On certification granted to the Essex County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For affirmance -- Justices Heher, Jacobs and Brennan. The opinion of the court was delivered by Vanderbilt, C.J. William J. Brennan, Jr., J. (dissenting). Heher and Jacobs, JJ., join in this dissent.
On October 7, 1952 the grand jury of Essex County returned an indictment charging the defendant with the murder of William Prather. The body was discovered on August 23, 1952 in the basement of the decedent's home. The defendant was arrested by the police in Newark shortly after noon on the same day and taken to Newark Police Headquarters for questioning. There he made an oral statement to the police, admitting that he had committed the crime, and then signed a 14-page confession which had been prepared in longhand from his statements by one of the detectives from the county prosecutor's office. The prosecutor's office later obtained signed statements from persons other than the defendant.
On October 30, 1952 the Essex County Court appointed two attorneys to act as counsel for the defendant. On January 30, 1953 counsel applied to the County Court on notice to the county prosecutor for:
"An order directing that a subpoena issue under the order of this Court directed to you and requiring you to produce before the Court
at a time prior to the trial and as fixed by the Court, any statement or statements in writing which will, at the trial, be alleged to have been signed by the above named defendant, together with any and all statement or statements signed by any other person in connection with the homicide set forth in the indictment, to the end that any of such statements may be inspected by the attorneys for the defendant prior to the trial."
In the same motion counsel made another application for an order:
"Directing you, as Essex County Prosecutor, to disclose to the undersigned, as attorneys for the defendant, the names and addresses of all persons having knowledge of relevant facts in connection with the offense alleged in the aforesaid indictment; or, in the alternative, that an order issue directing you, as Essex County Prosecutor, to submit to interrogatories wherein you shall set forth copies of all written statements obtained by you from the defendant or any other person having any knowledge of relevant facts concerning the charges laid in the aforesaid indictment; or, in the alternative again, that an order issue directing you, as Essex County Prosecutor, to permit the attorneys for the defendant, or someone acting on their behalf, to inspect and copy any statement or statements in writing which may have been allegedly signed by the above named defendant, together with any and all statement or statements signed by any other person in connection with the homicide set forth in the indictment."
The motion set forth the following grounds for the application:
"(a) The information sought by the attorneys for the defendant is necessary for the proper preparation of the defense, the preparation for trial, and the presentation of the defense at the trial of the aforesaid Indictment.
(b) A denial of the production of this information and a denial of the right of inspection of any of the aforementioned statements will result in an injustice or undue hardship to the defendant, and be contrary to the Rules promulgated by the Supreme Court of New Jersey.
(c) The granting of the relief sought by this Motion is within the discretion of this Court and the circumstances of this case require that such discretion be exercised in favor of this Motion."
Attached to the motion was an affidavit of counsel setting forth the reasons why the application should be granted.
The State opposed the applications, but filed no affidavits in opposition thereto. On February 3, 1953, the court filed
an opinion granting the defendant the right to inspect his confession, but denying his application to inspect the other statements in the possession of the prosecutor. Before such an order was entered, the State, on February 18, 1953, moved "for a reopening and continuance of the motion," accompanying said motion with affidavits of two police officers, a doctor, and a citizen witness. The court, although granting the State the right to file these affidavits, declined to alter its opinion, and thereupon entered an order granting the defendant the right to inspect his own confession but denying inspection of the statements of others. The State's petition for certification and the defendant's cross-petition were both granted by us.
We are first faced with an objection raised by the defendant to our jurisdiction to review a matter where no final judgment has been entered in a trial court, Rule 1:5-3. It is sufficient to note, however, that we have not hesitated to waive the rule and to decide similar matters where to do so would best serve the ends of justice, Hendrikson v. Koppers Co. Inc., 11 N.J. 600, 605 (1953). Here an important question of law has been raised by a defendant under indictment for having taken the life of another as to his rights of discovery prior to trial. In view of the order entered by the trial court, the question is of such moment that we should resolve it at this time, for otherwise it would never be litigated. If the defendant were acquitted, the State could not appeal, and if the defendant were convicted, he would have no occasion to appeal from the order granting him an inspection of his confession.
The questions before us are whether the defendant is entitled to an inspection of (1) statements signed by persons other than the defendant, and (2) statements signed by the defendant.
