For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
The issue to be determined here is whether the defense of double jeopardy is available as a bar to the proposed retrial of the defendant for murder. A previous trial came to an early abortive end when the trial court declared a mistrial sua sponte and over the objection of both State and defendant. Thereafter defendant's motion to dismiss the indictment on the ground that he could not be placed in jeopardy again was denied. We granted leave to appeal from the denial.
On November 15, 1963 the Grand Jury of Middlesex County indicted defendant Charles Farmer for first degree murder after he fatally shot his wife Barbara Farmer on September 18, 1963. There is no doubt Farmer killed the deceased, or that immediately thereafter and as part of the incident he shot himself. The principal defense to the indictment
appears to be that he was insane at the time of the shooting.
After wounding himself Farmer was taken to St. Peter's General Hospital in New Brunswick, N.J. where he remained under treatment for some time. On February 3, 1964, following a hearing which began on January 22, 1964, the Superior Court, Law Division, found him mentally incompetent to stand trial, and committed him to the State hospital for the criminally insane. See, Farmer v. State, 42 N.J. 579 (1964). Subsequently, on May 25, 1965, again after a hearing, the Law Division declared him mentally fit for trial, and the State prepared to proceed.
On July 14, 1965, Farmer moved in the trial court for an order to permit pretrial discovery of the State's case. Specifically he asked leave "(a) To inspect, copy and photograph all statements, papers and confessions concerned with the within indictment. (b) To inspect and copy all those grand jury minutes concerned with the within indictment. (c) To inspect and copy all medical, psychiatric and neurological reports pertaining to the defendant. (d) To inspect and copy all ballistic reports and paraffin reports made in connection with any firearms allegedly used in connection with the death of Barbara Farmer. (e) To examine any and all firearms and instruments concerned with the within indictment. (f) To inspect, copy and photograph all photographs concerned with the within indictment. (g) To inspect and examine any clothing worn by Barbara Farmer or Charles Farmer on September 18, 1963." Defendant's affidavit supporting the motion alleges that at least four psychiatrists have stated he was insane at the time of commission of the alleged crime. It then proceeds: "For the above reasons, I respectfully represent to the Court that I have need to examine all Grand Jury testimony given before the Grand Jury of Middlesex County concerning my case in order that I may prepare for my trial along with my attorney, who represents me upon this motion for examining the Grand Jury testimony. * * *" The focus of the affidavit was on the grand jury minutes. It concluded as follows:
"I have retained counsel who has vigorously investigated this case and the difficulty of acquiring facts at this posture convinces me that examination of all the Grand Jury testimony is essential to my defense."
No specific reference was made to a need for examination of statements of witnesses obtained by the State, or a request for copies of any such statements.
At the argument of the motion defense counsel not only sought leave to examine the grand jury minutes; he pursued also permission "to inspect, copy and photograph all statements * * *" as indicated in paragraph (a) of the notice described above. The argument of the parties although not included in the appendix has been examined by us. In substance defendant asserted by his attorney that he needed the State's statements of witnesses because he could not recall the circumstances of the shooting.*fn1 See Farmer v. State, supra,
42 N.J., at p. 582. Apparently because of the insanity defense and the allegation of lack of memory of the shooting, the trial court granted the motion and signed a discovery order in the precise language set forth above as paragraphs (a) through (g) of the notice. In doing so Judge Convery commented that the decision "went further than any court has." The ruling required a liberal view of Revised Criminal Practice rule R.R. 3:3-7, and relaxation of R.R. 3:5-11, infra.
The State sought leave to appeal from paragraphs (a) and (b) of the order which gave leave
"(a) To inspect, copy and photograph all statements, papers and confessions concerned with the within indictment;
(b) To inspect and copy all those grand jury minutes concerned with the within indictment."
