This case raises the question whether a defendant in a criminal trial has been denied rights guaranteed under the Sixth Amendment of the federal Constitution as well as article I, paragraph 10 of the New Jersey Constitution when, due to inadvertence, confidential and privileged communications between defendant and defense counsel are recorded on the court's sound recording system.
This issue developed in the following fashion. On April 28, 1993, the court scheduled a hearing on defendant's motion filed pursuant to R. 3:5-7 seeking to suppress certain evidence seized by the Passaic Police Department during a warrantless search. Prior to the commencement of the hearing on the motion, the regularly assigned court reporter was reassigned to another court on an emergent matter. The length of the reporter's absence was uncertain and no replacement was available. The courtroom, however, is equipped with a sound recording system as prescribed by the Administrative Office of the Courts. Immediately after commencement of the motion, but prior to the taking of any testimony, defense counsel queried as to the absence of the court reporter. The court thereupon advised the parties that the proceedings were being recorded electronically. Defense counsel then informed the court that he and defendant had engaged in "privileged" communications at counsel table during which, it is alleged, potentially inculpatory statements were made by defendant to counsel. Defense counsel also advised that he had discussed defense strategy with defendant. These conversations were not conducted in normal conversational tones but rather "sotto voce."
Defense counsel inquired as to whether the court's recording device was of such sensitivity so as to record the conversation between defendant and his attorney. The court inquired of the court clerk, who was operating the system, whether the conversations had actually been recorded. Although the court clerk was not monitoring the conversations at the moment of recording, the clerk advised that conversations had been recorded. This determination was apparently made based upon observations of electronic digital graphs which are part of the recording device.
The court then directed that an experiment be conducted to ascertain the degree of sensitivity of the sound recording system. Defense counsel was requested to converse with the defendant in the same fashion he had prior to his being made aware of the use of the sound recording system. The court clerk determined that, although these conversations were inaudible to the court and persons seated at or near defendant and his attorney, the conversations were nonetheless being recorded and were intelligible.
Defense counsel thereupon objected to the proceedings and moved to dismiss the indictment, alleging that defendant's right to a fair trial and effective assistance of counsel had been incurably compromised. Defense counsel argued that inasmuch as defendant had made inculpatory statements during his private, and presumably privileged, conversations with counsel, which conversations were now recorded as part of the official verbatim record of the court proceedings, the defendant could no longer be "guaranteed" a fair trial. Defendant also argued that notwithstanding the court's order sealing the record, defendant is nonetheless exposed to a "risk" of having his privileged communications revealed to unauthorized persons and, perhaps, impermissibly used against him by the State during his trial.
Although the court afforded the parties an opportunity to brief the issues raised, neither the State nor defendant have availed themselves of that opportunity. The court's research on this issue fails to reveal any precedent. Thus, this appears to be a case of first impression. Therefore, the court's analysis of this question
shall proceed based upon principles of law applicable to situations involving interceptions of such conversations by law enforcement agencies.
Defendant claims that the recording of his privileged communications, including potentially inculpatory statements and Discussions of defense strategy, have permanently impaired defense counsel's ability to provide constitutionally effective assistance. The privacy and sanctity of the relationship between lawyer and client are well recognized.
When confronted with the awesome power of the criminal process, a client is never more in need or professional guidance and advocacy. In this setting, an instinct for survival compels the defendant to confide in an attorney. Necessity of full and open disclosure by a defendant . . . imbues that disclosure with the intimacy equal to that of the confessional, and approaching even that of the marital bedroom. ...