No. 87-164 

IN THE SUPREME COURT OF THE STATF OF MONTANA 

1987 

STATE OF MONTANA, ex rel., 

JAMES CARKULIS, 

Relator, 

-vsDISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA, IN AND FOR THE COUNTY OF 

YELLOWSTONE, HONORABLE G. TODD RAUGH, 

Presiding, 

Respondent. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relator: 

Allen Beck argued, Billings, Montana 

Jeffrey T. Renz argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Judy Browning argued, Asst. Atty General, Helena 

Harold Hanser, County Attorney, Billings, Montana 

Terry Swift, Deputy County Atty., Billings 

Mike McGrath argued, County Attorney, Helena, Montana 

Submitted: September 2, 1987 

Decided: November 25, 1987 

&& 1, y4, 4b 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

In this case, we determine that the reciprocal pretrial 

discovery statutory provisions in criminal cases, for the 

purposes of this case and when applied as herein directed, 

are amenable to the state and federal constitutions and not 

barred by the provisions of the state and federal 

constitutions herein specified. 

This is an original proceeding in this Court. Relator 

James Carkulis stands charged with the commission of a crime 

in the District Court, Thirteenth Judicial District, County 

of Yellowstone. The State had moved the District Court for 

an order requiring reciprocal discovery by the defendant 

under S 46-15-323(4), MCA (1985). In an order dated December 

20, 1985, the District Court granted- the State's motion for 

pretrial discovery but made no provision in the order for 

sanctions in the case of noncompliance. 

On January 15, 1986, Carkulis filed in this Court a 

petition for writ of supervisory control or writ of 

certiorari (Cause no. 86-026 in this Court) relating to the 

December 20, 1985 ~istrict Court order. We ordered a 

response, and received an answer and briefs from the Attorney 

General of the State of Montana; the County Attorney of 

Yellowstone County; and amici curiae from the Moses Law Firm 

of Billings, Montana; Ungar Law Firm of Bozeman, Montana; and 

the Montana County Attorneys Association, through its 

president Mike McGrath of Helena, Montana. However, on 

December 11, 1986, after oral argument, we denied the 

petition for writ of supervisory control without prejudice 

upon the qrounds that the District Court had imposed no 
sanctions, and might never impose sanctions, and that there 

was an adequate remedy by appeal. 

Thus, the matter returned to the District Court. There, 

on March 9, 1987, Carkulis moved the District Court to 

reconsider its order of December 20, 1985. On April 9, 1987, 

the District Court issued its order denying Carkulis' motion 

to reconsider and further ordering that unless the defendant 

disclosed the materials set out in the December 20, 1985 

order by May 1, 1987, he would "be precluded from offering 

the same at trial." The time for compliance by the defendant 

has passed and neither he, his counsel nor agents, have 

complied with the pretrial discovery order of the District 

Court. On May 4, 1987, Carkulis, as relator, filed his 

second petition for writ of supervisory control or writ of 

certiorari in this Court and thus the issue is before us 

again. 

This time, a sanction has been imposed against the 

defendant, the most drastic available to the District Court 

under S 46-15-329, MCA, that of barring him from offering 

evidence not disclosed before May 1, 1987. 

The first problem is whether this Court should consider 

the issuance of a writ, either of supervisory control, or of 

certiorari. Under § 27-25-102(2), MCA, if a district court, 

exercising judicial functions, has exceeded its jurisdiction, 

and if in the judgment of this Court there is no plain, 

speedy or adequate remedy, certiorari will lie. Section 

27-25-102(2), MCA. In like manner, when a cause of action or 

a right has arisen under conditions making due consideration 

in the trial court and due appeal to this Court an inadequate 

remedy, or when supervision of a trial court other than by 

appeal is deemed necessary and proper, a writ of supervisory 

control may issue. Rule 17(a), M.R.App.P. A petition 

seeking original jurisdiction in this Court must make a 
showing of the inadequacy or unavailability of any other 

remedy, either in the District Court or by appeal to this 

Court. Crist v. Boyd, District Court (1976), 172 Mont. 38, 

560 P.2d 531; Petition of Waite (1964), 143 Mont. 321, 322, 

389 P.2d 407, 408. 

In the first proceedings brought by Carkulis in this 

Court, the Attorney General, in his memorandum in support of 

his response, agreed we should take jurisdiction of the 

proceedings, and pointed out a proper reason: 

For example, if the court were to decline to take 

jurisdiction of this application, relator would 

presumably comply with the District Court's 

disclosure order. Should relator then be convicted 

and successfully appeal his case, it might prove 

unfair to him should a new trial be ordered, since 

the State would have the benefit of the very 

information which relator believes he should not be 

required to disclose. Once disclosures are made, 

they cannot be retracted. See Wardius 5 Oregon, 

412 U.S. 470, 478 (1973). 

Under the record as it is now presented to us in this 

second application by Carkulis, since he is barred from 

offering evidence pertaining to the materials sought in 

pretrial discovery, he may be entirely precluded from 

offering a defense. He must risk conviction in order to 

effect an appeal, and then risk the uncertainty of our 

decision on appeal. Without our intervention now, defendant 

has a Hobson's choice: Go back to the District Court, comply 

with the pretrial discovery, hope that the District Court 

will rescind its order barring the evidence and rely on a 

successful appeal; or, alternatively, stand pat, risk 

conviction, and the uncertainty of success on appeal. 

Moreover, the District Court order is binding not only on the 

defendant, but upon his counsel and their agents. They are 

also at risk for noncompliance through contempt proceedings 

against them. 
Counsel for the State in prosecuting defendant is likely 

to have a dilemma here with respect to the law: There is a 

split of authority among neighboring states as to the 

legality of such pretrial discovery provisions. Unless we 

set the course in this case of first impression, there are no 

Montana guideposts for counsel advising their clients with 

respect to pretrial discovery in criminal cases. 

