Indiana Law Review


Criminal Discovery in Indiana: Its Past and Future

David R. Joest*

In recent years, criminal discovery has emerged from relative

obscurity to become recognized as an important area of Indiana

criminal procedure. Unlike civil discovery, which is defined and

regulated by the Indiana Rules of Trial Procedure,1 criminal

discovery has developed almost exclusively by judicial decision. This

mode of development has resulted in a less orderly and consistent
structure of criminal discovery law than would have been expected

had criminal discovery been provided for by statute or court rule.

It is the position of this author that the present disorganized

state of criminal discovery law impedes the effective service of the

ends for which discovery is provided and that a comprehensive

scheme of criminal discovery should be enacted by rule of the

Supreme Court of Indiana. This Article will review the development
of criminal discovery in this state, will compare its present status to
that of civil discovery and to the alternative systems of criminal

discovery, and will examine the alternatives available for developing

a coherent system of criminal discovery law.

I. The Development of Indiana Criminal discovery

As late as 1967, Professor Lester Orfield spoke deploringly of
the limited discovery available in Indiana criminal proceedings while

advocating the enactment of statutory provisions for expand-

ing discovery.2 The minimal statutory provisions in existence then
remain in force today. Depositions can be taken by the defendant,

and once the defendant has done so, depositions can be taken by the

state.
3 The notice of alibi statute4 requires a defendant intending to

present an alibi defense to give formal notice to the prosecutor,

specifying the "exact place at which the defendant claims to have

been."6 By this notice, the defendant can require the prosecutor to
file "a specific statement in regard to the exact date which the pros-

ecution proposes to present at the trial as the date when, and the

exact place that the prosecution proposes to present at the trial as

* Member of the Indiana Bar. B.A., University of Evansville, 1973; J.D., Indiana
University School of Law — Indianapolis, 1976.

JlND. R. TR. P. 26-37.
2
0rfield, Criminal Discovery in Indiana, 1 Ind. LEGAL F. 117 (1967).

8Ind. Code § 35-1-31-8 (1976) (originally enacted as ch. 169, § 242, 1905 Ind. Acts

584, 637).

'Id. §§ 35-5-1-1 to -3 (originally enacted as ch. 228, §§ 1-3, 1935 Ind. Acts 1198).
6ta § 35-5-1-1.

373



374 INDIANA LAW REVIEW [Vol. 11:373

the place where, the defendant was alleged to have committed or to
have participated in the offense."6 The statutes regulating the form
of indictments7 and charging affidavits8 in effect at that time re-

quired that the names of all material state's witnesses be endorsed
in those pleadings. The remedy for the state's failure to list a
witness, however, was only to deny the state a continuance in the
event an unlisted witness failed to appear.9

Although early cases contained some suggestion that production
of tangible evidence by the state10 and discovery of witnesses' prior

statements11 by the defendant at trial might in some cases be prop-
er, until 1967, no judicial decisions had actually required any
discovery to the defendant. The year 1967 marked the beginning of
a revolution in criminal discovery law through judicial decision. In

that year in Bernard v. State, 12 the Indiana Supreme Court recog-
nized the inherent power of courts to provide for criminal discovery
by upholding the right of a defendant to obtain a list of the state's
witnesses before trial. Subsequently, in Antrobus v. State,13 the
same court permitted in-trial discovery of a state witness' prior
statements, including his grand jury testimony, after the witness
had testified on direct examination.

6/d § 35-5-1-2. In spite of the words "exact date," the state is required to specify

the date and time of day, as well as the place. Pearman v. State, 233 Ind. Ill, 117

N.E.2d 362 (1954). But see Hampton v. State, 359 N.E.2d 276 (Ind. Ct. App. 1977). As
to the specificity with which the place of the offense must be designated, see Mitchell

v. State, 360 N.E.2d 221, 223 (Ind. Ct. App. 1977).

Professor Orfield also viewed the statute requiring special pleading of the defense

of insanity, Ind. Code § 35-5-2-1 (1976), as a form of discovery for the state. Orfield,

supra note 2, at 130.
7Ch. 169, § 112, 1905 Ind. Acts 584 (superseded by Pub. L. No. 325, sec. 3, § 2

(6)(c), 1973 Ind. Acts 1750, 1776, codified in Ind. Code § 35-3.1-1-2 (1976)).
8Ch. 169, § 119, 1905 Ind. Acts 584 (superseded by Pub. L. No. 325, sec. 3, § 2

(6)(c), 1973 Ind. Acts 1750, 1776, codified in Ind. Code § 35-3.1-1-2 (1976)).

"Denton v. State, 246 Ind. 155, 203 N.E.2d 539 (1965). The present statute

enacted in 1973 retains this provision. Ind. Code § 35-3.1-l-2(c)(1976).

'"Anderson v. State, 239 Ind. 372, 376, 156 N.E.2d 384, 386 (1959). See Orfield,

supra note 2, at 127.

"McDonel v. State, 90 Ind. 320, 321-22 (1883). But see Lander v. State, 238 Ind.

680, 686, 154 N.E.2d 507, 510 (1958). See generally Orfield, supra note 2, at 122-23.
12248 Ind. 688, 230 N.E.2d 536 (1967). The court explained that discovery to the ac-

cused, while not constitutionally required, was within the inherent authority of the

courts to regulate criminal procedure. Id. at 691, 230 N.E.2d at 539.
18253 Ind. 420, 254 N.E.2d 873 (1970). The court effectively overruled Anderson v.

State, 239 Ind. 372, 156 N.E.2d 384 (1959), where the court had noted that discovery of

a witness' pre-trial statements should be ordered where a "direct conflict" with trial

testimony could be shown, or where the statements would "prove the innocence of the

accused." Id. at 376, 156 N.E.2d at 386. The court in Antrobus stated that "the better
rule does not require a defendant to prove an inconsistency . . . before he even knows

what the witness said in the statement." 253 Ind. at 428, 254 N.E.2d at 877.



1978] CRIMINAL DISCOVERY 375

In both Bernard and Antrobus, the supreme court required the

defendant to establish a foundation for the discovery of the items

sought,
14 and upon laying the proper foundation, allowed the trial

court only "limited discretion" to overrule the motion. The court
could deny discovery only where the state showed a "paramount in-

terest in nondisclosure."
15 Even before Antrobus, the "paramount in-

terest" principle was applied to the statutory procedure for the tak-

ing of depositions.
16 The broad right seemingly conferred by the

statute upon the defendant to depose witnesses was held to be sub-

ject to the court's power to prevent depositions if the state could

establish a paramount interest in preventing deposition of its

witnesses.

Bernard created the framework for the establishment of a com-
prehensive scheme of criminal discovery. In 1969, Judge Hunter
wrote that Bernard held that "after a defendant has shown that
discovery is necessary to preparation of his case, it should be

granted absent a more compelling showing by the state." 17 In Dillard
v. State,

18
Justice DeBruler, who also authored Antrobus, expanded

the principles of Bernard and Antrobus to discovery in general. In
Dillard, the defendant had sought disclosure of all relevant police

reports and memoranda. The foundation for discovery established
by the court required a sufficient designation of the items to be
discovered and a showing of their materiality to the defense. Fur-

thermore, where the state could show a paramount interest in non-

uIn Bernard v. State, 248 Ind. 688, 230 N.E.2d 536 (1967), the court recognized

that a list of the state's witnesses would be clearly beneficial to the defense, therefore,

in the absence of a showing of a paramount state interest in non-disclosure, the show-

ing required of the defendant was minimal. As a later case explained, the materiality
of such a list is self-evident. Dillard v. State, 257 Ind. 282, 292, 274 N.E.2d 387, 392

(1971).

In Antrobus v. State, 253 Ind. 420, 254 N.E.2d 873 (1970), the defendant was re-
quired to show:

(1) The witness whose statement is sought has testified on direct ex-
amination; (2) a substantially verbatim transcription of the statements made
by the witness prior to trial is shown to probably be within the control of the
prosecution; and, (3) the statements relate to matters covered in the witness'

testimony in the present case.

Id. at 427, 254 N.E.2d at 876-77.

"Bernard v. State, 248 Ind. at 692, 230 N.E.2d at 540; Antrobus v. State, 253 Ind.

at 427, 254 N.E.2d at 877.

"Howard v. State, 251 Ind. 584, 244 N.E.2d 127 (1969); Amaro v. State, 251 Ind.
88, 239 N.E.2d 394 (1968); Nuckles v. State, 250 Ind. 399, 236 N.E.2d 818 (1968). See

also Johnson v. State, 255 Ind. 589, 266 N.E.2d 57 (1971); Reynolds v. State, 155 Ind.

App. 266, 292 N.E.2d 290 (1973).

"Howard v. State, 251 Ind. 584, 585, 244 N.E.2d 127, 128 (1969) (citing Bernard v.
State, 248 Ind. 688, 230 N.E.2d 536 (1967)) (emphasis added).

"257 Ind. 282, 274 N.E.2d 387 (1971).



376 INDIANA LAW REVIEW [Vol. 11:373

disclosure, discovery would not be permitted. 19 The defendant's re-
quest for production of the reports in Dillard failed for want of a
sufficiently particular designation.

In 1972, Justice DeBruler wrote the opinion in Sexton v. State,20

which allowed a defendant, who had no memory of the facts alleged
due to electric shock therapy, to discover both his own statement to
the police and a police diagram of the crime scene. The defendant
was held to have satisfied Dillard by designating the items sought
with reasonable particularity and by showing that, due to his inabili-

ty to recall the facts of the offense, the materials were necessary to
the preparation of his defense. As there was no showing of a para-
mount interest by the state in nondisclosure, the trial court was
held to have had no discretion to deny the motion.

Thus, by 1972, a general criminal discovery framework seemed
to have been constructed. As a preliminary matter, the defendant
was required to specify the material sought with some particularity:
For example, "all inter-office memos, notes and reports, of all law
enforcement agencies, concerning this robbery" is insufficiently

specific.
21 A showing of some need for the discovery was also

necessary. In this regard, Dillard distinguished items of "self-

evident" materiality — witness lists, for example— from other items
whose materiality the defendant was required to show affirm-
atively.

