*1 133 For reversal—Chief Justice and Justices Weintraub, Heher, Wacheneeld, Burling, Jacobs, Francis Proctor—7.
For affirmance—None. JOHNSON, STATE OF NEW JERSEY v. SYLVESTER STAN GODFREY, LEY CASSIDY AND DEFENDANTS. WAYNE Argued May 19, Reargued September 8, 1958 Decided October 1958.
Mr. E. Stevenson the cause Fluharty argued for the appellant. the cause for the State of
Mr. I. V. DiMartino argued Furman, General, Attorney David D. Yew Jersey Acting (Mr. AsbeTl, General, attor- Attorney and Mr. Benjamin Deputy DiMartino, the brief). counsel and on Mr. I. V. neys; Seine, Prosecutor reargued Camden County Mr. Norman Hew Jersey. the cause for the State of the court was delivered by opinion and two Godfrey Defendant Wayne J.C. Weintbattb, counsel Court-assigned were indicted for murder. others taken or confession” statement “any moved for inspection at the trial.” Counsel will be offered from defendant “which for the preparation “is necessary certified that inspection (1) denial defense”; (2) and the presentation for trial *3 or undue hardship”; result in an injustice “will the court’s exercise of favorable “this case requires” (3) affidavit, the sole There was no supporting discretion. recited just to the bare allegations addition at argument from conversations statement that the unparticularized was between inconsistency detected an the counsel prosecutor defend- by and the told story the case the version of State’s their counsel. respective ants to statements, all of inspection moved for
Defendant also the whom State made by persons and memorandums *4 guard arbitrariness and treatment against unequal and to avoid if possible unsatisfactory alternative of a post-trial into a claim of inquiry error. prejudicial We with start truth is best revealed premise a decent to opportunity prepare advance of trial. We have embraced tenet with civil respect to litigation, considerations, and absent valid should be as overriding matters. It is criminal of no moment that pretrial inspec tion is constitutionally not assured. Cicenia 357 Lagay, 504, 1297, U. 78 2 Ed. S. S. L. 2d 1523 We (1958). Ct. are not minima; limited to constitutional rather we strive for practices which will best for promote quest truth. It bemay added that Cicenia v. found although Lagay Eourteenth unolfended, Amendment to be it observed that yet “it may be the Tetter for the to practice’ prosecution comply a for request inspection.” page 511, U. S. at 78 Ct. S. at 2 L. page Ed. 2d at 1529. page
It is difficult to understand defendant should a be why denied pretrial inspection of his own statement in the absence of circumstances indicating disservice to the affirmatively public interest.
If a refused a suspect statement assured unless a give it would be an copy, injudicious prosecutor who And if the were then agree. suspect com- represented by petent counsel, that would be stipulation required. Why, then, should the State refuse a who copy to was suspect unrepresented and uninformed? must
We be mindful role of a It fre- confession. becomes the quently core of the It State’s case. is not uncommon the judicial for to become more of proceeding a review of what at transpired headquarters than trial of the basic criminal event itself. No one would deny a defendant’s the facts right thoroughly investigate the crime to for trial event. prepare of that When a con- fession is and issues it tend to given surrounding displace trial, the criminal event as the should focus there like at the facts of the substituted opportunity get issue. Simple justice requires a defendant be permitted to meet what thus looms prepare critical element of the case him. against
The need to deal with opportunity prepare must defendant’s statement be evident. If voluntariness issue, is in the content confession revealing. time Counsel would need the truth explore thoroughly therein, the factual assertions whether it contains inquire more than the State knew the time anything at when defend ant was and to consider whether the apprehended, content itself or defendant’s claim involun- supports negates *5 even tariness. Pretrial may necessary be inspection equally he the statement. defendant concedes though freely gave is so upon guilt This because the statement impact stated, turn are or the absence upon how the facts may upon were defendant claim may facts which a exculpatory have revealed if revealed to/the been or interrogator In murder cases in which had been inquiry complete. the omis- is not the manner of or expression guilt disputed, sion of circumstances have additional palliative may signifi- their determination jury’s cance because of influence Or the confession contain may preju- to punishment. and as which dicial material which should be exscinded to make a hurried decision counsel should not be required the courtroom. The situations possible may multiplied. to a trial adversary precisely The virtue of lies approach and hence in the for a full and fair opportunity presentation, defend- has had a unilateral examination of a where State feasible, ant, enabled, he as far as prepare should be a or and fairness of completeness policeman’s explore in the confession. development story prosecutor’s we of what speak significance In foregoing, that counsel for a defend- fact is inspection. needs the cannot be sure whether he ant does not know or It say until he had it. no answer to has inspection he If the defendant “must remember” what said. defendant a remember, it harm the to furnish does cannot actually knows, But as trial witnesses do not every lawyer a copy. And when or detail. precision recall their statements likely which attends sway considers emotional one crime, particularly murder, confession of voluntary wholly a defendant “must remember.” assert that it is idle to considerations, some are these fears vagrant Against arrayed. will be perjury promoted. is the assertion
Foremost no one will falsely dispute guilt, defendants many That will a truthful dispute who con- But a defendant deny. aid him. He can fabricate preview fession needs hardly if he wishes to shade it, story his without with or *6 the confession, of details of his that light forgotten oppor- exists in event the will intro- tunity any since confession duced on the case and State’s thus be revealed before he testifies. The fear of universal perjury postulates virtually it also the demonstrated guilt; capacity impugns judicial Indeed, to ferret the truth. if the process possibility relevant, of is it lead perjury should to a disavowal logically of Gicenia and a denial of discretion to any permit pretrial We this because there is no for trial inspection. way a say to make a determination a pretrial as whether judge will will or not resort We given perjury. defendant, cannot, a without both authorize trial incongruity, judge and him act immobilize with a dread of And perjury. if the of fabrication is not the pressed, as touch- possibility stone decision of individual but rather applications for a factor to influence the formulation of some other standard discretion, the for exercise of we confess that we cannot a conceive tenable criterion which would be related rationally to that prospect.