Accordingly, we accept jurisdiction to determine if 

supervisory control is proper in this matter. 

The District Court's Order 

On December 20, 1985, the District Court entered its 

order for pretrial discovery which included the following 

provisions: 

IT IS HEREBY ORDERED that the defendant, James 

Carkulis and his counsel or agents, make the 

following materials and information available to 

the State without delay for examination and 

reproduction, subject to constitutional or 

statutory limitations: 

(1) the names and addresses of all persons, other 

than the defendant, whom he in good faith knows he 

will call as witnesses at trial, and copies of all 

statements made by them related to this case; 

(2) the names and addresses of any expert 

witnesses whom he in good faith knows he will call 

at trial, and summaries of the testimony he expects 

the witnesses to give at trial; 

(3) all papers, documents, photographs and other 

tangible objects which the defendant in good faith 

knows will be used as exhibits at trial; and 

IT IS FURTHER ORDERED that the defendant shall 

promptly notify the State of the existence of any 

additional information or material referred to in 

the foregoing that is discovered by the defendant 

after this Order and make such information or 

material available for examination and reproduction 

without delay. 
On April 9, 1987, the District Court, by a further 

order, supplemented the foregoing provisions by providing 

that if the defendant Carkulis did not disclose the materials 

set out above by May 1, 1987, he would "he precluded from 

offering same at trial." 

Issues Raised By Defendant 

The defendant maintains that the District Court's orders 

violate his rights secured by the Fourth, Fifth, Sixth and 

Fourteenth Amendments to the United States Constitution, and 

Art. 11, 5 11, 17, 24 and 25 of the 1972 Montana 

Constitution. 

The Applicable Statutes 

The legislature adopted in 1985 several provisions 

relating to reciprocal pretrial discovery in criminal cases. 

Ch. 202, Laws of Montana (1985). The provisions relating to 

pretrial reciprocal discovery are now embodied in 55 

46-15-321 through 46-15-329, MCR. In general, these statutes 

contain applicable definitions (5 46-15-321); requirements 

for disclosure by the prosecution (S 40-15-322); requirements 

for disclosure by the accused (5 46-15-323); materials not 

subject to disclosure (S 46-15-33.4); a continuing duty to 

disclose (S 46-15-327); a provision for excision or 

protective orders (S 46-15-328); and provisions for sanctions 

in the case of noncompliance (5 46-15-329). 

The orders of the District Court in this case are based 

on provisions contained in § 46-15-323, MCA. The important 

subsections are: 

(4) Simultaneously with the notice of defenses 

submitted under subsection (3), the defendant shall 

make available to the prosecutor for testing, 

examination, and reproduction: 

(a) the names and addresses of all persons, other 

than the accused, whom he will call as witnesses at 
trial, together with all statements made by them in 

connection with a particular case; and 

(b) the names and addresses of experts whom he 

will call at trial, together with the results of 

the physical examinations, scientific tests, 

experiments, or comparisons, including all written 

reports and statements made by them in connection 

to the particular case; and, 

(c) a list of all papers, documents, photographs, 

and other tangible objects that he will use at 

trial. 

(5) The defendants obligation under this section 

extends to material and information within the 

possession or control of the d.efendant or his 

attorneys or agents. 

Disclosure of Witnesses and Statements 

Carkulis attacks the provisions of S 45-15-323 (4) (a), 

MCA, which requires the disclosure of witnesses the defendant 

will call at trial, together with all statements made by them 

in connection with this particular case. 

The word "statements" found in the statute ma.y in itself 

be overbroad. We construe the word statements to include 

tapings, transcriptions, writings or other means used to 

memorialize the witness as to his observation or impression 

of a situation or event, and which may be used either to 

refresh the recollection of the witness or to impeach him at 

trial. 
Carkulis attacks this statute on the grounds that it 

violates the state and federal rights against 

self-incrimination and deprives him of due process. 

3 

With respect to the defenses of alibi and self-defense 

and the former defense of insanity, this Court has already 

spoken and approved the requirement for a production of a 

list of witnesses to be used at trial. State ex rel. Sikora 

v. District Court (1969), 154 Mont. 241, 462 ~.2d 897. 

Sikora arose under former statute § 46-15-301, now repealed, 

(Ch. 202, Laws of Montana (1985)), but the provisions of 

which have been subsumed in Part 3, Title 46, Criminal 

Procedure. In Sikora, this Court declared that not all 

evidence obtained from a defendant is privileged under the 

Fifth Amendment of the United States Constitution. The 

production by the defendant of a list of his witnesses 

relating to those defenses was approved on the grounds that 

1 "No person shall be compelled to testify against himself 

in a criminal proceeding.. . . Art. 11, 25, 1972 

Montana Constitution. 

2 "No person . . . shall be compelled in any criminal case 

to be a witness against himself . . ." Fifth Amendment. 

to the United States Constitution. 

3 "No person shall be deprived of life, liberty or 

property without due process of law." Art. 11, S 17, 

1972 Montana Constitution. 

"No person . . . shall . . . be deprived of life, 

liberty or property, without due process of law;. . ." 

Fifth Amendment to United States Constitution. 

". . . nor shall any State deprive any person of life, 

liberty or property, without due process of law;. . ." 

