Appeal from the Fourteenth Judicial Circuit of Rock Island
County; the Hon. CHARLES J. SMITH, Judge, presiding. Reversed and
remanded with directions.
In the cause now before us, defendants James Hall and Raymond Gathright were indicted for the crime of Indecent Liberties with a Child. Following arraignment of the defendants, their attorney filed a motion to require the State to furnish "any written statements or memoranda containing statements made by witnesses for the People given to a law enforcement officer and containing a substantially verbatim account of a conversation between a witness for the People and a law enforcement officer." The motion was made prior to the trial. The trial court entered an order requiring the State's Attorney to furnish the defendant's attorney with such statements. Thereupon, the Assistant State's Attorney refused, contending the order was improper. A rule to show cause was thereafter issued. Upon the continued refusal of the Assistant State's Attorney he was found to be in contempt of court and fined $50. He appeals to this court from such finding of contempt of court and the fine.
On appeal in this court, the People contend that the order of the trial court directing the delivery of the statements of prosecution witnesses in possession of the State prior to trial is an invalid order. It is the contention of appellant that a defendant in a criminal case is not entitled to prior statements of the witness until the witness testifies or is about to testify and that such statements may be used only for impeachment. The trial court in concluding that the statement of the witness should be furnished to the defendant, asserted that if the defendant is furnished the copy of the witness' statement only when the witness commences his testimony, defendant will request a recess for the purpose of examining the statement for possible impeachment and that this would cause an interruption in the trial or possible continuance and delay of the trial. The court asserted that it believed it to be a matter of the judge's discretion as to whether the statements of prosecution witnesses should be furnished to a defendant and the ordering of the statements furnished in advance of the trial for the purpose of expediting the trial is not an abuse of discretion.
In recent years it has been the rule in Illinois and the Federal Courts that a defendant in a criminal case may, by motion, require that the prosecution produce during the trial any statements of witnesses testifying at the trial which are in possession of the prosecution and relate to matters about which the witness testified. This rule was set forth by the United States Supreme Court in the case of Jencks v. United States, 353 U.S. 657, 1 L Ed 2d 1103. In September of 1957, the National Congress enacted the rule set forth at 18 U.S.C. § 3500 which provided in substance that after a witness is called by the United States and has testified on direct examination, the court, on motion of the defendant, may order the United States to produce any statements of the witness in possession of the United States which relate to the subject matter as to which the witness has testified. This has been known as the Jencks Act and the rule has been followed in Illinois (People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197). It is notable that in neither the Jencks case nor in the case of People v. Wolff, supra, is there any precedent or basis for production of documents prior to actual trial and before testimony of witnesses whose written statement is being sought. In the same year (1957) the Illinois Supreme Court in People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1, stated it was error to refuse to turn over statements made by prosecution witnesses. The court stated (at page 89):
"So it is now held that an accused person is entitled to the production of a document that is contradictory to the testimony of a prosecution witness."
It is notable that the request for such document was made by defendant during the trial.
In People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197, decided in 1960, the Illinois Supreme Court, after discussing in detail the Jencks case and the Federal rule arising from the Jencks Act, adopted the Federal rule specifically and stated (at page 327):
". . . we adopt the view that where no privilege exists, and where the relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes. However, if the prosecution claims that any document ordered to be produced contains matter which does not relate to the testimony of the witness sought to be impeached, the trial judge will inspect the document and may, at his discretion, delete unrelated matters before delivery is made to the accused."
In the Wolff case, the statement of the witness was made to a policeman. It is noted also in the Wolff case, the question arose during the trial. The same rule was applied to the record of prior testimony of a court witness before the Grand Jury in the case of People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399. The court in that case (at page 606), after determining that the reason for secrecy of the Grand Jury testimony had passed since the witness had testified at the trial, found that the statement should be furnished to defendant to be used for impeachment purposes at a subsequent trial.
In 1965 in People v. French, 61 Ill. App.2d 439, 209 N.E.2d 505, the court was confronted with the problem of whether the transcript of testimony of a witness before the Grand Jury could be obtained by defendant in preparation for trial. The Appellate Court, in determining that such transcript need not be furnished prior to trial stated (at pages 446-447):
"The State's Attorney indicated to the court that if the witness in question were called upon to testify at the trial, he would then produce the transcript of that witness' testimony before the grand jury to the court, and if the court found anything of an impeaching nature in the transcript it could then be delivered to the defendant's attorney."
The court, recognizing that there was a distinction between this case and the Johnson, Moses and Wolff cases, principally because the witnesses had not yet testified in the French case, stated (at page 445):
"He has not yet stated before the defendant and the world all that he supposedly knows about the commission of the crime in question. Until he does so testify, no matter how vital his knowledge may appear, there can be no certainty that he will testify. If such witness testifies truthfully at the trial, he should have no reason to fear the disclosure of his prior grand jury testimony. `If he tells the truth and the truth is the same as he testified before the grand jury, the disclosure of the former testimony cannot possibly bring to him any harm . . . which his testimony on the open trial does ...