*1 JERSEY, PLAINTIFF-APPELLANT, THE NEW STATE OF TUNE, v. JOHN HENRY DEFENDANT-RESPONDENT. 25, 1953—Reargued
Argued May June 25, 1953. Decided June *4 Mr. Qaulldn, Edward Essex Prosecutor, County argued cause for the appellant Ash, Albert M. (Mr. Cape May Prosecutor; County Mr. Vidor Carton, J. Monmouth County Prosecutor; Mr. Cohen, Mitchell H. Camden Prose- County cutor; Collester, Mr. Donald G. Passaic County Prosecutor; Collins, Mr. John D. Morris Prosecutor; Mr. E. County Hannold, Milton Prosecutor; Gloucester County Mr. Herbert Heisel, Jr., T. Prosecutor; Hunterdon County Mr. Fred- A. Prosecutor; Robert Mr. erick Hudson Law, T. County Morss, Jr., Prosecutor; Mr. H. Russell Lederer, County Ocean Parker, T. Burling- Mr. Harold Prosecutor; Hnion County Pur Prosecutor; sel, County H. Warren ton Mr. John County Prosecutor; Scott, Atlantic Prosecutor; County Mr. Lewis P. Prosecutor; Mr. County Mr. Smith, William R. Salem Prosecutor; Mr. County H. Cumberland George Stanger, County; Towe, L. Attorney-General, Bergen Harry Deputy Prosecutor; Mr. T. County Mercer Volpe, Mr. Mario H. counsel; Prosecutor, of Wharton, County Somerset Girard Mr. Adrian Prosecutor; JSber, County Alex Middlesex Mr. Prosecutor; P. and Mr. Melvin Hommell, County B. Sussex Essex on County, Assistant Prosecutor of Amtell, Legal brief). the cause for the Danzig, respondent
Mr. Charles argued J. counsel). Bdward Gilhooly, (Mr.
The was delivered by court opinion jury the grand C. J. On October Vanderbilt, 7, defend- Essex returned an indictment County charging body morder Prather. The ant with the William 23, in the August discovered on basement the police The was arrested by decedent’s home. and taken the same day Newark after noon on shortly he There to Newark Police questioning. Headquarters that he had an oral statement to the police, admitting made confession crime, committed the and then signed 14-page from his statements had prepared longhand which been office. county prosecutor’s the detectives from the one of statements signed office later obtained prosecutor’s than defendant. other persons County 1952 the Essex Court appointed On October On act for the defendant. as counsel attorneys two on Court County counsel January applied for: county prosecutor notice to directing subpoena issue the order of “An order that a under produce you requiring you before the Court Court directed to *5 prior by any Court, at a time to the trial and as fixed the state- writing will, trial, alleged ment or statements which at the be signed by defendant, any together have been the above named with by any signed person and all or statement statements other con- indictment, nection with the homicide set forth in the to the end any may inspected attorneys of such statements be for prior the defendant to the trial.” In the same motion counsel made another for application order: “Directing you, County Prosecutor, Essex as to the disclose
undersigned, attorneys defendant, for the the names and addresses ’persons having knowledge of all of relevant facts in connection with alleged indictment; or, alternative, the offense in the aforesaid in the you, directing County Prosecutor, that an order issue submit to written statements obtained as Essex interrogatories you copies wherein shall set forth of all you any from the defendant or other person having any knowledge concerning of relevant facts charges indictment; or, laid in the aforesaid in the alternative again, directing you, Prosecutor, County that an order issue as Essex permit attorneys defendant, acting for someone on behalf, inspect copy any their statement or statements in writing allegedly signed by which have been the above named defendant, together any signed and all statement or statements by any person other in connection with the homicide forth in set the indictment.” The motion set forth the for the following applica- grounds tion: “(a) sought by attorneys The information for the defendant necessary proper preparation defense, prepara- of the trial, presentation
tion for of the trial defense the aforesaid Indictment. production (b) A denial of of this information and denial of the aforementioned statements injustice hardship defendant, will result in an or undue to the contrary promulgated by Supreme and be to the Rules Court Jersey. of New (c) granting sought by of the relief this Motion is within the discretion Court and the of this circumstances of this case require that such discretion be exercised favor of this Motion.” Attached to the was an motion affidavit counsel setting should application forth reasons why granted. filed affidavits The State no opposed applications, 3, 1953, On the court February thereto. filed opposition *6 an opinion the defendant his granting inspect the to right confession, the other to denying application inspect statements in the possession Before such prosecutor. an entered, 18, order was State, on February moved “for a motion,” and continuance of reopening officers, said with accompanying motion affidavits of two police doctor, and a citizen court, witness. The although grant- the State the ing affidavits, to file these declined right to alter its opinion, entered an order thereupon granting the defendant to his own confession but right inspect of the inspection statements of others. State’s denying The for petition certification and defendant’s cross-petition were both granted by us.