Fourteenth Amendment. to United States Constitution. 
such production merely enabled the prosecution to perform its 

function at trial more effectively, that the right to remain 

silent was not violated because production was not required 

if the witnesses would not testify, and that the defendant 

was not required to reveal anything more than he would 

voluntarily and without compulsion give at trial. This Court 

also found prot.ection for the defendant in Sikora in that the 

statute was directed to the purpose of giving notice to the 

state and that "the defendant who chooses to remain silent. 

until later than the statute indicates may do so and for good 

cause may still interpose his defenses." 154 Mont. at 251, 

462 P.2d at 902. The logic of Sikora now controls the 

additional defenses now listed in S; 46-15-323(3) for which 

the defendant must provide written notice and a list of the 

witnesses pertaining thereto that he will call at trial. 

The United States Supreme Court in Williams v. Florida 

(1970), 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, upheld a 

state statute requiring the disclosure of an alibi defense 

and alibi witnesses to the state prior to trial as not 

violating the federal right against self-incrimination. 

Williams is essentially grounded on the "accelerated 

disclosure" theory, that is, that at trial, the defendant 

would have to reveal his alibi and his witnesses relating 

thereto, and that accelerating the disclosure does not affect 

his constitutional rights against self-incrimination. 

Nonetheless, in Williams, Justice Black took an opposite 

tack: 

[Federal constitutional rights] are designed to 

shield the defendant against state power. None are 

designed to make convictions easier and taken 

together they clearly indicate that in our system 

the entire burden of proving criminal activity 

rests on the state. The defendant, under our 

constitution, need not do anything at all to defend 

himself, and certainly cannot be required to help 
convict himself. Rather he has an absolute, 

unqualified right to compel the state to 

investigate its own case, find its own witnesses, 

prove its own facts, and convince the jury through 

its own resources. Throughout the process the 

defendant has a fundamental right to remain silent, 

in effect challenging the state at every point to: 

"Prove it!" 

399 U.S. 78, 112, 90 S.Ct. 1893, 1912, 26 L.Ed.2d 446, 483 

(Black, J., dissenting). 

Justice Black's argument for the rights of an accused 

has not, for the most part, been followed by other federal 

and state courts. More and more, there have been 

declarations that a criminal trial is a "search for truth," 

that criminal trials are not a game of surprise, and that the 

right of discovery is a "two way street." Montana has 

followed that tack since Sikora. It is clear that the 

accused must give the State pretrial notice of affirmative 

defenses, and produce for the State a list of the witnesses 

he will call to establish the defense. 

The question that remains regarding witnesses is whether 

the defendant must also make a pretrial disclosure of 

witnesses that he will call in his general defense of the 

crime charged. Immediately, the Sikora ruling comes to the 

fore: the defendant is merely revealing in advance of trial 

what eventually he would have to reveal during the trial. 

Under the order of the court in this case, and under the 

statute, Carkulis does not have to reveal to the State 

whether he as a defendant will or will not take the stand in 

his defense. The requirement is not sel-f-incriminatory as to 

him. With respect to other witnesses for his general 

defense, the logic of Sikora and Williams seems to apply: 

their names will be revealed in due course in any event. It 

is certain that if, without prior disclosure, a devastating 

surprise witness for the defendant were to testify, the State 
would obtain from the trial judge a continuance in order to 

meet the testimony. Pretrial revelation may avoid surprise, 

aid the administration of the trial courts and provide an 

orderly resolution of the charge. On those grounds, and 

because we see protections for the defendant in other 

provisions of the discovery statutes, we hold that the 

defendant must provide to the State a list of all witnesses 

he intends to call at the trial. The District Court 

subjected this requirement to "constitutional or statutory 

limitations." 

We turn now to the question of whether the defendant 

must also surrender to the State copies of statements 

obtained by the defendant or his agents and counsel 

statements of all witnesses he will call at trial. 

The State contends that the discovery statutes requiring 

copies of statements merely provide for the accelerated 

production of evidence that the defendant would voluntarily 

and without compulsion provide at trial. The State also 

argues that the protections provided by the Fifth Amendment 

and Art. 11, § 25 of the Montana Constitution apply only to 

the statements of a criminal defendant. The privilege does 

not extend to the testimony or statements of third parties. 

Therefore, the State contends that the provisions of SS 

46-15-323 (3) and (4), MCA, are constitutionally sound. 

Carkulis and amici contend, however, that the production 

of such items may be incriminating in that they could provide 

the State with a "link in the chain" of evidence sufficient 

to establish a prima facie case. That, they contend, would 

have the effect of lessening the burden of beyond a 

reasonable doubt and in effect violate the accused's right to 

remain silent. 

In considering the question of pretrial production by an 

accused of prospective witness statements relating to his 
general defense, we are leading into a field where there is 

little authority to guide us. For one thing, there is a 

critical difference between the discovery and inspection 

rules provided under the federal system and those of the 

Montana criminal discovery statutes. Under Rule 16, 

Fed.R.Crim.P., any discovery must first be defendant 

triggered. Discovery from the defendant as to documents and 

tangible objects, and reports of examination and tests, are 

permitted only if defendant has requested from the government 

the same kinds of disclosure. Rule 16 (b) (1) (A) , (R) , 

Fed.R.Crim.P. Except for these, the federal rule does not 

authorize the discovery or inspection of reports, memoranda 

or other internal defense documents made by the defendant or 

his attorneys in connection with the investigation or defense 

of the case, or statements made by the defendant or by 

government defense witnesses or by prospective government or 

defense witnesses. Rule 16 (b) (2) , Fed.R.Crim. P. In fact, 

the Congress specifically declined to provide for the 

discovery of witness lists in Rule 16. Moore ' s Federal 

Practice (1986 Rules Pamphlet at 231). 

In addition, Rule 12.1, Fed.R.Crim.P. provides for a 

notice of alibi, but it is government triggered. Rule 12.1 

requires the government to provide the defendant with a 

demand statirlg the time, date and place where the alleged 

offense was committed whereupon the defendant must serve 

within 10 days a notice of intention to offer the defense of 

alibi and within an additional 10 days provide a list of the 

names of witnesses who establish the alibi. The defendant 

must also state the specific place at which he claims to have 

been at the time of the alleged offense. Montana's statutes 

have no such provisions. 

