GRAND JURY OF SAN DIEGO COUNTY MILLER v. HARRISON (1989)

The Grand Jury of the County of San Diego, through the San Diego District Attorney, petitions this court for extraordinary relief in terms of review of a discovery order made by the superior court relating to a grand jury criminal investigation.   We conclude that the superior court was correct in its ruling, and therefore deny the relief requested by the Grand Jury.

I

FACTUAL AND PROCEDURAL BACKGROUND 1

David Scott Harrison and his wife, Annie, were divorced in 1982.   Between 1982 and 1988 they engaged in continuous litigation over matters related to their divorce, including child support payments and visitation rights.   In 1986 Annie remarried and became known as Annie Jenkins.   In mid-January 1988 Mr. and Mrs. Jenkins won $725,000 in the California lottery.   One month later her body was found in her home.   She had been strangled and her throat had been severely slashed.

On the day following Mrs. Jenkins's death Harrison was interviewed by homicide detectives from the San Diego Sheriff's Department.   Six days later Harrison was arrested by sheriff's deputies for possession of destructive devices, and shortly thereafter a criminal complaint was filed against him by the San Diego County District Attorney.   However, on March 9, 1988, a federal complaint was filed against Harrison for arson, bombing and possession and manufacture of destructive devices.   He was taken into federal custody, subsequently pled guilty to some of the federal charges, and was sentenced to a term of years in federal prison.   Since the federal charges had essentially the same factual basis as the state charges, the earlier filed state charges were dismissed.

At all times in these proceedings (during initial state investigation, during the federal proceedings, and subsequently in grand jury proceedings) Harrison was referred to as the prime suspect in the murder.   He was represented at all times by attorney Fletcher, who retained the assistance of private investigator Braxtan.   Although Fletcher and Braxtan have requested of the district attorney that they be given information developed by the criminal investigation, discovery has not been made available on the ground that the criminal investigation is ongoing.   The inference real party asks us to make from this is that whatever Braxtan knew about the crime was derived from information originally imparted by Harrison, or was the product of such information resulting from Braxtan's subsequent investigative work.

The district attorney's investigation led to an interview with one Rick Matthews, who was a former neighbor of the Jenkinses.   Rick Matthews stated that his son, Tom Matthews, had told him of witnessing, on the date of the murder, a loud argument in front of the Jenkins home.   The argument involved a man and a woman, and the woman was heard to say, “We don't need your money anymore.”   The district attorney believes the man and woman were suspect Harrison and the murder victim.   The district attorney has been unable to locate Tom Matthews.   However, the informant Rick Matthews stated that he had been contacted by defense investigator Braxtan, and that Braxtan had told him he knew of another witness to the same argument.   The district attorney has been unable to locate this other witness or to learn the witness's identity.

Braxtan was subpoened to appear before the Grand Jury.   He was sworn and asked to identify the unnamed witness.   Braxton refused, asserting privilege.   This led to a hearing before the superior court, the purpose of which was to compel Braxtan to testify.   All parties in interest at this hearing were in agreement that (i) no charge of murder in the Jenkins case had been filed against Harrison (or anyone else) and that the Grand Jury was engaged in an investigation, (ii) Fletcher at all relevant times was the attorney for Harrison, engaged to represent him in criminal matters, and (iii) Braxtan at all times was an investigator retained by Fletcher on behalf of Harrison.   Real party contends (but the district attorney will not stipulate) that whatever information Braxtan had learned concerning the Jenkins murder was a product of his investigation.   On the basis of the undisputed assumptions, the court ruled that all information in Braxtan's possession relating to the case was subject to the attorney-client privilege.

The petition seeking review of this order asserts that the court was in error in its ruling.   The district attorney also asserts that the trial judge lacks sufficient competency or impartiality to serve further in this matter, and requests that on remand we direct further proceedings be heard by a different judge, under the authority of Code of Civil Procedure section 170.1, subdivision (c).   The district attorney's harsh criticism of the trial court in turn led to a motion by counsel for Braxtan that we strike the petition and award sanctions and attorney fees.   The motion contends that the district attorney's assertions constitute a “callous and flagrant disregard for the integrity of the Court,” which warrant extraordinary appellate relief.²

II

DISCUSSIONA. Privilege

The broad topic we engage is the power of the governmental criminal enforcement agency to extract evidence or information from an accused or his agents.   The defense against such efforts is framed in terms of one or more privileges:  the privilege surrounding confidential communications between attorney and client;  the privilege against self-incrimination;  and the privileges related to a criminal defendant's or suspect's right to effective counsel.

