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State v. Murphy

Decided: September 29, 1960.


Rosen, J.c.c.


The Waterfront Commission of New York Harbor (hereinafter referred to as "Commission") moves to quash a subpoena duces tecum issued sua sponte by the court pursuant to R.R. 3:5-10(c).

A review of the complete factual situation is required in order to determine the merits of the application.

Defendants McNamara and Stevens were indicted for the crime of conspiracy in that they, together with nine other persons not indicted, unlawfully, willfully, and knowingly, conspired together to cheat and defraud American Export Lines, Inc., by causing American Export Lines to pay wages to persons for dates on which they performed no labor or services. Examination of the indictment reveals that there are five overt acts charged against these defendants to effect the objects of the conspiracy. The alleged acts occurred between March 16, 1959 and May 14, 1959.

Defendant Stevens is general superintendent in charge of Stevedoring of American Export Lines. Defendant McNamara is a hiring agent, duly licensed by the Commission.

The Commission conducted an investigation of the activities of the named defendants as well as other persons named in the indictment. During the course of the investigation defendants testified before the Commission and a stenographic record was taken. The facts gathered by the Commission in its investigation, including the transcripts of McNamara's and Stevens' testimony, were forwarded to the Attorney General of this State, who presented the matter to the grand jury of Hudson County. On June 29, 1959 the indictment was found against the named defendants. The transcripts of defendants' testimony have been returned to the Commission by the Attorney General.

The indictment alleges, in substance, the same facts as are involved in charges pending against McNamara before [63 NJSuper Page 192] the Commission. Defendants McNamara and Stevens applied to this court for an order dismissing the indictments on the ground that the same were insufficient as a matter of law or, in the event that the indictments were sustained, that an order be made directing the Attorney General (who was acting as prosecutor in this matter) to permit the said defendants to inspect and copy or photograph written statements made by them. The application also requested the court to relax the rules and direct the prosecutor to permit the defendants to inspect and copy written statements of another defendant, Francis Murphy, and the nine individuals (non-defendants), who are alleged in the indictment to have been co-conspirators with the defendants. They also requested copies of the statements, notes and memoranda made by other persons whom the prosecutor intends to offer as witnesses at the trial. In answer to defendants' request to obtain copies of or inspect their testimony before the Commission, the Attorney General in his memorandum stated: "The State will not object to furnishing the defendant, Earle S. Stevens, with a transcript of his own testimony before the Waterfront Commission," but would object to furnishing defendant with statements of any other persons in the form of testimony before the Commission. Prior to oral argument the State submitted a supplement to its original memorandum and informed the court: "The State has been informed by officials of the Waterfront Commission that its rules and regulations prohibit the furnishing of such transcripts of testimony. In view of this fact, the State will agree that at the trial of the defendant, Earle S. Stevens, it will not mark into evidence, or in any way use the transcript in question against the defendant." This is the same position the State took as to defendant McNamara. At oral argument, the Deputy Attorney General frankly informed the court that if he had possession of the transcripts he would permit each defendant to obtain a copy of his own testimony before the Commission.

On November 23, 1959 the court denied defendants' motion for an order dismissing the indictments. Defendants' application for an order relaxing R.R. 3:5-11 to permit them to obtain copies of statements and other memoranda made or given to the Commission by persons other than these two defendants was denied. The application to permit defendants or their respective attorneys to inspect, copy or photograph their own testimony or written statements, including notes of interviews or memoranda in connection therewith, obtained from defendants, was granted. The Attorney General furnished the Commission with a copy of the order and requested the Commission to cooperate with counsel for defendants in complying with the provisions of the order. The Commission advised the Attorney General that it declined to comply with his request. Annexed to the Commission's letter to the Attorney General was an opinion by the Commission wherein, among other things, it stated:

"Further, with respect to the closely analogous question whether a defendant in a criminal case is entitled to pretrial production of his statements or confession, the prevailing rule is that no such right exists. In New Jersey the Supreme Court reversed a decision by the trial court to grant pretrial production of a confession to a criminal defendant. State v. Tune , 13 N.J. 203 (1953)."

