CHARLES ALLEN, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party In Interest, 18 Cal. 3d 520

Opinion WRIGHT, C. J. Charles Allen seeks a writ of prohibition to restrain respondent court from enforcing an order compelling disclosure of the names of prospective defense witnesses in criminal proceedings pending against him. On the day set for commencement of petitioner’s trial respondent court on its own motion ordered both the People and petitioner to disclose the names of their prospective witnesses. The court intended that those names would be read to potential jurors to ascertain whether any of them was acquainted with such prospective witnesses.

The court advised counsel that those named would not be described to the jurors as defense or prosecution witnesses. The court also proposed to enjoin the People from contacting any individual named by the defense until the name of such person was otherwise disclosed during the course of the trial. Petitioner refused to reveal the names of his prospective witnesses and sought the instant relief. Petitioner contends that the disclosure sought by the foregoing order would violate his constitutional right against self-incrimination.

He also urges in the alternative that such a procedural innovation as the instant order should be introduced, if at all, only upon the considered judgment of the Legislature. We have concluded that the court erred in ordering disclosure of prospective defense witnesses, and herewith issue our peremptory writ of prohibition. Preliminarily, we dispose of petitioner’s alternative contention that the instant order constitutes a procedural innovation solely within the discretion of the Legislature. (See Reynolds v.

Superior Court (1974) 12 Cal.3d 834, 837 [117 Cal.Rptr. 437, 528 P.2d 45].) In Reynolds we confronted a judicially created notice-of-alibi procedure. We concluded that given the intricate state and federal constitutional questions presented it was preferable for this court to refrain from the creation of a comprehensive notice-of-alibi procedure by judicial fiat.

Under the circumstances we considered it “far better for this court to pass judgment, if and when necessary, on an integrated legislative document than on our own conditional decree ....” (Id., at p. 846.) The instant review of respondent court’s disclosure order does not present the complex federal and state constitutional issues discussed at length in Reynolds. On the contrary, we consider our opinion in Prudhomme v. Superior Court (1970) 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673] to be dispositive of the constitutional issue raised herein.

Consequently, we are not compelled to exercise the restraint appropriate in Reynolds. We thus reject petitioner’s alternative contention.

In Prudhomme we concluded that the principal element in determining whether a compelled disclosure should be allowed is “whether disclosure thereof conceivably might lighten the prosecution’s burden of proving its case in chief.” (Id., at p. 326.) We observed that “in ruling upon a claim of privilege, the trial court must find that it clearly appears from a consideration of all the circumstances in the case that an answer to the challenged question cannot possibly have a tendency to incriminate the witness. [Citations.]” (Id., at p. 326.) The People and amicus curiae, arguing that Prudhomme is not in accord with subsequent United States Supreme Court decisions, urge that we reexamine our holding therein.

There are no decisions of the United States Supreme Court in direct conflict with Prudhomme. Nevertheless, we are mindful that the trend of the federal high court’s decisions on questions of compelled defense disclosure to the prosecution is not wholly consistent with our

interpretation of the privilege against self-incrimination. (See United States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141, 95 S.Ct. 2160]; Williams v. Florida (1970) 399 U.S. 78 [26 L.Ed.2d 446, 90 S.Ct. 1893].) Petitioner’s claim of a violation of his privilege against self-incrimination is based on the Fifth and Fourteenth Amendments as well as state constitutional grounds. (Cal. Const., art. I, § 15.) It is established that our Constitution is “a document of independent force” (People v. Disbrow (1976) 16 Cal.3d 101, 115 [127 Cal.Rptr. 360, 545 P.2d 272]; People v.

Brisendine (1975) 13 Cal.3d 528, 549-550 [119 Cal.Rptr. 315, 531 P.2d 1099]), “whose construction is left to this court, informed but untrammeled by the United States Supreme Court’s reading of parallel federal provisions. [Citations.]” (Reynolds v.