Thus, the State has relied on a number of cases from the 

federal system which are not on point. In those cases, the 
defendants are not required to produce statements until the 

government has completed its case and if the statements are 

being used by the defendant in his defense or to impeach a 

witness. See, for example, United States v. Nobles !1975), 

422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141. 

Two sister states have refused to permit a pretrial 

disclosure of witness lists or statements. One is Alaska, 

expressing its decision in Scott v. State (Alaska 1974), 519 

P.2d 774. There the Superior Court, apparently without 

direct statutory authority, had required a defendant charged 

with rape to disclose to the prosecution the names of all 

prospective defense witnesses other than the defendant 

himself, the production for inspection and copying of any 

written or recorded statements of those witnesses, and 

advance notice of an alibi defense. The defendant sought 

interlocutory appellate review in the Alaska Supreme Court 

which was granted. The Supreme Court struck down the 

Superior Court order, including the requirements relating to 

the alibi defense. The Alaska Supreme Court decided to 

interpret the Alaska Constitution more broadly than the 

United States Supreme Court construed the Fifth Amendment in 

Williams v. Florida, supra. It determined that the pretrial 

transfer of witness lists and witness statements was 

testimonial because a document containing such facts 

transmitted from one party to another constituted a 

communication of cognizable information from one source to 

another. The Supreme Court was of the opinion that such 

information may in some instances tend to be incriminating; 

and because a court order was involved, it found that the 

production was compelled. Thus, in the opinion of that 

Supreme Court, the criteria for self-incrimination was met in 

the Superior Court order. 
At odds with the Alaska decision in Scott v. State, 

supra, is the rationale of the District Court in Carkulis' 

case. While agreeing that the protection against 

self-incrimination applies to testimonial or communicative 

evidence, State v. Armstrong (1980), 189 Mont. 407, 421, 616 

P.2d 341, 349, the District Court held that the disclosure 

required by the court order was not compelled, State v. 

Anderson (Mont. 1984), 686 P.2d 193, 197, 41 St.Rep. 1357, 

1360. The District Court held that there was no compulsion 

in the Montana statute because Carkulis was not compelled to 

reveal that which he did not intend to reveal at trial 

anyhow. 

California also held against the disclosure of witness 

lists and statements in In Re Misner (Cal. 1985), 698 P.2d 

637. In that case the California history of prosecutorial 

discovery (advocated by the late J. Traynor) was examined, 

beginning with Jones v. Superior Court (Cal. 1962), 372 P.?d 

919; through the backing away from Jones in Prudhomme v. 

Superior Court (Cal. 1970), 466 P.2d 673; down to the facts 

before it in Misner. That case involved the 

constitutionality of a statute which permitted the 

prosecution to discover from the defendant or his counsel, 

following testimony under direct examination of defense 

witnesses other than the defendant, other statements made by 

those witnesses. The California appellate court examined 

Williams v. Florida, supra, and United States v. Nobles, 

supra, but rested its decision on California state law. It 

determined that the California statute was directed only to 

prior statements of witnesses produced by the defense and 

though limited to the scope of their direct testimony, the 

statute obviously contemplated that the discovery permitted 

by the statute would provide the state with evidence to 

impeach the defense witnesses. Misner determined that it 
violated a defendant's privilege against self-incrimination 

to extract impeachment evidence from him. 

Further in Misner, the prosecution argued that even if 

the privilege against self-incrimination covered prior 

statements of defense witnesses, the defendant waived the 

privilege by putting the witnesses on the stand, at least to 

the extent of the permissible scope of cross examination. 

The California Supreme Court said the state could not rely on 

this rule, stating: 

. . . while it may be true that by putting 

witnesses on the stand the defendant waives any 

right to object to their vigorous cross examination 

by the prosecution, he does not waive his right to 

refuse to supply the prosecution with the means to 

conduct that cross examination. 

Within the last quoted sentence of the Misner court, we 

find the kernel of difference between California law and 

Montana law on this subject. In Sikora, supra, we quoted 

with approval (admittedly dictum, but bearing on the Montana 

view of the law) from People v. Damon (N.Y. 1969), 247 N.E.2d 

651, as follows: 

"It is argued first that there was a possible 

violation of the right against self-incrimination. 

We do not agree. These statements were not those 

of the defendant but of witnesses offered by the 

defendant. In no sense can it be said that he is 

being compelled to produce incriminating statements 

of his own. The privilege against 

self-incrimination applies only to evidence of a 

testimonial or communicative nature obtained from 

the defendant himself. I' 

154 Mont. 241, 249, 462 P.2d 897, 901. 

While admitting the question is close, and with 

deference to sister states holding otherwise, we hold that 

the pretrial disclosure by the defendant of statements of 

witnesses he intends to call at trial does not offend his 
rights against self-incrimination under state or federal 

grounds. Undoubtedly at trial time, such statements would be 

used to refresh the recollection of defense witnesses. As 

such they ought as well to be available to the state. Our 

holding is also based on the reciprocity provided in the 

state's statutes, and on the limitation of disclosure to 

those statements only of witnesses defendant intends to call 

at trial. 

Disclosure of Statements of Experts 

What is said foregoing applies with equal force to 

pretrial disclosure of prospective experts as witnesses. 

There is however, a necessary caution to be stated. 

In the preparation of and the examination by such 

experts, the defendant may be encouraged to communicate 

freely and candidly with them. Thus experts' reports, notes 

and other written materials may contain potentially 

incriminating information to which the state should not be 

entitled. Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 

12 L.Ed.2d 653. Particularly, the reports of psychologists 

and psychiatrists may contain such incriminatory statements. 

