institutions (November 23, 1987). These

are not the numbers of an inefficient

court system that require citizens to

surrender rights for additional

productivity.

In any event,

[T]he Framers decided that the

benefits to be derived from the

kind of trial required by the

Bill of Rights were well worth

any loss in "“efficiency" that

resulted. Their decision

constitutes the final word on

the subject, absent some

constitvtional amendment. That

@aecision should not be set aside

as the Court does today.

Williams, 339 G@.8. et i246 (J. Black,

dissenting op.).

Justice Black accurately predicted how the

Williams holding would be expanded by the

state courts to force the defendant to

assist in the prosecution of his own case.

It is not just the defendant but all of us

who have lost ground today in the struggle

between state control and individual

freedom.

56a

/s/ WILLIAM E. HUNT

Justice

57a

aL ee eee ET TY eee

IN THE DISTRICT COURT OF THE THIRTEENTH

JUDICIAL DISTRICT OF THE STATE OF MONTANA

IN AND FOR THE COUNTY OF YELLOWSTONE

STATE OF MONTANA, No. DC 84-204

Plaintiff,

)

-ve= ) ORDER

)

JAMES CARKULIS, )

)

Defendant.

This matter came up for hearing on

December 18, 1985, on the State's motion

for discovery pursuant to §46-15-323(4)

M.C.A. Counsel for the State and the

defendant appeared and submitted briefs.

Having cunacauei the matter fully,

IT IS HEREBY ORDERED that the

defendant, James Carkulis and his counsel

Or agents, make the following materials

and information available to the State

without delay for examination and

reproduction, subject to constitutional or

Statutory limitations:

58a

(1) the names and addresses of all

persons, other than the defendant, whom he

in good faith knows he will call as

witnesses at trial, and copies of all

statements made by them related to this

case;

(2) the names and addresses of any

expert witnesses whom he in good faith

knows he will call at trial, and summaries

of the testimony he expects the witnesses

to give at trial;

(3) all papers, documents,

photographs and other tangible objects

which the defendant in good faith knows

will be used as exhibits at trial; and

by IS FURTHER ORDERED that the

defendant shall promptly notify the State

of the existence of any additional

information or material referred to in the

foregoing that is discovered by the

defendant after this Order and make such

information or material available for

59a

examination and reproduction without

delay.

Dated this 20th day of DECEMBER,

1985.

/s/__G. TODD BAUGH

District Judge

cc: Terence Swift

Jeffrey Renz and Allen Beck

(Certificate of Service omitted in

printing)

60a

IN THE SUPREME COURT

OF THE STATE OF MONTANA

No. 86-026

STATE OF MONTANA ex

rel. JAMES CARKULIS,

Relator,

Vv.

DISTRICT COURT OF THE THIRTEENTH

JUDICIAL DISTRICT OF THE STATE OF

MONTANA, IN AND FOR THE COUNTY OF

YELLOWSTONE, HONORABLE G. TODD

BAUGH, Presiding,

Respondent.

ORDER DENYING SUPERVISORY CONTROL

James Carkulis, as Relator, has filed

a Petition for Writ of Supervisory Control

Supported by brief and amicus curiae

briefs have been submitted by the Montana

County Attorney's Association, the Moses

Law Firm, and the Ungar Law Office.

Carkulis has been charged with felony

forgery in Yellowstone County District

Court. Pursuant to the criminal discovery

statutes enacted in 1985, §46-15-321-329,

MCA, the District Court ordered Carkulis,

his counsel or agents, to make the

following materials and information

available to the State for examination and

reproduction subject to constitutional or

statutory limitations:

(1) the names and addresses of

all persons, other than the

Defendant, whom he in good faith

knows he will call as witnesses

at trial, and copies of all

Statements made by them related

to this case;

(2) the names and addresses of

any expert witnesses whom he in

good faith knows he will call,

and summaries of the testimony

he expects the witnesses to give

at trial;

(3) all papers, documents,

photographs, and other tangible

objects which the Defendant in

good faith Knows will be used as

exhibits at trial;

The court further ordered Carkulis to

promptly notify the State of the existence

of any additional information or material

discovered after the order and to make

such information or material available for

62a

examination and reproduction without

delay.

