Matthews, Bischoff and Horn. The opinion of the court was delivered by Matthews, P.J.A.D.
The question involved in this appeal deals with the scope to be accorded R. 3:13-3(b)(1) of the rules governing criminal practice.
Defendant was indicted by a Camden County grand jury for the murder of one James Brown, the arson of Brown's dwelling house and an accompanying robbery. As part of pretrial proceedings defense counsel filed numerous motions for discovery, including the request for all questions, answers and the names of operators, and the conclusions drawn of and from polygraphs which had been given to any state witnesses, especially two eyewitnesses, and all reports of any experts or lay witnesses on the issue of arson. The prosecutor fully complied with the discovery requests.
Subsequent to that compliance the prosecution learned that defendant had taken a polygraph examination in the Camden County Jail at the instance of the Public Defender. The State then moved, under R. 3:13-3(b)(1), for the defense to furnish the State with the questions, answers and results
of the test. The trial judge granted the State's motion. Shortly thereafter the prosecutor also moved that he be furnished with copies of any reports submitted by William Alvine Associates, Inc. to defendant's counsel with respect to the alleged arson of Brown's dwelling house. Once again the State relied on R. 3:13-3(b)(1), and also the opinion of another part of this court in State v. Mingo , 143 N.J. Super. 411 (App. Div. 1976). This motion was also granted by the trial judge over the objection of the Public Defender.
Defendant moved for leave to appeal to this court, and leave was granted. Briefs have been filed and we have heard oral argument on the issue.
During the pendency of the motion for leave to appeal the State withdrew its motion for information with respect to the polygraph test given to defendant, including the request for the questions and answers asked and given. The State concedes before us that it would not be entitled to such information since it would violate defendant's Fifth Amendment rights against testimonial compulsion. Thus, we are solely concerned with the question of whether the trial judge's order to permit the report of William Alvine Associates, Inc. was proper.
We also note that defendant now states before us that the report in question will not be used at trial. No such unequivocal statement was made at the time that the motion for production was heard.
We conclude that the interpretation of the rule given by the trial judge is erroneous in that it does not restrict discovery thereunder to reports that defense counsel intends or may reasonably expect to use at trial.
We believe that the trial judge's interpretation of the rule here infringed upon a fundamental right accorded defendant -- that of effective assistance of counsel. This right granted under the Sixth Amendment has been made applicable to the several states through the Fourteenth Amendment. Gideon v. Wainwright , 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Indeed, our own State has since very
early times given strong recognition to a criminal defendant's right to counsel. Rodriguez v. Rosenblatt , 58 N.J. 281, 285 (1971); N.J. ...