This opinion is an expansion of a bench opinion rendered during the course of trial.
Defendant is charged with murder, aggravated sexual assault and robbery. After trial had commenced, defendant became
aware that the prosecutor had subpoenaed certain records of the Union County jail pertaining to defendant.*fn1 Defendant urges that the action of the prosecutor violated his right of privacy and his right to effective assistance of counsel under the Sixth Amendment of the United States Constitution, and Art. I, par. 10 of the New Jersey Constitution. He seeks to have the charges dismissed, or, in the alternative, to have a mistrial declared, followed by the replacement of the prosecution team and a purging of the evidence to remove any taint from what defendant perceives to be improper conduct on the part of the prosecutor, citing State v. Sugar, 84 N.J. 1 (1980).
The records obtained by the prosecutor pursuant to the subpoena duces tecum included certain medical records, the names and relationships of visitors, and a description of the various items which visitors brought to or from the jail. Defendant contends that these records reveal to the prosecution defendant's trial strategy, pointing out that the visitors listed included possible expert witnesses and consultants for the defense.
In State v. Sugar, supra, law enforcement officers eavesdropped on conversations between defendant in custody and his attorney. The Court pointed out that premature disclosure of trial strategy or an inhibition of free exchange between the attorney and client is a substantial infringement on the rights of defendant necessitating corrective action by the Court. Dismissal is the appropriate remedy where it destroys the attorney-client relationship or irreparably prejudices defendant by disclosing his trial strategy. Id. at 19.
Here there was no violation of the attorney-client privilege. No privileged communications or reports of possible expert
witnesses were obtained or intercepted. Thus, this case is to be distinguished from such cases as Sugar, supra, State v. Mingo, 77 N.J. 576 (1978) (where prosecutorial discovery of the report of defendant's handwriting expert was granted by the trial court), State v. Williams, 80 N.J. 472 (1979) (where the trial court granted the State's motion to obtain from defense counsel evidence of a photographic identification of defendant made by the victim under defense auspices) and State v. Melvins, 155 N.J. Super. 316 (App.Div.1978) (where the trial court granted the State's request to be furnished with the results of a polygraphic examination conducted by the defense expert). In each instance, the defense did not intend to use the evidence at trial, and the action of the trial court was reversed because of the confidentiality of the information received by the prosecution.
Defendant further relies on State v. Hunt, 91 N.J. 338 (1982), which held that an individual had a protectible right of privacy in the toll billing records kept by the telephone company for its business purposes. The Court pointed to a reasonable expectation of privacy in the telephone numbers one dials in the privacy of the home or office, locations entitled to protection. Here, however, the information is assembled from activities in the Union County jail where the individual's expectation of privacy is substantially diminished and does not go to the information set forth in these records. See State v. Ryan, 145 N.J. Super. 330 (Law Div.1976).
Defendant points to what he perceives to be the "chilling effect" upon his efforts to prepare his defense if the prosecutor can in this manner obtain information pertaining to the trial being considered. State v. Melvins, supra, 155 N.J. Super. at 321. As defendant correctly points out the State is not entitled to discovery of defense materials under R. 3:13-3(b) unless and until the defense has ...