We are first faced with an raised objection by to jurisdiction our a matter where review no final has judgment court, been entered a trial Rule 1:5-3. It note, however, is sufficient to that we have not hesitated to waive the rule and to decide similar matters where to do so best justice, would serve the ends of Hendrikson v. Koppers Here, Inc., 11 N. J. an (1953). important Co. of law has been raised a defendant under indict question by ment life for taken the of another as to his having rights trial. In view discovery order entered prior by court, the trial is of such moment we question should time, it at would resolve for otherwise it never be liti If the defendant were could acquitted, gated. and if were convicted, the defendant he would have appeal, from the order him an no occasion appeal granting inspec his confession. tion of are before us whether the defendant questions is an inspection
entitled to statements (1) by signed per- defendant, and than the statements signed sons other (2) defendant.
I. Defendant argues keeping modern trend toward liberal civil we discovery should proceedings him the all grant unqualified papers in this State, in the possession documents other With witnesses. the prosecutor
case
made to
statements
completely ignores
an argument
this we cannot
Such
agree.
pro
criminal
civil
difference between
the fundamental
criminal,
civil or
judicial proceedings,
any
ceedings.
fullest
“to promote
discovery
of broad
purpose
facts,
opportunities
minimize
possible presentation
for
of trial
evidence, and eliminate the vestiges
falsification
by
combat,”
“Liberal
60 Yale L. J.
(emphasis supplied).
trial are essential
for
discovery
preparation
procedures
truth
in which the search for
system
modern
judicial
and in which concealment and
in aid of justice
paramount
*7
Home
are
be
v.
Lang Morgan’s
not to
tolerated.”
surprise
333,
However, such
6
J.
338 (1951).
N.
Equipment Corp.,
blindly
not
to be used
procedures
liberal
are
fact-finding
the
In
result would
to defeat
ends of justice.
where the
the courts
criminal
has
experience
taught
proceedings long
lead
to honest
discovery
fact-finding,
that often
will
evidence.
and the
suppression
on the
to
contrary
perjury
whole
against
Thus the criminal
is aware of the
case
who
set
in order to
testimony
up
him will often procure perjured
423-4,
defense,
Rhoads,
397,
81
a false
v.
Ohio St.
State
A., N.
186,
1910);
91
27
R.
558
Ct.
192,
(Sup.
N. E.
L.
S.
167,
12
170
Mead,
(Mass. 1858).
v.
Gray
Commonwealth
the criminal
full
would be
discovery
Another result of
informed of
all
who is
the names of
of the State’s
take
to
witnesses
bribe or
them into
steps
frighten
or into
themselves
perjured testimony
so
giving
absenting
Moreover,
are
to
wit
they
testify.
many
unavailable
if
nesses,
they know that the defendant will have knowledge
trial,
of their names
to
will be reluctant
to come
prior
forward with
information
investigation
during
crime,
Carlo,
484, 485-6,
Di
292 N.
v.
161 Misc.
Y.
People
S.
1936).
Ct.
All
these
are more
(Sup.
dangers
in criminal
the defendant
inherent
where
has
proceedings
stake,
life,
pro
much more at
his own
than in civil
often
criminal
presence
perjury
proceedings
ceedings.
courts to eradi-
today is extensive
efforts of the
despite
cate it and
constitutes
serious threat
adminis
very
tration
justice
of criminal
and thus to the welfare of
Hibschman,
Do
country
Solemnly
a whole.
“You
Swear!
”
Or That
Perjury
Criminology
Problem
J. Crim. L. and
of all
To
disclosure
state
(1934).
permit unqualified
ments and information in the hands of the
would go
State
far
what
would
beyond
cases;
civil
it
defeat
required
ends of
very
justice.
must
considering
it
be remembered
problem
of the defendant’s
and statutory
view
constitutional
self-incrimination,
has
protections against
State
no
whatsoever to demand an
his documents
him.
to take his
submit
deposition,
or to
interrogatories
Rhoads,
stated in
procity possible. is The State could not examine defendant consent, any before trial without his nor could rule court force such examination.” Except its right to demand particulars from the defendant as to alibi any on which he to intends Rule rely, 2:5—7,the at completely defendant mercy who can produce evidence at the surprise trial, can take the or wishes, stand not as he can generally introduce any sort of unforeseeable he evidence desires in own his defense. allow To him to discover the prosecutor’s whole case against insur- almost task he make the prosecutor’s
him to would mountable. ours. from differ does not rule in the federal courts are ap 17(c) 16 and Rules Criminal Procedure
Federal
here
2:5-8 (c)
our Rule
identical to
the latter being
plicable,
in
adopted
has
been
16, which
Rule
involved. Federal
State,
provides:
filing
“Upon
at
time after the
motion of a defendant
attorney
may
information,
for the
court
order the
indictment or
inspect
photo-
copy
government
permit
or
to
the defendant
to
objects,
tangible
books,
graph designated
papers,
ob-
documents or
belonging
others
or
tained
the defendant
obtained
from or
to
may
sought
by
showing
upon
process,
the items
or
seizure
request
preparation
of his defense and that
be
to the
material
is reasonable.”
provide
part:
Rule
and our Rule 2:5-8(c)
Federal
17(c)
objects
books, papers,
may
or
documents
“The court
direct
designated
subpoena
produced
court at
txme
be
before the
they
prior
prior
the time when
are to be offered
the trial or
books, papers,
production permit
upon
their
evidence
inspected
objects
portions
or
or
thereof
documents
parties
attorneys.”
and their
The federal
held that
many
courts have on
occasions
has
In Gold
no
unqualified
inspection.
right
S.,
993,
man
at
v. U.
