MEEKS v. PEOPLE (1991)

In this proceeding we consider a challenge to the “reciprocal discovery” provisions of Proposition 115, an initiative measure adopted at the June 5, 1990, Primary Election.   The initiative measure, entitled the “Crime Victims Justice Reform Act” (Prop. 115, § 1, subd. (d)), enacts “comprehensive reforms ․ needed in order to restore balance and fairness to our criminal justice system.”  (Id. subd. (a).)

At issue here is that part of Proposition 115 which, through statutory and constitutional changes, establishes a procedure for reciprocal discovery in criminal actions.   Proposition 115 adds to article I of the state Constitution section 30, subdivision (c) of which provides “discovery in criminal cases shall be reciprocal in nature” as prescribed by statute.   Proposition 115 also adds a chapter to the Penal Code (§ 1054 et seq.) which details the materials and information the prosecution and defense must jointly disclose, such as the names, addresses and statements of intended witnesses.

Petitioner Delbert Meeks (defendant) was charged by information in August 1990 with robbery (Pen.Code, § 211;  hereafter all statutory references to an undesignated code are to the Penal Code).   Thereafter, the People moved in respondent court for discovery seeking, inter alia, the names and addresses, as well as relevant written and recorded statements, of any witnesses defendant intended to call at trial.  (See § 1054.3, subds. (a), (b).)   Defendant opposed the motion, asserting the requirement that he provide such discovery violates both the state and federal constitutions.   Following hearing and argument, respondent court granted the People's motion for discovery.

Defendant petitions this court for a writ of prohibition to restrain enforcement of respondent court's order.   We issued an alternative writ and stayed the trial in order to consider defendant's numerous contentions challenging the reciprocal discovery scheme as enacted by Proposition 115.   Defendant contends the scheme (1) violates the state constitutional privilege against self-incrimination as interpreted by the California Supreme Court;  (2) deprives him of due process of law;  (3) and is unconstitutional on its face in that the requirement to disclose names, addresses and statements of intended witnesses violates (a) the Fifth Amendment privilege against self-incrimination;  (b) the Sixth Amendment right to effective assistance of counsel;  and (c) the work-product rule and attorney-client privilege.

We shall reject each of defendant's contentions.   Decisional authority holding compelled discovery from a criminal defendant violative of the state Constitution has been supplanted by Proposition 115 and is no longer controlling.   Moreover, the statutory scheme for reciprocal discovery is not unconstitutional on its face and defendant raises no fact-specific claim with regard to the ordered discovery.   Accordingly, we shall deny the writ.

I

The first California decision to authorize discovery from a criminal defendant was Jones v. Superior Court (1962) 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919.   On the date set for a rape trial, Jones moved for a continuance supported by an affidavit in which he claimed he was impotent and needed time to gather medical evidence.   The People moved for discovery requesting, inter alia, the names and reports of all expert witnesses whom the defense intended to call at trial.   The trial court granted the motion and defendant sought a writ of prohibition.  (Id. at pp. 57–58, 22 Cal.Rptr. 879, 372 P.2d 919.)

Writing for the majority, Justice Traynor recognized “[d]iscovery is designed to ascertain the truth,” the denial of reciprocal discovery rights to the prosecution “would unduly shift to the defendant's side a balance of advantages already heavily weighed in [defendant's] favor ․,” and pretrial discovery rights bestowed on both the prosecution and the defense “promote the orderly ascertainment of the truth.”  (58 Cal.2d at pp. 58–60, 22 Cal.Rptr. 879, 372 P.2d 919.)   The Supreme Court affirmed the trial court's order to the extent it granted pretrial discovery of identities and reports of expert witnesses defendant intended to produce at trial.  (Id. at pp. 61–62, 22 Cal.Rptr. 879, 372 P.2d 919.)

The Jones court rejected defendant's claims the discovery order violated his constitutional privilege against self-incrimination and the attorney-client privilege:  “Insofar as the trial court's order herein requires petitioner to reveal the names and addresses of witnesses he intends to call and to produce reports and X-rays he intends to introduce in evidence ․ it does not violate the privilege against self-incrimination.   Nor to this extent does it violate the attorney-client privilege.   It simply requires petitioner to disclose information that he will shortly reveal anyway.   Such information is discoverable.”  (Id. at pp. 60–62, 22 Cal.Rptr. 879, 372 P.2d 919.)

Jones is significant for two reasons.   First, the “accelerated disclosure” rationale in Jones was later adopted by the United States Supreme Court as a basis for upholding a Florida statute allowing the prosecution pretrial discovery from the defense.   Second, Jones was one of the earliest decisions recognizing criminal discovery should be reciprocal, i.e., more than a “one-way street.”  (Jones, supra, 58 Cal.2d at p. 60, 22 Cal.Rptr. 879, 372 P.2d 919.) ¹

Following Jones, numerous California cases established a broad principle of reciprocity in criminal discovery, leading to routine and wide-ranging discovery orders directed to defendants.  (E.g., People v. Pike (1969) 71 Cal.2d 595, 605, 78 Cal.Rptr. 672, 455 P.2d 776;  Ruiz v. Superior Court (1969) 275 Cal.App.2d 633, 634–635, 80 Cal.Rptr. 523;  McGuire v. Superior Court (1969) 274 Cal.App.2d 583, 594, 79 Cal.Rptr. 155;  People v. Dugas (1966) 242 Cal.App.2d 244, 51 Cal.Rptr. 478;  all of which were disapproved in Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 327, fn. 11, 85 Cal.Rptr. 129, 466 P.2d 673.)   In Pike, supra, the court affirmed a discovery order which required defense disclosure of names, addresses, and “expected testimony” of defense witnesses.  (71 Cal.2d at p. 605, 78 Cal.Rptr. 672, 455 P.2d 776.)

The first serious retrenchment in the People's right to discovery occurred in Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673.   The discovery order in Prudhomme, like that in Pike, required that defendant disclose the names, addresses and “expected testimony” of those witnesses defendant intended to call at her murder trial.   Examining “more thoroughly the policies involved” (In re Misener (1985) 38 Cal.3d 543, 548, 213 Cal.Rptr. 569, 698 P.2d 637), and recognizing a tension between truth-seeking goals and constitutional fairness to criminal defendants, the Prudhomme court held the order was overbroad and violative of the petitioner's constitutional right against self-incrimination.  (2 Cal.3d at pp. 325–326, 85 Cal.Rptr. 129, 466 P.2d 673.)

The Prudhomme court articulated a new test for prosecutorial discovery:  “[T]he principal element in determining whether a particular demand for discovery should be allowed is not simply whether the information sought pertains to an ‘affirmative defense,’ or whether defendant intends to introduce or rely upon the evidence at trial, but whether disclosure thereof conceivably might lighten the prosecution's burden of proving its case in chief.”  (Id. at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673.)

