For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- Justice Hall. The opinion of the court was delivered by Weintraub, C.J.
The question is whether a defendant should be permitted pretrial inspection of his grand jury testimony. Almasi and Ziemba appeared before the grand jury under subpoena. Almasi testified for five to six hours, and Ziemba for about two and three-quarter hours. The testimony of each related to transactions which are the subject matter of the indictments returned against him. On the motions for inspection, each asserted his recollection of his testimony is not complete or precise, and his counsel certified he cannot prepare for trial with confidence unless he knows what his client said. The trial court denied the motions. The Appellate Division granted leave to appeal and we certified the matters prior to argument before that tribunal.
In State v. Johnson, 28 N.J. 133 (1958), a defendant sought pretrial inspection of a statement he gave the prosecution. Starting with "the premise that truth is best revealed by a decent opportunity to prepare in advance of trial" (28 N.J., at p. 136), we concluded a defendant should be granted such inspection upon a proper showing unless countervailing considerations appeared. As to the showing required, we said, for the reasons there elaborated upon (28 N.J., at p. 141):
"* * * Hence we think it sufficient for a defendant to show that he does not recall his statement with sufficient detail to satisfy his counsel that he can fairly go to trial without it. In such circumstances, the application should be granted unless the State shows that the grant would 'improperly hamper the prosecution.'"
In State v. Murphy, 36 N.J. 172 (1961), indictments followed an investigation conducted by the Waterfront Commission of New York Harbor. Defendants had testified before the Commission with respect to transactions which later became the subject matter of the indictments and the transcript had been sent to the prosecutor by the Commission. We held that notwithstanding the prosecutor's stipulation not to use the testimony at the trial, defendants should have
inspection of their own testimony to assist them in the preparation of their defense.
The showing here made by defendants readily meets the test of Johnson and Murphy. The State differentiates this case because the testimony was given before a grand jury. The question therefore is whether the secrecy which attends a grand jury's proceedings justifies a denial of an inspection which otherwise would be accorded an accused as a matter of fairness.
"The requirements as to secrecy of proceedings of the grand jury shall remain as heretofore."
The rule thus continues a concept, without however defining it. Secrecy of course impedes the search for truth and hence must rest firmly upon some greater social need. That the secrecy of the grand jury has never been absolute is clear enough. So in State v. Moffa, 36 N.J. 219 (1961), in which we held a defendant charged with suborning a witness before a grand jury should be granted a pretrial view of all that witness's testimony before the grand jury, we noted (36 N.J., at p. 223):
"It has long been our rule that proceedings before a grand jury may be disclosed if justice so requires. Thus a witness may be queried as to whether his present testimony accords with his testimony before the grand jury. State v. Bovino, 89 N.J.L. 586, 588 (E. & A. 1916); State v. Silverman, 100 N.J.L. 249, 252 (Sup. Ct. 1924); State v. Goldman, 14 N.J. Misc. 463, 465 (Sup. Ct. 1936). In State v. Samurine, 47 N.J. Super. 172, 178 (App. Div. 1957), reversed on other grounds, 27 N.J. 322 (1958), it was stated the defense is entitled at trial to have the grand jury testimony of witnesses, for the purpose of cross-examination. We so held where it appeared the witnesses had examined their testimony before taking the stand. State v. Mucci, 25 N.J. 423 (1957). We ordered full exploration of grand jury ...