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In re Investigation of Death of White3/25/2003
Our review of the record reveals that the prosecutor has failed to provide us with any authority holding that the prosecutor's right to conduct a far-reaching investigation into possible criminal conduct equates to a defendant's constitutional right to a fair trial. Ordinarily this Court will not consider arguments for which a party has failed to provide authority. Mudge v Macomb Co, 458 Mich 87, 104-105; 580 NW2d 845 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Although a homicide investigation is critically important, the statute does not permit exceptions due to the potential value of the material to the prosecutor. Indeed, the legislature protected this information by granting a broad privilege presumably because the information may have value, not because the information is trivial. Because the procedure established in Stanaway resulted from a concern that is not present in this appeal, a criminal defendant's assertion of his constitutional right to a fair trial, we reject the prosecutor's attempt to apply that decision to the facts of the instant case and thereby, abrogate the legislatively created privilege.
We are of the opinion that the basis for the prosecutor's motion for reconsideration was this Court's unpublished decision in Tezak, supra. Moreover, from the language of the order granting reconsideration, it clearly formed the basis for the trial court's decision.
Unlike the trial court's interpretation, we find the facts of Tezak distinguishable from the instant case, and therefore find that the circuit court's reliance on Tezak was misplaced. The trial court in Tezak was concerned with the alleged wrongdoing of the detective agency outside the scope of its assignment to the client. The agency sought to assert the client's privilege to defeat the plaintiff's discovery request. In our view, the Tezak court was attempting to provide a mechanism by which the Court could segregate "privileged" e.g. "information secured in connection with an assignment for a client," from "non-privileged material," that information secured outside the scope of an assignment for a client. MCL 338.840. Tezak does not support petitioner's argument or the trial court's ruling allowing disclosure of otherwise privileged information.
Conclusion
The plain language of the statutory privilege, MCL 338.840(2), precluded the trial court from ordering respondent's private investigator to turn over information obtained during the course of his investigation and in accordance with the assignment for which he was retained. There is no statutory exception that permits the trial court to set aside the privilege on the prosecutor's showing of need. Accordingly, the trial court committed error requiring reversal when it authorized the issuance of an investigative subpoena directing respondent's investigator to provide all information obtained by his investigation for an in-camera review and possible disclosure to the prosecutor.
In light of our resolution of this issue we decline to review respondent's alternative argument for reversal regarding work-product privilege. MCR 2.302(B)(3)(a).
Reversed. We do not retain jurisdiction.
Pat M. Donofrio
Donald S. Owens
I concur in result only.
Henry William Saad
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