The court further held the privilege against self-incrimination forbids any compelled disclosure which could serve as a “ ‘link in a chain’ ” of evidence tending to establish guilt of a criminal offense.  (Ibid.)  Applying this test, the Prudhomme court could not say it “clearly appeared” prosecutorial discovery of the names, addresses, and expected testimony of defense witnesses could not “possibly intend to incriminate” the defendant.  (Ibid.) ²

At about the same time the California Supreme Court was reining in the People's right to discovery, the United States Supreme Court was expanding that right.   Three months after Prudhomme, the United States Supreme Court decided Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446.  Williams held a Florida statute requiring that defendant give pretrial notice of an alibi defense, including the names and addresses of alibi witnesses, did not violate defendant's Fifth Amendment privilege against self-incrimination.   Adopting an “accelerated disclosure” analysis similar to that employed in Jones v. Superior Court, supra, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919, the Court concluded the defendant was only being asked to disclose evidence he intended to produce at trial:  “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, supra, 399 U.S. at p. 85, 90 S.Ct. at p. 1898, 26 L.Ed.2d at p. 452.)   The Court continued:  “Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself.”  (Ibid.)

In Wardius v. Oregon (1973) 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, the Court found no violation of the Fifth Amendment privilege against self-incrimination in Oregon's notice-of-alibi statute, although it did find the statute violated defendant's due process rights because it did not provide reciprocal discovery for the defense.  (Id. at pp. 475–476, 93 S.Ct. at pp. 2212–2213, 37 L.Ed.2d at pp. 87–88.)   Yet, the Court reaffirmed its commitment to expanded discovery in criminal proceedings:  “Notice-of-alibi rules, now in use in a large and growing number of States, are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial.   [Citations.]  The growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system․  [N]othing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals.  ‘The adversary system of trial is hardly an end in itself;  it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.   We find ample room in that system, at least as far as “due process” is concerned, for [a rule] which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.’ ”  (Fn. omitted;  Wardius, supra, at pp. 473–474, 93 S.Ct. at pp. 2211–2212, 37 L.Ed.2d at pp. 86–87 quoting Williams.)

Notwithstanding the calls in both Williams and Wardius for states to experiment with liberal discovery processes, the California Supreme Court continued its retreat from Jones.   In Reynolds v. Superior Court (1974) 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45, the court made it clear Prudhomme did not rest on federal law:  “While Williams, [supra, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446] may have laid to rest the contention that notice-of-alibi procedures are inconsistent with the federally guaranteed privilege against self-incrimination, this privilege is also secured to the people of California by our state Constitution, whose construction is left to this court, informed but untrammelled by the United States Supreme Court's reading of parallel federal provisions․  [I]t cannot be gainsaid that Prudhomme put this court on record as being considerably more solicitous of the privilege against self-incrimination than federal law currently requires.”  (Fn. omitted;  Reynolds, supra, 12 Cal.3d at pp. 842–843, 117 Cal.Rptr. 437, 528 P.2d 45.)   The Reynolds court held due process was violated by an order the defense afford the People at least three days notice of any alibi witnesses to be called at trial and to give the prosecution the names, addresses and telephone numbers of those witnesses.   The court found the order unconstitutional under Wardius because it did not provide reciprocal rights to the defense.  (Id. at pp. 844–845, 117 Cal.Rptr. 437, 528 P.2d 45.)

One year after Reynolds, the United States Supreme Court again expanded the permissible scope of prosecutorial discovery.   In United States v. Nobles (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141, the court upheld a trial court order compelling defense disclosure of investigator reports of statements taken from prosecution witnesses.   Holding the Fifth Amendment privilege against self-incrimination is personal to the defendant, protecting only against compelled self -incrimination, the court rejected defendant's claim that statements made by third parties to a defense investigator fell within the privilege.  “The fact that these statements of third parties were elicited by a defense investigator on [defendant's] behalf does not convert them into [defendant's] personal communications.   Requiring their production from the investigator therefor would not in any sense compel [defendant] to be a witness against himself or extort communications from him.”  (Nobles, at pp. 233–234, 95 S.Ct. at pp. 2167–2168, 45 L.Ed.2d at pp. 150–151.)

Meanwhile, the California Supreme Court continued to rebuff all efforts to authorize prosecutorial discovery.   In Allen v. Superior Court (1976) 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65, the trial court ordered both the prosecution and the defense to disclose the names of prospective witnesses so the names could be read to potential jurors to ascertain whether they were acquainted with any witnesses.   The trial court intended to enjoin the People from contacting the defense witnesses disclosed.   The Supreme Court issued a writ of prohibition restraining the trial court from enforcing its order because it had failed to “make the careful inquiry ․ mandated in Prudhomme.”  (Id. at p. 526, 134 Cal.Rptr. 774, 557 P.2d 65.)   Citing Nobles and Williams, the court noted “the trend of the federal high court's decisions on questions of compelled defense disclosure to the prosecution is not wholly consistent with our interpretation of the privilege against self-incrimination․”  The Allen court affirmed “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 [of the California Constitution].”  (Id. at pp. 524–525, 134 Cal.Rptr. 774, 557 P.2d 65.)

In People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534, defendant was convicted, inter alia, of attempted first degree murder.   On appeal, the Supreme Court held the trial court erred in granting the prosecutor's discovery motion requesting inspection of defense investigator notes.  (Id. at pp. 56, 61, 177 Cal.Rptr. 458, 634 P.2d 534.)   The court prospectively disapproved any further judicial attempts to frame prosecutorial discovery orders or to compel production of defense evidence absent legislative sanction.   However, while inviting legislative activity in the area, the court warned the Legislature would face “almost insurmountable hurdles” in developing a scheme which could pass constitutional muster.  (Id. at p. 54, 177 Cal.Rptr. 458, 634 P.2d 534.)   Expressing “grave doubts that a valid discovery rule affecting criminal defendants can be devised ․” the court concluded:  “Ours is likely to be the last word on the subject;  for that reason, it should not also be the first.”  (Id. at p. 56, 177 Cal.Rptr. 458, 634 P.2d 534.) ³

The Legislature accepted the court's challenge by enacting section 1102.5, which provided the People could obtain from the defense, following testimony on direct examination of defense witnesses other than defendant, prior statements made by those witnesses.

In a criminal action commenced thereafter, the People moved under newly enacted section 1102.5 to discover prior statements made by a witness for the defense.   Objecting that the statute was unconstitutional, defense counsel refused to comply with a discovery order and was held in contempt.  (In re Misener, supra, 38 Cal.3d 543, 213 Cal.Rptr. 569, 698 P.2d 637.)