Because of the unusual nature of the case, we heard oral argument on the application. Thereafter and before our decision was announced, defendant filed an affidavit stating: "I cannot to this day recall any of the events of September 18, 1963 which surround the alleged shooting at my home involving my wife and me." Thereupon we affirmed the trial court's order. State v. Farmer, 45 N.J. 520 (1965).
When the trial judge observed that his decision went beyond the holding of any of our cases, he was correct. In
recent years, however, discovery in criminal cases has been undergoing an evolutionary process, undoubtedly stimulated in large measure by the opinion of the United States Supreme Court in Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2 d 1103 (1957).
At the time of Jencks New Jersey had and still has two practice rules relating to the matters involved here. R.R. 3:3-7 provides:
"The requirements as to secrecy of proceedings of the grand jury shall remain as heretofore."
This rule represented the traditional veil with which grand jury proceedings have been surrounded. But within the past few years we have lifted that veil on being satisfied under the circumstances of a particular case that the policy of secrecy should be subordinate to the search for the whole truth. See, for example, State v. Mucci, 25 N.J. 423 (1957); State v. Moffa, 36 N.J. 219 (1961); State v. Clement, 40 N.J. 139 (1963); State v. Farmer, supra.
Moreover, following Jencks, supra, the Court held in State v. Hunt, 25 N.J. 514 (1958), that when a witness for the State in a criminal proceeding testifies that prior to taking the witness stand he had refreshed his recollection from notes made earlier by him or some other person, defendant was entitled to have such notes produced for his examination and use on cross-examination, if desired. The opinion plainly indicated also that if the witness had made notes or a statement prior to trial covering the topics of his testimony, the notes or statement were likewise subject to defendant's demand, even though the witness had not used them to refresh his recollection before trial. See State v. Johnson, 28 N.J. 133, 143 (1958).
"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 defendant and designated books, tangible objects, papers or documents obtained from others except written statements or confessions." (Emphasis added)
We interpreted this rule to require the State to permit a defendant to inspect and copy a confession allegedly made by him. It was said that such disclosure, although not required constitutionally, clearly promoted the quest for truth. State v. Johnson, 28 N.J. 133 (1958). Since that time it has become routine practice for county prosecutors to supply a defendant with a copy of his confession whenever such a request is made.
The defense motion in Johnson, however, had another aspect. It sought leave to inspect statements made by prospective witnesses for the prosecution. On its face such request was squarely within the express proscription of R.R. 3:5-11, supra. As noted above, we had already held in State v. Hunt, supra, that during the trial and when a witness is on the stand, the prosecution must yield to defendant's demand for production of any pertinent notes or statements made or used by the witness prior to the giving of his testimony. See also, State v. Reynolds, 41 N.J. 163, 182 (1963). But although we were aware of the ongoing agitation for broader discovery in criminal cases, and the arguments for and against such discovery, we felt it unwise to abandon or revise our rule "without fuller experience with the practical operation of Hunt and more information with respect to experience in other jurisdictions in which pretrial disclosure exceeds" what had been authorized in New Jersey. State v. Johnson, 28 N.J., at p. 143. It was pointed out further that Johnson had made no showing which would invite relaxation of R.R. 3:5-11 under the provisions of R.R. 1:27A. Finally the opinion suggested that the problem should be explored at a judicial conference at such appropriate time in the future
when all considerations relevant to the just and proper administration of the criminal law could be presented.
Study of the problem continued until another aspect of it was submitted for judicial determination. In State v. Tate, 47 N.J. 352 (1966), this Court decided that under the circumstances presented the defendant was not entitled to an order to compel certain State's witnesses (who were to be produced at the trial) to testify on depositions in advance of trial. In that opinion the bar was advised of the scheduling of a Judicial Seminar in September 1966 to be open to all who might contribute to solution of the problem of discovery in criminal cases. The Seminar was held and the material presented is being assembled for this Court's consideration. 89 N.J.L.J. 613 (1966).
