At petitioner's criminal trial, a witness' alibi evidence was
struck as a sanction for petitioner's failure to file a notice of
alibi in accordance with Oregon's statutory requirement, and
petitioner himself was not allowed to give alibi testimony.
Following petitioner's conviction the appellate court, affirming,
rejected his constitutional challenge to the state statute, which
grants no discovery rights to criminal defendants.
Reciprocal discovery is required by fundamental
fairness, and it is insufficient that, although the statute does
not require it, the State might grant reciprocal discovery in a
given case. In the absence of fair notice that petitioner will have
an opportunity to discover the State's rebuttal witnesses,
petitioner cannot, consistently with due process requirements, be
required to reveal his alibi defense. Pp. 412 U. S.
Reversed and remanded; see
6 Ore.App. 391, 487
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. BURGER, C.J., concurred in the result. DOUGLAS, J., filed
an opinion concurring in the result, post,
p. 412 U. S.
Page 412 U. S. 471
MR. JUSTICE MARSHALL delivered the opinion of the Court.
This case involves important questions concerning the right of a
defendant forced to comply with a "notice of alibi" rule to
In Williams v. Florida, 399 U. S.
(1970), we upheld the constitutionality of Florida's
"notice of alibi" rule which required criminal defendants intending
to rely on an alibi defense to notify the prosecution of the place
at which they claimed to be at the time in question, and of the
names and addresses of witnesses they intended to call in support
of the alibi. [Footnote 1
so holding, however, we emphasized that the constitutionality of
such rules might depend on "whether the defendant enjoys reciprocal
discovery against the State." Id.
at 399 U. S. 82
11. [Footnote 2
In the case presently before us, Oregon prevented a criminal
defendant from introducing any evidence to support his alibi
defense as a sanction for his failure to comply with a "notice of
alibi" rule which, on its face,
Page 412 U. S. 472
made no provision for reciprocal discovery. [Footnote 3
] The case thus squarely presents the
question left open in Williams,
and we granted certiorari
so that this question could be resolved. 406 U.S. 957 (1972).
We hold that the Due Process Clause of the Fourteenth Amendment
forbids enforcement of alibi rules unless reciprocal discovery
rights are given to criminal defendants. Since the Oregon statute
did not provide for reciprocal discovery, it was error for the
court below to enforce it against petitioner, and his conviction
must be reversed. [Footnote
On May 22, 1070, petitioner was indicted under Ore.Rev.Stat. §
474.020 for unlawful sale of narcotics. The sale allegedly occurred
the previous day. At trial, after the State had concluded its case,
petitioner called one
Page 412 U. S. 473
Colleen McFadden who testified that, on the night in question,
she had been with petitioner at a drive-in movie. The prosecutor
thereupon brought to the judge's attention petitioner's failure to
file a notice of alibi, and, after hearing argument, the trial
judge granted the State's motion to strike McFadden's testimony
because of this failure. Petitioner himself then took the stand and
attempted to testify that he was at the drive-in with McFadden at
the time when the State alleged the sale occurred. Once again,
however, the State objected, and the trial judge again refused to
permit the evidence.
Petitioner was convicted as charged, and sentenced to 18 months'
imprisonment. On appeal, the Oregon Court of Appeals rejected
petitioner's contentions that the Oregon statute was
unconstitutional in the absence of reciprocal discovery rights and
that the exclusion sanction abridged his right to testify in his
own behalf and his right to compulsory process. 6 Ore.App. 391,
(1971). In an unreported order, the Oregon Supreme
Court denied petitioner's petition to review. See
"Notice of alibi" rules, now in use in a large and growing
number of States, [Footnote 5
are based on the proposition that the ends of justice will best be
served by a system of liberal discovery which gives both parties
the maximum possible amount of information with which to prepare
their cases, and thereby reduces the possibility of surprise at
trial. See, e.g.,
Brennan, The Criminal Prosecution:
Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q. 279; American
Bar Association Project on Standards for Criminal Justice,
Discovery and Procedure Before
Page 412 U. S. 474
Trial 23-43 (Approved Draft 1970); Goldstein, The State and the
Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J.
1149 (1960.). The growth of such discovery devices is a salutary
development which, by increasing the evidence available to both
parties, enhances the fairness of the adversary system. As we
recognized in Williams,
nothing in the Due Process Clause
precludes States from experimenting with systems of broad discovery
designed to achieve these goals.