22 The degree of need required to be shown was apparently
more than simply the convenience of being able to review the state's
file and preview its evidence.28 Absent the state's showing of a para-
mount interest in nondisclosure, the court was required to order
production.

24

"Id. at 291, 274 N.E.2d at 392.

™2,V1 Ind. 556, 276 N.E.2d 836 (1972).

"Dillard v. State, 257 Ind. at 292, 274 N.E.2d at 392.
22
Id. at 291, 274 N.E.2d at 392. See note 14 supra.

28In Dillard, appellant's attempt to discover all reports prepared by any law en-

forcement agency relating to the crime charged was characterized as "nothing more

than a fishing expedition or an attempted rummaging about in the police files hoping

to turn up something to use at the trial." 257 Ind. at 292, 274 N.E.2d at 392-93. Com-

pare this with the degree of need for the requested items shown in Sexton, discussed

at note 20 supra and accompanying text. In Kleinrichert v. State, 260 Ind. 537, 297

N.E.2d 822 (1973), a request for records relating to a prostitute's customers was held

properly refused for want of a showing of materiality.

"Apart from the general "limited discretion" standard, there was already a fully

discretionary discovery procedure operating at the time. Dillard held that the trial

court had discretionary authority to order production of witness' statements before

trial when Antrobus did not apply, because the witness had not yet testified. 257 Ind.
at 294, 274 N.E.2d at 393.

In Cherry v. State, 258 Ind. 298, 280 N.E.2d 818 (1972), the court upheld a trial

court's failure to order production of witness statements before trial. Justice Prentice

wrote: "Under proper circumstances, the trial court might entertain a motion of this



1978] CRIMINAL DISCOVERY 377

In 1974, the Indiana Supreme Court both widened the scope and
restructured the framework of criminal discovery in State ex ret

Keller v. Criminal Court.
25

In Keller, the local discovery rules of a

trial court were challenged by both the defendant and the pros-

ecutor. Justice Arterburn, who had shown reserved enthusiasm for
discovery in the earlier cases,

26 wrote the court's opinion upholding

the rules. Relying on language from earlier cases that the power to
provide for discovery is inherent in the trial court,

27 Keller affirmed

the authority of the trial court to issue an order requiring the state

to produce a list of the state's witnesses before trial; statements by

the accused, co-defendants, and witnesses; grand jury testimony;

reports and results of scientific and medical tests; tangible and

documentary evidence; and criminal histories of witnesses.28 The
court also upheld the part of the order requiring the defendant to

list his witnesses and defenses.29 Finally, the court stated:

We hold, as a matter of state law, that a trial court has the
inherent power to balance discovery privileges between par-

ties. Thus, if any statute should deny or fail to provide for

full discovery within constitutional safeguards, the trial

type at this stage of the proceedings. However, an 'Antrobus-type' foundation would

have to be laid, and the material sought would have to fit the foundation." Id. at 300,

280 N.E.2d at 820.

Since the Antrobus foundation requires that the witness have testified at trial,

the court could not have intended to require the showing of all of the Antrobus

elements and may have actually had the Dillard foundation in mind.
The burden of showing the paramount interest was apparently borne by the state.

In Sexton, the court refused to hypothesize state interests in nondisclosure, or to re-

quire the defendant to negate possible interests, but assumed from the failure of the

state to advance any interests in nondisclosure that none existed.
2S262 Ind. 420, 317 N.E.2d 433 (1974). See Kerr, Criminal Law and Procedure, 1975

Survey of Recent Developments in Indiana Law, 9 Ind. L. Rev. 160, 178-79 (1975);
Note, Keller, Prosecutorial Discovery and the Privilege Against Self-incrimination, 9

Ind. L. Rev. 623 (1976).

"'Justice Arterburn dissented in Bernard, 248 Ind. at 696, 230 N.E.2d at 542, and

in Johns v. State, 251 Ind. 172, 240 N.E.2d 60 (1968) (conviction reversed for failure to

provide complete witness list). He concurred separately in Antrobus, 253 Ind. at 436,
254 N.E.2d at 881, and concurred in the result in Dillard. In Sexton, he dissented in

part, opposing the disclosure of the state's work product and questioning whether the
court would allow reciprocal prosecutorial discovery of defense preparations. 257 Ind.

at 562, 276 N.E.2d at 840.

"State ex reL Keller v. Criminal Court, 262 Ind. at 423, 317 N.E.2d at 435 (citing

Bernard v. State, 248 Ind. 688, 230 N.E.2d 536 (1967)); Johns v. State, 251 Ind. 172, 240

N.E.2d 60 (1968); Antrobus v. State, 253 Ind. 420, 254 N.E.2d 873 (1970).
"262 Ind. at 421-22, 317 N.E.2d at 434.

*7d. at 424-25, 317 N.E.2d at 436. This part of the opinion has been criticized.

Note, Keller, Prosecutorial Discovery and the Privilege Against Self-incrimination, 9
Ind. L. Rev. 623 (1976). The part of the order requiring the defendant to submit to
physical examination and testing was not challenged.



378 INDIANA LAW REVIEW [Vol. 11:373

court may balance the discovery procedure regardless of any
omission or prohibition in the statute.

80

Justice DeBruler dissented in part,
81 arguing that the order re-

quired the accused to incriminate himself and that the Keller

scheme of discovery was too broad:

This order as I understand it requires the State to open its

file to the accused upon a simple unspecific request to do so.

In [Antrobus] and [Dillard] we set forth specific procedures
that the accused must follow in order to successfully move
for discovery. The interests of the accused and the State
were carefully considered at each step. On the other hand,
this order which the majority sanctions, subjects the State,

without a showing of particularized need and a showing that

the information being sought is not otherwise available to

the accused, to a vague and overbroad command the
perimeters of which are not discernible, resulting in needless

waste, frustration, and expense.82

Since Keller, the paramount factor in criminal discovery has

been the discretion of the trial court to order disclosures on such

terms as it deems fit. Keller itself offers few guidelines for the exer-
cise of that discretion. This situation produces a number of unfor-
tunate results. Discovery is not uniform throughout the state,88 and

80262 Ind. at 429, 317 N.E.2d at 438.

"Since the court had denied both parties' applications for extraordinary relief,

Justice DeBruler was technically concurring in the result. However, the majority had

"affirmed" the trial court's discovery order, and he dissented from this holding. Id. at

430, 317 N.E.2d at 438.
K
IdL at 432, 317 N.E.2d at 440 (citations omitted).

In Reid v. State, No. 107 S 345 (Ind. Feb. 6, 1978), the Indiana Supreme Court
recognized limits on the scope of discovery after Keller, holding that an uncontested

order requiring disclosure by the prosecution of "all evidence . . . relevant to the . . .

charge" was overly broad:
We believe that the State could not properly be involuntarily subjected to a
general order to disclose all information relevant to the subject matter or

which may in any manner aid the accused in the ascertainment of the truth,
because such an order would place too great a burden upon it — a burden to
assess and reassess its information, and to anticipate and speculate constant-

ly as to the relevance of bits of information and the possible use the defen-

dant might make of them. In effect, it would all but put the responsibility for
the defense upon the state.

Id., slip op. at 7. The court also noted the difficulty in ascertaining whether such an
order has been violated, which is simply to say that the vagueness of the order unduly

burdens the courts as well as the prosecution.

^The court in Keller had recognized that the "better approach" to discovery

development was by rule-making and suggested that such rules were forthcoming. 262
Ind. at 429, 317 N.E.2d at 438. However, in view of the supreme court's holding that



1978] CRIMINAL DISCOVERY 379

the rights of litigants to discovery may diminish or expand with a
change of venue. Parties have no guidance as to what showing will

be required of them as a prerequisite to obtaining disclosures. The

abuse-of-discretion standard of appellate review allows the courts,

both trial and appellate, to dispose of discovery issues without ar-

ticulating those factors that the courts consider in exercising their

discretion. Discovery issues may be dismissed with no more discus-
sion than stating that discovery is discretionary with the trial

court.
84

Finally, trial courts may themselves be confused as to their
duties with respect to discovery. One case decided since Keller has

suggested that defendants retain the qualified right to in-trial pro-

duction upon the laying of an Antrobus foundation at least with

regard to witness' pre-trial statements.
85

II. Attempts at Codification of Discovery Law and procedure

The Keller court recognized that codification of discovery rules
might well be preferable to "piecemeal" development by judicial

decision.
86 The most obvious ways in which such codification could

occur is through statute or court rules. An attempt at statutory
codification occurred in 1972 when the Indiana Criminal Law Study
Commission drafted its proposed Indiana Code of Criminal Pro-

trial courts might disregard limitations on discovery set out in rules and statutes, see

note 30 supra and accompanying text, such rules might not provide much uniformity.
"See Hudson v. State, 354 N.E.2d 164 (Ind. 1976); Owens v. State, 263 Ind. 487,

333 N.E.2d 745 (1975).

In Murphy v. State, 352 N.E.2d 479 (Ind. 1976), the court reversed a conviction on
the grounds that the trial court had abused its discretion in refusing* to order the tak-

ing of depositions by the indigent defendant at public expense. The court, which before

Keller had held that only the showing of a paramount interest by the state sufficed to

prevent the defendant from deposing the state's witnesses, Amaro v. State, 251 Ind.
88, 239 N.E.2d 394 (1968), held that the trial court's decision was "speculative and ar-

bitrary" because no findings of fact were made nor evidence presented to show why
the request was unwarranted. 352 N.E.2d at 482. The court held that Keller had
superseded the deposition statute, Ind. Code § 35-1-31-8 (1976), and implicitly had

modified the Amaro line of cases. See note 16 supra. This case and Brewer v. State,
362 N.E.2d 1175 (Ind. Ct. App. 1977), which involved a situation similar to Murphy, are

the only cases subsequent to Keller in which it has been found that the trial court

abused its discretion in denying discovery of sanctions.

""Morris v. State, 263 Ind. 370, 332 N.E.2d 90 (1975). "[A] defendant has a right,

upon the laying of a proper foundation, to statements made by a witness to law en-
forcement officers and to the grand jury only after the witness has testified on direct

examination." Id. at 376 (quoting Antrobus v. State, 253 Ind. at 420, 254 N.E.2d at 873).

