On appeal from the Superior Court, Appellate Division. (A-125). On certification to the Superior Court, Law Division. (A-126).
For reversal and remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Schreiber, J.
These two appeals raise the same principal issues of whether a defendant in a criminal proceeding may be entitled to a pretrial identification lineup, and, if so, under what circumstances. Both cases come to us before trial.
In State v. Walls, the defendant moved to compel the prosecutor to arrange a lineup to be viewed by the victim of the crime. After the trial court granted defendant's motion, the prosecutor's motion for leave to appeal was granted by the Appellate Division. While the case was pending there, we granted the prosecutor's motion for direct certification pursuant to R. 2:12-2(a). 85 N.J. 469 (1980).
In State in the Interest of W.C., an oral motion was made on behalf of a juvenile defendant in the Juvenile and Domestic Relations Court to compel the prosecutor to arrange for a pretrial identification lineup to be viewed by the victim and a witness. The trial court ordered a lineup to be viewed by the victim and such other witnesses the State proposed to produce at the trial relative to identification. The prosecutor's motion for leave to appeal was denied by the Appellate Division. We granted the State's subsequent motion to this Court for leave to appeal. 85 N.J. 469 (1980). Oral argument on both cases was heard at the same time and the legal discussion which follows is equally applicable to both cases.
The State raises as a threshold obstacle to the defendants' motions the lack of judicial power to compel a lineup. It is important at the outset to understand and appreciate the role which the pretrial lineup would play in a defendant's case. Simply put, it is a discovery mechanism which may lead to relevant material evidence and assist in preparation of the defense. The lineup has been frequently employed by the State both as part of its investigative process and for discovery purposes.
Although defendant has no constitutional right to pretrial lineup discovery, see Cicenia v. Lagay, 357 U.S. 504, 510-511, 78 S. Ct. 1297, 1300, 2 L. Ed. 2d 1523, 1528-1529 (1958); State v. Johnson, 28 N.J. 133, 136 (1958), we have no doubt that a Court has the inherent power to order discovery when justice so requires. This inherent power was used in State v. Butler, 27 N.J. 560, 601 (1958), to compel a witness to submit to a psychiatric examination by the defendant's expert, in State v. Moffa, 36 N.J. 219, 222 (1961), to entitle a defendant to inspect a witness's grand jury testimony, and in State v. Cook, 43 N.J. 560, 563 (1965), to permit the defendant to examine the State's medical reports of its experts. See also State v. Murphy, 36 N.J. 172, 180 (1961); State v. Hunt, 25 N.J. 514, 524 (1958); State v. Winne, 27 N.J. Super. 304, 310 (App.Div.1953), certif. den. 13 N.J. 527 (1953).
This Court's policy concerning pretrial discovery has been to encourage the presentation of all relevant material to the jury as an aid in the establishment of truth through the judicial process. The pretrial discovery practice promotes the quest for truth. See State v. Cook, 43 N.J. at 563. The adversary system, modified in criminal matters as it is by the prosecutor's role to ensure "that justice shall be done," Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 635, 79 L. Ed. 1314, 1321 (1935), is only a means to attain that goal. Uninhibited discovery in criminal, unlike civil, proceedings cannot exist, primarily because defendant's
constitutional privilege against self-incrimination limits reciprocal discovery in criminal matters. As a result our discovery rules in criminal proceedings have had a different history and are more limited in scope than in civil matters. See State v. Cook, 43 N.J. at 562-566, for development of criminal discovery rules. We have from time to time moved either by rule or by ad hoc determination to expand discovery in criminal proceedings as we have gained experience or profited from the experience of others. See State v. Montague, 55 N.J. 387, 395, 398 (1970).
The State properly points out that our criminal discovery rules contain no provision for a lineup prior trial at the defendant's request. R. 3:13-3(a), relating to discovery by the defendant, establishes a defendant's right to inspect various books, documents, reports, grand jury testimony, and names and addresses of witnesses. R. 3:13-1(b) does provide for pretrial hearings "to resolve issues relating to . . . pretrial identifications of defendant" which "may be held immediately prior to jury selection . . . ." However, this rule was adopted to avoid interrupting the flow of evidence being heard by the jury for presentation of identification matters to the court. See United States v. Wade, 388 U.S. 218, 242-243, 87 S. Ct. 1926, 1940, 18 L. Ed. 2d 1149, 1166 (1967). Prior to adoption of the rule when a defendant objected to an in-court identification on the ground that a pretrial identification by the same witness was unduly suggestive, the court was compelled to hear testimony in the absence of the jury concerning the circumstances surrounding the pretrial identification and ultimately rule on its admissibility. The technique provided by R. 3:13-1(b) eliminates this interruption of the trial from the jury's point of view and expedites the conduct of the trial. Moreover, the trial court's determination constitutes an interlocutory decision which may be appealable by the State. R. 2:3-1; Pressler, Current N.J. Court Rules, Comment R. 3:13(1) (1981).
The Attorney General has suggested that under R. 3:13-1(b) a court may order a lineup as part of the courtroom identification
hearing and, where a pretrial identification is sufficiently questionable, relax the rule pursuant to R. 1:1-2, and hold such a hearing any time prior to trial. Although this procedure has much to commend itself, it is not within the contemplation of the rule. Application of the rule in the manner suggested by the Attorney General would be inconsistent with the rule's purpose, namely, to avoid holding the Wade hearing during trial, but rather to have it immediately prior to jury selection. Furthermore this proposed procedure would require the court to oversee the lineup, thereby consuming additional judicial resources.
The State contends that by granting the defendant's motion the trial court would be interfering with the prosecutor's preparation of the State's case, thereby violating the doctrine of separation of powers between the judicial and executive branches of government. This contention is misplaced. The Supreme Court has been charged with the constitutional obligation to make rules governing the practice and procedure in the courts, N.J.Const. (1947), Art. VI, § II, par. 3, essential components of which are the trial process and the presentation of evidence. A necessary incident includes administration of the action before trial to further the underlying purpose of the trial, exposure of all relevant and material facts to the fact finder. Though the results of the identification lineup may affect the prosecutor's decisions with respect to whether and how the trial should be conducted, the separation of powers doctrine does not "prevent the Court from adopting rules which have some effect on matters which involve executive and legislative functions." State v. Leonardis, 73 N.J. 360, 372 (1977).
The State further contends that granting defendant's request would unduly interfere with the State's investigation, preparation, evaluation and presentation of its case. It is true that some burden would be imposed on the prosecutor in arranging for the lineup. Almost invariably responses to discovery demands entail some obligation on the part of the recipient, but that in and of itself should not act as a bar when the discovery is
warranted. The prosecutor, who would undoubtedly want to be present during any lineup, is probably in a far better position to arrange for it than the defendant.
The State also argues that a pretrial lineup is inconsistent with discovery because the lineup would result in the creation of new evidence rather than the disclosure of existing evidence. As a discovery tool the same objection could be lodged against the prosecutor. The discovery process includes ascertainment of relevant facts, which may be produced at the trial, even though not in existence at the time of the episode in question. Thus for example, handwriting exemplars, State v. Carr, 124 N.J. Super. 114 (Law Div.1973), voice prints, State v. King, 44 N.J. 346, 356-358 (1965), blood tests State v. Blair, 45 N.J. 43 (1965), and physical examinations, see State v. ...