"The adversary system of trial is hardly an end in itself; it is
not yet a poker game in which players enjoy an absolute right
always to conceal their cards until played. We find ample room in
that system, at least as far as 'due process' is concerned, for [a
rule] which is designed to enhance the search for truth in the
criminal trial by insuring both the defendant and the State ample
opportunity to investigate certain facts crucial to the
determination of guilt or innocence."
399 U.S. at 399 U. S. 82
Although the Due Process Clause has little to say regarding the
amount of discovery which the parties must be afforded, but cf.
Brady v. Maryland, 373 U. S. 83
(1963), it does speak to the balance of forces between the accused
and his accuser. Cf. In re Winship, 397 U.
, 397 U. S.
-364 (1970). [Footnote 6
] The Williams
Court was therefore
careful to note that
"Florida law provides for liberal discovery by the defendant
against the State, and the notice of alibi' rule is itself
carefully hedged with reciprocal duties requiring state disclosure
to the defendant.
Page 412 U. S.
399 U.S. at 399 U. S. 81
(footnote omitted). The same cannot be said of Oregon law. As the
State conceded at oral argument, see
Tr. of Oral Arg.19,
Oregon grants no discovery rights to criminal defendants, and,
indeed, does not even provide defendants with bills of particulars.
significantly, Oregon, unlike Florida, has no provision which
requires the State to reveal the names and addresses of witnesses
it plans to use to refute an alibi defense. [Footnote 8
We do not suggest that the Due Process Clause, of its own force,
requires Oregon to adopt such provisions. Cf. United States v.
Augenblick, 393 U. S. 348
(1969); Cicenia v. Laga, 357 U. S. 504
(1958). But we do hold that, in the absence of a strong showing of
state interests to the contrary, discovery must be a two-way
street. The State may not insist that trials be run as a "search
for truth" so far as defense witnesses are concerned, while
maintaining "poker game" secrecy for its own witnesses. [Footnote 9
Page 412 U. S. 476
It is fundamentally unfair to require a defendant to divulge the
details of his own case while at the same time subjecting him to
the hazard of surprise concerning refutation of the very pieces of
evidence which he disclosed to the State.
Indeed, neither the respondent nor the Oregon Court of Appeals
contests these principles. Nor does the State suggest any
significant governmental interests which might support the lack of
reciprocity. Instead, respondent has chosen to rest its case on a
procedural point. While conceding that Oregon law fails to provide
for reciprocal discovery on its face, the State contends that, if
petitioner had given notice of his alibi defense, the state courts
might have read the Oregon statute as requiring the State to give
the petitioner the names and addresses of state witnesses used to
refute the alibi defense. Since petitioner failed to give notice,
his alibi defense was not permitted, and there were, therefore, no
state rebuttal witnesses whose testimony tended to disprove the
alibi. Since no such testimony was introduced,
Page 412 U. S. 477
respondent argues that Oregon's willingness to permit reciprocal
discovery remains untested. The State says, in effect, that
petitioner should not be permitted to litigate the reciprocity
issue in the abstract in federal court after bypassing an
opportunity to contest the issue concretely before the state
judiciary. [Footnote 10
It is, of course, true that the Oregon courts are the final
arbiters of the State's own law, and we cannot predict what the
state court might have done had it been faced with a defendant who
had given the required notice of alibi and then sought reciprocal
discovery rights. But it is this very lack of predictability which
ultimately defeats the State's argument. At the time petitioner was
forced to decide whether or not to reveal his alibi defense to the
prosecution, he had to deal with the statute as written, with no
way of knowing how it might subsequently be interpreted. Nor could
he retract the information once provided, should it turn out later
that the hoped-for reciprocal discovery rights were not
For this reason, had petitioner challenged the lack of
reciprocity by giving notice and then demanding discovery, he would
have done so at considerable risk. To be sure, the state court
might have construed the Oregon
Page 412 U. S. 478
statutes so as to save the constitutionality of the notice
requirement and granted reciprocal discovery rights. But the state
court would also have had the option of reading state law as
precluding reciprocal discovery. If the court adopted this latter
alternative, it would have had to strike down the "notice of alibi"
requirement. But petitioner would have had only a Pyrrhic victory,
since, once having given the State his alibi information, he could
not have retracted it. Thus, under this scenario, even though the
"notice of alibi" rule would have been invalidated, the State would
still have had the benefit of nonreciprocal discovery rights in
petitioner's case -- the very result which petitioner wishes to
avoid by challenging the rule.
The statute, as written, did not provide for reciprocal
discovery, and petitioner cannot be faulted for taking the
legislature at its word. [Footnote 11
] Indeed, even at this stage of the
proceedings, the respondent has made no representation that the
State would in fact, provide reciprocal discovery rights to a
defendant who complied with the "notice of alibi" scheme.