The court also upheld the defendant's right to a witness list under Bernard. 263
Ind. at 376, 332 N.E.2d at 93. See also Marlett v. State, 348 N.E.2d 86 (Ind. Ct. App.

1976); Lockridge v. State, 263 Ind. 678, 338 N.E.2d 275 (1975).
8«262 Ind. at 429, 327 N.E.2d at 438.



380 INDIANA LAW REVIEW [Vol. 11:373

cedure,87 which included a chapter regulating discovery.88 The pro-
posed code adopted the position of the Amercian Bar Association's
Project on Standards for Criminal Justice:

u
[D]iscovery should be as

full and free as possible."89

The proposed code listed items subject to discovery by the pros-
ecution and the defense, which were similar to those enumerated in
the local rule in Keller.* It retained the Bernard standard for deter-

mining the necessity for the production of a requested item: The
trial court was permitted to deny the motion only upon the showing
of a paramount interest in nondisclosure.41 A "work product"
privilege and informant's identity privilege were included, subject to
an exception where the material exculpates the defendant.42

Disclosure not required under the first section could be granted in

the court's discretion upon a showing of materiality to the defense.48

The court was also given discretion to regulate the manner of
discovery,44 and to impose sanctions for noncompliance with
discovery orders.45

The proposed code may have been unduly rigorous in requiring
the state to bear the burden of showing why discovery should not
be ordered upon the state. It also missed an opportunity to define
"paramount interest in nondisclosure" by not specifying what in-
terests the nondisclosure standard protected. Specifically, the pro-

posed code left unsettled whether factors such as expense, incon-
venience, and harassment with excessive requests for production

37See Indiana Criminal Law Study Commission, Indiana Code of Criminal Pro-
cedure: Proposed Final Draft (1972) [hereinafter cited as Code of Criminal Pro-

cedure: Proposed Final Draft].
M/d §§ 35-5.1-4-1 to -8.

''Compare ABA Standards Relating to Discovery and Procedure Before Trial
§ 1.2 (Approved Draft, 1970) [hereinafter cited as ABA Standards ] with Code of
Criminal Procedure: Proposed Final Draft, supra note 37, § 35-5.1-4-l(b).

This is also the position adopted in Keller. See 262 Ind. at 429, 317 N.E.2d at 438.
40Code of Criminal Procedure: Proposed Final Draft, supra note 37, §

35-5.1-4-l(b). Both this section and Judge Wilson's local rules in Keller bear a

resemblance to the list in the ABA Standards, supra note 39, § 2.1.
"Code of Criminal Procedure: Proposed Final Draft, supra note 37, §

35-5.1-4-l(c). The section specifies that the state must prove the interest in non-
disclosure by a "clear preponderance" of the evidence, and sets out the danger of harm

to or harassment of a witness and the facilitation of perjury as examples of paramount

interest. The examples are apparently taken from Johns v. State, 251 Ind. 172, 240

N.E.2d 60 (1968).

"Code of Criminal Procedure: Proposed Final Draft, supra note 37, §
35-5.1-4-Kd).

i3
Ia\ § 35-5.1-4-2.

"/d. § 35-5.1-4-6(a).

"Id. § 35-5.1-4-6(d).



1978] CRIMINAL DISCOVERY 381

were to be considered." Nonetheless, the proposed code discovery
provisions were the product of considerable thought and research,47

and had the virtue of introducing order and rationality into the

discovery process. The discovery chapter was not included,
however, in the version of the Code of Criminal Procedure enacted
into law in 1973.48

An alternative to statutory discovery procedure is regulation by
court rules; the supreme court early recognized its inherent power
to provide for discovery.49 In civil cases, a comprehensive scheme of
discovery is contained in the Trial Rules.60 An obvious and con-
venient mode of providing such a scheme for criminal discovery
might be the adoption of the civil rules in criminal prosecutions.61

However, this approach has not been adopted.
Even before the adoption of the Indiana Trial Rules, the

supreme court had declined to hold that a civil discovery statute62 or
equitable discovery rules68 applied in criminal cases. Bernard marked
no departure from this rule; the court explicitly disclaimed the ap-
plicability of "the rules of civil practice"64 to criminal discovery.66

The supreme court decided Antrobus hardly a month after its adop-

"Dillard suggested that such factors could be taken into account. 257 Ind. at 292,

274 N.E.2d at 392. Keller mentioned cost and efficiency as factors for the trial court to

consider, but of course Keller was concerned with a different standard. 262 Ind. at 423,
317 N.E.2d at 435.

"The comments to the Proposed Code of Criminal Procedure and its companion,

the Proposed Penal Code, Indiana Criminal Study Law Commission, Indiana Penal
Code: Proposed Final Draft (1974), are valuable research aids in the field of Indiana
criminal law.

"Pub. L. No. 325, ch. 2(6)(c), 1973 Ind. Acts 1757.

"Bernard v. State, 248 Ind. 688, 691, 230 N.E.2d 536, 539 (1970).
mInd. R. Tr. P. 26-37.

"This is particularly true in view of the Criminal Rule providing that the Trial

Rules apply to criminal cases "so far as they are not in conflict with any specific rule

adopted by this court for the conduct of criminal proceedings." Ind. R. Crim. P. 21.
62Ch. 38, § 354, 1881 Ind. Acts 240 (Spec. Sess.) (repealed 1969) (formerly codified

at Ind. Stat. Ann. § 2-1645 (Burns 1946)). A statute, ch. 169, § 344, 1905 Ind. Acts 584
(superseded by Ind. Code 35-4.1-2-2 (1976)), rendered civil procedure rules applicable to
criminal prosecutions.

In Weer v. State, 219 Ind. 217, 36 N.E.2d 787 (1941), the court assumed that the
statute applied in order to hold that the appellant was not entitled to discovery.

""Lander v. State, 238 Ind. 680, 154 N.E.2d 507 (1958).
MPrior to the adoption of the trial rules, statutory provisions existed for the tak-

ing of depositions, ch. 38, §§ 287-318, 1881 Ind. Acts 292-98 (repealed 1969); for inter-

rogatories, ch. 38, § 318, 1881 Ind. Acts 305 (amended by ch. 53, § 1, 1965 Ind. Acts 85)
(repealed 1969); for admission of execution of documents, ch. 38, § 352, 1881 Ind. Acts

305-06 (repealed 1969); and for court ordered production of documentary evidence, ch.

38, §§ 353-354, 1881 Ind. Acts 306 (amended by ch. 140, § 1, 1965 Ind.Acts 219) (repealed

1969). All of these statutes were repealed by ch. 191, § 3, 1969 Ind. Acts 715-17.
65248 Ind. at 691, 230 N.E.2d at 539.



382 INDIANA LA W REVIEW [Vol. 11:373

tion of the Trial Rules,
68 but gave no indication that those rules

would apply in criminal prosecutions:

The rules of discovery applicable in civil proceedings in Indiana

courts are not applicable as such in criminal proceedings.

However, the techniques of discovery embodied in those rules

will often be applicable in criminal proceedings and the trial

court has the inherent power to implement such discovery
techniques as are necessary to provide the defendant a full and

fair hearing.
57

In Dillard, the court resorted to Trial Rule 34, which provides

for the production and inspection of tangible and documentary

evidence for assisting in defining the "sufficient designation" ele-

ment of the Antrobus foundation.68 The court borrowed language
from Trial Rule 34 to hold that an item must be described with

"reasonable particularity."69 Both Trial Rule 3460 and Dillard deal

with production of materials. However, while Trial Rule 34 requires

no foundation to be established as a prerequisite,61 Dillard adopts

what amounts to the requirement of a showing of good cause.
In 1972, the supreme court substantially applied the Trial Rule

2662 definition of the scope of discovery to criminal proceedings.93 In

upholding the denial of an order to produce the results of a

polygraph examination, the court noted that such results were "not
only . . . inadmissible . . . but . . . would neither lead to any addi-

tional evidence nor aid the appellant in the preparation of his

defense."
64

MThe rules became effective Jan. 1, 1970.
67253 Ind. at 423, 254 N.E.2d at 874.

"See notes 14 & 15 supra and accompanying text. Dillard reaffirmed the three-
pronged Antrobus foundation requirement, and references in later cases to Dillard

foundations are in fact referring to Antrobus.
59257 Ind. at 292, 274 N.E.2d at 392.
mInd. R. Tr. P. 34 is entitled: "Production of Documents and Things and Entry

upon Land for Inspection and Other Purposes."
"Trial Rule 34 does not require a showing of good cause for production. 3 W.

Harvey, Indiana Practice 5 (1970).

"Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject-matter involved in the pending action .... It is not

ground for objection that the information sought will be inadmissible at the

trial if the information sought appears reasonably calculated to lead to the

discovery of admissible evidence.

Ind. R. Tr. P. 26(B)(1).

In Reid v. State, No. 107 S 345 (Ind. Feb. 6, 1978), the supreme court relied on

Ind. R. Tr. P. 26(E) to hold that discovery orders in criminal prosecutions impose a con-

tinuing duty to disclose.
,3Zupp v. State, 258 Ind. 625, 283 N.E.2d 540 (1972).
"Id. at 630-31, 283 N.E.2d at 543. The court cited Antrobus rather than Trial Rule 26.

The quoted language might be considered a definition of the materiality of the Dillard
foundation. See text accompanying notes 18-19 supra.



1978] CRIMINAL DISCOVERY 383

An area of increasing concern to the courts has been discovery
sanctions. Trial Rule 37 sets out a comprehensive scheme of pro-
cedures to be employed in regulating civil discovery as well as the
remedies to which the court may resort. The supreme court early
held that the appropriate sanction for the state's failure to make
ordered disclosures was a continuance.86 Defendants have argued
that evidence not disclosed should be excluded;86 that witnesses not

named should not be permitted to testify;67 or as an ultimate sanc-

"Johns v. State, 251 Ind. 172, 240 N.E.2d 60 (1968). In Johns, the state failed to

completely comply with an order to produce a witness list yet made no showing that it
could not or should not be required to respond. Although the court recognized that a

continuance was generally an appropriate remedy in cases of this kind, it held it was

reversible error for the trial court to permit the undisclosed witness to testify in the

particular circumstances of this case.