Defendant argues that in keeping with the modern trend toward liberal discovery in civil proceedings we should grant him the unqualified right to an inspection of all papers [13 NJ Page 210] and other documents in the possession of the State, in this case statements made to the prosecutor by witnesses. With this we cannot agree. Such an argument completely ignores the fundamental difference between civil and criminal proceedings. In any judicial proceedings, civil or criminal, the purpose of broad discovery is "to promote the fullest possible presentation of the facts, minimize opportunities for falsification of evidence, and eliminate the vestiges of trial by combat," 60 Yale L.J. 626 (emphasis supplied). "Liberal procedures for discovery in preparation for trial are essential to any modern judicial system in which the search for truth in aid of justice is paramount and in which concealment and surprise are not to be tolerated." Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 338 (1951). However, such liberal fact-finding procedures are not to be used blindly where the result would be to defeat the ends of justice. In criminal proceedings long experience has taught the courts that often discovery will lead not to honest fact-finding, but on the contrary to perjury and the suppression of evidence. Thus the criminal who is aware of the whole case against him will often procure perjured testimony in order to set up a false defense, State v. Rhoads, 81 Ohio St. 397, 423-4, 91 N.E. 186, 192, 27 L.R.A., N.S. 558 (Sup. Ct. 1910); Commonwealth v. Mead, 12 Gray 167, 170 (Mass. 1858). Another result of full discovery would be that the criminal defendant who is informed of the names of all of the State's witnesses may take steps to bribe or frighten them into giving perjured testimony or into absenting themselves so that they are unavailable to testify. Moreover, many witnesses, if they know that the defendant will have knowledge of their names prior to trial, will be reluctant to come forward with information during the investigation of the crime, People v. Di Carlo, 161 Misc. 484, 485-6, 292 N.Y.S. 252, 254 (Sup. Ct. 1936). All these dangers are more inherent in criminal proceedings where the defendant has much more at stake, often his own life, than in civil proceedings. The presence of perjury in criminal proceedings today is extensive despite the efforts of the courts to eradicate
it and constitutes a very serious threat to the administration of criminal justice and thus to the welfare of the country as a whole. Hibschman, "You Do Solemnly Swear! Or That Perjury Problem," 24 J. Crim. L. and Criminology 901 (1934). To permit unqualified disclosure of all statements and information in the hands of the State would go far beyond what is required in civil cases; it would defeat the very ends of justice.
In considering the problem it must be remembered that in view of the defendant's constitutional and statutory protections against self-incrimination, the State has no right whatsoever to demand an inspection of any of his documents or to take his deposition, or to submit interrogatories to him. As stated in State v. Rhoads, supra, at 91 N.E. 192:
"The state cannot compel the prisoner at the bar to submit his private papers or memoranda to the state for use or even examination, for he cannot be required to testify in the case, nor to furnish evidence against himself. Then, why should the accused be allowed to rummage through the private papers of the prosecuting attorney? Neither the sublime teachings of the Golden Rule, to which we have been referred, nor the supposed sense of fair play, can be so perverted as to sanction the demands allowed in this case."
See also State v. Bunk, 63 A. 2 d 842, at 844 (N.J. Cty. Ct. 1949):
"The element of reciprocity is present in the conduct of civil causes. Each party may examine the other, force disclosure of material evidence and thus reduce to a minimum the element of surprise or chance in the trial. In criminal causes no such reciprocity is possible. The State could not examine the defendant before trial without his consent, nor could any rule of court force such examination."
Except for its right to demand particulars from the defendant as to any alibi on which he intends to rely, Rule 2:5-7, the State is completely at the mercy of the defendant who can produce surprise evidence at the trial, can take the stand or not as he wishes, and generally can introduce any sort of unforeseeable evidence he desires in his own defense. To allow him to discover the prosecutor's whole case against
him would be to make the prosecutor's task almost insurmountable.
The rule in the federal courts does not differ from ours. Federal Rules of Criminal Procedure 16 and 17(c) are applicable, the latter being identical to our Rule 2:5-8(c) here involved. Federal Rule 16, which has not been adopted in this State, provides:
"Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the 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."
Federal Rule 17(c) and our Rule 2:5-8(c) provide in part:
"The court may direct that books, papers, documents or objects designated in the subpoena 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 or objects or portions thereof to be inspected by the parties and their attorneys."
The federal courts have on many occasions held that the defendant has no unqualified right of inspection. In Goldman v. U.S., 316 U.S. 129, at page 132, 62 S. Ct. 993, at page 995, 86 L. Ed. 1322 (1942), the United States Supreme Court stated that the accused had no right to inspect prior to trial the notes and memoranda of federal agents, saying that "The judge was clearly right in his ruling * * * as the petitioners should not have had access, prior to trial, to material constituting a substantial portion of the Government's case." In U.S. v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923), Judge Learned Hand in his opinion for the court stated:
"Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when
there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see. * * * Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime."
This same judge remarked in his opinion for the court in U.S. v. Dilliard, 101 F.2d 829, 837 (C.C.A. 2 1938):
"The defendants seem to suppose that they had the privilege of roaming about at will among any memoranda made by the prosecution in preparation for trial: that indeed is not an uncommon illusion, but it has nothing whatever to support it."
See U.S. v. Muraskin, 99 F.2d 815, 816 (C.C.A. 2 1938).
Even under our rules of civil procedure a party cannot obtain access to the work product of the opposing lawyer, except in unusual cases:
"* * * The deponent shall not be required to produce or submit for inspection any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation and in preparation for trial unless the court otherwise orders on the ground that a denial of production or inspection will result in an injustice or undue hardship; nor shall the deponent be required to produce or submit for inspection any part of a writing which reflects an attorney's mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 3:16-34, the conclusions of an expert." Rule 3:16-2.
See Hickman v. Taylor, 329 U.S. 495 (1947), affirming 153 F.2d 212, establishing the doctrine which has been substantially ...