1. Attorney–Client Privilege.

 The specific ground upon which the trial court found an existence of privilege was the attorney-client privilege.   This privilege is contained in Evidence Code section 954 as follows:  “[T]he client ․ has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer․”  The privilege applies to all witnesses and is not dependent upon the existence of a criminal proceeding.   Also, as all parties to this hearing agreed, the privilege pertains not only to communications, but also to observations or information discovered by counsel or his investigator which are the product of a privileged communication.  (See People v. Meredith (1981) 29 Cal.3d 682, 686, 175 Cal.Rptr. 612, 631 P.2d 46.)

The district attorney sought at the hearing to examine Braxton, the private investigator, as to the foundational facts giving rise to the privilege.  Evidence Code section 915, subdivision (a), provides that, in determining the existence of a privilege, the presiding officer may not require disclosure of the precise information or communication claimed privileged.   This does not preclude, however, an investigation into the foundational facts upon which the claim of privilege is based.   Evidence Code section 917 envisages such investigation in that it provides that the claim of existence of the attorney-client privilege as to a communication gives rise to a presumption that the communication was made in confidence, shifting to the opponent (the district attorney in this case) the burden of establishing that the communication was not confidential.

 The question of confidentiality is not, however, the only issue for determination in ruling upon a claim of attorney-client privilege.   It must be established that the communication was to an attorney or his agent, that an attorney-client relationship existed at the time, that the communication was in fact confidential, and that the information sought was derived from the communication.  (See generally, 2 Witkin, Cal.Evidence (3d ed. 1986) Witnesses, § 1107, p. 1047, § 1110, p. 1050, § 1117, p. 1056, § 1122, p. 1061, § 1126, p. 1066.)   While Evidence Code section 917 shifts the burden of going forward with evidence as to the issue of confidentiality, the obligation of establishing the other elements of the privilege remain with the entity asserting the privilege.  (Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 448, 191 Cal.Rptr. 871.)

The court had before it several declarations which it found to establish the elements of the privilege.   Nevertheless, it was clearly appropriate for the district attorney to seek to introduce evidence rebutting the conclusions set forth in, or to be inferred from, the declarations.   While the court did not preclude the introduction of such evidence, it stated that it was convinced the privilege applied once it had been established that (1) the attorney's investigator was working for the suspect at the time in question, and (2) the information sought by the district attorney was “gathered as a result of his working for the suspect.”   Upon this ruling, the district attorney perceiving the court to be in error, apparently (and with some justification) concluded his effort to attack foundation would be fruitless, and elected not to proceed.

If in fact the court's ruling was based solely upon the attorney-client privilege, it was in error.   The court concluded that the establishment of the attorney-client relationship and that the information was gathered by the investigator in the course of that relationship, was, standing alone, sufficient to sustain the privilege.   Thus, the court effectively precluded the district attorney from searching the question of actual confidentiality of the communication, whether the subject evidence was in fact related to a communication, or whether the investigator perhaps had discovered the information completely apart from a communication.

2. Right to Assistance of Counsel.

We apprehend that the court's ruling in fact was not based solely upon the attorney-client privilege, and thus we must study the applicability of other and related privileges, particularly as they pertain to criminal proceedings.   In colloquy with counsel the court referred to In re Misener (1985) 38 Cal.3d 543, 213 Cal.Rptr. 569, 698 P.2d 637 [a case dealing with discovery required of defense counsel during a criminal trial].  The district attorney, on the other hand, argued that such authority was inapplicable because the grand jury proceeding was not a criminal proceeding, but merely a criminal investigation, and hence the authority of People v. Duck Wong (1976) 18 Cal.3d 178, 133 Cal.Rptr. 511, 555 P.2d 297, was applicable [permitting police interrogation of a suspect without presence of retained counsel prior to filing of criminal charges.]