Johns is much cited by defendants who hope to fit the facts of their cases into its
mold, but the courts have not been eager to apply so serious a sanction. The Second
District Court of Appeals fashioned a practical remedy in Marlett v. State, 348 N.E.2d

86 (Ind. Ct. App. 1976). The court remanded the case for an evidentiary hearing at

which the testimony in question was to be produced, holding that the trial court had

erroneously refused to order production of a transcript of grand jury testimony after

the defendant established the necessary Antrobus foundation. If this testimony was
found to contain sufficient discrepancy from the witness' trial testimony to warrant

its use for impeachment, the court was to order a new trial.
The supreme court has also suggested that the "offending counsel" should be

punished for contempt of the court's discovery order. Chatman v. State, 263 Ind. 531,
334 N.E.2d 673 (1975).

"Hudson v. State, 354 N.E.2d 164 (Ind. 1976); Chatman v. State, 263 Ind. 531, 334
N.E.2d 673 (1975).

"Lund v. State, 345 N.E.2d 826 (Ind. 1976); Luckett v. State, 259 Ind. 174, 284

N.E.2d 738 (1972).

In Henson v. State, 352 N.E.2d 746 (Ind. 1976), the court suggested that a show-
ing of prosecutorial obstruction of the discovery process or the inadequacy of a contin-

uance as a remedy would call for exclusion of evidence as a discovery sanction. Id. at
749.

In Reid v. State, No. 107 S 345 (Ind. Feb. 6, 1978), the court undertook an exten-

sive analysis of the adequacy of a continuance to remedy a violation of a discovery

order by the prosecution upon the facts of that particular case to support its conclu-

sion that a continuance would have been adequate. Underlying Justice Prentice's

discussion seems to be the unstated assumption that the purpose of discovery sanc-

tions is not to punish the offending party but to assure that the noncompliance does

not harm the case of the party seeking discovery. Since a continuance would serve to
restore the accused to as good a position as he would have held had there been no

violation, a continuance was a sufficient remedy. This seems to be a sensible position.
One post-Keller case, Owens v. State, 263 Ind. 487, 333 N.E.2d 745 (1975), went so

far as to order a continuance to remedy the state's noncompliance with the notice of
alibi statute, Ind. Code §§ 35-5-1-1 to -3 (1976), in lieu of the preclusion of proof remedy
provided by statute. Id. § 35-5-1-3. See notes 4-6 supra.

The court's treatment of the issue is terse, and it is not clear whether the holding
represents a conscious supersedure of the alibi statute or a misapplication of Reed v.

State, 243 Ind. 544, 188 N.E.2d 533 (1963).



/

384 INDIANA LAW REVIEW [Vol. 11:373

tion, the defendant should not be prosecuted.88 The courts have con-
sistently rejected these arguments.

In recent decisions, the courts have cited Trial Rule 37 for the

proposition that discovery sanctions are discretionary with the trial

court.
89

In Keel v. State, 70 the court of appeals, while noting an

absence of cases applying Trial Rule 37 to criminal prosecutions,

recognized an inherent discretionary power in the trial court to ex-
clude testimony or evidence because of noncompliance with the

court's discovery order. This embraces a narrow part of Trial Rule

37's broad options.71

The one area of criminal discovery to which the Trial Rules have
been applied in their entirety is that of depositions. In Carroll v.

State,
72 the supreme court applied Trial Rule 32(A) to the use of a

deposition in a criminal trial. Although the statutory provision
that allows the defendant to take depositions "to be read on the

trial"
73 could be read to permit such depositions to be used at trial

as substantive evidence without restriction, no case had ever con-

strued it in this manner. In Murphy v. State, 74 the court held that
the statute had been superseded by Keller and by the Trial Rules,76

and that Trial Rules 30 and 31, governing the taking of depositions,

applied to criminal prosecutions through Criminal Rule 21.76 This is

the only instance to date of the application of an entire civil

discovery rule to criminal procedure.

Aside from the area of depositions, there has been no wholesale

borrowing from the Trial Rules in the formulation of the rules of

criminal discovery. The adoption of the "techniques" of civil

,8Lund v. State, 345 N.E.2d 826 (Ind. 1976).
"French v. State, 362 N.E.2d 834 (Ind. 1977); Lund v. State, 345 N.E.2d 826 (Ind.

1976); Block v. State, 356 N.E.2d 683 (Ind. 1970); Keel v. State, 333 N.E.2d 328 (Ind. Ct.

App. 1975).
70333 N.E.2d 328 (Ind. Ct. App. 1975); See also State v. Buza, 324 N.E.2d 824 (Ind.

Ct. App. 1975).
71
Ind. R. Tr. P. 37(B)(3) authorizes the trial court to exclude evidence or to order

evidence to be taken as established in enforcing discovery orders.

In Keel, the court of appeals referred to this sanction as a "protective order"; the

protective order is a device provided by Trial Rule 26(C) to prevent the oppressive use

of discovery.
72263 Ind. 696, 338 N.E.2d 264 (1975).
73
Ind. Code § 35-1-31-8 (1976).

74352 N.E.2d 479 (Ind. 1976). See also Brewer v. State, 362 N.E.2d 1175 (Ind. Ct.

App. 1977).
7B352 N.E.2d at 482.

™Ia\ Ind. R. Crim. P. 21 provides: "The Indiana Rules of trial and appellate pro-

cedure shall apply to all criminal appeals so far as they are not in conflict with any

specific rule adopted by this court for the conduct of criminal proceedings."



1978] CRIMINAL DISCOVERY 385

discovery, predicted in Antrobus, has not visibly materialized.77 This

is not necessarily an undesirable result. The Trial Rules were
adopted to implement policies and to deal with problems inherent in

civil trials; the policies and problems of criminal procedure are suffi-

ciently different from those of civil procedure to warrant separate

discovery rules. As the supreme court has recognized its authority
to do so,78 it should adopt specific rules for criminal discovery.

III. Alternatives for Rules of Criminal discovery procedure

In considering what is desirable in criminal discovery, it would

be well to begin by isolating and examining the purposes of such

discovery, the interests to be served, and the dangers to be avoided.

Keller stated: "[Criminal discovery is designed to improve the effi-

ciency of the criminal justice system. The idea of a trial as a sport
or game is not only a reflection on the judicial process, but it is
wasteful of human intelligence and technique."79 The American Bar
Association's Project on Standards for Criminal Justice has made a
more extensive listing of discovery purposes:

(a) Procedures prior to trial should serve the following ^
needs:

(i) to promote an expeditious as well as fair determina-
tion of the charges, whether by plea or trial;

(ii) to provide the accused sufficient information to make
an informed plea;

(iii) to permit thorough preparation for trial and minimize

surprise at trial;

(iv) to avoid unnecessary and repetitious trials by expos-

ing any latent procedural or constitutional issues and afford-
ing remedies therefor prior to trial;

(v) to reduce interruptions and complications of trials by

identifying issues collateral to guilt or innocence, and deter-

mining them prior to trial; . . ., and
(vi) to effect economies in time, money, and judicial and

7Tn Gutowski v. State, 354 N.E.2d 293 (Ind. Ct. App. 1976), the court of appeals
recapitulated the relationship between the trial rules and criminal discovery as follows:

"The trial court has the inherent power to apply the techniques of discovery embodied

in the civil rules and is not bound by the limiting language contained in those civil

rules." Id. at 296. While this statement is undoubtedly correct in light of the language

from Keller quoted above, see text accompanying note 30 supra, it is an unfortunate

rule that fails to guide the trial court in the exercise of its discretion.
78Neeley v. State, 261 Ind. 434, 305 N.E.2d 434 (1974); State v. Bridenhager, 257

Ind. 699, 279 N.E.2d 794 (1972).
7»262 Ind. at 423, 317 N.E.2d at 435.



386 INDIANA LAW REVIEW [Vol. 11:373

professional talents by minimizing paperwork, repetitious

assertions of issues, and the number of separate hearings.80

The interests contained in these standards include not only efficien-
cy of the criminal justice system, but also the fairness of that proc-

ess to the accused. However, the interest of fairness to the defen-

dant is already protected by the constitutional doctrine of due proc-

ess, which prohibits the state from using evidence known to be false
or perjured81 and from suppressing exculpatory evidence.82

The purposes of criminal discovery differ from those of civil
discovery in one very important respect. A principal function of civil
discovery is the narrowing of the issues,88 which are only vaguely

framed by the pleadings under the Trial Rules. This purpose is not
applicable to criminal procedure. While the pleadings in civil cases

are intended only to serve notice of the transaction upon which the
action is based to the opposing party,84 the criminal indictment or in-

^ '"ABA Standards, supra note 39, § 1.1. The standards enumerate needs to be
served not only by discovery but by pre-trial procedures generally.

81Napue v. Illinois, 360 U.S. 264 (1959).
82Brady v. Maryland, 373 U.S. 83 (1963). While Brady contemplated that the

defense would request the material alleged to be exculpatory, the United States

Supreme Court has since emphasized that the prosecutor must disclose evidence

without specific request if the evidence is sufficiently substantial to create "reasonable

doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112 (1976).

Indiana law anticipated Agurs. In Birkla v. State, 263 Ind. 37, 323 N.E.2d 645

(1975), the Indiana Supreme Court held that destruction of potentially material
evidence prior to a request for production by the defense places a "heavy burden" on

the prosecution to show that the destruction of the evidence did not prejudice the

defendant. Id. at 43, 323 N.E.2d at 649. See also Newman v. State, 263 Ind. 569, 334
N.E.2d 684 (1975).

The Brady doctrine should not be confused with court-ordered discovery, as some
practitioners do. Court-ordered discovery is usually held not to be constitutionally re-

quired. United States v. Augenblick, 393 U.S. 348 (1969); Johnson v. State, 255 Ind.

589, 266 N.E.2d 57 (1971); Gubitz v. State, 360 N.E.2d 259 (Ind. Ct. App. 1977). Due pro-

cess is concerned with suppression of evidence — the total withholding of evidence from
the trier of fact by the prosecution — and ordinarily is not concerned with pre-trial
disclosure of information to the accused for the preparation of his defense. But there is

no reason for the courts not to find that the assistance of counsel clause of the sixth

amendment guarantees at least minimal pre-trial discovery in order to insure mean-
ingful investigation and preparation. One federal court has held that due process re-
quires the prosecution to permit the defense access to ballistics evidence for expert ex-

amination. Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975). See also White v. Mag-
gio, 556 F.2d 1352 (5th Cir. 1977).