Respondent says only that the State might
such rights. [Footnote 12
Page 412 U. S. 479
State cannot constitutionally force compliance with its scheme
on the basis of a totally unsubstantiated possibility that the
statute might be read in a manner contrary to its plain language.
Thus, in the absence of fair notice that he would have an
opportunity to discover the State's rebuttal witnesses, petitioner
cannot be compelled to reveal his alibi defense.
Since the trial court erred and since there is a substantial
possibility that its error may have infected the verdict, the
conviction must be reversed and the cause remanded for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
THE CHIEF JUSTICE concurs in the result.
The requirement was attacked as a violation of the defendant's
due process right to a fair trial and an invasion of his privilege
against self-incrimination. But the Court found that,
"[g]iven the ease with which an alibi can be fabricated, the
State's interest in protecting itself against an eleventh-hour
defense is both obvious and legitimate."
399 U.S. at 399 U. S. 81
Moreover, we held that
"the privilege against self-incrimination is not violated by a
requirement that the defendant give notice of an alibi defense and
disclose his alibi witnesses."
at 399 U. S.
The Florida rule provided:
"'Not less than five days after receipt of defendant's witness
list, or such other times as the court may direct, the prosecuting
attorney shall file and serve upon the defendant the names and
addresses (as particularly as are known to the prosecuting
attorney) of the witnesses the State proposes to offer in rebuttal
to discredit the defendant's alibi at the trial of the cause.'"
399 U.S. at 399 U. S.
Ore.Rev.Stat. § 135.875 provides:
"(1) If the defendant in a criminal action proposes to rely in
any way on alibi evidence, he shall, not less than five days before
the trial of the cause, file and serve upon the district attorney a
written notice of his purpose to offer such evidence, which notice
shall state specifically the place or places where the defendant
claims to have been at the time or times of the alleged offense
together with the name and residence or business address of each
witness upon whom the defendant intends to rely for alibi evidence.
If the defendant fails to file and serve such notice, he shall not
be permitted to introduce alibi evidence at the trial of the cause
unless the court for good cause orders otherwise."
"(2) As used in this section, 'alibi evidence' means evidence
that the defendant in a criminal action was, at the time of
commission of the alleged offense, at a place other than the place
where such offense was committed."
Petitioner also argues that, even if Oregon's "notice of alibi"
rule were valid, it could not be enforced by excluding either his
own testimony or the testimony of supporting witnesses at trial.
But in light of our holding that Oregon's rule is facially invalid,
we express no view as to whether a valid rule could be so enforced.
Cf. Williams v. Florida, supra,
at 399 U. S. 83
at 399 U. S. 82
11; Note, The Preclusion Sanction -- A Violation of the
Constitutional Right to Present a Defense, 81 Yale L.J. 1342 n. 4
This Court has therefore been particularly suspicious of state
trial rules which provide nonreciprocal benefits to the State when
the lack of reciprocity interferes with the defendant's ability to
secure a fair trial. See, e.g., Washington v. Texas,
388 U. S. 14
388 U. S. 22
(1967); Gideon v. Wainwright, 372 U.
, 372 U. S. 344
Goldstein, The State and the Accused: Balance
of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-1192
As the Oregon Court of Appeals has recently pointed out,
"Oregon's criminal code is almost completely lacking in pretrial
discovery procedures." State v. Kelsaw,
289 Ore.App. 295,
, 280-281 (1972), pet. for cert. pending,
The only discovery rights Oregon appears to permit are the
rights to view written statements made by state witnesses and by
the defendant, in the hands of the police. See State v.
242 Ore. 101, 407 P.2d
(1965); Ore.Rev.Stat. §§ 133.750, 133.755. Cf. State v.
Indeed, the State's inherent information-gathering advantages
suggest that, if there is to be any imbalance in discovery rights,
it should work in the defendant's favor. As one commentator has
"Besides greater financial and staff resources with which to
investigate and scientifically analyze evidence, the prosecutor has
a number of tactical advantages. First, he begins his investigation
shortly after the crime has been committed, when physical evidence
is more likely to be found and when witnesses are more apt to
remember events. Only after the prosecutor has gathered sufficient
evidence is the defendant informed of the charges against him; by
the time the defendant or his attorney begins any investigation
into the facts of the case, the trail is not only cold, but a
diligent prosecutor will have removed much of the evidence from the
field. In addition to the advantage of timing, the prosecutor may
compel people, including the defendant, to cooperate. The defendant
may be questioned, within limits, and, if arrested, his person may
be searched. He may also be compelled to participate in various
nontestimonial identification procedures. The prosecutor may force
third persons to cooperate through the use of grand juries, and may
issue subpoenas requiring appearance before prosecutorial
investigatory boards. With probable cause, the police may search
private areas and seize evidence, and may tap telephone
conversations. They may use undercover agents and have access to
vast amounts of information in government files. Finally, respect
for government authority will cause many people to cooperate with
the police or prosecutor voluntarily when they might not cooperate
with the defendant."
