Defendants, who are under indictment for murder, have moved by way of pretrial discovery to inspect and copy all police reports "pertaining to this matter." The State has resisted the application, contending that police records are immune from discovery.
R. 3:13-3(e) provides as follows:
Except as heretofore specifically provided, this rule does not authorize discovery by a party of reports, memoranda or internal documents made by any other party, his attorneys or agents in connection with the investigation, prosecution or defense of the matter * * *.
The State contends that this provision effectively bars the discoverability of police reports concerning the homicide for which defendants have been indicted.
The comments to the 1971 edition of the Rules of Court do indicate (at 320) that a proposal was rejected which would have given the courts discretion to make discoverable all reports, memoranda and other internal documents of the State made in conjunction with its investigation or trial preparation. The commentary states that "this proposal was rejected apparently for the reason, expressed at the May 1967 Judicial Conference that such discovery would unduly prejudice the State and hamper its investigations." It further points out that the Federal Rules of Criminal Procedure likewise maintain "the exemption of the State's internal memoranda from defendant's discovery."
Since the limitation refers to reports, memoranda or internal documents of a party and its agents, it might be questioned whether it should apply to those of a local police department. However, if this distinction were to be adopted,
records of State Police who investigated a matter would be protected from inspection, but those of local police would not be protected. In view of the purpose of the limitation as hereinabove expressed, the intent of its authors does not appear to be of such narrow application. Furthermore, in the literature on the subject such a distinction does not emerge. Although law review authors are dismayed by the general exclusion, they do not argue that it is not applicable to local police. 74 Harv. L. Rev. 1051 et seq. (1961); Traynor, "Ground Lost and Found in Criminal Discovery," 39 N.Y.U.L. Rev. 243 (1964)
It is the opinion of the court that in view of R. 3:13-3 (e), it lacks the authority to require that all police records relating to the investigation of a case be opened to the attorney for a defendant after the indictment. However, this does not dispose of the matter because the court must still deal with the question as to whether defense counsel should be given the right to inspect and copy the reports of police personnel who will be witnesses at the trial.
Defendants have requested and the court has ordered, pursuant to its discretionary power under R. 3:13-3(c)(1), that the State disclose to the defense "the names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information, and to indicate which of those persons he may use as witnesses." Furthermore, defendants have requested and the court has ordered, pursuant to R. 3:13-3(c)(2), that the State "permit the defendant to inspect and copy or photograph any relevant records of statements, signed or unsigned, by such persons * * *."
The court is of the opinion that it must regard as significant the words, "Except as otherwise provided," at the very commencement of R. 3:13-3(e). These words indicate that the bar against inspection of police reports is not absolute, but must yield to other provisions of R. 3:13-3. R. 3:13-3(c)(1) specifically provides that the ...