For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendant is under indictment for felony murder. Having ascertained that certain persons were at the scene of the crime, defendant through his representative sought to interview them. They declined to be interviewed. It is not charged the State stood in the way. On the contrary, the prosecutor asserts he advised the witnesses they could speak to defendant's counsel or investigator if they wished, and the prosecutor "even offered to arrange for the defendant's counsel to meet with the witnesses." Not disputing that the witnesses on their own chose not to speak, defendant moved for an order permitting him to take their depositions in advance of trial, solely for the purpose of discovery. The trial court denied the motion, and we granted defendant leave to appeal.
Our rules of court do not authorize pretrial discovery in criminal matters by way of deposition of witnesses. Depositions may be taken of a material witness for the defendant,
but only for use at trial because of the anticipated inability of the witness to be there. R.R. 3:5-8(a). Defendant disavows that need, and seeks pretrial disclosure solely to learn what the witnesses know.
Defendant acknowledges our rules of court do not authorize the relief he seeks, but he says it is due him under both the State and Federal Constitutions. He refers to Article I, para. 10 of the State Constitution and to the Sixth Amendment to the Federal Constitution, specifically to the provisions assuring a defendant the right to have compulsory process for obtaining witnesses in his favor, the right to have the assistance of counsel, and the right to be confronted with the witnesses against him.
Defendant cites no case which sees in any of these constitutional provisions, or in due process of law, a right to pretrial depositions of possible witnesses. Such expressions as can be found hold the other way. See Jones v. Superior Court of Nevada County, 58 Cal. 2 d 56, 22 Cal. Rptr. 879, 881, 372 P. 2 d 919, 921, 96 A.L.R. 2 d 1213 (Sup. Ct. 1962); State v. Lampp, 155 So. 2 d 10 (Fla. D. Ct. App. 1963), appeal dismissed 166 So. 2 d 891 (Fla. Sup. Ct. 1964); Kardy v. Shook, 237 Md. 524, 207 A. 2 d 83, 93 (Ct. App. 1965). Pretrial discovery of witnesses by deposition appears to be authorized in only one State, and there not by constitutional command but by statute enacted after the judiciary had declined to grant such relief. See State v. Mahoney, 122 Vt. 456, 176 A. 2 d 747 (Sup. Ct. 1961), and Reed v. Allen, 121 Vt. 202, 153 A. 2 d 74, 73 A.L.R. 2 d 1161 (Sup. Ct. 1959). California, which has gone a good distance in providing pretrial discovery in criminal matters, has declined to permit such depositions. Traynor, "Ground Lost and Found in Criminal Discovery," 39 N.Y.U.L. Rev. 228, 245 (1964); People v. Mersino, 46 Cal. Rptr. 821, 824 (D. Ct. App. 1965).
Under our practice, a defendant has a considerable opportunity for discovery. Bills of particulars may be had. A defendant's own statement to the police or the grand jury
may be examined before trial, State v. Johnson, 28 N.J. 133 (1958); State v. Clement, 40 N.J. 139 (1963); cf. State v. Moffa, 36 N.J. 219 (1961). Where, because of insanity, a defendant was unable to aid his counsel in reconstructing the criminal event, we ordered the State to permit pretrial inspection of both grand jury testimony and statements taken by the State from persons other than the defendant. State v. Farmer, 45 N.J. 520 (1965). At trial, a defendant is entitled to receive, in order to cross-examine a State's witness who has testified, any statement the witness made to the police or the grand jury. State v. Mucci, 25 N.J. 423 (1957); State v. Hunt, 25 N.J. 514 (1958); State v. Di Modica, 40 N.J. 404 (1963); State v. Gallicchio, 44 N.J. 540, 548 (1965).
And so here defendant was able to learn who the possible witnesses are. Further, the State represents that it will produce all of them as witnesses, thus relieving defendant of his fear that one or more may not appear and that thereby testimony useful to the defense will be lost. In this regard, the prosecutor acknowledges his heavy ethical duty to produce at the trial, or to disclose to the defense before trial and sufficiently so to be ...