For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
The trial court ordered pretrial discovery of statements which defendants McNamara and Stevens gave the Waterfront Commission of New York Harbor (herein Commission). State v. Murphy, 63 N.J. Super. 188 (Cty. Ct. 1960). The order deals as well with notes or memoranda of examinations of defendants, but since no such papers exist, we are concerned only with the stenographic transcript of their testimony before the agency.
The statements, made in the course of an investigation conducted by the Commission, were part of the material the Commission sent to the Attorney General, thus informing him of an alleged crime and resulting ultimately in the indictment in this matter. The indictment charges a conspiracy among Francis Murphy, McNamara, Stevens and others, to cheat and defraud American Export Lines, Inc. In essence it is alleged that Murphy, business agent of Local 1 of the International Longshoremen's Association, had eight longshoremen and a checker work upon alterations and improvements of a house he owned; that these men were recorded on the payroll records of American Export Lines, Inc., as working on the days they in fact
worked on the Murphy house, and were paid by the company; that McNamara, the hiring agent employed by the company and licensed by the Commission, and Stevens, the general superintendent of the company, were parties to the conspiracy thus to defraud the company.
In their respective motions McNamara and Stevens asked for inspection of "written statements made by said defendant which will be offered at the trial." The Commission was not a party to the motions, and when it learned of them, it expressed its opposition to the deputy attorney general who handled the matter for the county prosecutor. The Commission's position will be stated hereinafter. Thereupon the deputy attorney general stipulated the State would not use or in any way refer to the statements at the trial of the indictment. The trial court rejected the stipulation, saying (63 N.J. Super., at p. 195):
"* * * 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."
The transcripts having been returned to the Commission, the trial court on its own initiative directed a subpoena duces tecum to issue commanding the secretary of the Commission to produce them. The Commission countered with a motion to quash the subpoena. The motion was denied, and the Commission appealed. We certified the matter before the Appellate Division acted upon it.
We think the trial court erred in issuing the subpoena on its own motion. The application of each defendant was limited to such statement of his own as "will be offered at the trial." When the State stipulated it would not offer or use the statements, there disappeared the premise upon
which the motions depended. It then rested with defendants to decide whether they needed pretrial inspection for other reasons, and if so, to make another application to which the parties in interest could then address their views.
As noted above, the trial court did not find defendants needed inspection for some purpose other than to meet the use of the statements against them, but rather held the State could not bind itself not to use the statements, and hence the premise of defendants' motions subsisted.
We cannot accept the trial court's view of the prosecutor's authority. It is true that a criminal charge will not be dismissed upon the prosecutor's motion without the court's approval, R.R. 3:11-3(a), and it may well be that if a stipulation not to use certain evidence would lead to a motion to dismiss, the court's power of superintendence could be invoked. And it may be granted a court may itself summon a material witness where neither side will call him. See State v. Butler, 27 N.J. 560, 601 (1958); Band's Refuse Removal, Inc. v. Borough of Fair Lawn, 62 N.J. Super. 522, 548 (App. Div. 1960), certification denied 33 N.J. 387 (1960). But nonetheless the prosecutor, as the State's representative, has wide discretion with respect to the production of proof, a discretion which, it seems to us, the trial court denied in absolute terms.
A prosecutor may sensibly decide for various reasons not to use evidence which could advance the State's case. For example, a confession or other proof which the State does not need may raise distracting issues or unduly extend the trial or invite claims of prejudice; or the offer may disclose material which can harm the State in another matter; or the identity of an informer may needlessly be revealed. We have suggested enough to demonstrate the need for discretion in the prosecutor. He does not have a peremptory duty to use all available evidence to support the charge. And surely, if a court should undertake to review the prosecutor's decision in such matters, it must know the reasons for his decision and weigh them against the contribution
the evidence could make in the case. As the record stands, there was no basis to question the State's decision.
For the reasons given the order under review ought to be reversed and defendants remitted to another application. But in the course of the proceedings, the applications of defendants were reshaped and the parties received full opportunity to be heard upon them; and since the trial of this indictment has been much delayed by this preliminary quarrel, we ...