Reference is made in that the “inequality” may State have However not of a defendant. rele- pretrial discovery the vant that consideration be to broader motion for may below, in “II” it when considered has no discovery bearing his own statement, defendant seeks inspection reason that the has had pretrial discovery obvious examination. of the defendant and unilateral Nor can we detect the here of fear that relevancy If a witnesses will be intimidated or worse. confession is defendant would remember the names voluntary, competent he It is conceivable that witnesses mentioned. potential have been so conducted may the interrogation identities unknown to revealed representative State’s rare, and should The situation would be it defendant. where appropriate safeguard necessary appear, reference rather than to all deny delete the inspection. reference is made to the incidence And lastly, rising that unfortunate bears phenomenon rationally How crime. is apparent. immediate it problem Surely 140
cannot be that rules to foster proposed practice be geared convictions without to fairness the individual. regard Justice the innocent be And even requires acquitted. no less respect guilty, imperative obtained; convictions be otherwise the trial fairly judicial as well be discarded and the left issue of to execu guilt Hambleton, 388, tive determination. 399 Ill. People N. E. 2d 1948). Ct. (Sup. There is no whatever to fears re- experience justify counted above relation to the specific question statement, of defendant’s own from the nature inspection find we can no reasonable basis for subject appre- *7 Tune, that, It hension. is despite prosecutors significant have aof defendant’s quite generally permitted inspection Indeed, statement without when the court order. at last term we a motion review order to an granted denying the terminated the inspection, prosecutor promptly appeal the We are not aware of by any resulting disclosure. making and until such evidence society, appears to we damage prefer to course we think better suited for the revelation pursue truth. of Cicenia,
In
court
this
N. J.
quoted
adopted
at
(6
Haas,
of
188 Md.
page 301)
following passage
There are cases in which it would be such application and, hand, an on the other cases are conceivable in might hamper prosecution grant improperly such which it application. We do understand the court decided below appellees that right.’ were entitled to this disclosure as a matter ”
In Haas the court Maryland added that “there seems to be a measure of elemental justice one accused permitting of crime see a confession have been made alleged by him, which he to be him expects produced at his against trial” A. 2d (51 at page 653). That observation is so true that need universally little be shown defendant’s reinforce application to it. Hence we think sufficient for a defendant he to show that does not recall his statement with sufficient detail to that he satisfy his counsel can fairly to trial go circumstances, without it. In such the applica- tion should be unless the granted State shows the grant would “improperly hamper prosecution.”