In a decision prefigured by Collie, the Supreme Court held section 1102.5 unconstitutional, driving the final nail into the coffin of prosecutorial discovery.   The Misener court found section 1102.5 unconstitutional because it violated that aspect of defendant's privilege against self-incrimination under the California Constitution (art. I, § 15) requiring the prosecution to carry the entire burden of proving defendant's guilt.   The court held defendant could not be compelled to supply the prosecution with evidence that could impeach his defense witnesses and thereby tend to incriminate him.   In so holding, the Misener court rejected “ ‘any view that discovery [is a] “two-way street.” ’ ”  (Supra, 38 Cal.3d at p. 551, 213 Cal.Rptr. 569, 698 P.2d 637.)   The court also held that Nobles was not controlling for a number of reasons, the most significant being that Prudhomme and its progeny rested entirely on state, and not federal, constitutional grounds.  (Id. 38 Cal.3d at p. 558, 213 Cal.Rptr. 569, 698 P.2d 637.) ⁴

II

It is against this background that we now consider the provisions for reciprocal discovery set forth in section 1054 et seq. Section 1054 states:  “This chapter shall be interpreted to give effect to all of the following purposes:  [¶] (a) To promote the ascertainment of truth in trials by requiring timely pretrial discovery.  [¶] (b) To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested.  [¶] (c) To save court time in trial and avoid the necessity for frequent interruptions and postponements.  [¶] (d) To protect victims and witnesses from danger, harassment, and undue delay of the proceedings.  [¶] (e) To provide that no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.”

In order to facilitate these purposes, the statutory scheme contains a number of provisions sanctioning reciprocal discovery in criminal cases.  (See, §§ 1054.1–1054.7.)   In general, these sections require disclosure by the prosecution (§ 1054.1) and by the defense (§ 1054.3);  place a continuing duty to disclose on both the prosecution and the defense (§ 1054.7);  delineate those materials not subject to disclosure (§ 1054.6);  provide for protective orders (§ 1054.7);  and authorize sanctions to enforce compliance (§ 1054.5, subd. (b)).

In respect to reciprocity, the statute sets forth almost mirror-image sets of disclosure duties, with any asymmetry favoring the defense.   Both the prosecution and the defense must disclose the names and addresses of persons whom they intend to call as witnesses at trial—except the defense need not disclose whether defendant is among such persons—together with any relevant written or recorded statements of those persons—again with the exception the prosecution must, but the defense need not, disclose statements of the defendant.  (§§ 1054.1, 1054.3.)   While the prosecution must disclose all “relevant real evidence seized or obtained as part of the investigation of the offenses charged” (§ 1054.1, subd. (c)), the defense need only disclose any real evidence it “intends to offer” in evidence at trial.  (§ 1054.3, subd. (b).)

The statutory scheme requires that both sides provide the required discovery at least 30 days prior to trial.  (§ 1054.7.)   Section 1054.7 further provides, however, that if the name of a witness becomes known to, or comes into possession of, either the prosecution or the defense within 30 days of trial, disclosure must be made immediately.

Finally, the mechanism for enforcement of the discovery provisions applies equally to both parties (§ 1054.5) and neither party is required to disclose work-product or privileged information (§ 1054.6).   In no instance is the prosecution authorized to obtain discovery not also granted to the defense.

III

 Proposition 115 also included several amendments to the state Constitution (see Raven v. Deukmejian (1990) 52 Cal.3d 336, 342–343, 276 Cal.Rptr. 326, 801 P.2d 1077), of which two are relevant to this proceeding.   Section 24 of article I was amended to provide in pertinent part:  “[T]he rights of a defendant ․ to due process of law ․ [and] to not be compelled to be a witness against himself or herself ․ shall be construed by the courts of this state in a manner consistent with the Constitution of the United States.”  (Prop. 115, § 3.)   Another amendment added to article I section 30.   Subdivision (c) of section 30 states that “[i]n order to provide for fair and speedy trials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the people through the initiative process.”  (Prop. 115, § 5.)

The amendment to section 24 of article I purported to eliminate state constitutional grounds as a basis for deciding due process and self-incrimination claims of criminal defendants.   It undertook to displace Prudhomme and its progeny as the constitutional rule of decision in this state.   Speaking of that amendment, the state Supreme Court recently held that it contemplates “such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.”  (Raven v. Deukmejian, supra, 52 Cal.3d at pp. 341, 352–355, 276 Cal.Rptr. 326, 801 P.2d 1077.)   On that basis, the Raven court invalidated the amendment to section 24 of article I but concluded the remaining sections of Proposition 115 were “severable and properly may be given effect.”  (Id. at p. 341, 276 Cal.Rptr. 326, 801 P.2d 1077.)

We must decide whether the decision in Raven has revitalized Prudhomme and its progeny “to emerge[ ] phoenix-like from the ashes․”  (Cantor v. Anderson (1981) 126 Cal.App.3d 124, 129, fn. 6, 178 Cal.Rptr. 540.)   Defendant contends that in light of Raven, this court has no alternative but to follow Prudhomme and hold the state Constitution precludes reciprocal discovery in criminal cases.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   The People argue the statutory scheme for reciprocal discovery (§ 1054 et seq.) in conjunction with new section 30 of article I of the state Constitution demonstrates that in adopting Proposition 115 the electorate clearly intended to abrogate Prudhomme and its progeny.   We believe the People have the better argument.

The statutory scheme for reciprocal discovery in criminal cases (§ 1054 et seq.) finds its constitutional underpinning in the newly added article I, section 30, subdivision (c), and is therefore unaffected by the determination in Raven that the amendment to article I, section 24 is invalid.   (Uelmen, The California Constitution after Proposition 115 (Vol. 3, 1990) Emerging Issues in State Constitutional Law 33, 40–41.)   The burden of Prudhomme, Misener, etc., was that the state constitutional privilege against self-incrimination precludes criminal discovery from being a two-way street, i.e., reciprocal to the benefit of the prosecution.   Obviously, any constitutional amendment that sanctions reciprocal discovery preempts those contrary decisions of the Supreme Court.   By amending the state Constitution to direct that criminal discovery shall be reciprocal (art. I, § 30, subd. (c)), the electorate intended to overrule those decisions denying prosecutorial discovery on state constitutional grounds in the same way that the amendment to article I, section 28, subdivision (d) (added in 1982 by Proposition 8) eliminated state constitutional grounds as a basis for the exclusion of evidence.  (See In re Lance W. (1985) 37 Cal.3d 873, 885–891, 210 Cal.Rptr. 631, 694 P.2d 744;  see also People v. Frierson (1979) 25 Cal.3d 142, 184–187, 158 Cal.Rptr. 281, 599 P.2d 587.)

