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People v. Hood11/3/2003
d R. 412(a)(i); cf. 188 Ill. 2d R. 412(a)(ii) (where the statement is made by the accused, the prosecution must disclose "the substance of any oral statement"). Absent a showing of an intentional tactic to prevent disclosure, there is no requirement that oral statements in the State's possession or control be reduced to writing. People v. Lasley, 158 Ill. App. 3d 614, 634, 511 N.E.2d 661, 676 (1987); People v. Williams, 262 Ill. App. 3d 808, 823-24, 635 N.E.2d 653, 664 (1994). The question before the court is whether the existing notes in the State's file constitute "substantially verbatim reports," not whether defense counsel would be surprised, or whether it would be a good idea for the State to prepare a more thorough report. 188 Ill. 2d R. 412(a)(i). Defense counsel may avoid surprise by interviewing the witnesses who have been disclosed. Lasley, 158 Ill. App. 3d at 634-35, 511 N.E.2d at 675-76.
Rule 412 requires little more in the case of experts, only the disclosure of their "reports or statements," including results of examinations or tests, and disclosure of the expert's qualifications. 188 Ill. 2d R. 412(a)(iv). "Statements" apparently means formal statements similar to reports, or examination and test results, and not everything that is said by an expert prior to his testifying. "Rule 412 does not require that every conversation with witnesses during the course of investigation be reduced to writing." People v. Davis, 105 Ill. App. 3d 129, 132, 434 N.E.2d 13, 15 (1982) (doctor and nurse allowed to testify in reckless homicide case despite argument that listing of names was insufficient to put defendant on notice they would be asked their opinion on issue of intoxication).
The majority argues that the prosecution confused the defense when it attached Dr. Hindman's autopsy report indicating the cause of death and did not alert defense counsel to Dr. Hindman's expertise in reverse extrapolation. "Had defense counsel been aware of such testimony, he could have attempted to call his own experts to refute Dr. Hindman's conclusions." Slip op. at 11. Really? Defense counsel could not anticipate the argument that a blood-alcohol level of 0.077 at 5:40 p.m. might indicate a blood-alcohol level of more than 0.08 three hours earlier? In the unlikely event any expert would ever dispute that defendant earlier had a blood-alcohol level greater than 0.077, defense counsel surely would have called him, whether Dr. Hindman testified or not.
As the majority points out, civil discovery rules require the parties to identify the subject on which the expert witness will testify and the opinions the expert will offer. 177 Ill. 2d R. 213(g). It is a mistake to introduce the complexities of civil discovery rules into criminal cases. See Weber, 264 Ill. App. 3d at 316, 636 N.E.2d at 906 ("defendant's reliance on Supreme Court Rule 220 is misplaced"). The majority's argument that the doctor's testimony, the doctor's calculations, should have been disclosed "under the spirit of the rule" (slip op. at 12) is not persuasive. The best indicator of what was intended by Rule 412 is its language, and that language does not require disclosure of the substance of an expert's testimony.
The fact that the State was aware of what Hindman would testify to before questions were posed to him is irrelevant. Even with respect to exculpatory or mitigating information (where the State has a special obligation), the duty to disclose "must be viewed in light of the information available to the State when the material is disclosed." (Emphasis added.) 188 Ill. 2d R. 412, Committee Comments, at lxviii. The duty to disclose is not "subject to continuous updating." 188 Ill. 2d R. 412, Committee Comments, at lxviii.
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