¶1dissenting:
¶2I put it to you. Is it not a non sequitur to say that the purpose of sanctions for noncompliance of discovery rules or orders should be to compel discovery rather than to punish? If it is not a non sequitur, then at the very least the statement is internally contradictory in my opinion, because “sanction” and “punish” are synonyms. It is hard for me to comprehend how we can have sanctions that do not punish or how punishment can be used to compel discovery in this context. How can a court compel compliance when it’s too late? How can you compel compliance of disclosures prior to trial when you are in midtrial? I suggest that the drafters of Rule 415(g) must have had this in mind in authorizing a court “to exclude such evidence.”
¶3Here, we don’t even know what the court excluded. I do not understand the statement that though no offer of proof was made, “it is apparent that the 14 witnesses the defendant sought to call were needed to establish or corroborate the alibis given by defendants during their testimony.” It may be a reasonable surmise, but, to my view, it is not “apparent.” Nor do I see why the State is presumed to have knowledge of the witnesses the defendants attempted to call simply because they were inmates in the penitentiary, nor how the State could have disclosed them “in response to defendants’ discovery motion,” unless we accept the premise that all inmates at Pontiac knew something about the case. Even here, the State is only under an obligation under paragraph (c) of this rule to disclose material within its possession which tends to negate the guilt of the accused, which is a far cry from saying that the inmate population at Pontiac might have known something about the case.
¶4It’s not incumbent upon the court or the State’s Attorney to seek an offer of proof from or by a defendant — it’s up to the defendant to make the offer. And if he doesn’t do so, I think a court can conclude or infer that either (a) the witness wouldn’t testify to anything relevant, or (b) that defendant or his counsel doesn’t know what they were going to testify to. Practically the same thing. The court here didn’t know what these witnesses were going to testify to and I think it is reasonable to conclude (since the contrary isn’t shown) that no purpose would be served by their testimony. So the sanction of exclusion isn’t very severe at all. Ordinarily when one side or the other offers a witness, he knows very well what he’s going to testify to. But if the relevancy of the witness’ testimony is questioned in advance, it’s no great burden to make an offer of proof or otherwise represent what the testimony would be. If the offering side doesn’t choose to do so, I don’t see how they can complain if the witness, hence his testimony, are excluded.
¶5It seems to me that the majority opinion misinterprets the impact of Wardius. There it was held that an alibi witness may be excluded because of defendant’s failure to give notice of an alibi defense, if the defendant “ … enjoys reciprocal discovery against the State.’ [Williams v. Florida (1970), 399 U.S. 78, 82 N. 11, 26 L. Ed. 2d 446, 450 N. 11, 90 S. Ct. 1893.]” (412 U.S. 470, 471, 37 L. Ed. 2d 82, 85, 93 S. Ct. 2208, 2210.) Rule 413 is clearly a two-way street and accords such mandated fairness.
¶6My colleagues suggest a continuance would have been a more efficacious sanction — if such can really be called a sanction. Obviously, some contexts clearly call for a continuance. Perhaps where witnesses are limited as to both number and importance, or where even with the large number proffered here, if such proffer came prior to trial. But our situation is vastiy different — the trial was under way, the State had finished, and suddenly the prosecution is confronted with 14 witnesses they knew not of. To halt the trial to give the State an opportunity to interview, or attempt to interview, such a very large number is unreasonable. Trials must go on, not halted in midcourse for the kind of activity which is more properly a part of preparing for trial. And— again — what is more, we know not what the witnesses would have testified to. Certainly it is not unreasonable to expect, at the very least, that there would be some tender as to the relevancy and materiality of the testimony sought to be elicited.
¶7A further statement leaves me befuddled. The majority opinion states that, “Another remedy could have been for the court to order an in camera proceeding to assure that proper discovery had taken place, thereby enhancing the possibility of a fair trial.” The only in camera hearing provided for under the Rules is in Rule 415(f) which states that upon the request of any person the court may permit any showing of cause for denial of disclosure to be made in camera. As I read this paragraph, in camera hearings are only for the purpose of denying disclosure — not for the purpose of furthering disclosure.
¶8I am not unmindful that the exclusion of evidence is a far-reaching and onerous sanction. I would even say that it should be avoided when such avoidance can obviate or alleviate to some meaningful extent the harm done, or it indeed promotes or “compels” discovery. But as I have said, we really don’t know what evidence was excluded. Maybe absolutely nothing. If the sanction of exclusion was here improperly imposed, under what circumstances will it ever be proper? I can think of none. I dissent.