On appeal from Superior Court, Law Division.
For affirmance without prejudice -- Chief Justice Weintraub, and Justices Heher, Jacobs, Francis and Proctor. For affirmance in toto -- Justices Wachenfeld and Burling. The opinion of the court was delivered by Weintraub, C.J. Wachenfeld, J. (concurring). Mr. Justice Burling concurs in this opinion.
Defendant Wayne Godfrey and two others were indicted for murder. Court-assigned counsel moved for inspection of "any statement or confession" taken from defendant "which will be offered at the trial." Counsel certified that (1) inspection "is necessary for the preparation for trial and the presentation of the defense"; (2) a denial "will result in an injustice or undue hardship"; and (3) "this case requires" a favorable exercise of the court's discretion. There was no supporting affidavit, and the sole addition at argument to the bare allegations just recited was the unparticularized statement that from conversations with the prosecutor counsel detected an inconsistency between the State's version of the case and the story told by defendants to their respective counsel.
Defendant also moved for inspection of all statements, notes and memorandums made by persons whom the State intends to offer as witnesses.
The trial court denied the motions. We granted defendant leave to appeal.
We shall consider first defendant's motion for inspection of any statement or confession of his own "which will be offered at the trial." The State concedes it holds a confession which it intends to offer.
In State v. Cicenia, 6 N.J. 296 (1951), this court declined to hold that a defendant has an absolute right to inspect his own statement but rejected as well the proposition that
inspection may never be ordered. The court adopted the intermediate view that inspection may be ordered if in the sound discretion of the trial judge the interests of justice should so require.
The issue arose again in State v. Tune, 13 N.J. 203 (1953). There the trial court ordered inspection but its order was reversed by a vote of four to three. Both opinions claimed adherence to the principle of Cicenia, but the dissenters viewed the majority application to be an effective renunciation of it. Mr. Justice Brennan said for the minority (at page 230):
"But by our decision in this case we have made virtually sterile the principle of State v. Cicenia. I cannot conceive of any case in which an order allowing the inspection of a confession, for example, will be sustained if we can say, as we do, that in the circumstances of this case Judge Speakman committed error in allowing an inspection."
This appraisal has since been made by others. 53 Col. L. Rev. 1161, 1163 (1953); 29 N.Y.U.L. Rev. 1140, 1141-1142 (1954); 39 Va. L. Rev. 976, 978 (1953).
We subscribe to the rule of Cicenia, now embodied in R.R. 3:5-11, and also to the view of the majority in Tune that "sound discretion" means "one that is neither arbitrary, vague nor fanciful" (13 N.J. at page 222). In some areas an exercise of discretion must necessarily remain an intuitive response to a set of facts. Here, however, some guiding criteria can be prescribed and hence should be, to guard against arbitrariness and unequal treatment and to avoid if possible the unsatisfactory alternative of a post-trial inquiry into a claim of prejudicial error.
We start with the premise that truth is best revealed by a decent opportunity to prepare in advance of trial. We have embraced that tenet with respect to civil litigation, and absent overriding considerations, it should be as valid in criminal matters. It is of no moment that pretrial inspection is not constitutionally assured. Cicenia v. Lagay, 357 U.S. 504, 78 S. Ct. 1297, 2 L. Ed. 2 d 1523 (1958). We
are not limited to constitutional minima; rather we strive for practices which will best promote the quest for truth. It may be added that although Cicenia v. Lagay found the Fourteenth Amendment to be unoffended, yet it observed that "it may be the 'better practice' for the prosecution to comply with a request for ...