Due to the fact that no sanctions

have — been imposed, and may never be

imposed, on Carkulis for his failure to

comply with the statutes, an adequate

factual record has not been established

upon which we can make a final

determination. We conclude there is an

adequate remedy by appeal.

IT IS ORDERED that the Petition for

Writ of Supervisory Control is denied

without prejudice. The Clerk of this

Court is directed to mail copies hereof to

counsel of record and to the Honorable G.

Todd Baugh, District Judge.

DATED this llth day of December,

1986.

/s/ J.A. TURNAGE

Chief Justice

/S/JOHN CONWAY HARRISON

/s/ FRED J. WEBER

/s/ JOHN C. SHEEHY

63a

/S/FRANK MORRISON, JR.

/s/ R.C. MCDONOUGH

/s/ WILLIAM E. HUNT

Justices

GAs

IN THE DISTRICT COURT OF THE THIRTEENTH

JUDICIAL DISTRICT OF THE STATE OF MONTANA

IN AND FOR THE COUNTY OF YELLOWSTONE

STATE OF MONTANA,

No. DC 84-204

Plaintiff,

-vs- MEMORANDUM AND ORDER

JAMES CARKULIS,

Defendant.

Before the court is defendant's

motion to reconsider the court's order

dated December 20, 1985, requiring

Gisclosure of evidence defendant will

introduce at trial. The matter having

been submitted on briefs and the court

being fully advised in the premises,

IT IS HEREBY ORDERED that defendant's

motion to reconsider is denied; and

IT IS FURTHER ORDERED that defendant

Shall disclose the materials set out in

the December 20, 1985 order by May 1,

1987, or be precluded from offering same

at trial.

65a

DATED this 9th day of APRIL, 1987.

/s/ G. TODD BAUGH

District Judge

cc: Terry Swift

Allen Back and Jeff Renz

MEMORANDUM

The State moved the court, through

M.C.A. §46-15-323(4) (1985), for an order

requiring defendant to make available the

items listed in that statute. Defendant

responded in a brief raising potential

constitutional violations. After reading

the briefs the court granted the motion

for discovery on December 20, 1985. The

Montana Supreme Court denied a petition

for writ of certiorari or supervisory

control. The defendant now moves this

court to reconsider its December 20, 1985,

order.

This matter arises out of the

unfortunate wording chosen by the 1985

Legislature in adopting M.C.A. §46-15-323

66a

(1985). The statute describes four types

of evidence. In Subsection (1) the

statute sets out non-testimonial evidence

the defendant must produce on request.

Subsection (3) sets out evidence in

support of defenses which the defendant

must produce if he pleads particular

defenses. It is argued that Subsection

(4) may cover either further evidence in

support of the defenses discussed in (?)

Or may cover evidence and witnesses in

support of the defendant's general case.

Subsection (6) covers material -not

otherwise provided for. Subsection (3)

and (4) only covers witnesses to be called

and evidence to be introduced at trial.

Subsection (6) covers matters necessary

for the preparation of the prosecutor's

case. Subsections (3) and (4) require

that the materials be produced without a

request by the State.

In this case, Subsection (3) 1S not

an issue as none of the defenses listed

there are raised. The State has not asked

for discovery to prepare its case

therefore (6) is not at issue. Subsection

(1), non-testimonial evidence, has also

not been raised.

In this case the two issues invoive

interpretation of Subsection (4). Does it

apply only when defenses are raised under

Subsection (3)? Does discovery of names,

addresses and statements of witnesses in

Support of defendant's general case

violate defendant's Fifth Amendment right

against self incrimination?

The first problem is to examine

Subsection (4) to determine what the

legislature meant by "Simultaneously with

the notice of defenses submitted under

Subsection (3) . « « « The defendant

argues that the legislature meant to

further define the matters which must be

produced under (3); the defendant believes

68a

Tm Upe)iss, a*

iis a =

that raising an affirmative defense is a

prerequisite to disclosure under (4). The

State presents no argument.

Other Jurisdictions have broken

defense witnesses into three categories:

expert witnesses, general witness for the

defense, and witnesses pertaining to

specific affirmative defenses. See

Colorado-Crim.P.Rule 16 II, Washington-

Cr.R.4./7(b), Missouri-R.S.Mo.Cr.R.

25.34(A)(2) and (5).