In case oath, this the defense made no under showing and for the reason stated frankly counsel that in view by of Tune he could not see how any suffice. The State made no offer in record understandably On the opposition. before us we cannot differ with the action, trial court’s but in these circumstances we conclude that defendant should permitted renew his in the application light views above. expressed
There remains the there question whether shall be with cross-examination the factual as to hearing showing advanced a defendant his Erom support of motion. *8 the the issue, nature of it would seem to be fruitless to If, one. embark for defendant asserts the upon example, procured, confession was improperly full-fledged hearing on that the claim lead to same trial which piecemeal this in when court declined to Oicenia the permit defendant moved to in advance of trial a confession the suppress upon claim was involuntary. If, that from claim of apart involuntariness, the defendant his asserts recall inability to the his details and counsel concludes he needs for discovery reason, that little would be by cross-examination of gained either The fact seems affiant. establish inescapable to such his case defendant would need upon inquiry, the very 142 resists, the and this would which State inspection, so, measurement of the permit
be only intelligent because, in the asserted basis the but also application, final the defendant cannot know really counsel for analysis, Hence, has had it. whether he needs until he discovery effect, the proof defendant’s ex the upon parte foregoing situation, ordinary in the should shift pretrial hearing, circumstances opposi- claim in extraordinary State’s tion the motion and the action which should appropriate taken in the of the facts. How the State’s special be light forecast; handled cannot it must should be showing circumstances. specific depend upon
II. statements made by prospective The motion inspect a different problem. witnesses for prosecution presents disclosure Here fears and against considerations urged irrelevant upon of a defendant’s statement and own force, hesitate evaluate issue, have which we frankly and information. want adequate experience a deficiency It should with candor conceded equal matters the lack of of criminal is our present handling defendants. for factual facilities adequate investigation ’’ 11 L. Knowlton, Rutgers “Criminal Law Procedure turn facts. 71, Rev. 72 Most criminal trials (1956). crime, scene immediately upon State before of subpoena with a staff equipped process are rarely repre- Even defendants jury. pecunious grand And, course, the sented at that by investigators stage. receives assigned representation long defendant indigent without the aid of and usually after the trails have faded expert investigators. have taken some fairness, steps. we
In an effort to assure vigilant of the State be as We have stressed obligation in the innocent it must be the vindication of stressed, We have prosecution guilty. the Canons 19 N. J. Canon (1955), D’Ippolito, *9 Ethics R. R. by (adopted 1:25) which pro of Professional vides in part: duty primary lawyer engaged public prosecution “The of a in convict, justice suppression but to see that is done. The of secreting capable establishing facts or the of witnesses in- highly reprehensible.” nocence of the accused is we held
Recently that a defendant at the time may of trial call for production prior statements witnesses against him Hunt, for use in cross-examination. v. 25 N. J. Mucci, see also State 25 N. J. (1958); 423 (1957). here asks further,
Defendant that we and authorize go pretrial inspection of statements witnesses. prospective We are not take that prepared to without fuller step experi- ence with the and practical of Hunt more informa- operation tion respect other experience jurisdictions which disclosure exceeds what is now permitted here. rule
Our of court the relief here bars presently B. B. 3 :5-ll sought. provides: “Upon filing any motion of a defendant made at time after accusation, prosecutor or the indictment the court shall order the permit inspect copy photograph designated and the defendant or books, tangible objects, papers or other than written documents by or or statements confessions made obtained from defendant justice belonging may, so the defendant and if interests permit require, prosecutor inspect order the defendant by photograph copy or or written statements confessions made designated books, tangible objects, papers or docu- defendant except or ments from others written statements obtained confessions.” added) (Emphasis A rule revised or ordinarily except should not abandoned The nature of exercise of the power. an rule-making it should at a explored judicial is such that problem at seem to be may conference such time as consideration to the end that so important proposal appropriate, full rather than the naked be considered upon hearing which chances to come record of individual case before was here us. there no which would showing We add *10 R. R. 3:5—11 under invite relaxation of provisions R.R. 1:27A. The trial denied the motion in properly compliance court with the rule. but without preju-
The affirmed judgment accordingly renewal in- dice prompt application defendant’s No costs. own statement. spection views, J. observations Wacheneeld, (concurring). the late and reasons of Chief Justice Vanderbilt in State Tune, 13 J. 203 are as just applicable N. (1953), cogent then, and I vote to affirm on the were today they grounds there expressed. Burling
Mr. concurs in this opinion. Justice For without Justice Wein- prejudice—Chief affirmance and Justices traub, Jacobs, Heher, Erancis and Proctor —5. For in toto—Justices Wacheneeld affirmance
Burling—2. notes witnesses. intends offer as We defend- denied the motions. granted trial court The appeal. ant leave to I. inspection for defendant’s motion first We .shall consider will be his own “which or confession statement any holds con- concedes at the trial.” State offered offer. it intends to fession which Cicenia, this court declined 6 N. J. 296 (1951), In v. State his inspect an absolute right a defendant has to hold proposition as well rejected but statement own inspection may never be ordered. The court adopted intermediate view that inspection may be ordered inif sound discretion of the trial judge interests of justice should so require. Tune, The issue arose in J. 203 again N. There (1953). the trial court ordered its inspection but order was reversed a vote of four Both by to three. opinions Gicenia, claimed adherence but dis- principle senters viewed the majority an effective application renunciation of it. Mr. Justice Brennan said for the minority : (at page 230) virtually our in “But decision this case we have made sterile principle any of State v. Cicenia. .1 cannot conceive confession, case inspection allowing example, which an order of a say, do, will be if sustained we can as we in the circumstances Judge Speakman allowing of this case in committed error in an spection.” This has since been made appraisal 53 Col. L. by others. Rev. 1161, 1163 29 N. L. (1953); 1140, Y. U. Rev. 1141-1142 (1954); 39 Va. L. 978 (1953). Rev. Gicenia, We subscribe to the rule of now embodied in R. :5—11, R. 3 and also to the view majority Tune that “sound discretion” means “one that is neither arbitrary, nor fanciful” N. J. In vague page 222). at (13 some an areas exercise discretion must remain necessarily Here, intuitive to a set response however, of facts. some be, criteria can be guiding prescribed and hence should