Hubbard

Here we hold that the prosecutor is not entitled to discover notes prepared by a defense investigator that relate to an interview of a “prosecution” witness unless and until the defense announces an intent to call the defense investigator as a witness. Stated another way, the defense is not required to disclose statements it obtains from prosecution witnesses that may be used to refute the prosecution’s case during cross-examination.

Petitioner was charged with attempted murder and kidnapping. During the cross-examination of Tom Smith, one of the victims, defense counsel sought to establish that Smith coached Tonye Hurley, another victim, into changing her testimony. At this point, the prosecutor moved for the production of all *1166 statements obtained by the defense relating to any prosecution witness. Respondent court inquired whether a defense investigator had interviewed Ms. Hurley. Defense counsel candidly stated that Ms. Hurley had been interviewed by his investigator.

Respondent court, over the objection of petitioner, ordered that “the People will be entitled to all prior statements [made] by any witness to your investigator or to anyone your investigator…