# Appendix — Carkulis v. Montana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0753%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 487 U.S. 1201 ## Text ~ 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 @32F (EFS T cccccccceessesssccese 58a 6la 65a 78a 79a 8la 84a 9la 93a 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 is 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, 2a 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 3a 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 4a 2 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 5a 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 40 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. 9a 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 in 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 ee 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 = + ; | , 7 . } > e — -~ r , id i, a i) 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 Ee 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 * « y — . - . , - = 7 ia - ‘ . - “) i val i —_ = 7 ‘ : = 4 = a —- é _— - — an 7. = Ts 7 — = = i 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 q 4 5 ‘9 ; 3 § w@ x ro 4 ‘ g # i 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 i 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 e : 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 ; 3 ) 3 & | 4 B & - a 2 : 3 4 3 < 3 % i ; : 3 4 4 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 i 4 7 ; 4 kof at ‘ 6 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. ; 4 4 a 2 % & k- Fe ¥ v : 4 3 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 4 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) of 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 of 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. ) I. 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. ) eo 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). V. 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 (c) a writing containing a verbatim 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; (c) the names and addresses of 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; (c) whether the case has involved an 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 a 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; (c) be fingerprinted, palm printed, 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 (c) a list of all papers, documents, 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 t 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 ee 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0753%3A2. Public record. Not legal advice.