We are thus required to address the question of applicability of post-charge criminal discovery rules to the preindictment interrogation of a criminal suspect or his agent by the grand jury.   The district attorney assures us that the issue is settled.  In re Lemon (1936) 15 Cal.App.2d 82, 59 P.2d 213, held that a grand jury investigating alleged police abuses could compel testimony of a police officer, even though he was a suspect in the case.   The witness was advised he could decline to testify upon the ground of self-incrimination, but it was held that no other privilege was applicable.  “[A] grand jury investigation is in no proper sense a criminal proceeding and ․ no person has the status of a party defendant in such investigation․”  (Id. at pp. 84–85, 59 P.2d 213.)   Our task is to determine whether evolving California precedent in the spheres of the privilege against self-incrimination (Cal. Const. art. I, § 15; ³  U.S. Const., 5th Amend.) ⁴ and the right to counsel (Cal. Const., art. I, § 15; ⁵ U.S. Const., 6th Amend.) ⁶ impair the plain precedent of Lemon.

We discuss Sixth Amendment concepts first.   Right to the assistance of counsel cases typically relate to exclusion of evidence obtained from a defendant when he was not represented (i.e., the right under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 to representation by counsel during in-custody interrogation).   Here there is no question but that Harrison was at all times in issue represented, and that Agent Braxtan's activities were engaged as part of that representation.   As respects this case, the Sixth Amendment right would appear to be of moment only if it in some way expands upon the rights generally protected by the attorney-client privilege.   We find suggestions in California authority that the existence of a constitutional right to counsel indeed expands the privilege, beyond the ambit of the statutory or common law attorney-client privilege.

In People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534, a defense witness under cross-examination revealed that she had previously spoken to a defense investigator.   The Supreme Court reversed a trial court discovery order which would have required production of the witness's statements to the investigator.   While grounding its decision primarily on self-incrimination concepts, the court discussed at some length the impact of the right to assistance of counsel.

“[D]efendant's constitutional right to assistance of counsel is potentially threatened if ․ the decision to present the witness justifies discovery to the extent of the witness' direct testimony or if ․ placing the defendant on the stand waives the privilege not only for purposes of cross-examination ․ but for purposes of discovery of all defense information conceivably relevant to defendant's direct testimony.   In either event defense counsel's ability to freely investigate and effectively present the defense could be seriously compromised.   A rule that would open the defense files if a witness or the defendant testified could penalize the defendant whose attorney was most vigilant in gathering, documenting, recording and studiously analyzing evidence to prepare the defense.”  (Id. at p. 55, 177 Cal.Rptr. 458, 634 P.2d 534, fn. omitted.)

 We assume, then, that the right to assistance of counsel infers some preclusion of the prosecution from interfering with defense counsel's case, or benefiting by his research or preparation—a dimension of privilege which exceeds the protection of confidential communications.   The crucial question is:  When does this expanded privilege attach?   Does the special protection of counsel's case apply whenever counsel has been retained (like the attorney-client privilege in general) or is it effective only when appointment of counsel for an accused would have been mandated?   The district attorney contends that whatever special privilege attends assistance of counsel, it exists only when the right to counsel is constitutionally mandated.

The district attorney's argument rests principally on Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.  Massiah held that the bugging of a criminal defendant's private vehicle, after indictment and at a time when he was represented by counsel, was an unconstitutional infringement upon his right to assistance of counsel.   As background to the ruling, the court referenced a concurring opinion in Spano v. New York (1959) 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, which had supported exclusion of a confession because of its being obtained after indictment.   This was a time, said the Spano concurrers, when the defendant was clearly entitled to his lawyer's help.   The Massiah court, paraphrasing and quoting the Spano concurrers, stated that:

“[U]nder our system of justice the most elemental concepts of due process of law contemplate that an indictment be followed by a trial, ‘in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law.’  360 U.S., at 327 [79 S.Ct., at 1209] (Stewart, J. concurring).   It was said that a Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding.   Anything less, it was said, might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’  360 U.S. at 326 [79 S.Ct. at 1209] (Douglas, J. concurring).”  (Massiah, supra, 377 U.S. at p. 204, 84 S.Ct. at p. 1201.)

