Osborne v. Superior Court
In Osborne v. Superior Court, 157 Ariz. 2, 754 P.2d 331 (App. 1988), the trial court had ordered the defendant to disclose to the state statements we characterized as falling into "three general categories":
(1) "statements of state witnesses who had been interviewed in the presence of the prosecutor,"
(2) "statements of witnesses disclosed by the state who had been interviewed outside the presence of the prosecutor,";
(3) "tape recordings of a prison disciplinary hearing which was attended by" defense counsel but not the prosecutor. Id. at 4, 754 P.2d at 333.
The Court determined that Rule 15.2(c), Ariz. R. Crim. P., requires a defendant to disclose statements only of witnesses he or she will "call as witnesses at trial" and "papers, documents, photographs and other tangible objects" that he or she will use at trial. See Osborne, 157 Ariz. at 4-5, 754 P.2d at 333-34.
Thus, we reasoned, that rule did not require disclosure of any of the statements because the defendant wished to use them solely for impeachment and because they were "testimonial" rather than "real" evidence. Id. at 5, 754 P.2d at 334.
The Court also determined the trial court's order for disclosure could not be supported under Rule 15.2(g). 1 See Osborne, 157 Ariz. at 5-6, 754 P.2d at 334-35.
That subsection of the rule provides:
"Upon motion of the prosecutor showing that the prosecutor has substantial need in the preparation of his or her case for material or information not otherwise covered by Rule 15.2, that the prosecutor is unable without undue hardship to obtain the substantial equivalent by other means," the court may order a person to make such material available. Ariz. R. Crim. P. 15.2(g).
The Court concluded the state had not demonstrated undue hardship under the rule. Osborne, 157 Ariz. at 6, 754 P.2d at 335.
The Court pointed out that the state had or could have had the same opportunity to record or transcribe the statements made when the prosecutor was present or at the disciplinary hearing and that "the expense to the state of transcription does not amount to 'undue hardship.'" Id.
And the Court stated that, "with respect to all of the statements," the state would "have the opportunity to review them and make . . . objections as to accuracy and context if and when they are used by petitioner to impeach the state's witnesses." Id.