*1 JERSEY, PLAINTIFF-APPELLANT, STATE OF NEW v. JOHN MOFFA, DEFENDANT-RESPONDENT. Argued October 1961. Decided December *2 Heine,
Mr. Norman Camden County Prosecutor, argued the cause for Jr., appellant Gretzlcowshi, M. (Mr. Stephen Assistant Prosecutor, on the brief).
Mr. Tomaselli Joseph the cause for argued respondent Tomaselli, (Messrs. Malandra & attorneys).
The opinion of the court was delivered by C. J. Defendant Moffa was indicted for Weintraub, Butler suborning Blevins to testify before a Camden falsely County grand violation of N. S. 2A:85-14 and and (aiding abetting) N. J. S. 2A:131-4 swear (false The indictment ing). quotes portion the testimony of Blevins to be Moffa alleged false. in sought pretrial spection the balance of Blevins’ (1) and statements Blevins (2) given by to the prosecutor. The trial court the first granted and denied the request second. Super. 1960). The State (Cty. obtained leave to and we certified appeal the case while it was pend before the Division. ing Appellate
R. R. 3:5-ll provides: “Upon any filing of a motion defendant made at time after accusation, prosecutor of the indictment or the court shall order the permit inspect copy designated photograph the defendant and or books, tangible objects, papers or documents other than written by statements or confessions made defendant from or obtained belonging justice may, to the defendant if so and the interests require, prosecutor permit inspect order the and defendant copy photograph by written statements or confessions made designated books, tangible objects, papers or docu- except ments obtained from others written statements or confessions.” Johnson, In State v. 28 N. J. 133 we held this rale bars pretrial inspection of statements obtained prosecution from witness. State contends The the grand a witness Blevins is a statement of within the We rule. cannot agree.
Blevins contains his act, criminal Moffa what alleged is, seeks the scene of crime. figuratively, view of *3 Moffa,
To maintain its case must State against prove not that he asked Blevins to swear but only falsely also that Blevins did in so. commis fact do That sion of the crime by the suborned must be shown person was assumed 5 without discussion in State v. N. J. Taylor, 474 v. 16 N. J. 373 and (1950); State Caporale, Scott, 12 N. 1934), J. Misc. 278 Ct. (Sup. Wharton, uniform elsewhere. 3 supported by authority 1321, Criminal Law Procedure (Anderson 1957), § 687-88; Jur., at 41 74, Am. at 41 pp. Perjury, p. § 79, 70 549 (1942); C. S. Perjury p. (1951). § Thus Moffa stands in the shoes of Blevins with to much of the as respect so indictment that Blevins alleges If defendant, swore Blevins were the his falsely. right In his be clear. inspection Johnson we held defendant should have pretrial inspec trial, his if it to for tion of confession he needs prepare shows such will hamper unless the State disclosure There is even more reason an prosecution. to grant which access to the he com accused allegedly to the end that his counsel see whether crime, mitted a may did occur in he light the criminal event everything with before a charged said. So one grand jury 222 testimony. of his been granted pretrial inspection Rose, 1954); Cir. 629 617, (3
United States v. 215 F. 2d 246, 250 Cir. v. 191 F. 2d Remington, United States 580, 907, 72 Ct. certiorari 343 S. denied U. S. 1951), White, F. 104 96 v. L. Ed. 1325 United States (1952); is the more evident N. J. 1952). Still Supp. (D. was not course he need of the suborner since of alleged He when that offense was committed. present allegedly an inspection issues can know what factual or hardly legal reveal until he has had it. may to so much
A defendant cannot be confined
And if there is
relevant.
scene as the
believes to be
State
trial,
view before
cause, he should have the
no outweighing
v. Murphy,
for that event. State
the better to prepare
Winne,
v.
172,
2d 622
In State
36 N. J.
175 A.
affirmed 27 N. J.
120,
1953),
Ct.
27 N. J.
(Cty.
Super.
a former prosecutor,
Div.
(App.