The Massiah court also noted with approval the statement from Powell v. Alabama (1932) 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, that “ ‘during perhaps the most critical period of the proceedings ․ that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation [are] vitally important, the defendants ․ [are] as much entitled to such aid [of counsel] during that period as at the trial itself.’ ”  (Quoted in Massiah, supra, 377 U.S. at p. 205, 84 S.Ct. at p. 1202.)   As summarized in People v. Brice (1966) 239 Cal.App.2d 181, 191–193, 48 Cal.Rptr. 562, the central principle of Massiah is “that incriminating statements made by a defendant after he has been formally charged by indictment or information and while he is in custody are inadmissible where they have been deliberately elicited from him by enforcement agents or the police in the absence of his counsel.”  (Id. 239 Cal.App.2d at p. 191, 48 Cal.Rptr. 562, italics omitted.)   We are satisfied from these passages that the United States Supreme Court regards formal indictment or charge as a crucial event in terms of triggering the right to counsel.⁷

The district attorney contends that this bright line persists in California authority.   We must bear in mind, it is argued, the elemental difference between the accusatory stage, when the Sixth Amendment right to counsel exists, and the investigatory stage, when it does not.   The California authority cited for this proposition is People v. Duck Wong, supra, 18 Cal.3d 178, 133 Cal.Rptr. 511, 555 P.2d 297.   The police, in Duck Wong, were investigating an auto accident which eventually resulted in a charge of vehicular manslaughter.   The defendant, who was Chinese, was sought with the help of a friend—also Chinese.   Before locating the defendant, the police received a call from an attorney who advised that he represented Duck Wong, and would attempt to bring him to the police station.   The police agreed they would cease efforts to locate Duck Wong, and would work through the attorney.   However, Duck Wong with his Chinese friend later appeared at the police station, stating that he did not wish to follow the advice of his attorney.   Police interrogation, after a Miranda warning and waiver, resulted in Duck Wong's incriminating statements.

The Duck Wong court first dealt with People v. Isby (1968) 267 Cal.App.2d 484, 73 Cal.Rptr. 294, which identified the two distinct constitutional rights illuminated by Miranda and Massiah.   Quoting from Isby, supra, 267 Cal.App.2d at p. 494, 73 Cal.Rptr. 294:

“ ‘The first right is that an accused must be advised of his right to counsel when the accusatory stage of the criminal process has been reached, and the second right is that after a criminal charge has been filed against a defendant and he has counsel, he may not be subjected to an interrogation instigated by law enforcement officers for the purpose of eliciting incriminatory statements without effective aid of his counsel.’ ”  (People v. Duck Wong, supra, 18 Cal.3d at p. 185, 133 Cal.Rptr. 511, 555 P.2d 297.)

Refusing to extend the Sixth Amendment rights to preaccusatory stages, the Duck Wong court held this police station interrogation without counsel to be permissible.  “We conclude ․ neither Massiah nor Isby, nor any reasons of policy, required the presence of defendant's counsel during the interview.”  (Id. 18 Cal.3d at p. 187, 133 Cal.Rptr. 511, 555 P.2d 297.)

The final authority requiring our study is People v. Bustamante (1981) 30 Cal.3d 88, 177 Cal.Rptr. 576, 634 P.2d 927.   Again dealing with the constitutional right to counsel, the court recognized same in connection with a preindictment lineup.   The decision reviewed ground already well-worked by the federal Supreme Court.   That court in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, had established the federal rule of entitlement to counsel at a postindictment lineup, and that evidence derived from a violation of this principle was inadmissible.   In Kirby v. Illinois (1972) 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, however, the court had determined that the right pertained only to postindictment lineups.   The starting point of the adversary process, stated the Supreme Court, is the initiation of judicial proceedings by indictment or information.   The Sixth Amendment guarantees representation only in “criminal prosecutions,” and it is not until a defendant is formally charged that a criminal prosecution begins.   (Id. at pp. 689, 690, 92 S.Ct. at pp. 1882, 1883.)