Montana, following Arizona

Crim.P.Rule 15, has also divided the

defense witnesses into those groups:

experts under (4)(b); general witnesses

under (3). It is clear that reading (4)

as merely a clarification of (3) is not

the proper interpretation of the statute

in light of other jurisdictions’ statutes.

The "Simultaneously with . . ." wording

Simply is an awkward way of saying the

Gisclosure of evidence under (4) must

occur "within 30 days of the arraignment",

the same time requirement for disclosure

in (3). Subsection (4) addresses

witnesses and evidence relating to the

general defense theory, not a-#specific

affirmative defense. There is no

prerequisite to disclosure under (4) as

argued by the defense. The materials

listed in subsection (4) are to be

disclosed by the defendant even without a

request from the state.

However, the disclosure required

under (4) is not unlimited. The trend

toward broadened reciprocal discovery in

Criminal cases has always been limited by

the defendant's constitutional rights,

specifically the privilege against self

incrimination, in the Fifth Amendment of

the United States Constitution and Article

II, Section 23 of the Montana

Constitution.

The Montana Supreme Court has held

16a

that the self-incrimination privilege

granted by the state constitution "affords

no broader protection" than the Fifth

Amendment privilege. State v. Jackson,

672 P.2d 255, 258 (1983). The opinions of

the United States Supreme Court delineate

the maximum breadth of the privilege in

Montana. Id.

To fall within the protection against

self-incrimination the evidence must be

testimonial or communicative, State v.

Armstrong, 616 P.2d 341, 349 (MT 1980),

citing to Schmerber v. California, 384

U.S. 757 (1966), and must be compelled,

State v. Anderson, 686 P.2d 193, 197 (MT

1984).

The statements of witnesses may be

considered testimonial. Richardson v.

District Court, 632 P.2d 595, 599 (CO

1981). (Colorado courts have not

addressed whether discovery of such

statements infringes on the Fifth

7la

Amendment because the Colorado statute

does not give the court authority to order

disclosure of such~ statements. Id.

Colo.Crim.P.Rule 16 II.). This court will

not address whether the statements are

testimonial as the second requirement for

self-incrimination, compulsion, is not

met.

The Montana Supreme Court has held

that information or arguments submitted to

the court in a trial brief, which brief

was then given to the prosecutor, was not

compelled because the brief's subject

matter was to be freely offered and

elaborated upon at trial. Anderson at

A937. Compulsion exists when the _ state

acquires or demands testimony that would

not otherwise be divulged by the defendant

at trial under threat of certain

non-criminal sanctions such as loss of

economic benefit or future employment,

deprivation or associational rights, or

72a

forfeiture of present social or economic

position. Lefkowitz v. Cunningham, 431

U.S. 801, 807-08 (1977). See also Ryan v.

State of Montana, 580 F.2d 988, 990

(1978).

There is no compulsion in the Montana

Statute because defendant is not compelled

tOmrpeveal that which he does not intend to

reveal at trial anyway. The sanctions for

not providing the evidence listed in

§46-15-399 include an order for

disclosure, a continuance, contempt,

exclusion of the evidence or a mistrial.

It is clear that disclosure of

witness anaes and statements to be used at

trial is not compelled evidence. Because

information is not compelled, there can be

no violation of the privilege against

self-incrimination.

The Washington Supreme Court in

applying a disclosure statute very similar

to Montana's held that the disclosure did

73a

not infringe on the _ self-incrimination

privilege. State v. Nelson, 545 P.2d 36

(WA 1975). The Nelson court first quoted

Williams v. Florida, 399 U.S. 78 (1970),

in which the Supreme Court held that

disclosure of names and addresses of

witnesses in support of the alibi defense

did not violate the Fifth Amendment.

In the case before us, the

notice-of-alibi rule by itself

in no way affected petitioner's

crucial decision to call alibi

witnesses or added to the

legitimate pressures leading to

that course of action. At most,

the rule only compelled

petitioner to accelerate the

timing of his disclosure,

forcing him to divulge at an

earlier date information that

the petitioner from the

beginning planned to divulge at

trial.

Williams at 85. The Williams court

reasoned that pretrial disclosure ~- would

help to avoid disrupted trials without

offending a criminal's basic rights.

The Nelson court also referred to

Wardius v. Oregon, 412 U.S. 470 (1973), in

74a

which the Supreme Court held that a

statute must include reciprocal discovery

provisions to provide due process. M.C.A.

