We granted certiorari to review the question whether or when the defendant in a
Specifically involved are statements authenticated by rape victims.
The Court of Criminal Appeals, 415 So.2d 1131, found that "[t]hese statements were not used by the victims to refresh their recollections while they were on the witness stand," and concluded that "[t]he trial court correctly ruled that defense counsel was not entitled to inspect and use the statements." The court cited Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973), and Slinker v. State, 344 So.2d 1264 (Ala.Cr.App.1977), in support of its conclusion.
We reverse and remand with directions.
The facts of the case are sufficiently stated in the opinion of the Court of Criminal Appeals, and we do not need to restate them in order to decide the question posed, except to state that petitioner was convicted of the rape of two young women, and he defended against the charges on the ground that the two victims had consented.
The discovery question was presented on the first day of the trial when defense counsel inquired of the prosecutrixes if they had made a statement to the police about the facts of the case. Both had.
The State, in its brief, characterizes the documents sought to be produced as a "police officer's memorandum," which was a part of the State's "work product."
In order to decide the controlling question, we must analyze the nature of the statements and the applicable law governing the discovery of such statements.
As we understand the law, whether production of a particular document can be
The "statements" in this case were in writing, and each witness testified that they signed the statements, thereby authenticating them; therefore, we conclude that the statements were in the "witness's own words," as those terms are used in the cases. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).
As to whether the defendant in a criminal case is entitled to inspect a prosecution witness's statement for purposes of cross-examination or impeachment after the witness has testified on direct examination, the state courts are divided. Anno. Discovery—Impeachment of Witness, 7 A.L.R.3d 181.
Insofar as we can determine this Court has not squarely held that where a prosecution witness has testified on direct examination in the trial of the case, the defendant is not entitled to inspection of a prior statement of the witness for the purpose of cross-examining or impeaching him. The Court of Criminal Appeals has addressed the question in Gillogly v. State, 55 Ala. App. 230, 314 So.2d 304 (1975), a case involving a fact situation which is strikingly similar to the fact situation here presented.
In Gillogly, the prosecution's main witness was an accomplice of the accused. During the cross-examination of that witness, the following occurred:
In Gillogly, the Court of Criminal Appeals found that it was error for the trial court to have denied the defendant's motion, citing Husch v. State, 211 Ala. 274, 100 So. 321 (1924), Strange v. State, 43 Ala.App. 599, 197 So.2d 437 (1966), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This Court denied certiorari. Ex parte State (In re: State v. Gillogly), 294 Ala. 200, 314 So.2d 306 (1976).
We conclude that the rule adopted in Gillogly is probably the majority rule. 7 A.L.R.3d 181.
The State, in its brief, in effect, claims Gillogly is wrong and cites Thigpen v. State, 355 So.2d 392 (Ala.Cr.App.), aff'd, 355 So.2d 400 (Ala.1977), a death case, for the proposition that the trial court did not err in not requiring the State to produce the prior statements of the two prosecution witnesses. In Thigpen, however, the motion by the defendant to require the prosecution to produce the statements was made prior to trial and the request in Thigpen was much broader, in that the defendant asked for the statements of any and all witnesses taken by the investigative authorities. The rule stated in Thigpen is consistent with the general rule that an accused is not entitled to discover statements of government witnesses before trial.
The rule of discovery is different where a prosecution witness has testified on direct examination in the trial of the case.
In such cases, the defendant, upon laying a proper predicate, is entitled to have the Court, at least, conduct an in camera inspection as outlined in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The trial court could determine initially (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant's trial would be fundamentally unfair. Cooks, supra.
The production for inspection of any statement, of course, would lie within the sound discretion of the trial judge.
In the instant case, it is apparent that the trial court did not follow the guidelines suggested in Cooks, supra; therefore, the cause should be remanded to the trial court for further proceedings.
Because the Court of Criminal Appeals has concluded, as a matter of law, that the defendant was not entitled to inspect the statements, the judgment of that court is due to be reversed, but that court is not ordered to reverse the conviction and remand the cause to the trial court for a new trial. We deem an alternate procedure would comport with due process of law.
We direct the Court of Criminal Appeals to remand the cause to the trial court for the purpose of conducting a hearing as suggested in Palermo v. United States to determine whether the statements made by the witnesses before trial differed in any respect
The Court of Criminal Appeals shall direct the trial court to have a court reporter transcribe the proceedings which are held to make the determination above ordered. The Court of Criminal Appeals shall direct the trial court, if it finds that the defendant was entitled to inspect and use the statements, to order a new trial. The Court of Criminal Appeals shall direct the trial court, if it finds adverse to the defendant, to direct the clerk of the trial court to forward a record of its proceedings to the Court of Criminal Appeals to allow the Court of Criminal Appeals to review the discretion exercised by the trial court.
REVERSED AND REMANDED, WITH DIRECTIONS.
All the Justices concur.
Likewise, during the testimony of the second prosecutrix the following was had: