Appeal from the Circuit Court of Sangamon County; the Hon.
WILLIAM H. CHAMBERLAIN, Judge, presiding. Order for discovery
affirmed; cause remanded to the Circuit Court of Sangamon County
for further proceedings.
CRAVEN, J., DELIVERED THE OPINION OF THE COURT.
The issue in this case is the permissible scope of an order for pretrial discovery in a criminal case. The defendant Crawford was indicted for the offenses of aggravated battery and battery. He filed a pretrial motion for discovery requesting a list of witnesses, physical evidence, written confessions and a list of witnesses to any oral confessions. This motion was allowed and there was compliance. Subsequently the defendant moved for further discovery seeking a copy of all statements of any witnesses, a copy of all memoranda of oral statements of witnesses together with a list of witnesses to any oral witness statements, and an inspection by the court of the State's file to determine the existence of any statements, and also an inspection by the court of all police files to determine the existence of any such witness statements, and for a copy of police reports regarding these matters. Ultimately this motion was allowed and the State's Attorney was ordered to comply within a specified time. Upon his refusal to comply with the order the State's Attorney was found guilty of contempt of court and a fine of $10 was imposed. The State's Attorney appeals.
It was and is the position of the State's Attorney that the allowance of the second motion and the order based thereon were void for the reason that there was no legislation, Supreme Court Rule or Supreme Court decision requiring a State's Attorney to furnish the information there requested, and that in the absence of such precedent the trial court was without authority to allow the motion, enter the order and make the finding of contempt.
In his memorandum opinion the trial judge indicates that there is a variation in various counties as to the availability to a defendant of information in the State's file. In some cases State's Attorneys appear to have an "open file" policy and motions for discovery are unnecessary. Further, it appears that even within the same county the amount of information given to a defendant from the State's file varies from case to case in that county. Indeed in the oral argument of this case the State's Attorney, with commendable candor, asserted that he often makes witnesses' statements available to some defendants in some cases, but not in all cases.
We believe it to be self-evident that the nature and extent of preparation for defense are necessarily dependent upon the quality and quantity of pretrial discovery available to the defendant. It is equally self-evident that the reality of "plea negotiation" makes such information relevant to the defendant's subsequent course of conduct whether a plea of guilty, a bench trial or a jury trial.
Paragraph 114-13 of chapter 38, Ill Rev Stats 1967, provides that discovery procedures in criminal cases shall be in accordance with Supreme Court Rules. There are no Supreme Court Rules on discovery in criminal cases. The nonexistence of such Rules suggests to us that the Supreme Court has determined that discovery in criminal cases should be on a case-by-case basis, at least until the emerging principles relevant to pretrial discovery surface and take form. We are fully aware that able jurists, law professors, attorneys and others are examining into and suggesting changes in the administration of criminal justice. Rules for criminal discovery in the federal system are in experimental states of development (see 1 ALR Fed 252) and the variables to be found from state to state seem infinite. See 7 ALR3d 8.
In this connection we note the tentative draft of "Standards Relating to Discovery and Procedure Before Trial" issued by the American Bar Association Project on Minimum Standards for Criminal Justice, published in 1969. The rules for pretrial discovery in criminal cases, unanimously adopted by a distinguished committee, are prefaced by the observation that the extensive discovery there recommended was broader than that used in any jurisdiction in the United States and was designed to correct general dissatisfactions with criminal litigation. See: ABA Standards, Discovery and Procedure Before Trial (Tentative Draft, 1969), p 2 et seq.; 64 Harv L Rev 1011 (1951); State v. Tune, 13 NJ 203, 98 A.2d 881 (1953).