In ordering the exchange of disclosure of statements of 

expert witnesses therefore, it may be expedient for District 

Courts to weigh the issues of self-incrimination carefully 

under the protective procedures hereafter discussed. 

It is noted that in this case the order of the court is 

carefully limited. Carkulis is ordered to give summaries 

only of the testimony he expects the expert witnesses to give 

at trial. 

Disclosure of Documents 

Carkulis has been ordered by the District Court to 

disclose to the state "all papers, documents, photographs, 

and other tangible objects" which he in good faith knows will 

be used. as exhibits at the trial. 
Carkulis claims that this order violates the Fourth 

4 5 Amendment of the Federal Constitution , and Art. 11, S 11 of 

the 1972 Montana Constitution. 

Carkulis contends that the order is a compulsory 

production of documents and so it violates his Fourth 

Amendment rights within the meaning of Boyd v. United States 

(1886), 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. He argues 

that the seizure is void because the description of the place 

to be searched and things to be seized is not made with 

particularity, that the request is not made on probable 

cause, and that it is not made on written affirmation. Art. 

11, § 11, 1972 Montana Constitution. 

The State counters that the authority of Boyd v. United 

States, supra, has been diminished, and there is no authority 

to support Carkulis that the Fourth Amendment applies to 

pretrial discovery. 

The case which the State contends watered down the 

holding of Boyd, supra, is Hale v. Henkel (1906), 201 U.S. 

4 "The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and nc 

Warrants shall issue but upon probable cause, supported 

by Oath or Affirmation, and particularly describing the 

place to be searched, and the persons or things to be 

seized." Fourth Amendment to the United States 

Constitution. 

5 "The people shall be secure in their persons, papers, 

homes and effects from unreasonable searches and 

seizures. No warrant to search any place, or seize any 

person or thing shall issue without describing the place 

to be searched or the person or thing to be seized, or 

without probable cause, supported by oath or affirmation 

reduced to writinq. " Art. 11, S 11, 1972 Montana 

Constitution. 
43, 26 S.Ct. 370, 50 L.Ed. 652, wherein it was stated that 

"the Fourth Amendment was not intended to interfere with the 

power of Courts to compel, through a subpoena duces tecum, 

the production, upon a trial in court, of documentary 

evidence." However, the United States Supreme Court also 

said in Hale that an order for the production of book and 

papers may constitute an unreasonable search and seizure 

within the Fourth Amendment whether the seizure occurred 

under a search warrant or a subpoena duces tecum. In Hale, 

the Supreme Court decided that the subpoena duces tecum was 

far too sweeping because of the vast extent of documents 

required to be produced from many different places under the 

subpoena. 

Here the order of the court is moderate in comparison to 

the subpoena duces tecum in Hale. Carkulis is required to 

produce, for examination or reproduction, papers, documents, 

photographs, and tangible objects which he "in good faith 

knows will be used as exhibits at trial." The order in its 

terms is definitive, and cannot be a burden upon the 

defendant, since he will use those same objects at trial. In 

consideration of the language used by the District Court 

order, we hold it meets the test of reasonableness, under 

Fourth Amendment tests, and is equally amenable to Art. 11, 5 

11 of the 1972 Montana Constitution. Carkulis' arguments 

that the place to be searched or the things to be seized or 

that probable cause has not been set forth nor supported by 

oath or affirmation, are state constitutional requirements 

for the issuance of a warrant. In this pretrial discovery 

procedure, the use of a warrant is not involved. For the 
efficient administration of justice, the court's order here 

is directed to the production of objects for examination and 

reproduction which must eventually come to light at trial. 

Even if the order for production is regarded as a seizure of 

sorts, it is nevertheless reasonable. The constitutional 

prohibitions are against unreasonableness. 

Due Process 

Carkulis argues that the imposition of sanctions if he 

fails to abide by the discovery order of the District Court. 

deprives him of due process. The due process provision of 

the Fifth Amendment is applicable to state action through the 

Fourteenth Amendment. Malloy v. Hogan (1964), 378 U.S. 1, 84 

S.Ct. 1489, 12 L.Ed.2d 653. 

The grinding surface of the due process question in this 

type of issue is whether reciprocity for discovery exists. 

In Williams v. Florida, supra, the United States Supreme 

Court indicated that nothing in the due process clause 

precludes any states from using broad discovery procedures 

designed to increase evidence available to both sides in 

criminal cases and to enhance goals and fairness in the 

adversary system. In Wardius v. Oregon (1973), 412 U.S. 470, 

93 S.Ct. 2208, 37 L.Ed.2d 82, the United States Supreme Court 

reaffirmed this point in reversing a conviction of an Oregon 

defendant based on an Oregon statute. The Oregon defendant 

had not given notice to the prosecution that he intended to 

use the defense of alibi and at trial his alibi witness as 

well as his own testimony was stricken. He appealed his 

conviction on the ground that he had been deprived of due 

process because under the Oregon statute there is no 

provision for reciprocal discovery, that is that the accused 

had not the same rights of pretrial discovery as did the 

State. The U.S. Supreme Court held that the Oregon statute 
did not provide reciprocal rights of discovery and that 

thereby due process was violated. 

The statutes now enacted in this State relating to 

pretrial discovery in criminal cases provide for full 

discovery within constitutional and privilege limitations to 

both sides. After this Court approved the requirement that 

the defendant give notice of an alibi defense in Sikora, 

supra, the case went back to the District Court where the 

defendant, Radford, was convicted. He brought an action for 

habeas corpus in the federal system, in the United States 

District Court for the District of Montana. There the united 

States district judge upheld the notice of alibi statute and 

he was affirmed on appeal in the Ninth Circuit. Radford v. 