 The Bustamante court rejected the distinction emphasized in Kirby, resting its decision on state constitutional grounds.   The court concluded that a pretrial lineup “is a critical stage in the prosecution of a criminal case” (id. 30 Cal.3d at p. 99, 177 Cal.Rptr. 576, 634 P.2d 927) and that a “defendant is entitled to have counsel present to assist him at that critical juncture.”  (Id. at p. 100, 177 Cal.Rptr. 576, 634 P.2d 927.)

What instruction does this history provide in terms of our problem, i.e., the potential interference with defense counsel's work at a time of preindictment grand jury investigation?   We are reminded that People v. Collie, supra, which enunciates most clearly the right of defense counsel to investigate and prepare the defense case, was a postindictment case.   We must also note that the Miranda advisement requirement as well as the Bustamante lineup rule, which emphasize preindictment right to counsel, relate to pressure of investigation directly imposed upon the person of the defendant.   Whether the bright line illuminated by Lemon still retains validity would seem to depend upon whether we remain satisfied with a reduced or restricted right of counsel, preindictment, in situations other than direct investigation of the person of the defendant.   Some assistance in resolving this problem is found in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916.   Involving an issue not relevant to our problem (the right of an indicted defendant to a preliminary hearing in superior court) the case nevertheless sheds light upon current views of grand jury criminal investigations.  Hawkins concluded that the grand jury was an integral part of the modern criminal prosecution process;  that the grand jury was “independent only in the sense that it is not formally attached to the prosecutor's office.”  (Id. at p. 589, 150 Cal.Rptr. 435, 586 P.2d 916.) ⁸

There is no dispute in this case but that Harrison was the prime suspect in the murder investigation.   This is highlighted by the unusual procedure of assignment of one of the Assistant United States Prosecutors, who had aided in Harrison's federal prosecution, to assist the district attorney in the murder investigation.   Certainly from the point of view of Harrison, the grand jury proceedings were, to use the wording of Bustamante, a “critical stage in the prosecution of a criminal case.”

 It is difficult completely to separate concepts of rights derived from the Sixth Amendment right to counsel from those related to the privilege against self-incrimination.   As will be noted in the self-incrimination discussion, infra, we conclude that it is illogical, at least under the facts of this case, to make distinctions between rights pre and post indictment.   Perhaps bolstered by the self-incriminating discussion and conclusions, we hold that the preclusion against interference with the representation of counsel, as illuminated by People v. Collie, supra, is applicable equally to preindictment as to postindictment investigations.   We conclude that the rule of In re Lemon is no longer good law, at least as asserted in its broadest form by the argument of the district attorney.⁹

3. Privilege Against Self–Incrimination.

The privilege against self-incrimination is, historically, a testimonial privilege and a personal privilege.  (8 Wigmore, Evidence (McNaughton ed. 1961) § 2263, p. 378.)   Federal authority has recognized these principles by relating exercise of the privilege to communicative evidence derived from the defendant himself.   Exemplary of this concept is Fisher v. United States (1976) 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39, which denied application of the privilege to accountants' paperwork prepared for a defendant under investigation for tax fraud.   The court stated that “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.”  (Id. at p. 408, 96 S.Ct. at p. 1579.)  “[T]he privilege protects a person only against being incriminated by his own compelled testimonial communications.”  (Id. at p. 409, 96 S.Ct. at p. 1580.)

Also illustrative of the federal trend are Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 and United States v. Nobles (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141.   In Williams v. Florida, a statute requiring defense disclosure of the identities of alibi witnesses was upheld, the court concluding that no personal privilege against self-incrimination was being abridged.   Defendant's counsel was merely being required to reveal identities of witnesses somewhat in advance of his desired trial timing.  (Williams v. Florida, supra, 399 U.S. at p. 86, fn. 17, 90 S.Ct. at p. 1898, fn. 17.)   In Nobles, the imposition upon the defense was an order that the defense investigator produce copies of pretrial statements made to him by defense witnesses.   The Supreme Court stated that the Fifth Amendment privilege was an “intimate and personal” one, which adhered to the person of the defendant and not to any non-personal information which might tend to incriminate him.  (United States v. Nobles, supra, 422 U.S. at p. 233, 95 S.Ct. at p. 2167.)