The Illinois cases on the issue of pretrial discovery, discovery and the use of witness statements for impeachment were reviewed by this court in People v. Endress, 106 Ill. App.2d 217, 245 N.E.2d 26 (4th Dist 1969). In People v. Cagle, 41 Ill.2d 528, 244 N.E.2d 200 (1969), our Supreme Court reviewed the same issue in the light of the recent United States Supreme court decisions in Giles v. Maryland, 386 U.S. 66, 17 L Ed2d 737, 87 S Ct 793, (1967), and Brady v. Maryland, 373 U.S. 83, 10 L Ed2d 215, 83 S Ct 1194 (1963). The court, in Cagle, spoke of the Illinois rule relating to the use of statements, at least for impeachment purposes, as encompassed in the Illinois decisions of People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1 (1957), and People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197, cert den, 364 U.S. 874, 5 L Ed2d 96, 81 S Ct 119 (1960), and then observed:
"Defense counsel argues that the Illinois rule limiting the use of such favorable reports to impeachment purposes at the time of trial is too restrictive in that it hinders trial preparation and therefore violates the due process requirements for a fair trial. In the view we take of this case it is not necessary to consider that issue, since the trial court here failed to follow the Illinois rule, and in effect precluded the use of the favorable police report, even for impeachment purposes. In our judgment such action was tantamount to a suppression of evidence and itself constituted a violation of the due process clause. Giles v. Maryland, 386 U.S. 66, 100, 17 L Ed2d 737, 87 S Ct 793 [(1967)]; Brady v. Maryland, 373 U.S. 83, 87, 10 L Ed2d 215, 83 S Ct 1194 [(1963)]; Napue v. Illinois, 360 U.S. 264, 269, 3 L Ed2d 1217, 79 S Ct 1173 [(1959)]; People v. Wolff, 19 Ill.2d 318, 323 [167 N.E.2d 197, cert denied, 364 U.S. 874, 5 L Ed2d 96, 81 S Ct 119 (1960)]. . . ." People v. Cagle, 41 Ill.2d 528, 534-535, 244 N.E.2d 200, 203 (1969).
In People v. Tribbett, we concluded that it was error for a trial court to refuse the request of the defendant to inspect, prior to trial, items of physical evidence. People v. Tribbett, 90 Ill. App.2d 296, 232 N.E.2d 523 (4th Dist 1967). The Supreme Court granted leave to appeal but found it unnecessary to consider the discovery aspect of the case. (41 Ill.2d 267, 242 N.E.2d 249 (1968).) We read the opinion, however, as we observed in Endress, to be an indication that the defendant had the right to the pretrial discovery there requested. See also: People v. Hoffman, 32 Ill.2d 96, 203 N.E.2d 873 (1965); People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645 (1966).
Many of the cases cited by the People for the proposition that pretrial discovery is not available to a defendant in criminal cases in Illinois were discussed and cited by us in Endress.
In Endress the issue related to the discovery of items of physical evidence which the prosecution intended to introduce at trial. The order here is more encompassing than the order in Endress. Our observation in Endress and Tribbett that a trial court has the inherent authority in appropriate cases to order pretrial discovery need not be limited to items of physical evidence when further discovery is deemed necessary in order to ensure a defendant a fair trial.
Viewing the language in Cagle in the light of the Giles and Brady cases, it seems fair to conclude that the inherent authority of the trial court need not be limited to the question of statements to be used for impeachment. The cases of People v. Hoagland, 83 Ill. App.2d 231, 227 N.E.2d 111 (2nd Dist 1967), and People v. Hall, 83 Ill. App.2d 402, 227 N.E.2d 773 (3rd Dist 1967), limiting such discovery to discovery at the time of trial and for impeachment purposes only, may thus not now be persuasive authority.
The brief of the State further asserts that "Pretrial discovery of the nature requested in this case should not be allowed to a defendant until such time as the State is allowed the same type of discover [sic] from the defendant. . . ." No issue of the right of the prosecution to discovery is presented by this case for the reason that no motion for discovery was made by the prosecution. It would thus be an academic exercise for this court to speculate upon the issue of discovery by the prosecution and the scope of such discovery and the limitations that might arise by reason of the defendant's right under the Fifth Amendment. In this connection, see Part III at (16-17) of the tentative ...