Defendant Stevens filed an affidavit setting forth details of his employment. He stated he had been interviewed at the Commission's office by representatives of the legal and investigatory staffs of the Commission on at least four occasions, from May 14, 1959 to June 4, 1959. During the course of these interviews notes were made by one or more members of the Commission, and on some occasions questions and answers, given under oath, were taken by a stenographer. Stevens specifically states, in discussing this matter with his attorney, he cannot recall details of the statements or of his answers under oath, and he has never seen a transcript of his statements. Counsel for Stevens, in this affidavit, states, in his judgment, that an inspection

of this defendant's testimony, statements, etc. , is necessary to properly prepare for trial, and that a denial of such inspection would result in an injustice or undue hardship to the defendant. It was stipulated the McNamara application would be considered upon the same facts as set forth in the Stevens' application.

After being advised by the Attorney General that the Commission refused to comply with the order of this court, the court designated a date certain for a pretrial conference, and issued a subpoena sua sponte directing the Commission to produce

"The transcripts of the testimony of the defendants, Michael McNamara and Earl S. Stevens, given before your commission, including any and all other written statements and notes of interviews of each of the said defendants, or memoranda in connection therewith, if any, obtained by your representatives, employees or agents, from each of said defendants."

The Commission moved to quash the subpoena on the grounds that (1) the instant subpoena is not authorized by the rules of criminal practice; (2) Commission Regulation 1.3 validly prohibits the production of the Commission's transcripts of testimony; (3) the instant subpoena is violative of the sovereign immunity enjoyed by the Waterfront Commission as an agency of the States of New York and New Jersey; and (4) the Commission's transcripts of testimony are privileged from production under the common law rules of evidence.

Many provisions of the Waterfront Commission Act have been reviewed by the courts of this State. In re Application of Waterfront Comm. , 32 N.J. 323 (1960); Hazelton v. Murray , 21 N.J. 115 (1956); Application of Waterfront Comm. of New York Harbor , 39 N.J. Super. 33, 41 (Law Div. 1956). The Waterfront Commission compact creates the Commission as an agency of the states of New Jersey and New York, 32 N.J. , at p. 331.

The court is not impressed with the Commission's argument that the prosecutor has agreed not to mark into evidence

or "in any way use the transcripts in question against the defendants." The prosecutor represents the community and society. It is his duty to present and use all evidence within his knowledge and possession in order to vigorously present a case against a defendant. It is not for him to decide that evidence previously given by a defendant is not to be used at a trial in which the same defendant is accused of a crime. If defendant has given statements under oath or otherwise, which are admissions against his interest, then the statements should be used by the State at the trial. Admissions against interest are usually a vital link in the presentation of the State's case against a defendant.

"In the first place, any and every statement by an accused person, so far as not excluded by the doctrine of confessions or by the privilege against self-crimination, is usable against him as an admission. * * * Statements of design or plan as already noticed are in general admissible, so far as the design or plan is relevant to show the doing of the act designed." Wigmore on Evidence (3 d ed.), ยง 1732, p. 99.

If the statements given by defendants to the Commission do not contain admissions, then the State should have the benefit of defendants' testimony and statements for cross-examination should they take the stand. Cross-examination has long been considered the spearhead for the disclosure and attainment of the truth. The use of prior testimony and statements of a defendant has always been basic in the art of cross-examination if such statements are inconsistent with the testimony given by a defendant at the trial.

"Cross-examination is the most valuable safeguard that has been discovered in the judicial search for truth, and if cross-examination is to be at all effective, it must have wide latitude in the testing of the recollection and fidelity of the witness." State v. Hunt , 25 N.J. 514, 524 (1958)

The people of the state have a right to demand and expect efficient law enforcement. To attain this goal, the proper presentation and ...

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