Summary
The Supreme Court of Oregon held that a criminal defendant was entitled to subpoena audiotaped prior statements of prosecution witnesses for use in cross-examination, even though the tapes were possessed by a third party. The court concluded that the subpoenaed statements were not protected by the work-product doctrine once the witnesses testified. It reversed the Court of Appeals, vacated the circuit court judgment, and remanded for production of the tapes and further proceedings concerning possible impeachment and a new trial.
Topics
Practice areas
Questions Presented
- Whether ORS 136.580 authorizes a criminal defendant to use a subpoena duces tecum to obtain pretrial production of documentary or analogous evidentiary material directly from a third party.
- Whether a trial subpoena duces tecum requiring a third party to bring prior statements of likely prosecution witnesses to trial may be quashed on the ground that it seeks unauthorized discovery from a nonparty.
- Whether prior statements of prosecution witnesses that are properly subpoenaed for trial must be made available to the defendant for cross-examination after the witnesses testify, notwithstanding a third party's claim of work-product protection.
- Whether the trial court's denial of access to the audiotapes was harmless and what remedy was appropriate.
Holdings
- ORS 136.580 does not authorize a subpoena duces tecum to command early production of documentary or analogous evidentiary material directly to the defendant or court on a date when no trial-related proceeding is scheduled. A motion for early production under ORS 136.580(2) presupposes a valid subpoena summoning the material to a proceeding at which it will or may be offered in evidence.
- A subpoena commanding a third-party witness to appear at trial and bring specified materials is not an attempt to obtain discovery merely because the materials are in the third party's possession; it secures the availability of evidence at trial.
- When a prosecution witness has made a prior statement relating to the subject matter of the witness's testimony, the defendant has a right to examine and use that statement in cross-examination after the witness testifies, even when the statement is possessed by a third party and the third party asserts work-product protection.
- The trial court's denial of access to the audiotapes could have affected the verdict because the testimony of the witnesses whose statements were sought was vital to the state's case. The defendant was entitled to obtain and review the tapes on remand; the conviction could be reinstated only if the trial court found, after hearing Cartwright's argument based on the tapes, that the inability to use the materials could not have affected the verdict; otherwise a new trial was required.
Key quotations
“A subpoena commanding a witness to appear as a witness in a court proceeding and to bring with the witness specified materials is not and cannot amount to an attempt to obtain discovery.” (336 Or. at 418)
“At the very least, defendant in the present case had the right to examine and use in cross-examination the audiotapes of any individual who, in fact, appeared at trial as a witness against him.” (336 Or. at 419)
“A court considering a motion to quash on the grounds asserted here must look at the potential uses of the subpoenaed material at trial, and, unless it is clear that the material or testimony has no potential use at trial, the court must deny the motion to quash.” (336 Or. at 420)
“On remand, the trial court shall order SCAA to make the audiotapes available to defendant and his attorney.” (336 Or. at 422)
Factual background
While Cartwright was general manager of the Southern Curry Ambulance Association, several female employees complained of sexual harassment. The association investigated and recorded statements from the complaining employees, after consulting an attorney. Cartwright was later charged with criminal harassment and other crimes based on complaints by those employees. Before and during trial, he subpoenaed the audiotapes from the association for use in cross-examining the employees, but the trial court quashed the subpoenas and denied his requests for access.
Procedural history
The circuit court quashed a pretrial subpoena seeking early production of audiotapes and later quashed a trial subpoena requiring the tapes to be brought to trial. It also denied requests made after prosecution witnesses testified to inspect and use the tapes for cross-examination. Cartwright was convicted on all charges. The Court of Appeals affirmed, holding that Cartwright had no statutory or constitutional right to pretrial access to the tapes. The Oregon Supreme Court reversed the Court of Appeals, vacated the circuit-court judgment, and remanded.
Remand instructions
The circuit court must order SCAA to make the audiotapes available to Cartwright and his attorney. After reviewing them, Cartwright may argue that the tapes contain material for impeaching or otherwise discrediting the witnesses who testified. If the court concludes that the inability to use the materials could not have affected the verdict, it may make supporting findings and reinstate the original judgment; otherwise, it must order a new trial.