Note, Prosecutorial Discovery under Proposed Rule 16, 85
Harv.L.Rev. 994, 1018-1019 (1972) (footnotes omitted).
Before this Court, respondent presses the related argument that
petitioner failed to object to the exclusion of his alibi testimony
at trial, and that his conviction therefore rests on an independent
state procedural ground. See
Brief for Respondent 5 n. 2.
But, as the transcript makes clear, the issue arose when the trial
court sustained the State's objection to introduction of the alibi
testimony. Petitioner then proceeded to make an "offer of proof" in
order to protect the record on appeal. Respondent cites us to no
Oregon cases which would require petitioner to object to the
sustaining of an objection in this context, and the state appellate
court's willingness to reach the merits of petitioner's federal
claims provides convincing proof that the judgment does not rest on
adequate state grounds. See Warden v. Hayden, 387 U.
, 387 U. S. 297
n. 3 (1967).
Nor did petitioner's attorney rest entirely on his own reading
of Oregon's discovery provisions. As the attorney argued at
"Several weeks ago this came up again -- this came up in the
Circuit Court here with Judge Perry, and Judge Perry allowed the
alibi testimony in based upon [Williams v. Florida
said that he, at that time, based on our statute and based on this
opinion, that he didn't feel that our criminal code and our statute
should allow a substantive evidence [sic
] that the
defendant might have to be kept out due to this, and that is the
reason that notice was not given. I relied somewhat upon that and
my own interpretation of this case also."
The State cites us to State v. Kelsaw, supra,
Oregon Court of Appeals decision holding that a defendant must be
given reciprocal information as to the time and place of the
alleged offense before he can be required to comply with the
"notice of alibi" rule. But merely informing the defendant of the
time and place of the crime does not approach the sort of
reciprocity which due process demands. Moreover, in view of the
fact that Kelsaw
was decided after petitioner's trial, it
cannot be suggested that the decision gave him notice that even
this limited reciprocity would be granted.
MR. JUSTICE DOUGLAS, concurring in the result.
In Williams v. Florida, 399 U. S.
, 399 U. S. 106
I joined Mr. Justice Black in dissent from that part of the Court's
decision which upheld the constitutionality of Florida's "notice of
alibi" rule. We concluded that the decision was
"a radical and dangerous departure from the historical and
constitutionally guaranteed right of a defendant in a criminal case
to remain completely silent, requiring the State to prove its case
without any assistance of any kind from the defendant himself."
at 300 U. S. 108
One need not go far for the textual support for this position. The
Fifth Amendment, written with the inquisitorial practices of the
Star Chamber firmly in mind, provides that "[n]o person . . . shall
be compelled . . . to be a witness against himself." It seems
Page 412 U. S. 480
difficult to quarrel with the conclusion that a "notice of
alibi" provision contravenes this clear mandate, for the State
would see no need for the rule unless it believed that such notice
would ease its burden of proving its case or increase the
efficiency of its presentation. In either case, the defendant has
been compelled to aid the State in his prosecution.
The Court views the growth of "such discovery devices" as a
"salutary development" because it increases the evidence available
to both parties. Ante
at 412 U. S. 474
This development, however, has altered the balance struck by the
Constitution. The Bill of Rights does not envision an adversary
proceeding between two equal parties. If that were so, we might
well benefit from procedures patterned after the Rules of the
Marquis of Queensberry. But, the Constitution recognized the
awesome power of indictment and the virtually limitless resources
of government investigators. Much of the Bill of Rights is designed
to redress the advantage that inheres in a government prosecution.
It is not for the Court to change that balance. See Williams v.
at 399 U. S.
-114 (Black, J., dissenting).
I agree with the Court that petitioner's conviction must be
reversed, but for the reasons stated by Mr. Justice Black in his
dissent in Williams.
To reverse it because of uncertainty
as to the presence of reciprocal discovery is not to take the
Constitution as written, but to embellish it in the manner of the
old masters of substantive due process.