Stewart (9th Cir. 1973), 472 F.2d 1161, 1162. The circuit 

court said: 

The State operated in good faith in this action and 

did not use the discovery required merely to build 

its case. No investigation was made of the 

witnesses named by the defendant. In fact, 

defendant was allowed, without objection, to call 

two witnesses whose names had not been noticed. 

Defendant also knew prior to trial of the 

prosecution's only rebuttal witness (a 

psychiatrist). Judge Battin thus found that under 

the facts of this case reciprocity existed. 

Since under the cases due process in this kind of case 

hinges on reciprocity, and reciprocity is provided in the 

statutes, Carkulis' due process argument falls. 

This Court noted the presence of reciprocity in the 

statutes which were precursors to the present pretrial 

discovery statutes as providing due process in State v. 

Bentley (1970), 155 Mont. 383, 472 ~.2d 864. 

Obligation of Defense Counsel Work-Product 

The order of the District Court for pretrial discovery 

is bindina not only upon Carkulis himself, but upon his 
agents and attorneys. Questions arise as to the impact of 

such an order upon the attorney-client relationship and its 

effect upon the work-product rule. 

First, the work-product rule. It is a qualified 

evidentiary privilege recognized in Hickman v. Taylor (1947), 

329 U.S. 495, 67 S.Ct. 385, 91 L.Ed 451. The work-product 

rule is different from the attorney-client privilege. The 

latter protects communications between the client and his 

attorney or the attorney's agent. The work-product doctrine 

protects against the disclosure of specific documents and 

tangible items prepared in actual anticipation of litigation 

or for trial. The exemption from discovery is intended to 

insure the privacy of a party's attorney from unnecessary 

intrusion by opposing parties or counsel. However, the 

"privilege" is not absolute. It is not personal to the 

client. It can be waived by an attorney's course of conduct. 

See People v. Small (Colo. 1981), 631 P.2d 148, 159. 

There is no doubt that if an attorney uses at trial a 

statement he obtained and prepared in anticipation of 

litigation in interrogating or cross examining a witness, the 

full statement, even though work-product, must be produced at 

the demand of the other side. See People v. Small, supra. 

By the use of the statement at trial, the attorney has waived 

the work-product protection, since the material in the 

statement has become substantive evidence. On this ground 

Justice Bryon F.. White specially concurred in Williams v. 

Florida, supra, he contended that the work-product rule does 

not apply to evidence, and therefore no waiver of 

work-product rule by the attorney was involved. The majority 

in Williams held the attorney had waived the work-product 

rule by using the statement to impeach on cross-examination. 

In any event, the statement becomes discoverable when used at 

trial. 
The order of the District Court in this case was 

tailored to require the plaintiff and his counsel and agents 

to produce all documents and tangible objects which the 

defendant in good faith knows will be used as an exhibit at 

the trial. If the defendant knows that such objects will be 

used at trial, whether we regard the same as evidence, or the 

use of them as a waiver of the work-product doctrine, since 

they are discoverable in any event, the timing of the 

discovery is the only question involved. The logic of 

Williams, that "accelerated disclosure" is permissible if the 

objects will come to light in any event applies here. If 

counsel, in representation of this client, acquires 

work-product objects which the defendant knows in good faith 

will not be used at trial, they are not subject to discovery 

under the order of the court. Further they are protected by 

the provisions of § 46-15-332, MCA, that all matters which 

are privileged upon the trial are privileged against 

disclosure in the discovery procedure. 

A close question may arise in some instances as to 

whether observance of the discovery order by a defendant's 

attorney in the production of documents or tangible objects 

would in themselves incriminate his client. It appears to us 

that there are safeguards in that a protective order may be 

sought under S 46-15-328, MCA, as we will hereafter discuss. 

Excision and Protective Orders 

Section 46-15-328, MCA, allows any party to obtain 

orders denying, deferring, or regulating pretrial discovery. 

The statute provides for excision of nondiscoverable material 

and for applications to the district court - in camera for 

protective orders. 

Carkulis contends that 5 46-15-328, MCA, violates his 

right against self-incrimination because subsection 3 
requires the counsel of both parties be present during all 

protective order presentations. 

"A statute derives its meaning from the entire body of 

the words, taken together." Wyse v. District Court of Fourth 

Judicial District (1981) , Mont . , 636 P.2d 865, 

866. Section 46-15-328(1), MCA, gives the District Court the 

power to regulate disclosure: 

(1) Upon a motion of any party showing good cause, 

the court may order . . . that any other disclosure 

as required by sections 46-15-321 through 

46-15-329(b) . . . be . . . regulated when it 

finds : 

(b) that the risk cannot be eliminated by a less 

substantial restriction of discovery rights. 

It is possible for occasions to arise where applications 

for protective orders are made to the court, and where if 

counsel for all parties are present, "the cat is then out of 

the bag, never to be recaptured. " Subsection 1 in the 

statute gives the court the flexibility to employ appropriate 

protection procedures. The provisions of subsection 3, that 

the court may permit the moving party to present the material 

or information for the inspection of the judge alone in the 

presence of all counsel, merely provides one method of 

accomplishing the legislative purpose. It is not exclusive. 

It does not exclude - ex parte presentations. The District 

Court can exert its judicial authority in its adjudicatory 

function so as to protect constitutional and statutory 

rights. 

Among the inherent powers of the court is "the right of 

the court to receive information in private so that it can 

intelligently assess its adjudicatory function." Phoenix 

Newspapers, Inc. v. Superior Court (Ariz. 1983), 680 P.2d 

166, 169. The determination of whether material is 

discoverable or not is a necessary facet of the adjudicatory 
function. People v. Stevens (Ill. 1981), 430 N.E.2d 331, 

333. 