Super.
examine the
was
nonfeasance,
with
permitted
charged
Bunk,
Here there in favor policy it. The stresses the State deDy none R.R. 3:3-7. jury proceedings. the trial, it would bar disclosure before barred If this policy invasion the Nothing suggests at the trial itself. as well it at the Hence the one time than other. be less at in favor of secrecy outweighs the policy is whether question the whole truth. adjudged upon be that guilt the demand involved, was resolved it when the issue was If a policy The lifted the thereby started. State veil. was prosecution
223 It may not limit the trial to a of what glimpse happened; relevant everything must be revealed. been our long rule before that proceedings
a grand jury may be disclosed if justice so Thus requires. a witness may as to testi queried present whether mony accords with his testimony before grand jury. Bovino, State v. 1916) ; 89 N. J. & 586, L. 588 A. (E. Silverman, State v. 100 249, 1924); N. J. 252 Ct. (Sup. L. Goldman, State v. 14 N. J. Misc. 463, 1936). 465 Ct. (Sup. In Samurine, State v. 47 172, N. J. 178 Super. (App. reversed Div. on other N. J. 27 322 grounds, it was stated defense entitled trial grand jury witnesses, for testimony of cross- purpose We examination. so where held it the witnesses appeared had examined their before the stand. taking Mucci, 25 N. J. 423 We full ordered (1957). exploration minutes when a grand jury presentment reprobated public official. In re Presentment Camden County Grand R. Jury, R. 378, (1961); Donovan, See also 129 N. 3:3-9(c). J. L. 1943). The
(Sup. situation before us fits within easily doctrine those decisions. We are referred to Co. Pittsburgh Plate Glass v. United States, 360 U. S. 79 S. Ct. 3 L. 2d 1323 Ed. That case involved a call for at trial the grand for use witnesses on cross- government All examination. members of the court agreed that had, principle could be but divided 5 to upon whether was there required showing made. “particularized need,” failed find a while it was evident. decision thought dissenters Our in Mucci accords with theme view. as But, dissenting case, to the it cannot be said the present majority opinion Plate Pittsburgh supports Glass the State. Here the broke the seal when it State itself charged swearing situation, As before the grand jury. dissenting Plate Glass Pittsburgh cited with approval *5 Rose, F. 2d and United 617), United States supra 2d in which v. Remington, States F. supra (191 with before were jury defendants charged grand of their testimony. granted pretrial decisions, for probably made no reference to those If the are with its thesis. reason that they compatible aof testimony jury uses prosecution part grand see to witness, of the defendant need” “particularized clear used seem if what is upon else bears anything enough. is that to reveal all of the suggested him with “tamper”
Blevins would enable defendant to pro- to respect with policy ceedings possibility. was to designed against guard sub- Actually there is no connection between special whether same jects; possibility tampering the witness made his before statement elsewhere. worse, the
If one means “intimidate” or by “tamper” answer revealed. is that Blevins’ has been identity already Blevins If means that defendant induce “tamper” might in- to in the change portion charged false, already of his dictment to be much in the if it is meant Finally, been disclosed indictment. persuaded falsely away that Blevins might explain testimony, in the balance of his that possibility something too the need for a fair oppor- conjectural outweigh the criminal did occur whether event tunity investigate This is much one we held in fact and in law. objection in Johnson when advanced defeat pretrial insufficient Indeed, own a defendant of his statement. inspection by was since of course context, the possibility greater in that for a in the “tamper,” easier it would be stated, with his own to enlist testimony than just sense We should not bar a pretrial connivance another. the criminal event itself of a because investigation *6 fear speculative the will be over- fact-finding process whelmed by criminal activity.
We add the State does not that Blevins’ assert testimony included matters unrelated to the alleged If his swearing. testimony did, the court of course could exscind the upon State’s whatever irrele request is clearly vant to the offense charged.
We see no the misuse of trial court’s discretion. The order affirmed. I dissent. The (dissenting). has majority
Proctor, no case cited a defendant is entitled to holding pre trial disclosure of another before a testimony given by there is no grand jury. Certainly such this precedent State. Grand are secret. proceedings traditionally Co., United Procter & See States v. Gamble U. S. 2d 1077
78 S.
L. Ed.
In United States
Rose,
in its and to to indictment or importuning grand jurors; (3) prevent friends from their perjury tampering mevy or subornation with the witnesses who testify grand jury appear and later at trial those before by it; encourage (4) indicted free and untrammeled disclosures persons respect who have information with commission of crimes; protect (5) innocent accused who is exonerated from investigation, he has disclosure the fact been under and from expense standing probability trial where no there was guilt.” (Emphasis added) The defendant is accused of Blevins to suborning testify before the It falsely jury. likely that Blevins will be witness for the State at the trial. In such a situation, there is in the particular cogency reason for e., i. secrecy, “to subornation of prevent tamper- with the who witnesses ing may testify before grand jury It it.” indicted by later at trial of appear those finding
seems
me
reason
ignored
pre-
in allowing
“no misuse of the trial court’s discretion”
More-
testimony.
trial
Blevins’
on
over,
was based
the trial
exercise of discretion
court’s
“The
of the State’s
said,
premise.
impeachment
faulty
or con-
inconsistent
witness on the basis
principal
prior
a Grand
oath before
statements made under
tradictory
such
a trial. Before
Jury would
effect on
important
access to
would need
fact can be established defendant
shows
course,
if defendant
the trial
Of
testimony.”
