ELKINGTON, J. I concur.
I am in complete agreement with Presiding Justice Molinari’s conclusions in respect of the superior court’s order permitting defense discovery of certain juvenile court findings concerning earlier misdeeds of prospective witnesses at the trial.
But otherwise my concurrence rests wholly on the rule of Prudhomme v. Superior Court, 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673], by which this court is bound. Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937], mandates that: “The decisions of [the Supreme Court] are binding upon and must be followed by all the state courts of California.” Nevertheless, I am of the opinion that Prudhomme states erroneous Fifth Amendment law and fails to follow the United States Supreme Court and its own previous decisions.
Because of my deep respect for the court which authored Prudhomme, it would be preferable for me to simply concur in toto with the principal opinion, without elaboration. But it seems to be the clear policy of this state that its intermediate reviewing courts record their disagreement with existing law, at least in areas of public importance such as this. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 665, p. 4579.) This policy has received its most recent expression by rule 976, California [425]Rules of Court. That rule provides for publication of our opinions which “criticize existing law,” even though they do not otherwise meet the rule’s criteria for publication. Mr. Witkin (op. cit.) earthily expresses the same principle by stating that reviewing courts “are bound, but not gagged” by precedents laid down by a higher court.
In Prudhomme the defendant was ordered to disclose to the People the “names, addresses and expected testimony of the witnesses [he] intends to call at trial.” The order was held to be violative of the defendant’s Fifth Amendment right against self-incrimination. In the case before us the order was less broad; the trial court granted a defense request for statements of the People’s witnesses, “conditioned upon simultaneous disclosure to the People of any similar oral or written statements made by said witnesses to representatives of the defendant.”
Prudhomme held (p. 326) that the principal Fifth Amendment criterion, upon request for discovery against an accused, is whether the disclosure sought “conceivably might lighten the prosecution’s burden of proving its case in chief.” (Italics added.) Finding that the People’s burden would be so lightened under the order there at issue, the high court prohibited its enforcement.
In the case here at bench, giving effect to the discovery order’s condition, beyond question, “conceivably might lighten the prosecution’s burden of proving its case in chief.” It was for that reason invalid under Prudhomme’s holding, and its enforcement must be restrained.
It is observed that Prudhomme, although stating that in some situations discovery is available to the People, nevertheless appears to foreclose it in all cases; for it is the essential nature of the People’s discovery that it will “lighten the prosecution’s burden of proving its case in chief.”
More recently the high court in Pitchess v. Superior Court, 11 Cal.3d 531, 535 [113 Cal.Rptr. 897, 522 P.2d 305], expressed the principle that a criminally accused’s broad right of discovery “is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” (To the same effect see Hill v. Superior Court, 10 Cal.3d 812, 816 [112 Cal.Rptr. 257, 518 P.2d 1353]; Cash v. Superior Court, 53 Cal.2d 72, 75 [346 P.2d 407]; Powell v. Superior Court, 48 Cal.2d 704, 707, 709 [312 P.2d 698].)
[426]It follows from Pitchess and its predecessor authority that a defendant who, after request therefor, is denied access to “relevant and reasonably accessible information” by the People is denied a fair trial, and thus due process of law. (See People v. Lyons, 47 Cal.2d 311,319 [303 P.2d 329].)
There is a necessary and implicit corollary. If the People are denied access to “relevant and reasonably accessible information,” then, by the very standards of Prudhomme, they are denied a fair trial and due process of law. Not only this, but the search for truth, the only purpose of a criminal trial, is frustrated.
It is said: “ ‘The search for truth is not served but hindered by the concealment of relevant and material evidence. Although our system of administering criminal justice is adversary in nature, a trial is not a game. Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal.’ ” (Evans v. Superior Court, 11 Cal.3d 617, 622 [114 Cal.Rptr. 121, 522 P.2d 681]; In re Ferguson, 5 Cal.3d 525, 531 [96 Cal.Rptr. 594, 487 P.2d 1234].)
If this one-sided result, permitting the accused, but not the People, to suppress relevant and reasonably accessible evidence, and thus the truth, necessarily follows from a true interpretation of the Fifth Amendment, so be it. For the Constitution and its amendments are the supreme law of the land, to which lesser and conflicting rights and principles must yield. But reason, fairness and most of all, justice, impel a close inquiry into the constitutional propriety of Prudhomme’s rule.
It seems proper, initially, to consider the constitutional relationship of the competing rights with which we are concerned.