The United States Supreme Court has never squarely 

addressed the issue of - in camera hearings conducted ex parte. 

Yet, it has seen fit to approve of such procedure by 

implication. See Taglianetti v. United States (1969), 394 

U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (approving of - in 

camera inspection of unlawful electronic surveillance case as 

not being violative of the Fourth Amendment where the 

defendant was provided with all tapes in which he took part 

in the conversation.) ; Dennis v. United States (19661, 384 

U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (recognition of - in 

camera procedure when national security or clear-cut threat 

to individuals is identified). 

While the 1975 Amendments to the Federal Rules of 

Criminal Procedure were pending, the United States Supreme 

Court proposed a mandatory - ex parte proceedings upon request 

of a party seeking a protective order. Moore ' s Federal 

Practice, Section 1604 at 16-63. The House of 

Representatives changed the mandatory language to permissive 

in order to prevent burdening the trial courts. The amended 

proposal was codified in Rule 16(d)(1), Fed.R.Crim.P. 

It provides: 

Protective and modifying orders. 

Upon a sufficient showing the court may at any time 

order that the discovery or inspection be denied, 

restricted, or deferred, or make such other order 

as appropriate upon motion by a party. The court 

may permit the party to make such a showing in 

whole or in part, in the form of a written 

statement to be inspected by the judge alone. If 

the court enters an order to grant relief following 

such an ex parte showing, the entire text of the 

party's statement shall be sealed and preserved in 

the records of the court to be made available to 

the appellate court in the event of an appeal. 
Not all protective order requests will require the use 

of the - ex parte procedure. - Ex parte proceedings are 

generally disfavored and are not to be employed lightly. The 

procedure would be appropriate only if an adversary hearing 

would defeat the purpose of the order sought. 

Sanctions Fair Trial 

The sanction applied by the District Court in its order 

for disclosure is that if the materials are not disclosed, 

the defendant will be precluded from offering the same at 

trial. 

Carkulis argues that the imposition of such a sanction 

deprives him of the right to present a defense and thus - 

violates the Sixth 2irnendmentb of the Federal Constitution and 

7 Art. 11, S 24 of the Montana Constitution. 

Carkulis argues that the Sixth Amendment is a guaranty 

to an accused of a right to call witnesses in his favor, 

6 "In all criminal prosecutions, the accused shall enjoy 

the right to a speedy and public trial, by an impartial 

jury of the State and the district wherein the crime 

shall have been committed,. . . and to be informed of 

the nature and cause of the accusation; to be confronted 

with the witnesses against him; to have compulsory 

process for obtaining witnesses in his favor, and to 

have the Assistance of counsel for his defense." Sixth 

Amendment to the United States Constitution. 

7 "In all criminal prosecutions the accused shall have the 

right to appear and defend in person and by counsel; to 

demand the nature and cause of the accusation; to meet 

the witnesses against him face to face; to have process 

to compel witnesses against him face to face; to have 

process to compel the attendance of witnesses in his 

behalf, and a speedy public trial by an impartial jury 

of the countv or district in which the offense is 

alleged to haje been committed . . . " Art. 11, S 24, 

1972 Montana Constitution. 
without qualification or restraint. Washington v. State of 

Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 

L.Ed.2d 1019, 1023. The State relies on Rowan v. Owens 17th 

Cir. 1984), 752 F.2d 1186, 1191, which held that to prevent 

the witness from testifying is not a per - se unreasonable 

interference with the defendant's right to defend himself. 

Again, in U.S. v. Nobles, supra, it was held that 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." 

Once it is determined, as we have determined here, that 

reciprocal pretrial disclosures subject to constitutional or 

statutory limitations are permissible, it goes hand in hand 

with that determination to say that the District Court may 

exercise its judicial discretion in enforcing such 

permissible disclosures. 

We do not in this opinion pass upon the appropriateness 

of the sanctions set forth in the District Court in the 

Carkulis case, for the reason that the sanctions have yet to 

be applied. See State v. Fendler (Ariz. App. 1980), 622 ~.2d. 

23, 41, for a discussion of appropriate sanctions. 

Application of Section 46-15-323(3) 

We find no substance in Carkulis' argument that before 5 

46-15-323 (4) can be operative, defendant must have acted 

under subdivision (3) of that statute. 

Disposal 

Accordingly, we have considered Carkulis' petition under 

our power of supervisory control. Upon consideration the 
application of Carkulis for a writ of supervisory control 

directed to the District Court is DENIED, and these 

proceedings are dismissed. 

We Concur: -b 

Justice 
Mr. Justice William E. Hunt, Sr., dissenting: 

I dissent from the majority's holding that before the 

trial the defendant in a criminal proceeding must make 

available to the prosecution a list of witnesses and exhibits 

expected to be used at trial. To do this is to go one step 

further to make the government more powerful than its 

citizens& 

Our government was founded as a reaction to the 

oppressive and tyrannical actions of the British government 

in the eighteenth century. The founding fathers knew of the 

abuses of human rights that easily coupled with an overly 

authoritarian government and sought to protect the citizens 

of their newly formed nation-state by a recognition of 

certain inalienable rights enumerated in the Rill of Rights. 

Now we seem to be captivated by the idea of efficiency at the 

expense of safety. 

As Justice Black stated in his dissent in Williams v. 

Florida (1970), 399 U.S. 78, 112, 26 L.Ed.2d 446, 483, 90 

1 of these rights are designed to shield the 

fendant against state power. None are designed I make convictions easier and taken together they 

clearly indicate that in our system the entire 

burden of proving criminal activity rests on the 

State. 