46-16-322 requires reciprocal discovery,

and therefore meets the Wardius

requirement.

The Nelson court held that’ the

rationale of Williams and Wardius, as

applied equally to a forced pretrial

disclosure of the more general information

provided for in Washington Criminal Rule

4.5. "These are all matters which must

ultimately come to light should the

defendant choose to proceed with a

defense. The rules simply accelerate the

timing of his disclosure. The purpose of

the rule is to present last minute

Surprise with its trial disruption and

continuance .. . Neither do our criminal

practice discovery procedures offend

against due process. They provide for the

type of reciprocal discovery [required by

75a

Wardius]" 545 P.2d at 39-40.

The Montana criminal disclosure

statute is nearly identical to

Washington's. Montana's self-

incrimination privilege extends only as

far as the Fifth Amendment. The Fifth

Amendment as defined in Williams and

Wardius, and explained in Nelson, allows

disclosure of names, addresses and

statements of witnesses to be called at

trial in support of defendant's general

case. The statute, M.C.A. §46-15-323(4),

limits disclosure to those witnesses the

defendant will call at trial, “together

with all statements made by them in

connection with the particular case".

Allowing pretrial discovery of this

evidence merely accelerates the time of

disclosure.

It is possible that defendant will

not know what evidence will be presented

very long before trial. As soon as

defendant and counsel do know what

witnesses will be called, their names,

addresses and statements must be disclosed

to the prosecutor.

DATED this 9th day of APRIL, 1987.

/s/ G. TODD BAUGH

District Judge

(Certificate of Service omitted in

printing)

IN THE SUPREME COURT

OF THE STATE OF MONTANA

No. 87-164

STATE OF MONTANA ex

rel. JAMES CARKULIS,

Relator,

Vv. ORDER

DISTRICT COURT OF THE THIRTEENTH

JUDICIAL DISTRICT OF THE STATE OF

MONTANA, IN AND FOR THE COUNTY OF

YELLOWSTONE, HONORABLE G. TODD

BAUGH, Presiding,

Respondent.

The petition for rehearing is denied.

DATED this 5th day of January, 1988.

/s/ J.A. TURNAGE

Chief Justice

/s/ JOHN CONWAY HARRISON

/s/ FRED J. WEBER

/s/ L.C. GULBRANDSON

/s/ JOHN C. SHEEHY

/s/ R.C. MCDONOUGH

Justices

Mr. Justice William E. Hunt, Sr., would

grant a rehearing.

78a

IN THE SUPREME COURT OF THE

STATE OF MONTANA

STATE OF MONTANA ex rel. No. 87-164

JAMES CARKULIS,

Petitioner,

Vv. NOTICE OF

)

) APPEAL TO THE

DISTRICT COURT OF THE ) SUPREME COURT

THIRTEENTH JUDICIAL ) OF THE UNITED

DISTRICT MONTANA, IN AND ) STATES

FOR THE COUNTY OF )

YELLOWSTONE, HONORABLE )

G. TODD BAUGH, )

Presiding, )

)

Defendant.

Notice is hereby given that James T.

Carkulis, Petitioner above-named, hereby

appeals to the Supreme Court of the United

States from the final order of the Supreme

Court of Montana, affirming the order of

the district court of the Thirteenth

Judicial District, entered herein on

January 5, 1988.

This appeal is taken pursuant to 28

0.8.C. §1237(2).

DATED this 29th day of February,

1988.

(Certificate

printing)

ALLEN BECK

724 Grand Avenue

P.O. Box 21253

Billings, MT 59104

JEFFREY T. RENZ

724 Grand Avenue

Billings, MT 59101

By:/s/ JEFFRTCY T. RENZ

Attorney for

Petitioner

Service omitted in

80a

IN THE DISTRICT COURT OF THE THIRTEENTH

JUDICIAL DISTRICT OF THE STATE OF MONTANA

IN AND FOR THE COUNTY OF YELLOWSTONE

THE STATE OF MONTANA, No. DC 84 203

Plaintiff,

DISCOVERY

)

vs. ) MOTION FOR

)

JAMES CARKULIS, )

)

Defendant.