88
C. Wright & A. Miller, Federal Practice and Procedure § 2001, at 15 (1970).

m
Ind. R. Tr. P. 8(a) requires a "short and plain statement of the claim" and a de-

mand for relief. The Civil Code Study Commission Comments to Trial Rule 8, quoted

in 1 W. Harvey, Indiana Practice 476 (1969), state:
This subdivision establishes the concept of notice pleading and eliminates the

constraining doctrines of the code concept of the "cause of action." Historical-

ly, pleadings have had four functions: (1) giving notice of the nature of the



1978] CRIMINAL DISCOVERY 387

formation is required to state "the nature and elements of the

crimes charged in plain and concise language."85 Under a prior
statute, the supreme court has held that Indiana criminal law does

not recognize the bill of particulars because any charging instru-

ment so vague as to justify a bill is subject to a motion to quash.88

The prime danger in criminal discovery was traditionally assum-
ed to be that of perjury.87 The defendant, once apprised of the
specifics of the case against him, would fabricate evidence to meet
the charges. This view has been somewhat discredited in recent
years.88 As Justice William Brennan has written:

I must say that I cannot be persuaded that the old hobgoblin
perjury . . . supports the case against criminal discovery. I

should think rather that its complete fallacy has been stark-

ly exposed through the extensive and analogous experience
in civil causes where liberal discovery has been allowed and
perjury has not been fostered. Indeed, this experience has

claim or defense; (2) stating facts each party believes to exist; (3) narrowing

the issues; and (4) providing a means for speedy disposition of sham claims

and unsubstantiated defenses. Rule 8(a) places the emphasis on the first of

these functions (the giving of notice) and when read in conjunction with the
rules as a whole, shifts the other functions to discovery, pre-trial conference,

and summary judgment.
e5
lND. Code § 35-3.1-l-2(a)(4) (1976). This section also requires the charging instru-

ment to state the name of the offense, id. § 35-3.1-l-2(a)(2), and to cite the statute
violated, id. § 35-3.1-l-2(a)(3). The time and place must be stated with sufficient
specificity to show that the crime was committed within the period of the statute of
limitations and to show proper venue, unless the time or place are elements of the of-
fense in which case they must be stated "as definitely as can be done." Id. §
35-3.1-l-2(a)(5).

Various case law pleading requirements apply to individual offenses. For exam-

ple, an indictment or information for involuntary manslaughter must allege the specific

acts of the defendant that constitute reckless disregard for the safety of others. State

v. Beckman, 219 Ind. 176, 37 N.E.2d 531 (1941). An information charging the commis-
sion of a felony while armed must set out the elements of the included or underlying
felony. Goldstine v. State, 230 Ind. 343, 103 N.E.2d 438 (1952). A burglary charge must
specify the felony that the accused intended to commit within the entered structure.

Bays v. State, 240 Ind. 37, 159 N.E.2d 393 (1959). An information for conspiracy must
allege the elements of the felony that was the object of the conspiracy. Landis v.
State, 196 Ind. 699, 149 N.E. 438 (1925).

"Sherrick v. State, 167 Ind. 345, 79 N.E. 193 (1906). The "motion to make more
specific" has also been held not to be recognized by Indiana criminal law. Hinshaw v.
State, 188 Ind. 447, 124 N.E. 458 (1919).

The proposed Indiana Code of Criminal Procedure included a provision for a bill
of particulars, Code of Criminal Procedure: Proposed Final Draft, supra note 37, §
35-3.1-1-3, but this feature was omitted from the Code as enacted.

"ABA Standards, supra note 39, § 1.2, comments at 36-40.
"Id.



388 INDIANA LAW REVIEW [Vol. 11:373

suggested that liberal discovery, far from abetting, actually

deters perjury and fabrication.89

In Dillard, the court recognized that intimidation, harassment, or

harming of witnesses or informants might be another danger of
criminal discovery.90 The Proposed Code of Criminal Procedure tried
to counter these dangers by listing facilitation of perjury and

danger to "any person" as adequate grounds for denial of a request

for discovery.
91

Another possible danger to be avoided is the abuse of discovery

procedures to prolong criminal prosecutions and to harass the pro-

secution with exorbitant demands for production. There is dicta in-
dicating recognition of this possibility in Dillard.

92
Trial Rule 26 pro-

vides trial courts with the means to prevent discovery abuses that
subject parties or other persons to "annoyance, embarrassment, op-

pression, or undue burden or expense" in civil matters.98 The poten-
tial for such abuse in criminal cases, where the amount of and time
for preparation by each party is ordinarily much less than in civil ac-
tions, is correspondingly greater.94 A defendant should not be allowed
to employ the threat of exhaustive discovery as a trump in plea
negotiations or as a wrench with which to jam the workings of the
criminal justice system.

Any scheme of discovery worthy of consideration, of course,
should advance the interests sought to be served by criminal
discovery while minimizing the potential for abuses. With this in
mind, this discussion will turn to the alternatives to be faced in con-

structing any such scheme.

A. Scope of Discovery

The scope of criminal discovery in Indiana before Keller was
quite restrictive. For example, the "materiality" showing required
by Dillard was capable of harsh construction. As applied in Sexton

"Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963

Wash. U.L.Q. 279, 291 (footnote omitted).
90257 Ind. 282, 274 N.E.2d 387 (1971).
91Code of Criminal Procedure: Proposed Final Draft, supra note 37, §

35-5.1-4-l(c).

92257 Ind. at 292, 274 N.E.2d at 392.
93
Ind. R. Tr. P. 26(C).

94This may seem paradoxical in view of the often cited preponderance of
resources which the prosecution, marshalling society's power, enjoys over the in-

dividual defendant. However, the prosecution must allocate finite resources among a
great number of criminal investigations and prosecutions. Moreover, the prosecution

consists of several mutally autonomous agencies, with differing outlooks and priorities,

whose cooperation is often less than optimal.



1978] CRIMINAL DISCOVERY 389

v. State,
95 the materiality requirment seemed to demand that the

material sought be beneficial to the preparation of the defandant's

case and that the defendant be unable to obtain the materials or in-

formation for himself without hardship. The American Bar Associa-

tion Standards' approach — arguably adopted in Keller96 — that
discovery be as "full and free as possible, consistent with the protec- ^>
tion of persons, effective law enforcement, the adversary system,

and national security"
97 probably represents the opposite extreme.

A scope of discovery as restrictive as that outlined in Sexton
threatens to impair discovery's functions of expediting the ad-

ministration of justice and guaranteeing the accused adequate infor-

mation with which to prepare his defense. A scope as liberal as that
of the ABA Standards lends itself to misuse too readily. The scope
of discovery best suited to the realization of discovery's ends seems

to be one in which the defendant may discover items which would
probably be of benefit to the preparation of his defense and which

are substantially more accessible to the prosecutor than to the
defense.

In specific terms, the scope of permissible discovery should in-

clude the following: A list of witnesses;98 statements made by the ac-
cused, a codefendant, or a witness, including statements contained in

grand jury testimony; records of criminal convictions of any such

persons available to the prosecutor; inspection of tangible and

documentary evidence; and the reports of experts and results of

scientific or medical tests. All of the foregoing are encompassed

within the ABA Standards and the Proposed Code of Criminal Pro- ./"
cedure's discovery chapter.99 Additionally, the defendant should be

allowed to discover a copy of the police report dealing with the

crime with which he is charged. Such reports were probably not

discoverable in ordinary circumstances before Keller, 100 since they

did not represent the statement of a witness but were part of the
state's work product.101 However, disclosure of such reports helps to

96257 Ind. 556, 276 N.E.2d 836 (1972). See text accompanying notes 20-23 supra.
wSee Note, Keller, Prosecutorial Discovery and the Privilege Against Self-

incrimination, 9 Ind. L. Rev. 623 (1976).

./"'ABA Standards, supra note 39, § 1.2.
98In Reid v. State, No. 107 S 345 (Ind. Feb. 6, 1978), the supreme court refused to

limit "witness" to exclude witnesses expected to be called for rebuttal purposes, and

held that a party is entitled to disclosure of rebuttal evidence when the existance and

relevance thereof becomes known to the party possessing it.

"See note 39 supra.
100
In Adams v. State, 254 Ind. 509, 260 N.E.2d 878 (1970), a police officer's notes of

an interview with a witness were held not to be subject to disclosure unless the officer

testified.

101
It is not clear whether a "work product privilege" exists in criminal cases under

present law. Justice Arterburn dissented in Sexton on the grounds that the diagram



390 INDIANA LAW REVIEW [Vol. 11:373

maximize the efficiency of the defendant's trial preparation by pro-
viding the defense with a background and starting point for its
preparations, while constituting a minimal interference with the

functioning of the police and prosecutor.

Since it is more conducive to judicial efficiency that certain
issues collateral to the defendant's guilt or innocence be raised and
resolved before trial, the defendant should be allowed access to suf-

ficient information to determine whether such issues exist.102 To
enable the defense to make a pre-trial suppression motion, the state
should be required to disclose whether tangible evidence has been
seized, whether any form of identification has been conducted, and
whether the defendant or any codefendants have made any
statements to law enforcement officials.103

The question of discovery privileges is encompassed in the issue
of scope. The Proposed Code of Criminal Procedure provided for an
"informant" and a "work product" privilege.104 Present Indiana law
recognizes the right of the state to withhold an informant's identity

when the state shows a paramount interest in doing so and when
the informant's identity is not relevant to any material issue in the

case.
106 This rule recognizes the necessity of employing informants in

some areas of law enforcement and the danger in mandatory
disclosure of informants' names to the defense.108 A comparable in-

ordered produced was the state's work product. 257 Ind. at 562, 276 N.E.2d at 840.

Since Keller the supreme court has apparently held, without discussion of the

term "work product," that the trial court may order the production of police reports.
Monserrate v. State, 352 N.E.2d 721 (Ind. 1976).