The editors of Corpus Juris Secundum, from broad authority, have tersely explained the origin of our Bill of Rights, in this manner: “The bills of rights inserted in the American constitutions contain a declaration of general principles as a basis of government, copied from Magna Charta and the English Bill of Rights of 1689. These bills are regarded as parts of the constitutions in which they are recited, and are to be construed with other constitutional provisions. In view of their origin and long use, they cannot be regarded as introducing new matters or prescribing new conditions; their purpose is to preserve ancient principles rather than to establish modern principles.” (Fn. omitted; 16 C.J.S., Constitutional Law, § 27, p. 100; and see authority there collected.)
[427]Two of these general principles of the common law, relevant here, are stated by Dr. Broom as follows:
“Salus Populi suprema Lex. (XII. Tables:—Bacon, Max., reg. 12.)—Regard for the public welfare is the highest law.” (Broom’s Legal Maxims (8th ed. 1911) p. 1.)
“Nemo tenetur seipsum accusare. (Wing. Max. 486.)—No man can be compelled to criminate himself.” (Broom’s Legal Maxims, op. cit., p. 761.).
We first consider the principle “Salus Populi suprema Lex.” Dr. Broom appropriately places this ancient precept first among the common law rules expounded in his work. It is properly translated as “The safety of the people is the supreme law.” (See Middle Rio Grande W. U. Ass’n v. Middle Rio Grande C.D., 57 N.M. 287 [258 P.2d 391, 405]; italics added.)
This time-honored truism of our law expresses the basis upon which all civilized, and even primitive, governments are necessarily founded. “The most commonly acknowledged end or purpose of government has been either justice or the public good.” (Encyclopaedia Brittanica (1954) Government, p. 561.)
The principle was adverted to in the Declaration of Independence as the Creator’s endowment of the “unalienable right” to “life, liberty and the pursuit of happiness.” It was carried into the Preamble of the Constitution by its statement of purpose to “establish justice” and “promote the general welfare.” The precept was reiterated by the United States Supreme Court when it declared that government “owes a duty to the people ... to maintain peace and order and to assure the just enforcement of law.” (Hamilton v. Regents, 293 U.S. 245, 262 [79 L.Ed. 343, 353, 55 S.Ct. 197].) The “right of personal security” found in our law is a “natural right” which is “inherent and inalienable.” (16 C.J.S., Constitutional Law, §§ 199, 205, pp. 975, 1014; and see authority there collected.)
It is certain that when the first Ten Amendments were proposed to, and ratified by, the several states, all concerned had in mind the common law vow that the safety of the people from criminal and other aggression was guarded by “the highest law.” Inherent in this pledge was the right of the people to governmental protection from crime and violence. This right was expressly preserved by the Ninth Amendment, which provid[428]ed: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Nothing is seen in the Constitution or its amendments which expressly, or by any reasonable implication, suggests that in the judicial enforcement of the criminal law, and hence vindication of the right to personal security and' protection from crime, the People are to be placed in an unfavorable position among litigants. Nor does it appear that the Fifth Amendment requires suppression of the truth in favor of the accused, in such contexts as appear in Prudhomme, and here. Indeed, the principle that “the safety of the people is the supreme law,” reconfirmed to the people by the Ninth Amendment, would indicate the contrary. At least, and from any view, that valued right is entitled to at least equal dignity and respect; neither should be permitted to dominate, or abrogate, the other. And where necessary, and possible, they should be harmonized. (Serrano v. Priest, 5 Cal.3d 584, 596 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187]; Edler v. Hollopeter, 214 Cal. 427, 430 [6 P.2d 245].)
Prudhomme’s interpretation is not mandated by prior decisions of the courts of this state. The relevant rule was expressed in People v. Trujillo, 32 Cal.2d 105, 112 [194 P.2d 681] (cert, den., 335 U.S. 887 [93 L.Ed. 426, 69 S.Ct. 236]), in this manner.
“Wigmore, in an exhaustive and scholarly discussion of the history and policy behind the provision of the federal Constitution, which is substantially the same as the California mandate, concludes that the object of the protection ‘is the employment of legal process to extract from the person’s own lips an admission of his guilt, which will thus take the place of other evidence ....
“ ‘In other words, it is not merely any and every compulsion that is the kernel of the privilege, in histoiy and in the constitutional definitions, but testimonial compulsion. ’ ”
To the same effect see People v. Ellis, 65 Cal.2d 529, 533 [55 Cal.Rptr. 385, 421 P.2d 393]; People v. Lopez, 60 Cal.2d 223, 244 [32 Cal.Rptr. 424, 384 P.2d 16] (cert, den., 375 U.S. 994 [11 L.Ed.2d 480, 84 S.Ct. 634]); People v. Haeussler, 41 Cal.2d 252, 257 [260 P.2d 8] (cert, den., 347 U.S. 931 [98 L.Ed. 1082, 74 S.Ct. 533]); People v. Lane, 240 Cal.App.2d 634, 640 [49 Cal.Rptr. 712]; People v. Sowers, 204 Cal.App.2d 640, 645 [22 Cal.Rptr. 401]; People v. Chapman, 151 Cal.App.2d 59, 63 [311 P.2d 190] (cert, den., 355 U.S. 916 [2 L.Ed.2d 275, 78 S.Ct. 345]).
