APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The State's Attorney of Du Page County was adjudged in contempt of court upon his failure to comply with certain portions of the trial court's order for pretrial discovery in a felony case. (Ill. Rev. Stat. 1971, ch. 110A, par. 412.) *fn1 He appeals, claiming that the discovery order underlying the contempt is invalid. See People v. Smith (1972), 5 Ill. App.3d 429, 430.
The State's Attorney contends that the following portions of the pretrial discovery order are invalid:
"4. The State shall immediately cause to be reduced to memoranda any substantially verbatim reports of oral statements of persons they intend to call as witnesses that have not been so reduced to memoranda and of which the State has knowledge and these memoranda are included in paragraph No. 1 of this Amended Order.
5. The State shall immediately cause to be reduced to memoranda any reports or summaries of oral statements of persons they intend to call as witnesses that have not been so reduced to memoranda and of which the State has knowledge and these memoranda are included in paragraphs Nos. 1, 2, and 3 of this Amended Order. *fn2
6. The word `witnesses' * * * means all persons who the State, at the time of submitting answers in compliance of this order, intends to call as a witness, whether in their case-in-chief or at any other stage of the trial of the case.
7. The State shall disclose and deliver to defense counsel within fourteen days, in written form, any written statements, any recorded statement and the substance of any oral statement in its possession or control made by the defendant, whether or not reduced to writing or memoranda and regardless of to whom said statements were made. The State shall further disclose and deliver to defense counsel within fourteen days, in written form, a list of all witnesses in its possession or control to the making and acknowledging of such statements as referred to above in this paragraph.
16. That the defendant's motion for the Court to examine the entire State file `in-camera' to determine if the State has complied with the Court's discovery order to disclose and direct any matter or information within it's possession or control which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefore, is hereby granted. However, the Court specifically reserves it's ruling as to when the State's file is to be examined `in-camera'."
Paragraphs 4 and 5 of the court's order, in substance, require that the State reduce to memoranda relevant non-verbatim as well as relevant verbatim oral statements of witnesses the State intends to call. If the statements are verbatim, the State is ordered to deliver them to the defense; if non-verbatim, the State must deliver those which it claims to be non-verbatim to the court for an "in-camera" inspection to verify its claim.
The State's Attorney first argues that Supreme Court Rule 412(a)(i) neither requires that he reduce oral statements or interviews of witnesses to writing nor that memorandum or notes be prepared to preserve the statements or interviews.
He contends that the rules have been complied with since defendant has been provided with a list of witnesses together with any and all relevant written statements, recorded statements or memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements. He further notes that if the defendant deems it necessary he may inquire of each of these witnesses as to any oral statements they may have made to anyone from which he may prepare his own written memoranda. He concludes that the Supreme Court did not intend to require in the new discovery rules that which was not required under the prior rules.
• 1 The State argues that it is not required to provide a reporter at grand jury proceedings (e.g., People v. Aughinbaugh (1967), 36 Ill.2d 320, 324-325. See also People v. Colletti (1968), 101 Ill. App.2d 51, 58; People v. Lentz (1972), 8 Ill. App.3d 41, 43-44); and police officers have no duty to reduce all investigative findings to writing. (People v. Patterson (1971), 2 Ill. App.3d 902, 274 N.E.2d 467, 472, Supplemental Opinion, 2 Ill. App.3d 902, 276 N.E.2d 354. By analogy, it is concluded that the State is under no duty to record or otherwise reduce to writing the substance of an oral statement of a witness or the substance of an interview with a witness that he intends to call at trial. *fn3
From the record it appears that the State's Attorney advised the trial court that it had an oral statement, an admission by the defendant not made to a police officer; that it intended to use the statement at trial; and that it had no intention of disclosing it to the defense. The record also reveals that the Assistant State's Attorney stated in oral argument, "in criminal law there is absolutely no justice served by getting everything out in the open". Further, the trial judge specifically noted in his memorandum of decision that the State had advised him in oral argument that it was a practice of the State's Attorney's office not to reduce substantially verbatim reports of oral statements to writing in order to surprise the defense at trial.
None of the Supreme Court Rules on discovery in felony cases (Ill. Rev. Stat. 1971, ch. 110A, pars. 411-415) specifically state that oral statements in the prosecutor's (or defendant's) possession or control must be reduced to writing. (See, e.g., Supreme Court Rule 413). Whether this requirement may be found by any language in the ...