The development of discovery in criminal cases has been outlined not only to show its evolution in our State, but also to indicate that the major controversy has centered around efforts on the part of the defense to obtain copies of the statements of the State's witnesses, who saw the crime committed or who furnished information tending to establish defendant's criminal participation in it. There is no reported case in our State in which the defendant moved for or was allowed inspection of investigation reports of police or detectives, or summaries of such reports, or reports or written opinions of such persons or members of the prosecutor's staff as to the guilt or innocence of the accused. Matters of that nature, which are generally thought of as "work product," have been free from inspection demands. It was in this legal milieu that Farmer moved for the generalized and unspecific discovery set out in paragraph (a) of his notice.
When the motion was argued in the trial court, and the propriety of the resulting order argued in this Court, it was obvious that the focus of the collective minds was on the right of the defendant to inspect and copy the signed or unsigned statements of the State's witnesses, in the sense that such statements were thought of ordinarily. That is, attention was on statements signed or unsigned taken by police authorities
from witnesses relating to the criminal incident itself, rather than on statements or reports of police officers concerning matters which occurred after the shooting and which were not directly associated with it. This is evidenced by defendant's affidavit in this Court that he could not recall any of the events which surrounded the "alleged shooting at my home, involving my wife and me." Also, our per curiam opinion denying leave to appeal from the order recites that the "State seeks to appeal from an interlocutory order granting defendant pretrial discovery of grand jury testimony and statements taken by the prosecutor from persons other than defendant." State v. Farmer, supra, 45 N.J., at p. 521. Moreover, in the latest case of State v. Tate, supra, when the Chief Justice was speaking of the various types of discovery we had sanctioned previously, he described the Farmer holding as follows:
"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." (47 N.J., at p. 355; emphasis added)
All of the above discussion is not set down to demonstrate that the prosecutor's interpretation of the scope of his obligation under the discovery order (which precipitated the controversy now before us) was correct. The purpose is simply to reveal the climate in which he was called upon to construe the order. Although we agree that his interpretation was incorrect in the light of its broad and unrestrained language, that climate is significant in evaluating his good faith. Basically the difficulty arose when the prosecutor consented to the form of the order prepared by defense counsel, which granted leave:
"(a) To inspect, copy and photograph all statements, papers and confessions concerned with the within indictment."
If there had been insistence upon more specificity in the light of the argument, the difficulty might not have arisen.
In any event, after the execution of the broad order, the prosecutor delivered to defense counsel the testimony of the witnesses before the grand jury, copies of signed statements of five witnesses and copies of the notes of oral statements of several other witnesses. These statements squared with the notion that defendant was to be aided in the reconstruction of the criminal event.
On January 4, 1966 trial of the indictment commenced with the impaneling of a jury. As the jurors were drawn and voir dire interrogation began, it was made clear by the State that reliance was to be placed on the testimony of lay witnesses to establish Farmer's legal sanity and therefore his criminal responsibility for the crime. For some reason, which is of no moment on this appeal, a mistrial was declared by consent of the parties. Thereafter, there was an interval of 13 days before the cause was again reached for trial. During that period the defense knew the prosecution intended to rely in rebuttal on lay testimony to prove Farmer's sanity. (See State v. Whitlow, 45 N.J. 3, 23 (1965)). Counsel knew also that he had not been furnished with any signed statements or notes of oral statements of any such witnesses. Yet the record reveals no evidence of a demand for the names of such witnesses or their statements. A permissible inference is that experienced counsel construed the discovery order, in this respect at least, in the same fashion as the prosecutor.
Drawing the jury for the second trial began on January 17, 1966, and two weeks were consumed before the full panel of 14 jurors was completed. During the voir dire interrogation it again appeared that the State would rely on lay testimony in rebuttal to prove defendant's sanity. The trial judge in his memorandum denying the later double jeopardy plea recognized this. He said:
"* * * [S]uch voir dire disclosed that the state apparently had no contrary professional psychiatric testimony [to defendant's claim of insanity] but would rely entirely upon lay opinion as ...