The State of Montana, by and through

Terence M. Swift, Deputy County Attorney

for Yellowstone County, moves the Court,

pursuant to Section 45-15-323(4), MCA, for

an Order requiring the defendant, meaning

the defense including the defendant, his

counsel and his agents, to make available

for examination and reproduction without

delay:

1.) the names and addresses of all

persons, other than the defendant, whom he

will call as witnesses at trial, together

with copies of all statements made by them

8la

related to this case;

2.) the names and addresses of any

expert witnesses whom he will call at

trial, together with the results of

physical examinations and scientific

tests, experiments or comparisons,

including all written reports and

statements made by them in connection with

this case;

3.) all papers, documents,

photographs and other tangible objects

which the defendant will use at trial

either as evidence or as a source of

impeachment; and

4.) that the defendant be required

to promptly notify the State of the

existence of any additional information or

material referred to in the foregoing

discovered by the defendant subsequent to

this motion, and to make such information

Or material available for examination and

reproduction without delay.

82a

Respectfully

December, 1985.

Submitted this

/ TERENCE M.

4th day

SWIFT

Leputy County Attorney

Service omitted in

IN THE DISTRICT COURT OF THE THIRTEENTH

JUDICIAL DISTRICT OF THE STATE OF MONTANA

IN AND FOR THE COUNTY OF YELLOWSTONE

THE STATE OF MONTANA, )

Plaintiff, ) No. DC 84 203

vs. ) DEFENDANT'S

RESPONSE TO

JAMES CARKULIS, ) MOTION FOR

DISCOVERY

Defendant. )

Plaintiff's request violates the

fifth amendment to the United States

Constitution.

A. Plaintiff's request violates his

right not to be compelled in any criminal

case to be a witness against himself.

l. Zurcher v. Stanford Daily, 436

U.S. 547, 98 S$. Ct. 1970 (1978).

2. Emspak v. United States, 349

U.S. 190, 7353 S$. Ct. 687 (1955).

3. Malloy v. Hogan, 378 U.S. 1, 84

S. Ct. 1489 (1964).

4. United States v. White, 322 U.S.

694, 64 S. Ct. 1248 (1944).

5. Hoffman v. United States, 341

wae Seep 2° °S. CHO. %Bl4 (1951)

(Guarantee against self incrimination

must be accorded liberal

construction).

- 6. Plaintiff's request asks

Defendant to identify all persons he

will call as witnesses at trial.

Such a pretrial request requires

Defendant to identify witnesses whom

he may not call at trial, but who may

have evidence which is adverse to

Defendant. Plaintiff also requests

that Defendant produce all papers,

documents, photographs, and other

tangible objects which Defendant will

use at trial either as evidence or as

a source of impeachment. Again,

Request requires Defendant to

identify documents which might

incriminate him which, during’ the

course of trial, he may decline to

use.

ii.

Plaintiff's Request violates the

Defendant's rights to call witnesses on

his own behalf as guaranteed by the sixth

and fourteenth amendments to the United

States Constitution.

A. Plaintiff's failure to list or

identify trial witnesses, precludes him

from calling witnesses on his own behalf

at trial. Defendant may not determine the

identity of witnesses he intends to call

until the close of the State's affirmative

case.

be Washington v. State of Texas,

388 U.S. 14, 87 &. Ct. 1920 (1967).

(Defendant has general right to place

on stand any witness whose testimony

would be relevant and material to

defendant. )

Plaintiff's request violates

Defendant's rights secured by the fourth

and fourteenth amendments to the United

States Constitution.

A. Plaintiff's Request seeks’ the

Opportunity to examine and copy all

papers, documents, photographs and other

tangible objects which the Defendant will

use at trial. Plaintiff's request is not

based on probable cause. Plaintiff's

request is not supported by an Affidavit.

Plaintiff's request does not particularly

describe the things tc be seized for

copying or examination, nor the location

of the place to be searched.

1. Boyd v. United States, 116 U.S.

616, 618 (1886) (Striking down order

to produce an invoice).

B. Again, Defendant will not know

which documents or things, if any, he will

use until the close of the State's case.

87a

The State's request calls for an

examination of physical evidence which is

permitted only pursuant to a—- search

warrant. The State's request for all

papers, documents, photographs, and other

tangible objects iS a request for a

general search warrant permitting the

State to hold and copy items which the

Defendant may not use at trial.