102
It might appear that all of these facts would be within the knowledge of the ac-

cused; often, however, this is not the case. A search may be conducted while the defen-
dant is already in custody or is absent from the searched premises. A defendant has no
way of knowing whether his photograph has been shown to a witness, and many
"show-ups" are conducted through one-way windows in holding cells. Aside from these

factors, such disclosures are necessary to permit the defense counsel to effectively

represent the mistrustful defendant who fails to fully apprise his attorney of the facts
known to him, and the confused, intoxicated, or slow-witted defendant who is unable to
do so. See ABA Standards, supra note 39, § 1.2, comment at 41-42.

""However, the flexibility with which a suppression hearing can be conducted

allows full exploration of the facts relating to the challenged search, confession, or

identification at the hearing itself and obviates the need for protracted discovery

preparatory to such a hearing.
mSee text accompanying note 42 supra.
,06Dorsey v. State, 254 Ind. 409, 260 N.E.2d 800 (1970); Collett v. State, 338 N.E.2d

286 (Ind. Ct. App. 1975).

""Hewitt v. State, 261 Ind. 71, 300 N.E.2d 94 (1973); McCulley v. State, 257 Ind.

135, 272 N.E.2d 613 (1971).

This issue is hedged by constitutional limits. In Roviaro v. United States, 353 U.S.

53 (1957), the United States Supreme Court required disclosure of an informer's identi-

ty when such information is "relevant and helpful to the defense of an accused, or is

essential to a fair determination of a cause." Id. at 60-61. In McCray v. Illinois, 386



1978] CRIMINAL DISCOVERY 391

former's privilege should be included in any codification of Indiana

discovery rules.

The proposed code envisioned a narrower privilege for the work

product107 of the prosecutor and the police than that of Trial Rule 26,

which sets forth the standard for discovery of work product in a
civil action.

108 While Trial Rule 26 exempts trial preparation in

general from disclosure, the proposed code exempts only material

containing "opinions, theories, or conclusions" of the prosecutor or

police.
109 The concept of "work product" as developed in civil

discovery 110 is not particularly useful in criminal procedure. The

state has not merely an advantage but a near monopoly of many
trial preparation techniques: Fingerprint identification, firearms

identification, and many areas of chemical analysis. It is wasteful to
require the defendant to duplicate the investigative efforts of the

police in these areas, even assuming that the necessary resources

are available to him.

The danger to be avoided in this area is that the defendant may
abuse discovery procedures by causing unnecessary cost and in-

convenience to the law enforcement agency. The state should be re-
quired to produce only that evidence which is already in existance;

it should not be required to research, investigate, or summarize for
the defendant's benefit.111 These practices are anomalous in an
adversary system as they debilitate the fact-resolution process of

U.S. 300 (1967), the Court upheld an Illinois privilege statute applied to prevent

disclosure of an informant's identity at a suppression hearing, where the issue was the

validity of a warrant issued upon information obtained from that informant, despite a

confrontation clause challenge.
107Code of Criminal Procedure: Proposed Final Draft, supra note 37, §

35-5.1-4-l(d), reads in part: "Disclosure shall not be required of legal research or of

records, correspondence, reports or memoranda to the extent that they contain the
opinions, theories or conclusions of police officers, the prosecuting attorney or

members of his legal staff unless the material exculpates the defendant."
108
Ind. R. Tr. P. 26(B)(2) restricts discovery of materials prepared for trial, with the

exception of statements by the discovering party, to those for which good cause can be

shown for production. Trial Rule 26(B)(3) allows a party to obtain a list of expert
witnesses who will appear at trial for his opponent and to discover their relevant opin-
ions. Otherwise, the opinions and information possessed by expert witnesses may not
be discovered without a showing of inability to obtain equivalent information without

undue hardship.
109The privilege found in the Proposed Code of Criminal Procedure is slightly

broader than that of the ABA Standards, supra note 39, § 2.6(a), as the latter does
not include the opinions of police officers.

1,0See Hickman v. Taylor, 329 U.S. 495 (1947).

"'For example, many defense discovery motions request "the substance of any
oral statment" made by a witness. If the state summarizes such a statement for the
defendant, the defense may then seek to bind the state to its summary, preventing
contradiction at trial. This runs counter to the trial's purpose of discovering the truth.



392 INDIANA LAW REVIEW [Vol. 11:373

that system and place one party in the position of vouching for

another's evidence.

B. Procedure

One of the recurring difficulties with present discovery practice
is the confusion engendered by the diversity of local court rules and

the lack of definite standards to which such rules must conform. In
some reported cases, the defendant's misunderstanding of the trial
court's action upon his discovery demand prevented appellate
review of the merits of discovery claims.112 In others, the defendant

was held to have waived discovery issues by failing to seek the ap-
propriate remedy in the trial court.113 This difficulty illustrates the
need for definitiveness in the trial court procedure.

There are two general models of discovery procedure, either of
which may be utilized by trial courts under Keller. The usual pro-
cedure, and that envisioned by the pre-Keller cases, required the
defendant to move the trial court to order the state to provide the
discovery sought. In this procedure, the validity and propriety of
each request is automatically submitted to the court for determina-

tion. In the alternative model, that employed by the Federal Rules
of Criminal Procedure114 and recommended in the standards of the
American Bar Association,116 the defendant requests discovery
directly from the state, and only when the parties dispute whether a
given disclosure should be made is the court called upon to take ac-
tion.

Each model has virtues and flaws. The first model discussed
above permits the defendant to know with certainty whether his
discovery has been granted and injects clarity into the appellate
consideration of discovery issues by focusing argument either on the
propriety of the trial court's ruling or the sufficiency of the state's

compliance. However, the burden placed upon the courts to routinely

n2
In Dillard v. State, 257 Ind. 282, 274 N.E.2d 387 (1971), the defendant obtained

an order requiring the state to list persons questioned during the investigation, but

the state responded by producing a witness list. The defendant was held to have waiv-

ed the issue of the state's incomplete compliance by failing to request sanctions in the

trial court.

In Block v. State, 356 N.E.2d 683 (Ind. 1976), and Hendrix v. State, 262 Ind. 309,

315 N.E.2d 701 (1974), the defendants argued that the state had failed to comply with a

discovery order when the court found that no order had been issued. A similar waiver
occurred in Murphy v. State, 352 N.E.2d 479 (Ind. 1976).

u3
Siblisk v. State, 263 Ind. 651, 336 N.E.2d 650 (1975); Owens v. State, 263 Ind. 487,

333 N.E.2d 745 (1975); Luckett v. State, 259 Ind. 174, 284 N.E.2d 738 (1972); Buchanan

v. State, 336 N.E.2d 654 (Ind. Ct. App. 1975) See also Ross v. State, 360 N.E.2d 1015

(Ind. Ct. App. 1977).
114Fed. R. Crim. P. 16(a).
UBABA Standards, supra note 39, § 1.4.



1978] CRIMINAL DISCOVERY 393

rule upon every discovery request made will strain judicial
resources unless the action taken upon the motions also becomes

routine and automatic. Consideration of seriously contested

discovery motions is thus unnecessarily impeded and complicated.

The second model discussed above remedies this fault but tends

to prolong the discovery process through the addition of an extra

stage in which the prosecutor decides whether to comply or contest.

Such added time may be sufficient to constitute a delaying factor
that limits the speediness of criminal trials.

Any scheme of discovery procedure must include sanctions for
noncompliance. As already noted, present Indiana law relies heavily
on the continuance as the principal discovery remedy.116 Obviously,

no number of continuances will compel an unwilling or dilatory oppo-
nent to provide ordered or authorized discovery. The continuance is
an appropriate remedy when noncompliance is the result of over-
sight or inability to comply within the available time when it ap-
pears that additional time will enable discovery to be completed. An
accused should not, however, be required to accept indefinite delay

of his trial as the price of discovery. At some point, more powerful
sanctions are necessary to prevent willful or bad faith failure to pro-

vide discovery. The point at which such sanctions become ap-
propriate is contingent upon too many factors to be governed by
rigid rules. The varying degrees of difficulty involved in producing
different kinds of evidence, the wide variations in caseloads and

manpower among the individual prosecutors' offices and law enforce-
ment agencies throughout the state, and similar considerations sug-
gest that the decision to impose punitive sanctions should be en-

trusted to the trial court's discretion.
117

The Indiana Rules may enumerate the acceptable sanctions or
may generally direct the trial court to take appropriate action. The
Federal Rules, like the Indiana Civil Discovery Rules118 and existing

Indiana discovery case law, 119 permit the court to exclude undis-

u6See text accompanying notes 65-71 supra.
U7This may be what the Indiana Supreme Court intended to provide in cases such

as Lund v. State, 345 N.E.2d 826 (Ind. 1976), which held that discovery sanctions are

discretionary with the trial court. Both the American Bar Association and the Indiana

Criminal Code Study Commission propose considerable trial court discretion in pro-

viding sanctions. ABA Standards, supra note 39, § 4.7; Code of Criminal Procedure:
Proposed Final Draft, supra note 37, § 35-5.1-4-6(d). The Federal Rules of Criminal
Procedure also vest wide discretion in the trial court. Fed. R. Crim. P. 16(d).

U8
lND. R. TR. P. 37(B)(3).

'"Keel v. State, 333 N.E.2d 328 (Ind. Ct. App. 1975); State v. Buza, 324 N.E.2d 824

(Ind. Ct. App. 1975). In Olson v. State, 262 Ind. 329, 315 N.E.2d 697 (1974), while the

issue was not directly under consideration, the Indiana Supreme Court gave effect to a
trial court's ruling striking the testimony of a witness, whose name was omitted from



394 INDIANA LAW REVIEW [Vol. 11:373

closed evidence.
120 The American Bar Association's Advisory Com-

mittee on Pretrial Proceedings omitted this remedy from its Stan-
dards with the following comment:

Without rejecting this device as a useful sanction in some
situations, some members of the Committee thought there
would be difficulties in applying it against accused persons,

and unfairness if the sanction was applied only against the
prosecution. The Committee's general view, moreover, was
that the court should seek to apply sanctions which affect

the evidence at trial as little as possible, since these stan-

dards are designed to implement, not to impede, fair and

speedy determinations of cases.121

Although the constitutional problems once thought to inhere in ex-

clusion of defense evidence may have dissipated since the United
States Supreme Court's decisions in Williams v. Florida122 and War-
dins v. Oregon, 123 the comments to the ABA Standards pose a valid
criticism of evidentiary exclusion as a discovery remedy: It punishes

not only the offending party but society as a whole by reducing the

validity of the trial as a fact-finding process.

a witness list, by disregarding the testimony on appeal. But see Upshaw v. State, 352
N.E.2d 102 (Ind. Ct. App. 1976).