Not only did Proposition 115 amend the Constitution to preempt Prudhomme and its progeny, it promulgated a statutory scheme to implement reciprocal discovery, and provided that discovery in criminal cases shall occur only as directed by statute or as mandated by the federal Constitution.  (§ 1054, subd. (e).)  Giving effect as we must to the “ ‘most precious right [ ]’ ” of the voters to effectuate change via the initiative process (Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274, quoting Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248, 149 Cal.Rptr. 239, 583 P.2d 1281), we hold that to the extent Prudhomme and its progeny impede reciprocal discovery they have been abrogated by article I, section 30 of the Constitution.

IV

 Defendant acknowledges that the statutory scheme for discovery set forth in section 1054 et seq. is symmetrical, but contends the scheme nonetheless deprives him of due process because, he asserts, symmetry does not equal reciprocity.   Defendant notes the United States Supreme Court has held that in order for criminal discovery statutes to be constitutional, such statutes must provide true reciprocity.   Noting that section 1054.3, subdivision (a) requires that the defendant provide timely disclosure of those whom he intends to call as witnesses at trial, defendant cites the failure of the statutory scheme to require the prosecution to disclose in a timely fashion those witnesses it intends to call in rebuttal as violating the requirement of reciprocity.

In support of this claim, defendant cites Wardius v. Oregon, supra, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82.   In Wardius, the Supreme Court held a statute affording discovery to the People would be constitutional only if it provided reciprocal rights to the defense and the respective positions of the accuser and the accused were balanced.   The Wardius court struck down an Oregon statute which compelled the defense to provide the prosecution with notice of intent to rely on an alibi defense at trial but which did not require the prosecution to provide the names and addresses of rebuttal witnesses.  (At pp. 475–478, 93 S.Ct. at pp. 2212–2214, 37 L.Ed.2d at pp. 88–90.)  “[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street.   The State may not insist that trials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses.   It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.”  (Fn. omitted;  Wardius, at pp. 475–476, 93 S.Ct. at pp. 2212–2213, 37 L.Ed.2d at p. 88;  see also State ex rel. Keller v. Criminal Ct. of Marion Cty. (1974) 262 Ind. 420, 317 N.E.2d 433, 438, hereafter cited as Keller.)

Defendant's claim the instant statutory scheme does not afford true reciprocity and thus runs afoul of the Constitution is belied by section 1054.1, the wording of which could not be more clear:  the prosecution must disclose to the defense “the names and addresses of persons the prosecutor intends to call as witnesses at trial.”  (§ 1054.1, subd. (a).)  This section does not distinguish witnesses in the case in chief from rebuttal witnesses.   It can only be interpreted to require the prosecution to disclose to the defense not only those witnesses the prosecution intends to call in the case-in-chief, but also those witnesses to be called to rebut, refute or impeach defense witnesses or evidence.   The fear expressed by defendant that the statute does not require the People to disclose rebuttal witnesses is unfounded.  (Cf. State v. Dist. Ct. of Thirteenth Jud. D. [Carkulis] (1987) 229 Mont. 265, 746 P.2d 604, 613, hereafter cited as Carkulis;  State v. Frye (1978) 34 Or.App. 871, 581 P.2d 528, 530.) ⁵

Defendant argues that in certain instances the prosecution will not know who its rebuttal witnesses will be until after the defense has presented its case.   Defendant asserts he would then be in a position of having been forced into pretrial disclosure of his witnesses without being informed of the prosecution's rebuttal witnesses until after the defense has rested.   What defendant fails to acknowledge, however, is that the defense may not know all the witnesses it will call until after the prosecution has rested its case.   In either situation, no real advantage is gained by either side.   However, it can ordinarily be anticipated that once the defense has provided the names and statements of witnesses it intends to call, the prosecution will be able timely to provide the names and statements of its rebuttal witnesses.   Moreover, Williams (supra, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446) makes clear “that not every burden on the Fifth Amendment right and not every pressure against its exercise violates the Constitution․”  (Mosteller, Discovery Against the Defense:  Tilting the Adversarial Balance (July–Dec. 1986) 74 Cal.L.Rev. 1567, 1591, fn. 82.)   That on occasion certain witnesses will not be discovered until after trial has commenced in and of itself involves no constitutional infirmity.

Defendant asserts there is no guarantee of good faith on the part of the People with regard to timely disclosure of rebuttal witnesses.   Yet the People's obligation to provide timely discovery is no less demanding under the provisions of section 1054 et seq. than it was prior to the adoption of those statutory provisions for reciprocal discovery.⁶  The only difference imposed by the statutory scheme is that the duty of good faith disclosure now falls on both the People and the defense.

Finally, section 1054.5, subdivision (b) contains a nonexclusive menu of sanctions which the trial court may impose where there has been a lack of good faith on the part of the prosecution or, for that matter, the defense in respect to providing the discovery.

V

 Defendant next focuses on the provisions of section 1054.1, subdivision (e), which impose on the prosecution a duty to disclose to the defense “[a]ny exculpatory evidence.”   Relying on Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218, defendant contends the People constitutionally are required to disclose to the defense all evidence that is favorable to the accused and “material either to guilt or to punishment,” as well as impeachment evidence that might attain a different result.  (See United States v. Bagley (1985) 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481, 490.)   Defendant argues a statutory scheme which limits a prosecutor's duty to disclose only that evidence which is “exculpatory” violates wider guarantees afforded criminal defendants under the federal Constitution.

Defendant's claim fails for two reasons.   First, defendant imposes a tendentiously narrow construction on the definition of exculpatory evidence.   Exculpatory evidence includes not only those matters affecting guilt or innocence, but also includes impeachment evidence, i.e., any evidence that might excuse or mitigate a defendant's conduct.  (See Webster's Third New International Dictionary (1971) p. 794.)   Second, we are required to read the statutory scheme as a whole, and in light of its adoption as an initiative measure, to construe it liberally.  (See Brosnahan v. Brown, supra, 32 Cal.3d at p. 241, 186 Cal.Rptr. 30, 651 P.2d 274.)   While section 1054.1, subdivision (e), requires a prosecutor to disclose any exculpatory evidence, section 1054, subdivision (e) recognizes the constitutional imperative that discovery be afforded “in criminal cases ․ as mandated by the [federal] Constitution․”  To the extent Brady interprets the federal Constitution as requiring the prosecution to provide to the defense any evidence or information relating to guilt, impeachment or punishment, the instant statutory scheme places on the prosecution an identical obligation.  (Cf. State v. Frye, supra, 581 P.2d at p. 530.)

