[24 NJSuper Page 429] Application is made on behalf of the defendant John Henry Tune, under indictment for murder, for an order directing that a subpoena issue requiring the county prosecutor to produce all statements in writing alleged to have been signed by the defendant, together with all statements signed by any other person in connection with the homicide alleged in the indictment so they may be inspected by the defendant's attorneys, and (2) for an order directing the prosecutor to disclose to the defendant's attorneys
the names and addresses of all persons having knowledge of relevant facts concerning the offense alleged or in the alternative, for an order directing the prosecutor to submit to interrogatories wherein he shall set forth copies of all written statements obtained by him concerning the charges in the indictment or in the further alternative, for an order directing the prosecutor to permit defendant's attorneys, or some one acting on their behalf, to inspect and copy all statements which they have in their file signed by the defendant or any other person.
It is urged by the defendant's attorneys that it is necessary to obtain the foregoing information so they can make proper preparation for trial, properly prepare the defense in this case, to give defendant the advice of counsel to which he is entitled, that the denial of the production of the information sought and of a right to inspect same will result in an injustice or an undue hardship to the defendant, and that the granting of the relief sought would not hamper the prosecutor in the discharge of his duties or interfere with the preparation and prosecution of this case.
It is first urged by the defendant's attorneys that they are entitled to the foregoing as a matter of right but they cite no case to support this argument and there appears to be none in support thereof except in jurisdictions where such relief is granted expressly by statute or rule of court. Conceding that we have no rule of criminal practice expressly authorizing such extensive pretrial discovery proceedings counsel, nevertheless, argue that the provisions of Rules 3:16-16 to 3:16-40 are incorporated into the criminal practice by virtue of Rule 2:12-11 and that by virtue of these rules they are entitled as of right to the relief sought.
This argument seems to be completely answered by the opinion of Chief Justice Vanderbilt in State v. Cicenia , 6 N.J. 296 (1951). It is contended that that case is not controlling because there the court dealt only with the matter of the issuance of a subpoena duces tecum and not with the broader aspects of pretrial discovery. The language of the
opinion, however, will not permit of any such limited application. The Chief Justice said (6 N.J. 299-300):
"The second question raised is whether or not the defendant has an absolute right, as he asserts, to an inspection before trial of his alleged confession and those of his co-defendants. In support of his contention that he has such a right, the defendant relies on Rule 2:5-8 (c), which provides in part:
'The court may direct that books, papers, documents or other objects * * * be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence, and may upon their production permit the books, papers, documents * * * to be inspected by the parties and their attorneys.'
'If no procedure is specifically prescribed the courts exercising criminal jurisdiction may proceed in any lawful matter not inconsistent with the Constitution, these rules, or with any applicable statute.'
Rule 2:5-8 (c), however, gives the defendant no such absolute right as he asserts; it is not mandatory but plainly permissive. Nor does Rule 2:12-11 aid his contention, for he is unable to cite a single case in this State or even in the federal courts giving a defendant an unqualified right to such an inspection even with the help of Rule 16 of the Federal Rules of Criminal Procedure with respect to discovery and inspection, a rule which has not, it ...