,20In French v. State, 362 N.E.2d 834 (Ind. 1977), the trial court struck testimony

concerning statements not disclosed to the accused pursuant to a discovery order. The
Indiana Supreme Court did not discuss the propriety of this sanction, but proceeded to
consider whether the trial court's admonition to the jury to disregard the testimony

was sufficient to cure any error in its admission.
mABA Standards, supra note 39, comment to § 4.7, at 107-08.
122399 U.S. 78 (1970). In Williams, the United States Supreme Court upheld a

Florida Rule of Criminal Procedure that required the defendant to give notice of his

alibi defense and excluded all alibi testimony except that of the defendant himself as

the penalty for noncompliance.
,23412 U.S. 470 (1973). In Wardius, the United States Supreme Court overturned

an Oregon statute with a similar sanction because the statute did not provide for

similar discovery to the defense. The Indiana Supreme Court has also upheld exclusion

of alibi testimony as a sanction for noncompliance with the Indiana alibi notice statute

(Ind. Code §§ 35-5-1-1 to -3 (1976)). Bowen v. State, 263 Ind. 558, 334 N.E.2d 691 (1975);
Lake v. State, 257 Ind. 264, 274 N.E.2d 249 (1971). Justice DeBruler concurred

separately in Bowen and would hold that insofar as the statute prevents the accused
from testifying himself as to his alibi, it contravenes article 1, § 13 of the Indiana Con-

stitution. 263 Ind. at 568, 334 N.E.2d at 697.

Professor Robert Clinton in his article on the "right to defend," criticizes these

decisions as infringing upon the accused's right to present a defense. Clinton, The

Right to Present a Defense: An Emerging Constitutional Guarantee in Criminal
Trials, 9 Ind. L. Rev. 713, 830-41 (1976). This position reflects the curious view that the

defendant should be immune from the very procedural rules to which he can hold the
state.



1978] CRIMINAL DISCOVERY 395

A contempt citation issued against the offending counsel is the
chief alternative to the exclusion sanction.

124 However, since courts

are reluctant to find contempt except in the most extreme cases, it

is generally ineffective as a sanction. Furthermore, contempt is

often inappropriate in cases where the attorney is not responsible
for the noncompliance or is unable to avert it. This may occur when
a defense lawyer has difficulty in obtaining cooperation from his

client or it may occur as a result of the misunderstandings and fric-
tions that accompany the interaction of prosecutors with pro-
secuting witnesses and law enforcement agencies. The court should
not be limited, however, in using its contempt powers to prevent

willful sabotage of discovery processes by parties, counsel, or

witnesses.

Although attorney disciplinary procedures may be used as a
discovery sanction, the use of such procedures as a sanction is sub-

ject to the same limitations that accompany the use of contempt.125

Furthermore, the exclusion sanction, as opposed to the disciplinary

or contempt sanction, penalizes persons other than the attorney,

thereby maximizing the incentive of the persons involved in both

the defense and prosecution process to cooperate in providing the

required discovery.

A final aspect of discovery procedure concerns the protective
order.

128 The court should be empowered to defer or restrict
discovery, or condition it upon compliance with special rules, in

cases where the application of the ordinary rules of discovery would
endanger a witness or subject him to harassment, impede an ongoing
investigation, endanger the confidentiality of legitimate government
secrets, or subject either party to unreasonable expense or inconve-

nience. The Federal Rules of Criminal Procedure127 and the Proposed
Code of Criminal Procedure128 contained such a provision, and the
ABA Standards recommend one.129

'"Justice Prentice recommended this sanction in Chatman v. State, 263 Ind. 531,
334 N.E.2d 673 (1975).

1MThe use of attorney disciplinary procedures to enforce discovery rules is sug-

gested by the American Bar Association. ABA Standards, supra note 39, comment to
§ 4.7, at 108.

1M
lND. R. Tr. P. 26(C).

127Fed. R. Crim. P. 16(d).
128Code of Criminal Procedure: Proposed Final Draft, supra note 37, §§

35-5.1-4-3 to -6(a).
12,ABA Standards, supra note 39, § 4.4. The ABA Standards also suggest in

camera review of materials and excision of nondiscoverable materials. Both are worth-

while devices for dealing with unusual situations.



396 INDIANA LAW REVIEW [Vol. 11:373

C. Specific Forms of Discovery

The forms of criminal discovery that have developed under ex-
isting case law have already been described.180 Antrobus predicted

the adoption of the "techniques" of civil discovery into criminal pro-

cedure;
181 and several techniques, the deposition and the motion to

produce in particular, have been so adopted. The deposition in
criminal cases has come to mirror the deposition in civil cases.182 The
motion to produce is a broader device in criminal procedure than in

civil procedure; it has become the all-purpose discovery vehicle,
which has been used to discover items as diverse as witness lists

and expert's reports.188 Also, the court's power to order the defen-
dant to submit to physical tests, examinations, and measurements
resembles the Trial Rule 35 order for physical or mental examina-

tion.
184

The question must invariably arise whether the major remaining
civil discovery device, the interrogatory, should be employed in
criminal proceedings. This issue did not arise until 1976,185 when the
Indiana Court of Appeals decided Gutowski v. State.m Gutowski filed
written interrogatories with the trial court to be answered by the

l30See text accompanying notes 12-35 & 5.4-57 supra.
131253 Ind. at 423, 254 N.E.2d at 874.
uzSee text accompanying notes 72-76 supra.
193
State ex reL Keller v. Criminal Court, 262 Ind. 420, 423, 317 N.E.2d 433, 435

(1974).

13<
Ind. R. Tr. P. 35(A). There is a rule based upon the statute rendering ac-

complices competent witnesses, Ind. Code § 35-1-31-3 (1976), and the general competen-
cy of witnesses statute, id. § 34-1-14-5, that permits defendants to require accomplice

witnesses to submit to psychological examinations for the purpose of determining

whether the witness is competent to testify under § 34-1-14-5, which requires that

witnesses be sane at the time they testify. Antrobus v. State, 253 Ind. 420, 254 N.E.2d

873 (1970). A similar rule applies to the prosecutrix in a rape prosecution. Wedmore v.
State, 237 Ind. 212, 143 N.E.2d 649 (1957). The trial court has discretion in determining
whether a psychiatric examination is necessary. Chadwick v. State, 362 N.E.2d 483
(Ind. 1977).

13SA 1973 Indiana Supreme Court decision, Fender v. Lash, 261 Ind. 373, 304
N.E.2d 209 (1973), appears to suggest that interrogatories may be employed in criminal
prosecutions. In that case, the petitioner, an inmate of the state prison, filed a petition

for a writ of habeas corpus, which the trial court treated as a post-conviction relief

petition. Although the opinion does not so specify, the petioner sought to obtain leave

of the trial court in the post-conviction preceeding to serve interrogatories on the

state. Brief for Petitioner at 17-18. The trial court struck the motion; and the supreme

court affirmed, holding that Indiana Trial Rule 33(A) allows service of interrogatories

on the opposing party without leave of court. 261 Ind. at 376, 304 N.E.2d at 210. The

rules governing post-conviction proceedings expressly provide that civil discovery

rules apply. Ind. R. Post-Conviction Relief 1, § 5. The court also remarked about the
lack of a Dillard foundation; under the circumstances this comment seems un-
necessary, since Trial Rule 33 does not require any such foundation.

13,354 N.E.2d 293 (Ind. Ct. App. 1976).



1978] CRIMINAL DISCOVERY 397

complaining witness. The trial court sustained the state's objection

that Trial Rule 33 allows interrogatories to be served only on par-

ties.
137 Judge Staton, for the court, wrote:

Nor do we intend to imply that the technique of discovery
by interrogatories submitted to a complaining witness is im-

proper in a criminal case. The trial court has the inherent
power to apply the techniques of discovery embodied in the
civil rules and is not bound by the limiting language contained
in those civil rules. In the proper case, discovery by written

interrogatories served on non-parties may well be ap-
propriate as a less coumbersome [sic] and less expensive
technique than discovery by depositions.138

The court held, however, that Gutowski had waived the issue by
failing to argue the propriety of his particular interrogatories at a

hearing in the trial court for that purpose. Gutowski's argument
that the interrogatories were actually a deposition upon written
questions under Trial Rule 31 was disposed of in the same manner.139

Judge Garrard concurred separately, stating that he would hold
that interrogatories may not be served on a non-party. 140 He iden-
tified a reason for not allowing the use of interrogatories to non-

parties that applies to their use with parties as well:

While use of interrogatories may normally be the most inex-
pensive discovery technique, they are usually of questionable

value in adducing the depths of shading necessary to the

resolution of disputed factual issues. As stated by Dean
Harvey, ". . . interrogatories . . . constitute a cumbersome
device not suitable for complicated factual situations or

where parties may prove evasive." 141

This is probably due to the distinctive function of interrogatories,
which were developed as a feature of the pleadings of suits in

187
Ind. R. Tr. P. 33(A) provides: "Any party may serve upon any other party writ-

ten interrogatories to be answered by the party served . . . ."
138354 N.E.2d at 296.
139The court assumed that the criminal procedure deposition statute, Ind. Code §

35-1-31-8 (1976), allowed such depositions. However, the Indiana Supreme Court had

already decided, in Murphy v. State, 352 N.E.2d 479 (Ind. 1976), that the statute had
been superseded, see the text accompanying notes 74-76 supra, and that Trial Rules 30

& 31 applied to the taking of depositions. Written depositions are expressly permitted
under Trial Rule 31 but differ in form from interrogatories.