IV.

The State's Request exceeds the

permissible scope of discovery in that it

seeks the strategy and mental impressions

of the Defendant's attorneys.

A. The State's Request requires the

Defendant's attorneys to determine and

advise the State of witnesses which it

will call and documents and things which

they will use at trial. These are matters

which go directly to the strategy and

tactics of the Defendant's counsel. It

exceeds even the scope of discovery

RRa

permitted in civil cases.

i Gidlewski Vv. Bettcher

Industries, Inc., 38 F.R.Serv. 2d 664

(E.D. Pa. 1983) (parties may not

request a statement of facts on which

the opposing party intends to rely.)

y Section 46-15-324(1), Mont.

Code Ann. (1985).

The State's Request exceeds the scope

of Section 46-15-323, Mont. Code Ann.

(1985).

A. The State also seeks impeachment

documents not set forth in the statute.

B. The State fails to limit its

request to constitutionally permissible

documents. See, People v. District Court,

531 P.2d 626, (Colo. 1975).

VI.

The State's Request violates the

Guarantees of Art. II, §l1l; 24; 25, Mont.

Const. (1972).

CONCLUSION

For the foregoing reasons, the

State's Motion should be denied.

DATED this 18th day of December,

1985.

ALLEN BECK

724 Grand Avenue

P.O. Box 21253

Billings, MT 59104

and

JEFFREY T. RENZ

724 Grand Avenue

Billings, MT 59101

Attorneys for Defendant

By /S/ JEFFREY T. RENZ

(Certificate of Service omitted in

printing)

SOLECTIVE DESIGN SYSTEMS

1106 CENTRAL AVENUE

P.O. BOX 21344

BILLINGS, MONTANA 59104

LIEN WAIVER & RELEASE

FOR AND IN CONSIDERATION of the

receipt of $10315.17 in payment’ from

Billings Lumber for the following labor

and/or materials furnished, to-wit: 3735

Ben Hogan’ Bergland the receipt and

sufficiency of which is hereby

acknowledged, the undersigned does hereby

waive, release and relinquish any and all

claims, demands and rights of lien for

work done to Date: Feb. 27, 1984 for all

labor, materials, machinery or other

goods, equipment or services done,

performed or furnished for the

construction located at the site

hereinafter described, to-wit:

The undersigned further warrants and

represents that any and all valid labor

and/or materials and equipment bills, now

due and payable, on the property

hereinabove described on behalf of the

undersigned have been paid in full to date

of this Release and Waiver, or will be

paid from these funds and that there have

been no change orders issued to the

undersigned.

Tot 1 Subcontract

Total Paid 10315.17

(including above)

Balance Due -0-

Date:

March 2,

1984

Name of Company

By /S/ Dick Laury

Title /s/ Manager

ite teh

46-15-321. Definitions. As used in

46-15-321 through 46-15-329, unless the

context requires otherwise, the following

definitions apply:

(1) "Defendant" means the defense,

including the accused, his counsel, and

defense counsel's staff or investigators.

(2) "Make available for examination

and reproduction" means to make material

and information subject to disclosure

available upon request at a designated

place during specified reasonable times

and provide Suitable facilities or

arrangements for reproducing it. The term

does not mean that the disclosing party is

required to make copies at its expense, to

deliver the materials or information to

the other party, or to supply the

facilities or materials required to carry

out tests on disclosed items. The parties

may by mutual consent make any other or

additional arrangements.

(3) "Statement" means:

(a) a writing signed or otherwise

adopted or approved by a person;

(b) a mechanical, electrical, or

other recording of a person's oral

communications or a transcript thereof;

and

record as a summary of a person's oral

communications.

(4) "Superseded notes" means

handwritten notes, including field notes,

that have been substantially incorporated

into a statement. Such notes may no

longer themselves be considered a

statement.

46-15-322. Disclosure by prosecution.

