Halpern, Crane and Michels. The opinion of the court was delivered by Crane, J.A.D.
Defendant was indicted for attempting to break and enter with intent to steal. Before trial he moved to compel the State to conduct a lineup. The trial judge denied defendant's specific request, but ordered the State to
Both parties moved for leave to appeal, which was granted. Defendant contends that he is entitled to a lineup before trial as a matter of right as a part of discovery. The State contends that defendant is not entitled to a lineup either before or during trial.
Our research has revealed no New Jersey cases which bear directly upon the issue, although it was said in State v. Thomas , 107 N.J. Super. 128, 133 (App. Div. 1969), that "We do not find that there is a constitutional right to a line-up as such."
Some federal courts have held that a defendant has no right to a pretrial lineup. United States v. Poe , 462 F.2d 195 (5 Cir. 1972), cert. den. 414 U.S. 845, 94 S. Ct. 107, 38 L. Ed. 2d 83 (1973); see also, United States v. Munroe , 421 F.2d 644 (5 Cir. 1970), cert. den. 400 U.S. 851, 91 S. Ct. 79, 27 L. Ed. 2d 89 (1970). Others have held that a trial court has the power to order one in appropriate circumstances, United States v. Zane , 495 F.2d 683, 699 (2 Cir. 1974), cert. den. 419 U.S. 895, 95 S. Ct. 174, 42 L. Ed. 2d 139 (1974), and that the matter is discretionary with
the trial court. United States v. Ravich , 421 F.2d 1196, 1203 (2 Cir. 1970), cert. den. 400 U.S. 834, 91 S. Ct. 69, 27 L. Ed. 2d 66 (1970). The California Supreme Court in Evans v. Superior Court of Contra Costa County , 11 Cal. 3d 617, 114 Cal. Rptr. 121, 522 P. 2d 681 (1974), has held that due process requires that a defendant be afforded a pretrial lineup upon making a timely request in circumstances where eye witness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.
Although he does not expressly so argue, defendant undoubtedly entertains the hope that the identifying witness will not be able to identify him and the prosecutor may be persuaded to move to dismiss the indictment. On the other hand, defendant may be seeking to acquire material at the pretrial lineup which will aid him in the cross-examination of the identifying witness. Whatever defendant's purpose may be, we find no error on the part of the court below in denying the request for a pretrial lineup.
The conduct of a lineup prior to trial is not a proceeding within the contemplation of the rules governing criminal practice. R. 3:13-3 relating to discovery deals with items such as books, records, testimony, reports, names of witnesses and the like. The language of the rule relates only to the ascertainment and inspection of things which are in existence. The rule does not require the State to engage in an investigative procedure for the benefit of the defendant to test the perceptual acuity of the identifying witness.
The application is somewhat akin to a request to take the deposition of a State's witness in the sense that it seeks to elicit a statement not yet made. A proposal to permit the taking of depositions in criminal cases in the same manner as is permitted in civil cases was considered by the New Jersey Supreme Court's Special Committee on Discovery in Criminal Cases, which drafted R. 3:13, and rejected. 90 N.J.L.J. 209 (1967). Depositions de bene esse are permitted by R. 3:13-2 for the purpose of preventing injustice.
Among the reasons the committee expressed to support its recommendation against the free use of depositions in criminal cases were that the procedures would be costly and time-consuming and that they might result in undue harassment of the victims of crime and other witnesses. 90 N.J.L.J. supra at 214. The same reasons militate against the desirability of holding that defendants in criminal cases have an absolute right to a pretrial lineup.
We find the arguments of counsel relating to the alleged right of a defendant to a pretrial lineup to be unpersuasive. We hold to the view that the proper forum in which to resolve the issue of identification and the issues of guilt or innocence is the trial court. Moreover, even if a due process right to such a pretrial procedure were to exist, defendant has made no showing that there exists a reasonable likelihood of a ...