California, however, has elected not to follow federal precedent.   The California Supreme Court had been faced in Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, with an issue similar to that which the United States Supreme Court later addressed in Nobles.   The trial court had required the defense in a criminal case to reveal the names, addresses and expected testimony of witnesses expected to be called.   In reversing, the Supreme Court paid little attention to whether the identification of the defense witnesses related to testimonial compulsion upon the defendant.   Rather, the court concluded that any compulsion upon the defense to disclose information which “could ․ provide an essential link in a chain of evidence underlying the prosecution's case in chief” would violate the privilege.  (Id. 2 Cal.3d at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673.)

Prudhomme was followed by Reynolds v. Superior Court (1974) 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45, which was a case involving an order to reveal alibi witnesses three days prior to calling them at trial.   In reversing the order, the court affirmed the Prudhomme test, finding that the required disclosure “ ‘might lighten the prosecution's burden of proving its case in chief.’ ”  (Id. 12 Cal.3d at p. 839, 117 Cal.Rptr. 437, 528 P.2d 45, quoting Prudhomme, supra, 2 Cal.3d at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673.)   Explication of the relationship of the California to federal rule then came in Allen v. Superior Court (1976) 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65, another case involving required disclosure of defense witnesses.   The court noted the federal Nobles and Williams v. Florida cases, and remarked:

“In Reynolds we noted that ‘Prudhomme put this court on record as being considerably more solicitous of the privilege against self-incrimination than federal law currently requires.’  (Id. [12 Cal.3d] at p. 843 [117 Cal.Rptr. 437, 528 P.2d 45].)  We maintain that solicitude and affirm the continued vitality of the stringent standards set forth in Prudhomme for the protection of the privilege against self-incrimination as embodied in article I, section 15.”  (Allen v. Superior Court, supra, 18 Cal.3d at p. 525, 134 Cal.Rptr. 774, 557 P.2d 65.)

The last in our series of authoritative California Supreme Court pronouncements is In re Misener (1985) 38 Cal.3d 543, 213 Cal.Rptr. 569, 698 P.2d 637.   In reaction to the decisions previously cited, the California Legislature had enacted Penal Code section 1102.5, which permitted discovery of prior statements made by defense witnesses.   The court held the statute unconstitutional, because it required the defense to give assistance to its own prosecution.   Rejecting the federal authorities, the court stated:

“The rationale in Nobles failed to consider the aspect of the privilege against self-incrimination that requires the prosecution to carry the entire burden of convicting a defendant.   The privilege forbids compelled disclosures from the defendant that will aid the prosecution.   To the extent they are useful to the prosecution the disclosures required by section 1102.5 violate the defendant's privilege against self-incrimination.”  (In re Misener, supra, 38 Cal.3d at p. 558, 213 Cal.Rptr. 569, 698 P.2d 637.)

Reflecting upon these authorities, we again recognize that they are all postindictment cases.   We can find no logical basis, however, for defining the privilege against self-incrimination as its relates to one's counsel's efforts differently in a preindictment situation.   Justice Kaus, in his concurring opinion in Misener, called the formulation of the self-incrimination privilege in Prudhomme “absolutist,” saying that when it “forbids any compelled disclosure which might conceivably lighten the prosecution's burden of proving its case,” it leads when rigidly applied “to very strange results.”  (In re Misener, supra, 38 Cal.3d at pp. 558–559, 213 Cal.Rptr. 569, 698 P.2d 637, (conc. opn. of Kaus, J.)   Chief Justice Lucas in his dissenting opinion in Misener severely criticized the Prudhomme rule, saying that “as a practical matter, prosecutorial discovery, whether obtained pretrial or during trial, whether judicially or legislatively mandated, and whether or not permissible under the federal Constitution, is absolutely unavailable in this state.”   He characterized this loss as “unfortunate indeed.”  (In re Misener, supra, 38 Cal.3d at p. 561, 213 Cal.Rptr. 569, 698 P.2d 637, (dis. opn. of Lucas, C.J.)   No doubt some will find our application of the Prudhomme rule to preindictment situations an unfortunate extension of an ill advised principle.   Our difficulty is that we believe a fair reading of the Prudhomme, Allen, Misener definition of the privilege against self-incrimination indicates applicability to the interrogation of Braxtan in this case.   Were we to order a reversal of the trial court's limitation on the prosecutor's discovery, we believe we would be required to disapprove Prudhomme, Allen, Misener et al., which task is obviously the prerogative and responsibility of a court other than ours.

