On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Milmed, Larner and Ard. The opinion of the court was delivered by Milmed, P.J.A.D.
By leave granted, defendant,*fn1 confined to the Bergen County Jail Annex awaiting trial, appeals from an order of the Assignment Judge of Bergen County for criminal matters denying his request to have his attorney's (the Public Defender's) polygraph examiner visit him at the Jail for the purpose of conducting a polygraph examination of him. Permission was denied solely because the Bergen County Prosecutor's Office was not given notice of the request.
The denial results from a "policy" of the assignment judge not to allow a defense expert to visit a defendant confined in the jail, except upon prior notice to the prosecutor. Although defendants who are not in custody are not required to give the prosecutor advance notice that they are to be visited and tested or examined by an expert, the prosecutor indicates that the policy, which is apparently unique to Bergen County, is bottomed on an attempt "to maintain an orderly and efficient and controlled criminal calendar * * *." We discern no rational basis for the policy or for the different treatment accorded the two classes of defendants. Additionally, it obviously infringes upon defendant's right to effective assistance of counsel, see U.S. Const., Amend. VI and N.J. Const. (1947), Art. I, par. 10. As Judge Matthews
observed in his opinion for this court in State v. Melvins , 155 N.J. Super. 316 (App. Div. 1978):
The right to counsel includes the right to effective assistance of counsel. * * * It means providing the defendant with those necessary tools, such as investigative support and expert analysis that he needs to carry on his defense. * * * We believe that the right to effective assistance of counsel includes the right to have any communications made by experts remain confidential.*fn2 [at 320]
The policy would also appear to infringe upon certain provisions of the legislation establishing the Office of the Public Defender and prescribing its functions, powers and duties, N.J.S.A. 2A:158A-1 et seq. Thus, the Public Defender is required "to provide for the legal representation of any indigent defendant who is formally charged with the commission of an indictable offense," and, in every such case, there is required to be provided "[a]ll necessary services and facilities of representation (including investigation and other preparation)." N.J.S.A. 2A:158A-5. And, another section of the legislation provides, in part, that
All communications between the individual defendant and any person in or engaged by the Office of the Public Defender whether on a case basis or by contract shall be fully protected by the attorney-client privilege to the same extent and degree as though counsel has been privately engaged. [ N.J.S.A. 2A:158A-12]
Beyond this, it is entirely conceivable that if the prosecutor had to be notified every time a confined defendant had need for a visit from an expert, whether or not the expert's report was to be used at trial, a chilling effect on the conduct of effective and complete defense investigations could occur. See State v. Melvins, supra , 155 N.J. Super. at 321. See also, State v. Mingo, supra; and Judge Wisdom's
concurring opinion in United States v. Theriault , 440 F.2d 713, 716-717 (5 Cir. 1971).
The order under review is reversed and the matter is remanded to the Assignment Judge of Bergen County for criminal matters for the entry of an appropriate order ...