He continues: 

[The founding fathers] were well aware that any 

individual might some day be subjected to criminal 

prosecution, and it was in order to protect the 

freedom of each of us that they restricted the 

Government's ability to punish or imprison any of 

us. 

Williams, 399 U.S. at 116 (dissenting op.). 
The effect of the majority opinion is to sacrifice 

constitutional rights for the sake of "efficient 

administration of justice." In doing so it gives in to the 

rhetoric we often hear that the courts are to blame for the 

increasing crime problem in this country and that only a 

"hardline" approach by the courts will solve the problem. 

Whatever the cause of our increasing crime it is not an 

-2 CI-L~K c?c~( 

inefficient judicial or -~l;OOu~~Usystem. In 1985, the 

prisons in thee United States conkained twice as many 

-f& , 20 &-&- 

detainees as &he United Kingdom's, four times as many as A ew 

France's nd eight times as many as Portugal's. 

Encyclopaedia Britannica, Book of the Year (1986) at 188. 

Chief Justice Wachtler of the New York Court of Appeals has 

said in a talk in Montana last July that N~VJ York alone has 

40,000 prison inmates, up 26,000 from 1975. The Montana 

Lawyer, September, 1987, at 3. According to the Annual 

Report of the Department of Institutions, Montana has 

increased its prison population by an average of 376 in 1976 

to 937 in 1987. Conversation with officials of the Montana. 

Department of Institutions (November 23, 1987) . These are 

not the numbers of an inefficient court system that require 

citizens to surrender rights for additional productivity. 

In any event, 

[Tlhe Framers decided that the benefits to be 

derived from the kind of trial required by the Bill 

of Rights were well worth any loss in "efficiency" 

that resulted. Their decision constitutes the 

final word on the subject, absent some 

constitutional amendment. That decision should not 

be set aside as the Court does today. 

Williams, 399 U.S. at 114 (J. Black, dissenting op.). 

Justice Black accurately predicted how the Flilliams holding 

would he expanded by the state courts to force the defendant 

to assist in the prosecution of his own case. It is not just 
the defendant but all of us who Fve lost ground today in the 

struggle between state contro 
-- . 

Relator, 

-VS- - 

DISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA, .IN AND FOR THE COUNTY OF 

YELLOMSTONE, HONORABLE G. TODD BAUGH,.'. .' 

Presiding, 

Respondent. 

-9 

-, .; -*.- 

,& i* 

ORIGINAL PROCEEDING: z.J: 

. - COUNSEL OF RECORD: . - 

For Relator: TF 

-- Allen Beck argued, Billings, Montana 

- -Q 

Jeffrey T. Renz argued, Billings, Montana 

-. ' ->u 

-,.% - For Respondent: 

I Hon. ~ike Greely, Attorney General, Helena, Montana 

38dy Browning argued, Asst. Atty General, Helena 

Harold Hanser, County Attorney, Billings, Montana 

Terry Swift, Deputy County Atty., ~illings 

Mike McGrath argued, County Attorney, Helena, Montana 

- - . . 

-, . ~uhmitted: ~eptember. 2; 1987 . 

- .Lb -, 

.- - &.. - Decided: ' November 25, 1987 

......... ... . " 2,. - r- : : 

:,. 

4 

.... ;,,i...- - : i: 5 :-:.z.*:ct;:t -,: .-: .. -;li+$-i ae Filed: ; !;?, ?.'.Z" ,<,<.,,< ;.. i-4-..pf&. &.! Ij\ 9.- ,- y., .-'..,.. - ". ,., 2 ., .; -," *.: .,. .? -.,, '+ ... ...... ......... . . --a+ - ,. ,. , L. .A. <72 . . . . 

. . ..' .: : ' ,- .......-... 2.: ....... ... .... -. 

-. 

.-. ..... Clerk . , .. '6-. .. ..... ........ .... -. ...... .+a<, ' ..!.... ...... ;. : . 
The effect of the majority opinion is to sacrifice 

constitutional rights for the sake of "efficient 

administration of justice." In doing so it gives in to the 

rhetoric we often hear that the courts are to blamlz for the 

increasing crime problem in this country and that only a 

"hardline" approach by the cou-rts will solve the problem. 

Whatever the cause of our increasing crime it is not an 

ai?f-\a\ 

inefficient judicial or zS&l system. In 1985, the 

prisons 7g& united States contained twice as many 

detainees e United Kingdom's, four times as many as 

France's and eight times as many as Portugal's. 

Encyclopaedia Britannica, Book of the Year (1986) at 188. 

Chief Justice Wachtler of the New York Court of Appeals has 

said in a talk in Montana last July that New York alone has 

40,000 prison inn~ates, up 26,000 from 1975. The Montana - - 

Lawyer, September, 1987, at 3. According to the Annual 

Report of the Department of Institutions, Montana has 

increased its prison population by an average of 376 in 1976 

to 937 in 1987. Convessation with officials of the Montana 

Department of Institutions (November 23, 1987) . These are 

not the numbers of an inefficient court system that require 

citizens to surrender rights for additional productivity. 

In any event, 

[Tlhe Framers decided that the benefits to be 

derived from the kind of trial required by the Bill 

of Rights were well worth any loss in "efficiency" 

that resulted. Their decision constitutes the 

final word on the subject, absent some 

constitutional amendn~ent. That decision should not 

be set aside as the Court does today. 

g;3 $4' , -. . .- Williams, 399 U.S. at 114 (J. Black, dissenting op.). +i $.:!-..: : 

*$ ,-<:;-*>.> ' 

-?:.; A:,&? % 

Justice Black accurately predicted how the Williams holding . ' ".. 

. - would be expanded by the> state courts to force the defendant 

-to assist in the prosecution of his own case. It is not just . 

p'