4. Conclusion as to Privilege Issue.

 The trial judge's restriction of the district attorney's interrogation of the defendant's investigator is not sustainable based solely on the attorney-client privilege.   We hold, however, that the Sixth Amendment right of representation of counsel, unimpeded by interference of the prosecution, together with the privilege against self-incrimination, preclude the questioning sought by the district attorney in this case.   A criminal investigator's work product relating to a criminal investigation is privileged, and once it has been established that the investigator was retained by legal counsel hired to represent a suspect, the investigator cannot be forced to reveal the product of his investigation.   In stating this rule we are mindful of the broad scope of potential grand jury investigations.   We intend no general pronouncement which would interpose impediments to grand jury hearings.   Key to our ruling are the findings that (1) the commission of a specific crime has been determined, (2) an individual has been identified as a prime suspect, and (3) that individual has retained counsel who in turn has hired an investigator to work on the case on behalf of the suspect.   Under these circumstances we conclude that neither the attorney nor his investigator can be required by the grand jury to give testimony concerning the investigation.

III

MOTION TO STRIKE

We turn to the other issue presented by our pleadings:  the motion by counsel for Braxton to strike the petition.   Proper attention to priority would, obviously, have required that we consider this motion before dealing with the substance of the petition.   We have not done that, and hence by default have mooted the thrust of the motion.   By so doing, it is not our intention to minimize the significance of the motion.   The written charges leveled at the trial judge by the district attorney were intemperate and unnecessarily personal.¹⁰  We would have been well justified, we think, to have stricken the petition, requiring that it be submitted in more reasonable form.   In order to make that decision, however, it was necessary for us to read the record, and having done that it seemed more appropriate simply to rule on the substance of the issue—an issue deemed to be of significance.

We are moved to comment, however, that the district attorney's accusations are misplaced.   While there are no doubt instances in which a trial judge demonstrates incompetence, bias or even bad faith, accusations of such should be framed in as objective language as may be possible.   We take note in this case that the judge whom the district attorney elected to castigate for his ignorance of criminal law served ten years as a deputy district attorney, five of which were as the supervising district attorney of the North County Branch of the San Diego Superior Court, served seven years as a municipal court judge, and has now served as a superior court judge for four years, including a stint as presiding judge of the North County Branch and a period of service on the appellate department of the superior court.

We would also note, hopefully with a humble attitude, that the trial court's difficulty with the law, found incomprehensible by the district attorney, has proved most vexing to this panel of the Court of Appeal, and that after serious deliberation we have been unable to conclude his ruling was in error.   Under all these circumstances we find the harsh language of the petition to be inexcusable.   Having so stated, however, we conclude no additional remedy is required.   Defense counsel has undoubtedly spent time and his client's money in preparing his motion to strike, and is no doubt deserving of fees.   We think it inappropriate, however, to penalize a public body whose efforts are almost always well directed, for a temporary indiscretion.

IV

DISPOSITION

The petition for writ of mandate is denied.

FOOTNOTES

1.   The facts recited herein are not completely contained in the evidentiary record before us.   To the extent not so reflected, however, they are established by recitations in briefs filed in this writ proceeding which were either accepted in opposition briefs or were verified in oral argument entertained in this matter.

2.   In the trial court hearing, as well as on appeal, the parties discuss the appropriate procedure for testing the assertion of a privilege before the Grand Jury.   Since the core issue for determination in any such procedure (motion to compel, motion re contempt, etc.) is the determination of the existence or nonexistence of privilege, we decline to reach or discuss the procedural question.

3.   Article I, section 15, provides in part:  “Persons may not ․ be compelled in a criminal cause to be a witness against themselves․”

4.   The Fifth Amendment to the United States Constitution provides, in part:  “No person ․ shall be compelled in any criminal case to be a witness against himself, ․”

5.   California Constitution article I, section 15, provides in part:  “The defendant in a criminal cause has the right ․ to have the assistance of counsel for the defendant's defense, ․”

6.   The Sixth Amendment to the United States Constitution provides in part:  “In all criminal prosecutions, the accused shall ․ have the Assistance of Counsel for his defense.”

