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State v. Moffa

Decided: November 9, 1960.


Martino, J.c.c. (temporarily assigned).


The defendant stands charged upon two indictments. In one indictment he is charged with false swearing under N.J.S. 2 A:131-4; in the other indictment with procuring of another to commit the crime of perjury, N.J.S. 2 A:85-14. In both indictments the State concedes that its principal witness will be one Butler Blevins and this witness will testify for the State. The defendant has applied to the court to inspect the grand jury testimony of this witness and also any statements made by him and in the possession of the prosecutor. The State resists both applications.

"It should with equal candor be conceded that a deficiency in our present handling of criminal matters is the lack of

adequate facilities for factual investigation by defendants." State v. Johnson , 28 N.J. 133, 142 (1958). It has been decided that a defendant may at the time of trial call for production of prior statements of witnesses. State v. Hunt , 25 N.J. 514 (1958). The court in Johnson, supra , stated that it was not prepared to authorize pretrial inspection of statements of prospective witnesses, and cited R.R. 3:5-11 as barring such relief. Until our highest court finds it appropriate to amend that rule, this court is bound to enforce it unless a reason to relax it pursuant to R.R. 1:27 A is supplied. Nothing appears to justify its relaxation; therefore, the right to inspect any statements of the witnesses is denied.

As to the right to inspect the testimony given by this witness before the grand jury in advance of trial, a different question is presented which does not appear to come within the prohibition of R.R. 3:5-11.

The right to impeach a witness in any subsequent trial, civil or criminal, by self-contradictory testimony given by him before a grand jury, has been settled since State v. Bovino , 89 N.J.L. 586 (E. & A. 1916); also see State v. Silverman , 100 N.J.L. 249 (Sup. Ct. 1924).

The free and impartial administration of justice requires that proceedings before grand juries shall in some respects and to some extent be kept secret, but the sanction of secrecy has limitations. State v. Donovan , 129 N.J.L. 478 (Sup. Ct. 1943).

Our court of last resort has held it to be reversible error to refuse inspection of testimony given to a grand jury and its use in cross-examination of the witness. State v. Mucci , 25 N.J. 423 (1957). However, in that case the occasion arose during the actual trial, when it developed that the State's witnesses had been provided with their grand jury testimony, which was read by them and discussed before trial. Also see State v. Samurine , 47 N.J. Super. 172, 178 (App. Div. 1957).

While the facts in Mucci, supra , are dissimilar, it does indicate the right to examine grand jury testimony and use it to cross-examine a witness under certain circumstances. If, by chance, it should develop at the trial that the State's principal witness in the case sub judice did examine a transcript of his grand jury testimony before trial, a refusal by the court to permit examination of this testimony by defense counsel in order to cross-examine would run counter to Mucci. However, the question here presented is directed to the right to examine the testimony in advance of trial and regardless of whether or not the contingency referred to in Mucci occurs.

The indictments which occasioned this application had their genesis in the testimony by the witness Butler Blevins before a grand jury. The indictments set forth with specificity every facet of the testimony of this witness before the grand jury which the State expects to prove to warrant a conviction. The indictments do not and of necessity did not require all this witness's testimony. Since the testimony outlined in the indictment which composes the crime has been exposed publicly, it is difficult to reason that any harm will come to the State from making available that testimony which in the opinion of the State contains a narrative of his testimony which was not required as a constituent part of the indictment. The defendant could be prejudiced by a failure to examine this testimony since it might indicate evidence which is inconsistent, contradictory and exculpative.

The court has an obligatory duty to never impose upon the State in a criminal prosecution a burden which will handicap its duty to administer the cause of justice. By the same token, it owes a duty to a defendant on trial in a cause which may ...

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