*7
have
he
for the
should
“particularized
testimony,
need”
States, 360
Plate Glass Co. v. United
Pittsburgh
it. Cf.
L.
2d 1323
And
79
3
Ed.
1237,
U. S.
Ct.
S.
time
him
adjourned
adequate
the trial should
to give
examine it. See United States v. Spangelet,
to properly
event,
the
In such
none of
calculable.” Rose, v. supra, in United States the situations Unlike F. 2d 246 Cir. Remington, States United is approval by majority, cited with also his own asks to examine defendant- case where the defend cases, In each of those jury testimony. before the grand committed indicted for ant was jury; none of the reasons for quoted maintaining secrecy of grand were As jury testimony applicable. 2d,
court in Rose said at 215 F. 630: page “Since transcript all the defendant desires of his own testi- mony, sanctity transpired Jury of that which before the Grand hardly question. addition, In such disclosure would not subvert any traditionally given inviolability the reasons for the of Grand Jury proceedings.”
This Mucci, court’s decision 25 N. (1957), does not support the view of the There majority. a copy of the grand jury State’s witnesses was given defendant at the trial for the cross- purpose The examination. Pittsburgh Plate dissenting States, Glass Co. v. United supra, with which the majority apparently agrees, only that access to recognized the grand should been afforded Ed., at the trial. 3 L. In (See pp. 1330-32.) that case after principal witness testified on prosecuting direct examination, defense counsel asked for the production of his relevant grand jury testimony. trial court’s denial was affirmed request by the the court. Brennan, Justice for the four speaking dissenters, repeats the reasons for enumerated in *8 Rose. He concluded that at the posture case none of the reasons were He said: applicable. “Certainly stage proceedings disclosure at this of the would not ** * tamper the defendants enable with the witness who already against testified them on direct examination.” [360 1244.] U. S. 79 S. Ct.
I no have with the views of Justice Brennan. quarrel When the reasons for in cloaking grand jury testimony secrecy disappeared, the cloak be lifted. should As stated, I have such disclosure of testimony well be might in present in order the case at the trial when the need for secrecy may disappear.
And, County Camden course, In re Presentment by Grand the majority, 34 N. cited Jury, by J. is following as is no trial an accused inapplicable there a presentment further jury without grand grand Donovan, L. 478 action. And 129 N. J. (Sup. There cited, fact, also lends this dissent. weight were entitled the defendants expressly court stated to ask for the of the before the grand details evidence given L., 483. jury. at p. I am authorized to say would reverse. Justice
Hall in this dissent. joins am with view I in accord (dissenting).
