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In re Investigation of Death of White3/25/2003
FOR PUBLICATION
Petitioner sought an investigative subpoena to further the investigation of the murder of Bernita White, respondent's spouse. Respondent appeals as of right from an order authorizing the issuance of an investigative subpoena by the petitioner on a private investigator hired by respondent to investigate the decedent in a divorce proceeding pending at the time of her death. We reverse.
Facts and Procedural History
During a pending divorce proceeding, respondent, Artis White, a Michigan State Police detective, hired a private investigator, Charles Rettstadt, to investigate his then wife, Bernita White. The Whites and their daughter were walking together in Potter Park Zoo shortly before Bernita White's murder in the zoo. As part of the on-going investigation into Bernita White's murder, the Ingham County Prosecutor sought an investigative subpoena pursuant to MCL 767A.2(1), for the files of Charles Rettstadt, the private investigator hired by respondent in connection with the Whites' divorce. The trial court authorized the investigative subpoena that provided Rettstadt was to:
produce documents pertaining to the retention of the agency by Artis White, including, but not limited to, all contracts and/or retention agreements; all journals, notes or interviews produced pursuant to the agreements; all photographs, video tapes, digital images or audio tapes produced pursuant to the agreements; all records pertaining to billings for services rendered pursuant to the agreement; any check, draft, instrument, credit or promise to pay received pursuant to the agreement.
Shortly thereafter, Artis White moved to quash the investigative subpoena wherein he invoked his statutory privilege pursuant to MCL 338.840(2). The prosecutor claimed that the divorce investigation files which included surveillance materials could assist in the homicide investigation, and then argued that the facts and information assembled by Rettstadt during his investigation should be divided analytically into two categories, (1) the "raw" information itself, and (2) the analysis of the information including inferences, theorizing, and conclusions drawn. The prosecutor maintained that the information developed during the course of Rettstadt's investigation could be very valuable to the prosecutor's investigation of White's homicide and that the information could be "lost" if not disclosed to the prosecutor. The prosecutor contended that the subpoena did not violate the private investigator-client privilege because the subpoena did not seek to obtain any direct communications between respondent and his investigator. Given the importance of investigating a homicide and the absence of any alternative means of obtaining the information possessed by the investigator, the prosecutor argued it was necessary to abrogate the privilege.
The circuit court granted respondent's motion to quash and reasoned that while a common law or statutory privilege could be narrowed when it was balanced against a criminal defendant's constitutional rights, the same balancing is inappropriate when a prosecutor seeks to narrow or abrogate the privilege. The court further observed that the court rules relating to discovery applied only to non-privileged material. Specifically, the court concluded:
So the jurisprudence of the state, as I understand it, is that the courts will balance the constitutional right of a criminal defendant and that defendant's need for material in order to exercise his constitutional rights against what otherwise would be iron clad privileges. But no exception to those privileges exists in the jurisprudence of the state for a prosecutor doing an investiga
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