(1) Upon arraignment in district court or

at such later time as the court may for

good cause permit, the prosecutor shall

make available to the defendant for

examination and reproduction the following

material and information within his

possession or control:

(a) a list of the names_~ and

addresses of all persons whom the

prosecutor intends to call as witnesses in

the case-in-chief, together with their

relevant written or recorded statements;

(b) all written or oral statements

of the accused and of any person who will

be tried with him;

experts who have personally examined the

accused or any evidence in the particular

case, together with the results of

physical! examinations, scientific tests,

experiments, or comparisons, including all

written reports or statements made by them

in connection with the particular case;

(d) a list or copies of all papers,

documents, photographs, or tangible

objects that the prosecutor will use at

trial or that were obtained from or

purportedly belong to the accused; and

(e) all material or information that

tends to mitigate or negate the accused's

guilt as to the offense charged or that

would tend to reduce his’~ punishment

therefor.

(2) At the same time the prosecutor

shall inform the defendant of and make

available to the defendant for examination

and reproduction any written or recorded

material or information within his

possession or control regarding:

(a) whether there has been any

electronic surveillance of any

conversations to which the accused was a

party;

(b) whether a search warrant has

been executed in connection with the case;

informant, and, if so, his identity if the

defendant is entitled to Know either or

both of these facts under Rule 502 of the

Montana Rules of Evidence and

46-15-324(3).

(3) The prosecutor, upon written

request, shall make available to the

defendant for examination, testing, and

reproduction any specified items contained

in the list submitted under. subsection

(1) (da). The prosecutor may impose

reasonable conditions, including an

appropriate stipulation concerning chain

of custody, to protect physical evidence

produced under this section.

(4) The prosecutor's obligation of

disclosure extends to material and

information in the possession or control

of members of his staff and of any other

persons who have participated in the

investigati-n or evaluation of the case.

(5) Upon motion of the defendant

showing that he has substantial need in

the preparation of his case for additional

material or information not ot. wise

97a

ee Een .

provided for and that he is unable without

undue hardship to obtain the substantial

equivalent by other means, the court in

its discretion may order any person to

make it available to him. The court may,

upon the request of any person affected by

the order, vacate or modify the order if

compliance would be unreasonable or

oppressive.

(6) The prosecutor shall furnish to

the defendant no later than 5 days before

trial or at such later time as the court

may for good cause permit, together with

their relevant written or recorded

statements, a list of the names-~ and

addresses of all persons whom he intends

to call as rebuttal witnesses to the

defenses of alibi, compulsion, entrapment,

justifiable use of force, mistaken

identity, or good character or the defense

that the accused did not have a particular

state of mind that is an element of the

98a

offense charged.

46-15-323. Disclosure by accused. (1)

At any time after the filing in district

court of an indictment or information, the

accused, in connection with the particular

Crime with which he is charged, shall upon

written request of the prosecutor and for

good cause shown:

(a) appear in a line-up;

(b) speak for identification by

witnesses;

footprinted, or voiceprinted;

(d) pose for photographs not

involving reenactment of an event;

(e) try on clothing;

(f) permit the taking of samples of

his hair, blood, saliva, urine, or other

Specified materials that involve no

unreasonable intrusions of his body;

(g) provide specimens of his

handwriting; or

99a

(h) Submit to a reasonable physical

or medical inspection of his body;

however, such inspection does not include

psychiatric or psychological examination.

(2) The accused is entitled to the

presence of counsel at the taking of any

evidence pursuant to subsection (ara

Subsection (1) Supplements and does not

limit any other procedures established by

law.

(3) Within 30 days after arraignment

in district court or at such later time as

the court may for good cause permit, the

defendant shall provide the prosecutor

with a written notice of his intention to

introduce evidence at trial of good

character, or the defenses of alibi,

compulsion, entrapment, justifiable use of

force, or mistaken identity or the defense

that the accused did not have a particular

state of mind that is an essential element

of the offense charged. The notice must

100a

one teeter

specify for each defense the names and

addresses of the persons that will be

called as witnesses at trial in support of

the defense. Prior to trial the defendant

shall, upon motion and showing of good

cause, add to the list of witnesses the

names of any additional witnesses. After

the trial commences, no witnesses may be

called by the defendant in support of

these defenses unless the name of the

witness is included on the list, except

for good cause shown. Any evidence that

reasonably becomes available after the

initial 30 days shall be admitted if.

46-15-327 is complied with.

