For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
The defendant James Cook was arrested and later indicted on murder charges. While in custody he was examined by psychiatrists designated by the State. In due course they submitted their medical reports which are now in the possession of the county prosecutor. Assigned defense counsel moved for an order (1) appointing a duly qualified physician to conduct a psychiatric examination of the defendant and (2) directing that the prosecutor permit him to examine the State's medical reports. After hearing argument, the trial court designated Dr. Stern "to conduct a psychiatric examination of the defendant for the purpose of determining his mental competency and to assist the defendant's counsel in the case." It denied the motion for examination of the State's medical reports and leave to appeal from this denial was granted. Briefs were submitted and the matter was duly argued. In the meantime, Dr. Stern examined the defendant and submitted his report to defense counsel who now offers to permit its inspection on condition that he be permitted inspection of the State's medical reports. The prosecutor has rejected this offer, contending that the trial court's action was within its discretionary power and citing State v. Tune, 13 N.J. 203 (1953), and State v. Reynolds, 41 N.J. 163 (1963), cert. denied 377 U.S. 1000, 84 S. Ct. 1934, 12 L. Ed. 2 d 1050 (1964).
At common law, discovery before trial was generally unavailable in both civil and criminal cases. See Cardozo, C.J., in People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200 (1927). Litigants entered the courtroom in the dark and the trial often became a contest of legal tactics rather than a search for truth and justice. Legislative departures were followed by narrowing judicial decisions. See Wolters v. Fidelity Trust Co., 65 N.J.L. 130, 132 (Sup. Ct. 1900); Allison v. Bannon, 128 N.J.L. 161, 163 (E. & A. 1942). These remained the law of our State until our judicial structure was revised and implemented with rules embodying modern discovery principles. As Chief Justice Vanderbilt put
it during the induction of the Supreme Court, "litigation is no longer to be thought of as a battle of wits" and pretrial discovery procedures are to be directed towards "facilitating the establishment of truth, which is the ultimate aim in the administration of justice." Rutgers Law Review, Special Number, 1948, p. 69.
Since their adoption in 1948, our civil practice rules have been applied liberally and with awareness that the interests of truth and justice are best served by broad mutual discovery before trial. See Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 338 (1951); Interchemical Corp. v. Uncas Printing & Fin. Co., Inc., 39 N.J. Super. 318, 325 (App. Div. 1956). In criminal proceedings, mutually broad discovery is generally unobtainable because of the defendant's constitutional privilege against self-incrimination. See State v. Tune, supra, 13 N.J., at p. 211; but cf. Jones v. Superior Court, 58 Cal. 2 d 56, 22 Cal. Rptr. 879, 372 P. 2 d 919, 96 A.L.R. 2 d 1213 (1962); Louisell, Criminal Discovery: Dilemma Real or Apparent?," 49 Calif. L. Rev. 56, 87-90 (1961); Goldstein, "The State and The Accused: Balance of Advantage in Criminal Procedure," 69 Yale L.J. 1149, 1197-1198 (1960). Influenced largely by this factor, the course taken by our criminal practice rules has differed somewhat from that of the civil practice rules. Thus they originally did not include any pretrial discovery provision such as Rule 16 of the Federal Rules of Criminal Procedure, although they did include a general subpoena provision modeled after Rule 17 of the Federal Rules. See R.R. 3:5-10(c); State v. Bunk, 63 A. 2 d 842 (N.J. Cty. Ct. 1949); State v. Cicenia, 9 N.J. Super. 135, 137 (App. Div. 1950), modified 6 N.J. 296 (1951), cert. denied 350 U.S. 925, 76 S. Ct. 215, 100 L. Ed. 809 (1955). However, omission of a specific discovery rule did not at all impair the inherent powers of the court to order discovery when justice so required. See State v. Moffa, 36 N.J. 219, 222 (1961); State v. Murphy, 36 N.J. 172, 180 (1961); State v. Butler, 27 N.J. 560, 600 (1958); State v. Winne, 27 N.J. Super. 304, 310 (App. Div.), certif. denied 13 N.J. 527
(1953); State ex rel. Helm v. Superior Court of Cochise County, 90 Ariz. 133, 367 P. 2 d 6, 8-10 (1961); 6 Wigmore, Evidence § 1850, at p. 395 (3 d ed. 1940).
In State v. Cicenia, supra, the defendant contended that under the subpoena rule he had an absolute right to inspect a copy of his confession in the possession of the State. The Appellate Division rejected his contention while indicating that the court had "inherent discretionary power" to compel the discovery, citing State v. Haas, 188 Md. 63, 51 A. 2 d 647 (1947) and Shores v. United States, 174 F.2d 838 (8 Cir. 1949). See Traynor, "Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L. Rev. 228 (1964); Everett, Discovery in Criminal Cases -- In Search of a Standard," 1964 Duke L.J. 477, 491. On appeal, this Court unanimously embraced the view that the defendant is entitled to pretrial discovery of his confession when, in the sound discretion of the trial judge, the interests of justice so require. 6 N.J., at p. 300.
In State v. Tune, supra, the trial court granted the application of the defendant, charged with murder, for a copy of his confession. Assigned counsel had represented in an affidavit that the defendant could tell them nothing about his statement and that its inspection in advance of trial was necessary for the fair conduct of his defense. In an opinion subscribed to by four members of this Court, the trial court's action was reversed; three members dissented, taking the position that under Cicenia the trial court had acted justly and well within the bounds of its discretion. In support of their holding, the majority invoked the spectres of perjury and intimidation of witnesses, and the supposed imbalance which would result from the allowance of discovery to the defendant while denying it to the State because of the constitutional privilege. The minority persuasively stressed that discovery has long since been found to be a sound tool for truth and it rejected the spectres and the supposed imbalance as any sufficient basis for denying inspection of his own confession to a defendant, particularly one who was on trial for his life. 13 N.J., at pp. 227-235. Following the decision in
Tune, R.R. 3:5-11 was adopted; it became effective on September 9, 1953 and now reads as follows:
"Upon motion of a defendant made at any time after the filing of the indictment or accusation, the court shall order the prosecutor to permit the defendant to inspect and copy or photograph designated books, tangible objects, papers or documents other than written statements or confessions made by the defendant obtained from or belonging to the defendant and may, if the interests of justice so require, order the prosecutor to permit the defendant to inspect and copy or photograph written statements or confessions made by the ...