Hall, in the of Justice Pkoctok expressed dissenting of witness be disclosure of pretrial in this on the fore the is not permissible grand with precedent respect grand bases of both policy was deliber be added that jury secrecy. policy may on foundation of ately precedent, established B. 3 :3-7: “The court what now when this adopted B. as to proceedings requirements of this remain as heretofore.” In the context jury shall the witness’ testi case, only permit discovery this trial, for of him (or, use cross-examination mony, before if a were with charged swearing of his own pretrial jury, in the As the comment rule body). before that 38, states, the federal (1948), p. regulation Tentative Draft A.) Criminal Procedure 18 U. C. Buie S. 6(e), (Federal so, no case is which lenient. Even federal cited is more If as the we are to majority. change policy, as far goes in a done, not rule by going beyond par it should it after full as but review here, by amending case ticular many considerations involved. and reevaluation me, here Moreover, underlying question really one of extent to which significant more the broader a criminal be allowed defendant. should discovery *9 The implications of the seem majority opinion far-reaching in two directions: first, examine, in advance right trial, or any all witnesses before the testimony grand jury, which is case; second, the real issue in this the cognate right inspect statements witnesses obtained by the prosecutor. While the latter issue is not directly presented, the rationale of the could well serve majority as a when it springboard is again urged. too,
Here, we are a rule, concerned with B. B. 3:5-ll in the quoted opinion, which declares majority policy and fixes limits and, not to be on an again, ought enlarged hoc, ad case, case by basis. This court so said as to this Johnson, rule in very 143 (1958). Adopted 1953 as field, our initial venture in this vexing not, it does in my opinion, authorize the here discovery either letter or permitted spirit. The of a testimony witness obviously object or obtained tangible paper from or or to the defendant or belonging statement con- fession made the defendant. And it can be said hardly be within the books, intendment “designated tangible objects, or papers documents obtained from when others” the rule expressly from classification excepts “written statements confessions.” “a view Calling crime,” of the scene of the as the does in majority seeking analogize the situation to of a physical object, seems me a rather The character- transparent disguise. ization cannot the essential nature—it is still change witness, of a which not within B. 3:5-ll. permissive scope B. limitations,
To than the matter probe deeper of rule on expressly the broad grounded application that, rule, of our proposition regardless defendant should entitled to examine before trial every case jury witness “to his defense” every prepare provide and “to defendant an a full equal opportunity for presentation and fair the available evidence which is now available to the State.” While the unilaterally *10 deals a ease of subornation
directly only -with its jury, implications before the swearing to other any seem to me reasoning equally applicable pretrial criminal defendant situation so as to permit any rationale, Nor, access under the to all grand testimony. I do for distinction between perceive any solid basis them and statements jury testimony given of witnesses to the prosecutor. major- through
The inferentially main thread running use justice (to is that the interests of ity require a witness’ of the pretrial inspection criterion rule) defendant presents whenever the grand jury testimony be might or defense that some factual possibility legal is hard to imagine It testimony given. from developed show- this a could not make broad ease where meets me, that such indicates ing. majority, need” a “particularized defendant’s to demonstrate obligation to the State thereby and shifted the burden that why demonstrate should be granted. While, course, this the decision does not explicitly go far, seems the future trend in that direction foreshadowed. addition, In this I view to reverse what clearly appears understood to be the criminal proper any approach where the discretion of the trial discovery legal matter involved. judge without that of the concept goes saying
as I view it would criminal automatically expand result in this Whether this discovery very greatly. is a subject is desirable much mooted throughout with Eor a review comprehensive country, many angles. Goldstein, numerous see “The State aspects, Pro in Criminal The Accused: Balance Advantage In Johnson cedure,” 69 Yale L. J. in effect we would N. this court said Jat p. fuller with B. R. 3 :5-ll without experience not go beyond of the implementing its practical operation (including with more information cases without date) respect to where the experience prac other jurisdictions tice is liberal, more explored studied and thoroughly at a judicial conference. No such study exploration has been had. Without am it, depart I not willing from the present limits of our law and start along road the instant decision seems bound to take us. My personal reconsideration, necessarily one, limited *11 many-sided leads problems to the conclusion that present further of enlargement too discovery fraught with the of possibility to the interest grave damage public in too and many eases for fair necessary treatment of the criminal defendant in This most situations. seems true in especially those of crimes types closely affecting public interest where law enforcement has not been effective, into which including governmental corruption, falls, class the case at bar and lawless organized gang ness, in which it is common trial knowledge perjury intimidation witnesses are at least prevalent. more this specifically situation,
Looking particular on some even broad basis of need” “particularized fail apart from the rule I to see present where de fendant makes a sufficient to warrant the exercise showing a trial his discretion in favor. The judge’s allegedly relied is set forth upon verbatim indictment. When at oral questioned counsel argument, that he gave impression wanted inspection primarily look for indications retraction of the testimony and admission of its witness falsity by the later on same examination. This would not be to wash out enough witness, criminality Kowalczyk, 51 (1949), and insufficient to absolve equally the defendant it of subornation if were that he proved corruptly procured witness first to so testify common (At instance. law, was a subornation crime it separate because was con sidered a serious than more offense itself. Perkins, Law Criminal Even if 393-395.) rule of Kowalczylc otherwise, were proof defendant’s would warrant to testify falsely
solicitation the witness subornation. for attempted under this indictment conviction kins, cit., 395. Per op. the order reverse that part
I therefore vote to from. court which is appealed trial and Justices Justice Weintraub, For affirmance—Chief and Schettiho—4. Jacobs, Fbaitcis and Hale—2. For reversal—Justices Pbootob