VI

 Defendant argues due process requires the duty to disclose be imposed on the government as a whole rather than on the prosecuting attorney alone.   Defendant notes section 1054.1 is narrowly drawn to require disclosure only of information (1) in the possession of a prosecuting attorney or (2) which the prosecutor knows to be in the possession of an investigating agency.   Defendant claims the statutory scheme encourages investigating agencies to withhold from the prosecutor favorable defense evidence lest such evidence be disclosed to the defense.

Defendant again fails to consider the provisions of section 1054, subdivision (e).   As we have noted, this section requires that discovery be provided as mandated by the federal Constitution.   Although the United States Supreme Court has rejected the notion that a prosecutor has a constitutional duty to deliver his file to defense counsel (United States v. Agurs (1976) 427 U.S. 97, 111–112, 96 S.Ct. 2392, 2401–2402, 49 L.Ed.2d 342, 354), or even to make a complete accounting to the defense of all police investigatory work on a case (Moore v. Illinois (1972) 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706, 713), the Court has held a prosecutor has a responsibility to insure that evidence material to guilt or punishment in the hands of investigating agencies be brought forth and disclosed to the defense.  (See Giglio v. United States (1972) 405 U.S. 150, 153–155, 92 S.Ct. 763, 765–766, 31 L.Ed.2d 104, 108–109;  Brady, supra, 373 U.S. at p. 87, 83 S.Ct. at p. 1196, 10 L.Ed.2d at p. 218.)   Thus, to the extent the federal Constitution has been construed to place upon the prosecution a burden to disclose to the defense all evidence material to guilt or punishment—even where such evidence or information is only within the constructive knowledge of the prosecutor (see ibid.)—it is clear the People may not avoid or evade that responsibility by any sort of literal reliance on the provisions of section 1054.1, subdivision (e).⁷

VII

 Defendant contends the statutory scheme for reciprocal discovery violates his Fifth Amendment privilege against self-incrimination.   Defendant first argues section 1054.3, which requires that he disclose the names, addresses and statements of those witnesses he intends to call at trial, is overbroad.   Defendant asserts the statutory scheme exceeds that approved by the United States Supreme Court in Williams (supra, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446), where only alibi witnesses were at issue.

Defendant relies principally on Prudhomme (2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673), which held this state's constitutional privilege against self-incrimination forbids any compelled disclosure that might lighten the prosecutor's burden or otherwise serve as a link in the chain of evidence tending to establish guilt of the defendant.   As we stated, supra, Prudhomme and its progeny are no longer controlling, having been supplanted by the constitutional amendment calling for reciprocal discovery (Cal. Const., art. I, § 30, subd. (c)), a statutory scheme implementing that call (§ 1054 et seq.), and a requirement that discovery in this state shall be afforded only as permitted by statute or when mandated by the federal Constitution.  (§ 1054, subd. (e).)

The requirement that defendant disclose names and addresses of intended witnesses (§ 1054.3, subd. (a)) does not violate his federal constitutional privilege against self-incrimination.  “[A] defendant is not testifying when he gives the names of witnesses who [will] testify.   There is no constitutional provision against compelling witnesses in general to testify.   When we consider that it is well-established that the State has a right to fingerprint the defendant, to photograph him, to examine him physically, to take samples of blood, hair and other like materials from his body, and to secure samples of his handwriting, it can scarcely be argued that to ask for a list of witnesses he [intends] to produce at the trial is an invasion of his constitutional right against self-incrimination.”  (Keller, supra, 317 N.E.2d at pp. 437–438.)   Where a prosecutorial discovery rule is limited to intended evidence, it operates only after the defendant has made a tactical selection of his defense.  “Thus, there is arguably no more compulsion to speak than that inherent in the trial process.”  (Fn. omitted, Blumenson, Constitutional Limitations on Prosecutorial Discovery (1983) 18 Harv.C.R.–C.L.L.Rev. 123, 143, hereafter cited as Blumenson.)

Section 1054.3, subdivision (a), which requires defendant to provide discovery of those witnesses he intends to call at trial, does nothing more than regulate the timing of such disclosures.  (Keller, supra, 317 N.E.2d at p. 437.)   It does not eliminate the requirement that the People prove their case beyond a reasonable doubt nor does it shift the burden of proof.   (Ibid.)  The People must still prove to the trier of fact each and every element of the crime charged.  (Ibid.)  And, by its terms, section 1054.3 provides the defense need not reveal whether defendant himself will take the stand;  thus, the duty to disclose is not self-incriminatory as to the defendant.  (Carkulis, supra, 746 P.2d at p. 609.)

Section 1054.3, subdivision (a) requires only that the defense disclose the names of those witnesses other than defendant it intends to call at trial.   With respect to these witnesses, their names would in any event be revealed at trial.   The “[accelerated disclosure] rationale developed in Williams ․ and Jones ․ sustains the facial constitutionality of the [section].”   (Carkulis, supra, 746 P.2d at p. 609;  People v. District Court In & For County of Larimer (1975) 187 Colo. 333, 531 P.2d 626, 631, hereafter cited as Larimer.)

Defendant is correct in noting the instant statutory scheme is broader than that approved in Williams, supra, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, in that the statute at issue in Williams required only the disclosure of alibi witnesses while section 1054.3 requires defendant to disclose the names of any witnesses he intends to call at trial.   Defendant suggests no compelling reason, however, to distinguish the alibi statute at issue in Williams and section 1054.3.   Both sections address the timing of the disclosure;  thus, “[w]hat was said in Williams with respect to alibi-witnesses is applicable to witnesses in general.”  (Keller, supra, 317 N.E.2d at pp. 437–438;  Larimer, supra, 531 P.2d at p. 631.)  “The nature of our adversary system of justice is such that in the course of trial, a defendant voluntarily divulges the information sought at the time of trial, and for that reason alone, it is proper and reasonable to allow the [People] to have advance access to it.”  (Larimer, supra, 531 P.2d at p. 629.)