Superior Court, supra, 12 Cal.3d 834, 842.) In Reynolds we noted that “Prudhomme put this court on record as being considerably more solicitous of the privilege against self-incrimination than federal law currently requires.” (Id., at p. 843.) We maintain that solicitude and affirm the continued vitality of the stringent standards set forth in Prudhomme for the protection of the privilege against self-incrimination as embodied in

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section 15. The People and amici further contend that the state interest in securing a trial by an unbiased jury and avoiding the possibility of a disrupted trial is sufficient to permit the limited disclosure at time of trial of information which defendant intends to disclose subsequently during the trial. This proposition suggests a balancing test in which the state’s interest is weighed against and may offset the accused’s interest in the risk of self-incrimination. The Prudhomme standard leaves no room for a balancing of interests.

That standard plainly proscribes compelled defense disclosures which “conceivably might lighten the prosecution’s burden of proving its case in chief.” (Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 326; italics added.) A disclosure order which fails to meet that standard is constitutionally impermissible. Our conclusion in this regard should not be construed as demeaning the importance of the state interests. It should be noted, however, that these interests may be served by other measures not likely to infringe upon the privilege against self-incrimination.

For example the names of the prospective witnesses might be read to the jurors prior to trial in the absence of counsel of both parties, or alternate jurors may be designated to substitute for any juror whose relationship with a witness is made known when such witness is called during trial. In any case where a relationship is indicated which suggests a possible conflict or bias voir dire would be feasible without the untimely disclosure to the prosecution of the names of prospective defense witnesses.

It is of no significance that while Prudhomme involved a trial court discovery order requiring disclosure to the prosecution of the names, addresses and expected testimony of defense witnesses, the instant order arose sua sponte and was not initiated by a motion for prosecutorial discovery. “[T]he privilege forbids compelled disclosures...” (id., at p. 326, italics added) regardless of the form which the compulsion takes. Thus, the propriety of the court’s order must be determined under the test articulated in Prudhomme.

Applying that test to the order of the court below, we find that it does not clearly appear that the disclosure sought to be compelled cannot possibly have a tendency to incriminate petitioner. The trial judge did not make the careful inquiry which we mandated in Prudhomme. Moreover, the fact that the People would be enjoined .from contacting defense witnesses until their names were otherwise revealed would not preclude investigation of other matters suggested by the names of the witnesses.

In Prudhomme we noted; “It requires no great effort or imagination to conceive of a variety of situations wherein the disclosure of the expected testimony of defense witnesses or even their names and addresses, could easily provide an essential link in a chain of evidence underlying the prosecution’s case in chief.” (Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 326; italics added.) The possibility of self-incrimination is in no measure diminished by the omission of addresses in the instant order since names lead directly and easily to addresses.

We conclude, therefore, that the disclosure order of respondent court fails to satisfy the standards established in Prudhomme to secure the privilege against self-incrimination as set forth in

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section 15 of the California Constitution. Let a peremptory writ of prohibition issue restraining respondent court from enforcing the disclosure order challenged herein. Tobriner, J., and Mosk, J., concurred. In Nobles the court held that the privilege is personal, and consequently upheld a trial court order compelling defendant to disclose portions of a defense investigator’s report of statements taken from prosecution witnesses. In Williams the court upheld a Florida notice-of-alibi statute stressing that there would be no constitutional bar to the prosecutor’s being granted a continuance following the unanticipated presentation of alibi evidence.

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section 15 provides in pertinent part: “[11] . . . Persons may not ... be compelled in a criminal cause to be a witness against themselves----” It is also irrelevant that Prudhomme dealt with pretrial discovery, while the instant case involves disclosure at trial. In a companion case to Prudhomme, Bradshaw v. Superior Court (1970) 2 Cal.3d 332 [85 Cal.Rptr. 136, 466 P.2d 680], we rejected that portion of a discovery order which required defense disclosure of witnesses within 24 hours of expected use.

We observed that “If the evidence might possibly incriminate petitioners, they cannot be compelled to disclose it at any time prior to its actual use at trial.” (Id., at p. 333, fn. 3.) For example, if the defense witnesses identified are friends or relatives of an accused, the prosecution can anticipate an alibi defense; if police officers the defense of entrapment can be projected. The trial judge’s qualification of the instant order in no way prevents the People from investigating the background of the designated witnesses or questioning their friends or acquaintances.

Such investigation may reveal the details of the alibi or other defenses, or may yield other evidence useful to the prosecution including impeachment witnesses, inconsistent statements, and admissible evidence of specific instances of misconduct by the prospective witnesses.