[429]These several authorities found no Fifth Amendment transgression to result from a defendant’s nontestimonial compulsion even where reasonably calculated to “lighten the prosecution’s burden of proving its case in chief.” And it will be noted that People v. Trujillo, supra, 32 Cal.2d 105, and People v. Haeussler, supra, 41 Cal.2d 252, found their respective interpretations responsive to both the state and federal Constitutions.
Furthermore, it will be observed that Prudhomme’s denial of discovery by the People, where the disclosure “conceivably might lighten the prosecution’s burden of proving its case in chief,” appears to be unsupported by People v. Schader, 71 Cal.2d 761 [80 Cal.Rptr. 1, 457 P.2d 841], the authority relied upon. Schader (p. 770) states that “The People must ‘shoulder the entire load’ of their burden of proof in their case in chief, without assistance either from the defendant’s silence or from his compelled testimony.” (Italics added.) Neither in Prudhomme, nor in the case at bench, was the discovery order calculated to exploit either the accused’s “silence” or “his compelled testimony,” a purpose which would obviously be in derogation of the Fifth Amendment, as widely interpreted.
Nor, in my respectful opinion, is Prudhomme’s rationale supported by the holdings of the United States Supreme Court. That court has consistently held that the Fifth Amendment “protects only against forced individual disclosure of a ‘testimonial or communicative character.’” (Italics added; United States v. Nobles, 422 U.S. 225, 233, fn. 7 [45 L.Ed.2d 141, 151, fn. 7, 95 S.Ct. 2160]; see also Gilbert v. California, 388 U.S. 263, 266 [18 L.Ed.2d 1178, 1182, 87 S.Ct. 1951]; United States v. Wade, 388 U.S. 218, 222 [18 L.Ed.2d 1149, 1154, 87 S.Ct. 1926]; Schmerber v. California, 384 U.S. 757, 761 [16 L.Ed.2d 908, 914, 86 S.Ct. 1826].) Under that rule, forced disclosures of a “communicative character” are those “which [make] a suspect or accused the source of ‘real or physical evidence.’ ” (Schmerber v. California, supra, p. 764 [16 L.Ed.2d p. 916]; United States v. Wade, supra, p. 223 [18 L.Ed.2d p. 1155]; italics added.) The discovery order here at issue requiring the defendant to divulge previous statements of prosecution witnesses did not purport to make him the source of real or physical evidence.
Finally, I believe the precise question before this court is resolved by the recent decision of the United States Supreme Court in United States v. Nobles, supra, 422 U.S. 225.
[430]The high court first iterated earlier authority on the policy considerations of discovery in criminal cases (pp. 230-231 [45 L.Ed.2d p. 149]): “ ‘We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.’ ”
The court then, citing abundant authority, pointed out (p. 233 [45 L.Ed.2d pp. 150-151]): “The Fifth Amendment privilege against compulsory self-incrimination is an ‘intimate and personal one,’ which protects ‘a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation.’ ... As we noted in Couch [409 U.S. 322 (34 L.Ed.2d 548, 93 S.Ct. 611)], at 328, the ‘privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him.’ ”
In United States v. Nobles, as in the case before us, the discovery order required defendant to produce previous statements of a prosecution witness. The high court stated (p. 231 [45 L.Ed.2d p. 149]): “Decisions of this Court repeatedly have recognized the federal judiciary’s inherent power to require the prosecution to produce the previously recorded statements of its witnesses so that the defense may get the full benefit of cross-examination and the truth-finding process may be enhanced. [Citations.] At issue here is whether, in a proper case, the prosecution can call upon that same power for production of witness statements that facilitate full disclosure of all the [relevant]facts.’ ” (Italics added.)
The court continued (pp. 233-234 [45 L.Ed.2d p. 151]): “. . . [trial] court’s order was limited to statements allegedly made by third parties who were available as witnesses to both the prosecution and the defense. [Defendant] did not prepare the report, and there is no suggestion that the portions subject to the disclosure order reflected any information that he conveyed to the investigator. The fact that these statements of third parties were elicited by a defense investigator on [defendant’s] behalf does not convert them into [defendant’s] personal communications.
[431]Requiring their production from the investigator therefore would not in any sense compel [defendant] to be a witness against himself or extort communications from him.
“We thus conclude that the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial. ” (Italics added.)