The primary goal of pretrial criminal discovery is to promote the search for truth.  (Jones v. Superior Court, supra, 58 Cal.2d at p. 58, 22 Cal.Rptr. 879, 372 P.2d 919;  People v. Rayford (1976) 43 Ill.App.3d 283, 1 Ill.Dec. 941, 944, 356 N.E.2d 1274, 1277.) ⁸  Thus, defendant's attempt to compare section 1054.3 with the alibi statute presented in Williams misses the point.  “Discovery, like cross-examination, minimizes the risk that a judgment will be predicated on incomplete, misleading or even deliberately fabricated testimony.   The ‘State's interest in protecting itself against an eleventh-hour defense’ is merely one component of the broader public interest in a full and truthful disclosure of critical facts.”  (Fn. omitted;  Taylor v. Illinois (1988) 484 U.S. 400, 411–412, 108 S.Ct. 646, 653–654, 98 L.Ed.2d 798, 812, quoting Williams, supra, 399 U.S. at p. 81, 90 S.Ct. at p. 1895, 26 L.Ed.2d at p. 450.)   It is the rationale of Williams that is at issue, and that rationale—that pretrial disclosure of alibi witnesses does not infringe on a defendant's right against self-incrimination—applies equally to a compelled disclosure of more general information.  (State v. Nelson (1975) 14 Wash.App. 658, 545 P.2d 36, 39–40;  see also Com. v. Donovan (Ky.1980) 610 S.W.2d 601, 601–602.)

 Defendant asserts that compelled disclosure of witnesses 30 days before trial will result in forcing him to decide a defense strategy before he has had an adequate opportunity to evaluate the prosecution's case and make an effective decision on trial strategy.   Defendant analogizes his perceived dilemma to that of the defendant in Brooks v. Tennessee (1972) 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358, where the Court held a statute requiring defendant to testify first for the defense or otherwise forego his right to testify violated the privilege against self-incrimination by forcing defendant into making an uninformed choice.  (Id. at pp. 609–612, 92 S.Ct. at pp. 1893–1895, 32 L.Ed.2d at pp. 362–363.)   Defendant argues if he can constitutionally wait until the end of his case-in-chief to decide whether to testify, he cannot be forced to select his witnesses 30 days before trial.

The statutory scheme compels no such decision.   A defendant need only disclose 30 days before trial or, immediately if within 30 days of trial, the names of any witnesses defendant intends to call at trial.  (§§ 1054.3, subd. (a), 1054.7.)   Obviously, at some point defendant must either fish or cut bait and settle upon a strategy.   To the extent defendant's chosen strategy requires the presentation of witnesses, he must disclose them and provide the People with their statements.

We reiterate there is nothing in the statutory scheme that requires a defendant to map out his strategy 30 days or more before trial or which prohibits defendant from responding in good faith to a request for disclosure that the defense has not yet decided which witnesses to call at trial.  (See §§ 1054.3, 1054.5, 1054.7.)   Here, however, defendant makes no claim that he is resisting the People's motion for discovery on the basis the defense has not yet decided on the witnesses it intends to call at trial.   Equally important, the question of good faith is one addressed in the first instance to the sound discretion of the trial court.   Any such claim is necessarily case-specific and is not implicated in the challenge here to the facial constitutionality of the statutory scheme.

Defendant incorrectly asserts the instant statutory scheme cannot be distinguished from the statute struck down in Brooks v. Tennessee, supra, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358.   The statute at issue in Brooks accelerated the timing of defendant's decision whether to waive his privilege against self-incrimination and thus unconstitutionally pressured defendant to take the stand by compelling him either to testify in the defense case first or not at all.   While section 1054.3 requires defendant to disclose the names of witnesses he intends to call at trial, it does not require defendant to disclose whether he will take the stand.   Nothing in section 1054.3 precludes a defendant from waiting to the end of his case to decide whether to testify.   Instead, the section requires only that a defendant who knows which witnesses he intends to call at trial reveal the names of those witnesses other than himself, and thus does nothing more than advance the timing of a disclosure defendant already intends to reveal at trial.  (See Williams, supra, 399 U.S. at p. 85, 90 S.Ct. at p. 1898, 26 L.Ed.2d at p. 452;  see also Blumenson, supra, at p. 148.)

VIII

 Although our discussion of defendant's Fifth Amendment claims has to this point addressed only that part of section 1054.3 which requires defendant to disclose the names and addresses of witnesses he intends to call at trial, we note the section also requires that defendant disclose any statements made by those witnesses.   Defendant makes numerous arguments that compelled, pretrial disclosure of witness statements violates the Fifth Amendment privilege against self-incrimination.

Defendant first notes the United States Supreme Court has never addressed the question of compelled, pretrial disclosure of defense witness statements.   Defendant argues the provisions of section 1054.3, subdivision (a) requiring such disclosure are overbroad.

In United States v. Nobles, supra, the defense proposed to call its investigator to challenge the validity of the identification of defendant by the People's eyewitnesses.   Before allowing such testimony, the trial court directed the defense to turn over to the People the investigator's written report detailing his interviews of the witnesses.   The trial court proposed to examine the report in camera and stated it would excise all references to matters not relevant to the witness's direct testimony.   When the defense refused to turn over the report, the trial court entered an order precluding the investigator from testifying.   The Nobles court upheld the order, concluding “the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial.”   (422 U.S. at pp. 228–229, 234, 95 S.Ct. at pp. 2165–2166, 2168, 45 L.Ed.2d at pp. 147–148, 151.)

While defendant is correct in noting Nobles did not involve pretrial disclosure of the statements of intended defense witnesses, the rationale of both Nobles and Williams applies equally to such a situation.  Nobles holds the privilege against self-incrimination, being personal to the defendant, does not extend to statements of third parties.  Williams holds a defendant has no constitutional right to withhold disclosure of nonprivileged information until defendant's case-in-chief:  “Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense․  [¶] Petitioner concedes that absent the notice-of-alibi rule the Constitution would raise no bar to the court's granting the State a continuance at trial on the ground of surprise as soon as the alibi witness is called.   Nor would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial:  take the deposition of the witness and find rebuttal evidence.   But if so utilizing a continuance is permissible under the Fifth and Fourteenth Amendments, then surely the same result may be accomplished through pretrial discovery․”  (Fn. omitted;  399 U.S. at pp. 85–86, 90 S.Ct. at p. 1898, 26 L.Ed.2d at p. 452.)

The “accelerated disclosure” rationale of Williams applies equally to such nonprivileged information as the statements of third parties the defense intends to call as witnesses at trial.  (See Carkulis, supra, 746 P.2d at p. 611;  State v. Hardin (Mo.App.1977) 558 S.W.2d 804, 807;  State v. Nelson, supra, 545 P.2d at pp. 38–40.)  “[I]f the production does not involve defendant's own communication ․ the privilege would not apply no matter when disclosure is required.”  (2 LaFave & Israel, Criminal Procedure (1984) § 19.4(g), pp. 522–523.)

 Defendant claims there is a fatal flaw in the statutory scheme in that it places no restriction on how the People may use the discovery required of defendant.   Defendant argues “[e]arly disclosure gives the prosecution not just time to prepare for trial, but time to conduct intensive investigation based on what they have received from the defense, investigation that might assist [the People] in preparing their case-in-chief.   The defendant is unconstitutionally compelled to participate in preparing the case against himself.”

