Martino, J.c.c. (temporarily assigned).
This is a criminal case. The crime charged is murder. The grand jury of Camden County indicted the three defendants for murder as a result of a killing which occurred during the attempted perpetration of a robbery. Counsel for the defendants make application before this court for an order directing the county prosecutor to produce before the court, at a time prior to trial as fixed by the court, any statement or confession taken from any of the defendants in writing which the State intends to offer at the trial. The defendants, through their counsel, allege in said notice that the information sought is necessary for the preparation of a proper defense and that a denial will result in an injustice to said defendants. The same notice further provides for an order to inspect any and all statements taken from witnesses which the State intends to offer at the trial on the grounds that they are entitled to inspect such statements before trial for the purpose of cross-examination of the State's witnesses.
The defendants did not pursue the course undertaken by counsel in State v. Tune. 13 N.J. 203 (1953), in that no
affidavits substantiating the reasons for the request were attached to the notice served upon the State. The State contends that this is fatal and would justify a refusal on the part of the court.
Query: Can it be said that under such circumstances the failure to supply affidavits has a reasonable relationship to the furtherance of the interests of justice?
It is significant to note that, at the time the application was made in the State v. Tune case, supra , the proceeding was initiated under R.R. 2:5-8(c). The late Chief Justice Vanderbilt, in his majority opinion, made reference to a rule which had secured the approval of the Judicial Conference and would be made a part of the court rules in the following September of that year and which rule was promulgated and is presently referred to as R.R. 3:5-11. The late chief justice stated that this rule adheres to the principle set forth in State v. Cicenia , 6 N.J. 296 (1951). Since the entire court participated in the promulgation of this rule, his statement to the effect that this new rule would not permit the inspection of written statements of others in the possession of the prosecutor can be taken for granted that the purpose of the rule was to direct the judges at the trial level that statements of others than the defendants were not to be available to the defendants where the State resisted any effort to make them available. Mr. Justice Brennan, then of the New Jersey Supreme Court and now of the United States Supreme Court, whose forceful dissent in State v. Tune, supra , concurred in by Mr. Justice Heher and Mr. Justice Jacobs, obliquely referred to statements of others "* * * so that it is reasonable not ordinarily to allow the accused access to the prosecutor's 'work product' in the form of the statements of others." The wording of the amended rule known as R.R. 3:5-11 was adopted during Justice Brennan's tenure on the State Supreme Court and the wording of the amendment would seem to indicate that while statements of defendants, if the interests of justice so require, can be available it does not appear to sanction the statements of others.
The attitude of the federal courts in matters affecting the constitutional rights of individuals must be taken into consideration in passing upon questions of this type. United States ex rel. De Vita v. McCorkle , 248 F.2d 1 (3 Cir. 1957).
Judge Learned Hand had occasion to state,
"It is one thing to say that an accused shall in advance of trial have inspection of statements of witnesses taken by the Prosecutor in preparation of its case; it is another to deny him the benefit of so much of said statement as is shown to be inconsistent with the witnesses' testimony on the stand, and could impeach them." United States v. Krulewitch , 145 F.2d 76, 156 A.L.R. 337 (2 Cir. 1944).
This philosophy preceded the opinion of Jencks v. United States , 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2 d 1103 (1957). The right of a defendant to statements of others which is the work product of a prosecutor seems to fall in a different category than the statements of defendants.
Although at common law an accused had no right to inspect his alleged confession prior to trial, the questions of whether or not he has such a right today has been receiving increasing judicial scrutiny. Courts which have reviewed the problem have arrived at three results. Some states adhere to the common law rule; some courts to the privileged or permissive rule, which rule states that the right of a defendant to inspect his confession before trial is within the discretion of the trial court, while the third result gives the defendant an absolute right to a pretrial inspection of his confession and is apparently the law in only one jurisdiction. The New Jersey ...