Peter Warren Green, and G. Francis Autman, Deputy Attys. Gen., for the state.
H. James Conaway, Jr., Wilmington, for Thomas H. Winsett.
C. W. Berl, Jr., Wilmington, for Wilbert A. Weekley.
Arthur J. Sullivan, Wilmington, for Edward J. Mayerhofer.
DUFFY, President Judge.
[57 Del. 346] Thomas H. Winsett, Wilbert A. Weekley, and Edward J. Mayerhofer were indicted for murder in the first degree, a capital offense, and for various other crimes. Specifically, they are charged with murdering Robert A. Paris, a police officer of the State of Delaware, with express malice aforethought by shooting with a shotgun.
All defendants moved under Criminal Rule 16, Del.C.Ann., for production of the following:
1. The automobile in which they were located at the time of the death of Robert A. Paris;
2. The weapon possessed by the decedent at the time of his death;
3. The weapon which allegedly caused the death;
4. The weapon in the possession of Trooper Robert J. Forenski, a fellow officer who was with Trooper Paris at the time of his death;
5. The autopsy report of the death.
The State opposed production of all items.
After briefing and oral argument I granted the motion as to Items 1 and 3 because both the car and the alleged death weapon were tangible objects apparently obtained from or belonging to the defendants, or one of them, and were clearly material to the defense. Since the requests were reasonable, they came within the specific language of the Rule. Cr.Rule 16.
I denied the motion as to Items 2, 4 and 5. In denying production, I followed a prior opinion of this Court which I considered to be a pertinent precedent construing Rule. 16, State v. Thompson, 11 Terry 456,134 A.2d 266 (1957). Since making the ruling, I have further studied Thompson and various other cases.
[57 Del. 347] Thompson represents the views of three judges of this Court, and it was later specifically approved by the Delaware Supreme Court. Wisniewski v. State, 1 Storey 84,138 A.2d 333 (1957). The opinion is clearly entitled to the most careful consideration as to its application to the present case. If the production motion falls within the Thompson ruling, I shall follow it.
In Thompson the defendants sought pretrial disclosure of '(1) statements of prospective witnesses, written or otherwise recorded, now in the possession of the Attorney General, and (2) police reports made in the course of their criminal investigations.' One of the defendants also sought 'pre-trial inspection of the results of polygraph tests, blood tests and fingerprint examinations now in the possession of the Attorney General.'
Much of the opinion is directed to a discussion of Jencks v. United States,353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, which had recently been decided by the United States Supreme Court. The Court held that under Rule 16, even after Jencks, the defendants were not entitled to pretrial discovery of statements given by prospective witnesses. This much is clear. But there is little discussion of that part of the motion which sought discovery of police reports, polygraph and blood tests, and fingerprint examinations. It is, however, quite plain from the opinion that the defendants were denied pretrial access to them. The case therefore stands for two propositions:
1. Pretrial discovery by a defendant in a criminal case is limited to matters which are discoverable under Rule 16; and
2. Under Rule 16 the following items are not discoverable: written or other recorded statements of prospective[57 Del. 348] witnesses, police reports, and the results of polygraph tests, blood tests, and fingerprint examinations.
I turn now to defendants' motion in this case. Rule 16 provides as follows:
'Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the Attorney General to permit the defendant to inspect and copy or photograph designated books, papers, documents, tangible objects, confessions or written statements obtained from or belonging to the defendant or a co-defendant
or obtained from others by seizure or by process upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. The order shall specify the time, place and manner of making the inspection and of taking the copies and photographs and may prescribe such terms and conditions as are just.' 
Defendants seek to require the State to produce the autopsy report of death. While that report may be a public record under 29 Del.C. § 4711, the application here is for production by the Attorney General. And, as I have already indicated, Thompson requires that any order upon the Attorney General to produce must find its authority in Rule 16. In that rule I do not find authority for the production of the autopsy report, nor do I find any language from which such authority could reasonably be inferred. On the contrary, the autopsy report seems to fall within the non-discoverable area defined in Thompson because, analytically, the report is probably the statement of a prospective witness. In any event, I remain of the opinion that the Court should not order the Attorney [57 Del. 349] General to produce it.
As to Items 2 and 4, the motion asks for production of the weapon which Trooper Paris possessed at the time of his death and the weapon which Trooper Forenski had at that time. (In each case shells and spent shells for each weapon are also sought.) These are 'tangible objects', obtained from others by the Attorney General, so this part of the Rule is satisfied. But were these weapons and the shells obtained by 'seizure' within the meaning of the Rule? In my earlier ruling I held that Thompson excluded from discovery the fruits of all detection and collections by the police, leaving for discovery only those items secured by process or legal seizure. I am now convinced that this reads too much into that case.
The results of polygraph tests, blood tests, and fingerprint examinations, all excluded by Thompson, are developed factually by the police as investigators. This is to say that they are obtained by the police qua police in their investigation of crime. This kind of information, in its broadest sense, arises out of the analytical or investigative phase of police effort. It is the work product of detection, at least as distinguished from the mere gathering or collection of tangibles which could be done by anyone physically present at a given time and place. It is this which distinguishes Thompson. Here defendants seek to discover tangible objects which came into possession of the police during examinations of persons, places or things. These, as I have already indicated, are distinguishable from intangible information which comes into possession of the police as a result of analysis, comparison, detection and the like. For this reason I think Thompson is not a precedent as to Items 2 and 4 and that I am free to decide this aspect of the motion in accordance with my own understanding of Rule 16 and its purposes.
[57 Del. 350] The key question is what is meant when the Rule speaks of tangible objects obtained from others by 'seizure'. The judicial writings upon this narrow question are very limited. Absent any authoritative guide, I conclude that the Court should follow the guide suggested by the Advisory Committee on the Federal Rules, from which our Rule is copied. The Committee's note to Rule 16 states, 18 U.S.C.A., p. 353, that the Rule
'permits the procedure to be invoked in cases of objects and documents obtained from others by seizure or by process, on the theory that such evidential matter would probably have
been accessible to the defendant if it had not previously been seized by the prosecution.'
It thus appears that the draftsmen of the Federal rule used 'seizure' in its dictionary meaning and not in a technical or legal sense. And, by the dictionary, 'seizure' simply means to take possession of, or to take into physical custody or control. 
I therefore conclude that under Rule 16 tangible objects have been obtained by seizure within the meaning of the Rule if they are in the possession of the Attorney General. To rule otherwise would lead to strange and strained distinctions. For example, at least one Federal Court has held that tangible objects in the possession of the prosecution were not subject to production because they had been given voluntarily to the Government, and hence had not been 'seized'.  A technical distinction[57 Del. 351] of this sort seems ...