140354 N.E.2d at 300 (Garrard, J., concurring). See also Hampton v. State, 359
N.E.2d 276, 279 (Ind. Ct. App. 1977) (Staton, P.J., concurring in result).

m354 N.E.2d at 300 (Garrard, J., concurring) (quoting 2 W. Harvey, Indiana Prac-
tice 682 (1970)).



398 INDIANA LAW REVIEW [Vol. 11:373

equity
142

to narrow the issues in the case for trial.
148 For this reason,

interrogatories are appropriate to determine the opinions, conclu-

sions, and contentions of parties.
144 This function is necessary under

notice pleading but is fulfilled by the pleadings themselves in

criminal procedure.
146 Although inexpensive and convenient when

compared with depositions, interrogatories are seldom employed as

a complete discovery device but rather as a preparation for those

devices capable of more detailed fact resolution. Interrogatories are
one reason why civil litigation involves the consumption of more
time and money than criminal litigation. Moreover, while the ac-
cused's right against self-incrimination does not protect him from be-

ing required to disclose his defenses and witnesses,
146

it may well
protect him from being required to answer interrogatories.147 Inter-

rogatories would thus be a discovery device available only to defen-

dants.

There are no reported Indiana cases dealing with the applicabil-

ity of the remaining civil discovery device, the Trial Rule 36 request

for admissions, to criminal prosecutions. The purpose of this device
has been described as being the elimination of the need of proving

facts not seriously contested.148 This is a worthwhile objective, con-

sonant with the discovery purpose of procedural efficiency, but the

device itself is poorly suited to the practicalities of criminal pro-

cedure. The rule deems the requested matter admitted unless the
answering party denies it within thirty days.149 Since defendants are

seldom required by the nature of any defense to prove peripheral or
uncontroverted facts, the device fails in its purpose with respect to

the defense. However, it can be abused by the defendant who re-
quests the state to admit the lack of a necessary element of the of-

fense in hopes that the state will inadvertently fail to answer. The
sanction for bad-faith denial is the assessment of costs under Trial

Rule 37(B).160 This sanction is unlikely to deter either the state or

H2
E. Merwin, Equity and Equity Pleading § 915, at 521 (1895).

H8
8 C. Wright & A. Miller, Federal Practice and Procedure § 2163, at 487

(1970); 2 W. Harvey, Indiana Practice 684 (1970).
1M
2 W. Harvey, Indiana Practice 684 (1970).

UbSee notes 84 & 85 supra and accompanying text.
'"State ex rel Keller v. Criminal Court, 262 Ind. 420, 317 N.E.2d 433 (1974).
147
In State ex rel Land v. Knox Superior Court, 249 Ind. 471, 233 N.E.2d 233

(1968), the taking of depositions by the defendant was held not to constitute a waiver

of the defendant's privilege against self-incrimination. The state could depose the
defendant's witnesses but not the defendant himself.

U8
3 W. Harvey. Indiana Practice 58-59 (1970).

14,
Ind. R. Tr. P. 36(A).

160
3 W. Harvey, Indiana Practice 61 (1970).



1978] CRIMINAL DISCOVERY 399

the defendant. Furthermore, its benefits may be realized by stipula-
tions by the parties.151

A final discovery device worth consideration is the bill of par-
ticulars.

162 The bill of particulars is a vestige of the generally aban-
doned system of refining fact issues through pleadings; it is a state-

ment by the prosecutor of specific details of the offense charged. In
a reasonably liberal scheme of discovery such as Indiana's, a device

for disclosure of factual details of the charge would unnecessarily

duplicate other discovery devices. Production of police reports

would provide equivalent information with less inconvenience to

either party. In situations in which relevant facts would not appear
in the official reports, such as entrapment cases, the bill is likely to
suffer the same inadequacy as the interrogatory — insufficient fac-
tual sensitivity. Deposition of the state's witnesses would be more
likely to reveal necessary information.

There are, however, two uses of the bill of particulars that have
prospective merit. One is to replace the anachronistic statutory pro-
cedure for giving notice of alibi evidence.168 The statute, enacted to
allow the prosecution an opportunity to detect spurious alibis,154 re-

quires the accused to notify the prosecution of the place he intends

to prove that he was at the time of the offense as a precondition to
the admissibility of the alibi evidence.156 There appears to be no
justification for singling out alibi evidence and subjecting it to
special disclosure standards when the state can discover defenses
and defense witnesses in general. Moreover, the statute permits the

defendant to require the state to specify the time and place of the

offense after he has notified the state of his whereabouts.156 The
remedy for noncompliance is again exclusion of evidence, in this case

'"Existing statutory law provides for pre-trial conferences in criminal cases at

which the court and parties are to consider "the simplification of the issues to be tried

at trial and the possibility of obtaining admissions of fact and of documents which will

avoid unnecessary proof." Ind. Code § 35-4.1-3-l(b) (1976). Following the conference, the

trial court is to file a memorandum of the agreed matters. Id. § 35-4.1-3-l(c).
mSee text accompanying note 86 supra. The bill of particulars envisioned by the

Proposed Code of Criminal Procedure allowed the defense to request any "items of fac-

tual information . . . which relate to the charge and are not recited in the indictment or

affidavit." Code of Criminal Procedure: Proposed Final Draft, supra note 37, §
35-3.1-l-3(a). The bill was to be granted when "the court is satisfied that any or all of
the items of information requested in the motion . . . are necessary to enable the defen-

dant adequately to prepare or conduct his defense." Id. § 35-3.1-l-3(b).
,58Ind. Code §§ 35-5-1-1 to -3 (1976). See text accompanying notes 4-6 supra.
1MNote, Criminal Law: Statutory Regulation of Alibi Defense Through Notice Re-

quirements, 30 Ind. L.J. 106, 107-08 (1954).
156
Ind. CODE § 35-5-1-3 (1976). The statute allows the trial court to excuse non-

compliance for good cause.
1M/A § 35-5-1-2.



400 INDIANA LAW REVIEW [Vol. 11:373

evidence that the accused was at the scene of the offense.157 This

provision is a trap for the careless prosecutor.

The bill of particulars could be used to enable the defendant to
obtain a precise statement of the time and place of the offense in

order to prepare his alibi defense. The state could discover this
defense and the identity of the alibi witnesses through ordinary
discovery techniques. Thus, the disclosure of alibi matters would be

brought into uniformity with the remainder of discovery law, and

the anomalies of the current statutory procedure ended.
158

Also there are cases in which the accused cannot ascertain the

exact offense with which he is charged because the statute defining

the offense sets out elements in the alternative, and the charging in-

strument alleges all of the elements.169 While an early case held that

an indictment sufficiently vague to warrant a bill of particulars

™I<L § 35-5-1-3. But see Owens v. State, 263 Ind. 487, 333 N.E.2d 745 (1975).
'"Indiana appears to be the only jurisdiction employing a procedure in which the

accused states his alleged whereabouts and then demands to know where and when
the crime is alleged to have been committed. Ind. Code § 35-5-1-1 (1976). See Statutory

Regulation of Alibi Defense Through Notice Requirements, supra note 154, at 109.

The federal alibi notice rule calls for the government to demand notice from the defen-
dant, specifying the time and place of the offense. Fed. R. Crim. P. 12.1.

169The problem can be illustrated both under the recently repealed criminal code

and the newly enacted code. The former kidnapping statute, Ind. Code § 35-1-55-1

(1976) (repealed 1977), defined kidnapping as: (1) forcibly carrying away, (2) fraudulent-

ly carrying away or decoying, or (3) imprisoning with the intention to carry away. In
Davis v. State, 355 N.E.2d 836 (Ind. 1977), the information alleged that the accused

both forcibly and fraudulently carried away his victim.
Under the repealed code, the problem also arose in other offenses, ie., the rob-

bery statute, Ind. CODE § 35-13-4-6 (1976) (repealed 1977) (taking "by violence or by put-

ting in fear"); first degree murder, id. § 35-13-4-1 (1976) (repealed 1977) (premeditated

and felony murder).

Under the present law, in effect since Oct. 1, 1977, there remain numerous of-
fenses possessing alternative elements or sets of elements. See, e.g., id. § 35-42-3-1

(Supp. 1977) (kidnapping); id. 35-42-4-1 (rape); id. § 35-42-4-2 (unlawful deviate conduct);

id. § 35-42-1-1 (arson); id. § 35-43-1-2 (mischief); id. § 35-43-2-2 (trespass). In most cases,

these formulations are more clearly expressed than were the element formulations of

prior law; alternative elements are generally set out in separately numbered subsec-
tions. Compare id. § 35-1-124-2 (1976) (repealed 1977), with id. § 35-43-5-2 (Supp. 1977)
(forgery).

Hopefully, this clarification of elements will lead prosecutors to charge offenses

without duplication of elements and will ameliorate the conditions which the bill of par-

ticulars is meant to remedy. The linguistic conservatism of those who draft indict-
ments and informations, however, is a force not be to underestimated, see Candler v.

State, 363 N.E.2d 1233, 1236-38 (Ind. 1977), and established formulations and phrases

may remain in use notwithstanding the simple clarity with which the Criminal Code
defines offenses.



1978] CRIMINAL DISCOVERY 401

could be quashed,190 it is unclear whether this holding survives more

recent cases declining to void charges for surplusage.
161

The bill of particulars could be useful in disclosing the state's
theory, at least insofar as specifying the elements of the offense

charged and the basis of liability.162 Such use might conserve time

and effort by preventing needless litigation over the sufficiency of

the charging instruments.168

'"Sherrick v. State, 167 Ind. 345, 79 N.E. 193 (1906). See text accompanying note

86 supra.
mSee, e.g., Candler v. State, 363 N.E.2d 1233 (Ind. 1977).
""The accessory before the fact statute, Ind. Code § 35-1-29-1 (1976), allows the

defendant to be charged as a principal but convicted as an accessory.

"The federal courts disagree as to whether Fed. R. Cbim. P. 7(f), which provides
for bills of particulars, permits courts to require the government to state legal

theories. See C. Wright, Federal Practice and Procedure — Criminal § 129, at 287
n.49 (1969). Clearly such a requirement can lead the parties astray into premature and

immaterial legal argument over unripened issues. This should be controlled by the
trial court by restricting the use of the bill to those cases where necessary to provide
adequate information to prepare a defense.