We reject defendant's argument for two reasons.   First, because defendant is required to disclose only the statements of witnesses defendant intends to call at trial and not any statements of his own, it can in no sense be said defendant is being compelled to produce any information which violates his Fifth Amendment privilege against self-incrimination.  (See United States v. Nobles, supra, 422 U.S. at pp. 233–234, 95 S.Ct. at pp. 2167–2168, 45 L.Ed.2d at pp. 150–151;  Carkulis, supra, 746 P.2d at p. 611;  2 LaFave & Israel, supra, § 19.4(g), p. 523.)  “[T]he Court has never on any ground ․ applied the Fifth Amendment to prevent the otherwise proper acquisition of evidence which, in the Court's view, did not involve compelled testimonial self-incrimination of some sort.”  (Fn. omitted;  Fisher v. United States (1976) 425 U.S. 391, 399, 96 S.Ct. 1569, 1575, 48 L.Ed.2d 39, 49.)

Second, pretrial discovery enhances “full and truthful disclosure” of all the critical facts and eliminates surprise as a trial tactic.  (Taylor v. Illinois, supra, 484 U.S. at p. 412, 108 S.Ct. at p. 654, 98 L.Ed.2d at p. 812;  see People v. Rayford, supra, 1 Ill.Dec. at p. 944, 356 N.E.2d at p. 1277.)   Indeed, the essence of Williams and the prosecutorial discovery provision it upheld are rooted in the conception of the criminal trial as a mechanism for determining truth.  (Williams, supra, 399 U.S. at pp. 81–82, 90 S.Ct. at pp. 1895–1896, 26 L.Ed.2d at p. 450;  Blumenson, supra, p. 131.)   This goal is best served by insuring that both the defendant and the People have ample opportunity to investigate all nonprivileged facts crucial to the determination of guilt or innocence.  (Williams, supra, 399 U.S. at p. 82, 90 S.Ct. at p. 1896, 26 L.Ed.2d at p. 450;  see also People v. Boclair (1987) 119 Ill.2d 368, 116 Ill.Dec. 545, 547, 519 N.E.2d 437, 439.)

 Defendant contends the statutory scheme fails to contain provisions which safeguard the compelled disclosure of privileged information.   As an example, defendant cites the situation where the statements by one whom defendant intends to call as a witness are inextricably intertwined with comments by the defendant himself.   In this situation, argues defendant, compelled disclosure would violate his Fifth Amendment privilege against self-incrimination.   But, suggests defendant, “California's statutory plan for [reciprocal] discovery contains no procedural means [for] the defense to raise potential self-incrimination or other constitutional issues.   There is no provision for in camera review by the court to consider defense counsel's claim of privilege.”

Section 1054.7 provides that disclosure shall be made unless good cause is shown why disclosure should be denied, limits “good cause” to “threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement ․” and permits a showing of good cause for denying disclosure to be made in camera.   Defendant thus is correct in noting that nothing within this section suggests “good cause” for refusing disclosure may be based on a claim of privilege, and the section makes no provision for in camera review of such a claim.

Nonetheless, other provisions in the statutory scheme adequately safeguard defendant's privilege against self-incrimination.   Section 1054.6 states unequivocally the defendant is not required to disclose any materials or information “which are work product ․ or which are privileged pursuant to an express statutory privilege, or are privileged as provided by the Constitution of the United States.”   Moreover, section 1054.5, subdivision (b) empowers the trial courts to “make any order necessary to enforce the provisions of this chapter․”  Construed together, these provisions permit in camera review before disclosure and further allow a trial court to impose whatever restrictions it deems warranted in response to genuine defense assertions of privilege.

Finally, we note defendant makes no fact-specific claim that compliance with the instant motion for discovery would require the disclosure of information privileged by the Fifth Amendment.   Having failed to demonstrate an actual threat to the right against self-incrimination attributable to the discovery statute, defendant's generalized constitutional challenge must be rejected.   “ ‘The rule is well-established ․ that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations.’  [Citations.]  Over a century ago the United States Supreme Court stressed the wisdom and necessity for this rule:  ‘Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depend the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail.’  (United States v. Lee (1882) 106 U.S. 196, 217 [27 L.Ed. 171, 181, 1 S.Ct. 240].)”  (People v. Harris (1985) 165 Cal.App.3d 1246, 1268, 212 Cal.Rptr. 216.)

IX

 Defendant argues provisions calling for reciprocal discovery violate his Sixth Amendment right to effective assistance of counsel.   Defendant claims that having to tender to the People the names and statements of prospective witnesses (1) compromises counsel's ability to investigate and prepare a defense, (2) penalizes a defendant whose attorney is vigilant in gathering, documenting, and analyzing evidence, and (3) inhibits the relationship of trust necessary between a defendant and his attorney because whatever defendant tells his attorney will then have to be disclosed to the People.

Defendant exaggerates the effect of the reciprocal discovery scheme on his Sixth Amendment right to counsel.   As we have noted, defendant need disclose only those witnesses (and only the statements of those witnesses) whom defendant intends to produce at trial.   Obviously, these will be witnesses defendant deems essential to the issue of guilt.   It is doubtful that anyone whom counsel deems unhelpful or damaging to the defense would be on defendant's list of witnesses he intends to call at trial.   The identity of such witnesses need not be disclosed.   There is nothing in the statutory scheme which would inhibit counsel from making a full, exhaustive investigation on behalf of his client or which would penalize counsel for having done so.  (State v. Yates (1988) 111 Wash.2d 793, 765 P.2d 291, 295.)

It is possible that on occasion the statement of a witness whom defendant intends to call at trial may include some comment that is not altogether favorable to the defense.   The fact that defendant concludes he must call this witness, and thus is required to disclose the statement to the People, does not violate defendant's right to the effective assistance of counsel.  “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.”  (United States v. Nobles, supra, 422 U.S. at p. 241, 95 S.Ct. at p. 2171, 45 L.Ed.2d at p. 155.)  “We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law.   The need to develop all relevant facts in the adversary system is both fundamental and comprehensive.   The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.”  (United States v. Nixon (1974) 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1064.)

Nor is there any validity to defendant's claim that whatever he tells his attorney will have to be disclosed to the People.   As we shall explain, infra, the statutory scheme fully protects communications between attorney and client from any disclosure requirement.  (See § 1054.6.)

X

 Defendant argues the reciprocal discovery scheme which requires he disclose witness statements violates both the work-product rule and the attorney-client privilege.   An extended discussion of defendant's arguments is unnecessary;  suffice it to say they are unpersuasive.