(4) Simultaneously with the notice

of defenses submitted under’ subsection

(3), the defendant shall make available to

the prosecutor for testing, examination,

or reproduction:

(a) the names and addresses of all

persons, other than the accused, whom he

will call as witnesses at trial, together

with all statements made by them in

connection with the particular case;

(b) the names and addresses of

experts whom he will call at trial,

together with the results of their

physical examinations, scientific tests,

experiments, or comparisons, including all

written reports and statements made by

them in connection with the particular

case; and

photographs, and other tangitble objects

that he will use at trial.

(5) The defendant's obligation under

this section extends to material and

information within the possession or

control of the defendant or his attorneys

and agents.

(6) Upon motion of the prosecutor

showing that he has substantial need in

the preparation of his case for additional

102a

material or information not otherwise

provided for, that he is unable without

undue hardship to obtain the substantial

equivalent by other means, and that

Gisclosure thereof will not violate the

accused's constitutional rights, the court

in its discretion may order any person to

make such material or information

available to him. The court may, upon

request of any person affected by the

order, vacate or modify the order if

compliance would be unreasonable or

oppressive.

46-15-324. Materials not subject’ to

disclosure. (1) Except as provided in

subsection (2), disclosure is not required

for the work product of the prosecuting or

defense attorney.

(2) If exculpatory information is

contained in the work product, that

information must be disclosed.

(3) disclosure of the existence of

an informant or of the identity of an

informant who will not be called to_

testify is not required if:

(a) disclosure would result in

substantial risk to the informant or to

his operational effectiveness; and

(b) the failure to disclose will not

infringe the constitutional rights of the

accused.

46-15-325. Failure to call a witness or

raise a defense. The fact that a witness'

name is on a list furnished pursuant to

46-15-321 through 46-15-329 or that a

matter contained in a pretrial notice is

not raised may not be commented upon at

trial unless the court, on motion of a

party, allows such comment after finding

that the inclusion of the witness' name or

the pretrial notice constituted an abuse

of the applicable disclosure requirement

or that other good cause is shown.

46-15-326. Use of materials. Except as

104a

provided in 46-11-4011, any materials,

including witness lists, furnished to an

attorney pursuant to 46-15-321 through

46-15-329 may not be disclosed to the

public but may be disclosed to others only

to the extent necessary for the ‘proper

conduct of the case.

46-15-327. Continuing duty to disclose.

If at any time after a disclosure has been

made any party discovers additional

information or material that would be

subject to disclosure had it been known at

the time of disclosure, such party shall

promptly notify all other parties of the

existence of the additional information or

material and make an appropriate

disclosure.

46-15-328. Excision and protective

orders. (1) Upon a motion of any party

showing good cause, the court may at any

time order that disclosure of the identity

of any witness be deferred for any

105a

reasonable period of time, not to extend

beyond 5 days prior to the date set for

trial, or that any other disclosures

required by 46-15-321 through 46-15-329 be

denied, deferred, or regulated when it

finds:

(a) that the disclosure would result

in a risk or harm outweighing- any

usefulness of the disclosure to any party;

and

(b) that the risk cannot be

eliminated by a less substantial

restriction of discovery rights.

(23 Whenever the court finds, <1:

motion of any party, that only a portion

of a document or other material is

discoverable under 46-15-321 through

46-45-3295, it may authorize the party

disclosing it to excise that portion of

the material which is nondiscoverable and

disclose the remainder.

(3) On motion of the party seeking a

. 106a

protective or excision order or in

submitting for the court's determination

the discoverability of any material or

information, the court may permit him to

present the material or information for

the inspection of the judge alone.

Counsel for all other parties are entitled

to be present when such presentation is

made.

(4) If the court enters an order

that any material or any portion thereof

is not discoverable under 46-15-321

through 46-15-329, the entire text of the

material must be sealed and preserved in

the record in the event of an appeal.

46-15-329. Sanctions. If at any time

during the course of the proceeding it 1s

brought to the attention of the court that

a party has failed to comply with any of

the provisions of 46-15-321 through

46-15-329 or any order issued pursuant to

46-15-321 through 46-15-329, the court may

impose any sanction that it finds just

under the circumstances, including but not

limited to:

(1) ordering disclosure of the

information not previously disclosed;

(2) granting a continuance;

(3) holding a witness, party, or

counsel in contempt;

(4) precluding a party from calling

a witness, offering evidence, or raising a

defense not disclosed; or

(5) declaring a mistrial when

necessary to prevent a miscarriage of

justice.

108a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.