7.   We are, of course, mindful of the pre-charge right to counsel established by Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and the flood of cases both federal and state, which have examined when custody or the accusatory stage of a proceeding commences, the manner in which desire for or waiver of counsel is evidenced by an accused, etc.  (See generally, Witkin, Cal.Criminal Procedure (1985 Supp.) Trial, § 361A et seq., pp. 505 –582.)   We do not attempt analysis of this line of authority because we believe it relates more directly to statements of an accused than revelation of his attorney's investigation.

8.   In Moran v. Burbine (1986) 475 U.S. 412, 428–432, 106 S.Ct. 1135, 89 L.Ed.2d 410, it is stated emphatically that the Sixth Amendment right to counsel does not become applicable until the government's role has shifted from investigation to accusation.   In that case the defendant executed Miranda waivers without knowledge that his family had procured the services of an attorney for his benefit.   The issue, therefore, was whether the existence of potential counsel, not known to the defendant, undermined the effectiveness of confessions given after otherwise adequate Miranda admonishments.   The case did not involve investigative pressure or interference with counsel actively retained by and working for the defendant.   More instructive to our situation is Maine v. Moulton (1985) 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481, in which the obtaining of incriminatory statements through surreptitious recording by a confederate was held violative of the right to counsel.   In Maine v. Moulton counsel had been previously retained.   Although the statements were obtained after the defendant had been indicted, the court's holding does not seem to rest critically on that point in time.   The court stated:  “[T]he assistance of counsel cannot be limited to participation in a trial;  to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself.   Recognizing that the right to the assistance of counsel is shaped by the need for the assistance of counsel, we have found that the right attaches at earlier, ‘critical’ stages in the criminal justice process ‘where the results might well settle the accused's fate and reduce the trial itself to a mere formality.’  [Citations.]”  (Maine v. Moulton, supra, 474 U.S. at p. 170, 106 S.Ct. at p. 484.)

9.   The holding in Bustamante was the reversal of a robbery conviction because of the admission of evidence derived from the lineup, held to be inadmissible on the ground of the violation of the defendant's right to counsel at the lineup.   The subsequent adoption of the so-called “Truth-in-Evidence” provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) abrogated the rule of inadmissibility of such evidence.   (See People v. May (1988) 44 Cal.3d 309, 318, 243 Cal.Rptr. 369, 748 P.2d 307.)   As noted in In re Lance W. (1985) 37 Cal.3d 873, 886, 210 Cal.Rptr. 631, 694 P.2d 744;  and confirmed in People v. May, supra, 44 Cal.3d at p. 316, 243 Cal.Rptr. 369, 748 P.2d 307, the abrogation of the exclusionary rule of evidence effected by Proposition 8 in no way undermined the federal or state constitutional rights which the exclusionary rule previously was used to enforce.   While the exclusionary rule reflected in Bustamante is no doubt no longer effective, the constitutional right to counsel at preindictment lineups remains viable.   In this instant case we are not faced with any issue of admission or exclusion of evidence obtained in violation of constitutional rights.   This was a situation in which the constitutional privilege was timely asserted and appropriately considered before the questioned evidence was revealed.   Nothing in the new constitutional amendment represented by Proposition 8 was intended, we conclude, to undermine the protection of privileged evidence when the privilege is timely asserted before a forum charged with enforcement of the privilege.

10.   The petition, which is executed by a senior deputy district attorney, alleges among other things that the judge's nondirect communication (through a clerk) concerning access to a file was a “manifestation of his inability to comprehend simple issues of law and procedure.”   Since the judge “stumbled over the easy preliminary issues, he should not be given the responsibility of judging the really difficult issues․  [A]ssuming bad faith, one may reasonably conclude [the judge] acted with commonplace but reprehensible motives ․ indulged a desire for petty harassment ․ born of personal animosity ․ or personal bias․  He may have sought petty revenge․”  He may have intended “to frustrate review entirely[ ] [so that] ․ his conduct in this matter might escape appellate scrutiny.”

FROEHLICH, Associate Justice.

KREMER, P.J., and NARES, J., concur.