First, to the extent defendant suggests statements of witnesses taken by counsel or his investigator are protected by the work-product rule, we disagree.   The work-product rule protects from discovery the mental processes of an attorney in the preparation of his client's case.   Verbatim statements of witnesses obtained in preparation for trial do not fall within the scope of protection afforded by the rule.  (See Goldberg v. United States (1976) 425 U.S. 94, 102–108, 96 S.Ct. 1338, 1344–1347, 47 L.Ed.2d 603, 613–615;  see also People v. Lego (1987) 116 Ill.2d 323, 107 Ill.Dec. 647, 652, 507 N.E.2d 800, 805.)

Second, the statutory scheme makes clear that neither the defendant nor the prosecuting attorney is required to disclose any material or information which is protected either by the work-product rule or by statutory or constitutional privilege.  (§ 1054.6.)   Where the defense believes certain matters requested by the People are protected by either the work-product rule or attorney-client privilege, the defense may properly refuse to disclose such matter.   Should the People elect to press the issue, a hearing may be held pursuant to the trial court's authority to “make any order necessary to enforce the provisions of this chapter․”  (§ 1054.5, subd. (b).)  As we noted, supra, this provision allows the hearing to be conducted in camera.   The statutory scheme permits the trial court to exert its judicial authority in a manner that will fully protect a defendant's constitutional and statutory rights.  (Cf. Carkulis, supra, 746 P.2d at p. 614.)

Absent a fact-specific claim that compliance with the discovery order herein would require the disclosure of protected work-product or privileged attorney-client communications, defendant's evocation of hypothetical problems “furnishes an inappropriate basis” to attack the constitutionality of section 1054.6.  (People v. Harris, supra, 165 Cal.App.3d at p. 1268, 212 Cal.Rptr. 216.)

The petition for writ of prohibition is denied.   The alternative writ, having served its purpose, is discharged and the stay previously entered is vacated.

FOOTNOTES

1.   The “street” analogy was elaborated in State v. Boehme (1967) 71 Wash.2d 621, 430 P.2d 527, 534:  “[T]he rules of discovery are designed to enhance the search for truth in both civil and criminal litigation.   And, except where the exchange of information is not otherwise clearly impeded by constitutional limitations or statutory inhibitions, the route of discovery should ordinarily be considered somewhat in the nature of a two-way street, with the trial court regulating traffic over the rough areas in a manner which will insure a fair trial to all concerned, neither according to one party an unfair advantage nor placing the other at a disadvantage.”

2.   In a concurring opinion, Justice Peters took issue with the majority's failure “forthrightly” to overrule Jones and eschew the “two-way street” model for criminal discovery.  (Prudhomme, supra, 2 Cal.3d at p. 328, 85 Cal.Rptr. 129, 466 P.2d 673, conc. opn. of Peters, J.)

3.   Although Justice Richardson concurred in the judgment, he dissented from the majority's “sweeping injunction” against prosecutorial discovery.  (Collie, supra, 30 Cal.3d at p. 65, 177 Cal.Rptr. 458, 634 P.2d 534, conc. and dis. opn. of Richardson, J.)   Citing Nobles, supra, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141, Justice Richardson argued the majority was incorrect in concluding the Fifth Amendment renders criminal discovery “ ‘ “basically a one-way street.” ’ ”  (Collie, supra, 30 Cal.3d at pp. 67–68, 177 Cal.Rptr. 458, 634 P.2d 534.)   He also labeled the majority's absolute prohibition against prosecutorial discovery “․ [in] the absence of enabling legislation ․ [as] an inexplicable rejection of [the court's] inherent power ․ to develop fair and reasonable discovery procedures to assist in the search for the truth․”  (Id. at pp. 65, 67, 177 Cal.Rptr. 458, 634 P.2d 534.)

4.   The dissent spelled out the ramifications of the majority opinion:  “[A]s 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.   The resultant loss from the viewpoint of the administration of justice and the ascertainment of truth is unfortunate indeed.”  (In re Misener, supra, 38 Cal.3d at p. 561, 213 Cal.Rptr. 569, 698 P.2d 637, dissenting opn. of Lucas, J.)

5.   We note also that section 1054.1, subdivision (f) requires the prosecution to disclose, inter alia, “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial․”  We construe this subdivision as applying both to the prosecution's case-in-chief and to its case in rebuttal.

6.   In Arizona v. Youngblood (1988) 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, the Court reaffirmed its previous decisions that a prosecutor is ethically barred from refusing timely discovery and may not in bad faith fail to acquire and disclose evidence favorable to the defense.  (At pp. 55–59, 109 S.Ct. at pp. 336–338, 102 L.Ed.2d at pp. 287–290.)   The instant statutory scheme imposes no lesser duty on the prosecutor.

7.   In his replication, defendant raises an issue with respect to section 1054.1, subdivision (d), which requires the People to disclose “the existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.”   Defendant argues section 1054.1 is constitutionally infirm because (1) a defendant is entitled under Brady v. Maryland, supra, to discover not only whether a witness has been convicted of a crime but also the nature of the offense, and (2) it vests in the prosecution the discretion to control disclosure by determining the witnesses whose credibility is likely to be critical at trial.We note this issue was not raised in respondent court or in defendant's writ petition and is not properly raised for the first time in the replication.  (See 6 Witkin and Epstein, Cal.Criminal Law (2d ed. 1989) § 3322, p. 4112, cf. 9 Witkin, Cal.Procedure (3d ed. 1985) § 496, pp. 484–485.)   In any event, as we have previously noted, to the extent Brady interprets the federal Constitution as mandating prosecution disclosure of any information relevant to guilt or punishment, including evidence that may tend to impeach the People's case, section 1054, subdivision (e) incorporates that mandate.   Finally, whenever the defense wishes to discover whether any of the witnesses listed by the People has been convicted of a felony, the defense may informally request that information from the prosecutor.  (§ 1054.5, subd. (b).)  Should the prosecutor refuse to disclose this information, the defense may then move the trial court for an order to compel disclosure.  (Ibid.)  In the final analysis, it is the trial court, and not the prosecutor, which has discretion to determine whether a prior conviction must be disclosed to the defense.

8.   “In addition to the ascertainment of truth, prosecutorial discovery promotes other state interests.   These interests include expediting cases;  avoiding delay, continuance, and surprise at trial;  encouraging plea bargaining;  and ensuring undistorted factual presentations to the jury.   The efficiency of the criminal justice system flows from the realization of these interests.”  (Comment, Prosecutorial Discovery in California after “People v. Collie”:  The Need for Legislation (1983) 23 Santa Clara L.Rev. 543, 560.)

PUGLIA, Presiding Justice.

SCOTLAND and RAYE, JJ., concur.