U.
S. Ct.
page
S.
995,
mit for obtained or the adverse party, attorney, surety, indemnitor, agent anticipation or litigation preparation and in for trial unless the court other ground production inspection wise on orders that a denial of or injustice hardship; will result ponent in an or undue nor shall the de required produce inspection any part or submit attorney’s writing impressions, of a whieh reflects an mental con clusions, opinions, theories, legal or, except provided 3:16-34, expert.” Rule conclusions Rule 3:16-2. See Hickman Taylor, 329 U. S. 495 (1947), affirming 153 F. 2d the doctrine which has establishing been sub- stantially incorporated our rules, into 3:16-2, supra. then Clearly there is even more reason for withholding , n (cid:127) such documents in criminal s proceedings already pointed “As out the Rules of Criminal Practice contain provision discovery practice no for the liberal created the Civil sought Rules. If there is no to the kind of documents here cases, discovery practice exists, in civil where in the absence of injustice hardship, certainly or undue there is more reason for with- holding such documents in criminal causes. There- *10 reports
foi'e, confessions, investigation of witnesses and statements prosecution might as ‘the well be classed in a criminal obtained against protection granted product prosecutor’ and work of the Bunk, inspection by v. 63 in of State the defense advance trial.” supra, A. 2d 845. has no right that the defendant We therefore conclude in this product prosecutor, of the work discovery defendant. than the others by case the statements signed and cases exceptional Such in the most only documents can to the turned over the most unusual circumstances be shown are defendant for No such circumstances inspection. here.
II. a The whether the defendant has next is question under Rule in this case to own confession inspect above, to Rule of 2:5-8 which is identical 17(c) (c), quoted The defendant’s Rules Criminal Procedure. the Federal of treated in a different necessarily confession is light other in the hands of the prosecutor. that of the documents S., 838, 845, 2d 11 A. L. Thus, v. 174 F. R. 2d in Shores U. 8 in his Johnsen, 635 A. 1949), Judge opinion (C. court, stated: by confession, and “The relation to control a virtue of court’s instrument, an and status of such would seem to be the nature inherently ordinary than as to the elements of Gov- different obtaining place, first a case. In the confession ernment’s custody only possible which law affords. made because is Again, delicacy recognizes the a law involved such situation responsibility special imposes a official relation to its validitj' met, Objective taking. must also it standards of being possessed only of the confession of such a is validity on basis legally recognized bespeaking any it at all certainly conviction, implement ought its truth truth. And as up, strength even after a have to stand defendant’s re- by defendant, therefore, reading a mani- it. Such a statement
festly
part
prepara-
of the ‘eatch-as-cateh-can’
is more than a mere
case,
product’
personal
which
into
our American
‘work
tion
reluctant,
traditionally
concepts
more
been
so even
forensic
have
cases,
permit
prowling.”
adversarious
in civil
criminal
than
Cicenia,
300 (1951).
N. J.
v.
See State
We have in New Jersey set up adequate safeguards
criminal defendant
protect
by
from being prejudiced
the admission in evidence
him
statement
signed
which has not emanated from his own free will. Such a
statement offered
State must first
the test of
pass
admissibility.
burden
on the State to show that the
confession was
Here the trial
voluntary.
judge hears
evidence
determines the
voluntariness of
proffered
confession. As stated in
N.
Vaszorich,
J.
: “The essence
(1953)
is whether in
inquiry
obtaining
the confession there was observance
fundamental
of That
*11
fairness essential
to
The aim
very concept
justice,’
of
of
of due
is
exclude
requirement
process
not
to
pre
false evidence, but to
fundamental un
sumptively
prevent
fairness in the use
false,’
of evidence whether true or
Lisenba
v.
People
California,
219,
State
314 U.
S.
S. Ct.
of
280,
theAt as to the preliminary hearing admissibility of and the confession officers other witnesses police can be called stand testify to the to as to circumstances under which the confession was The defendant can take the signed. stand himself or witnesses to produce dispute char voluntary It after only acter of confession. is the trial has judge heard this decided that the testimony confession inwas that it is admitted in voluntary evidence, fact and then after evidence the admission into confession is whatever given decides to accord it. It jury may totally weight disregard it determine that it, may confession is trustworthy in whole or part. such it certainly
In view of cannot be safeguards seriously that a defendant criminal contended is not proceedings Dean in the his confession. use of protected properly as the admission the view that liberal rules to takes Wigmore should be adopted: confessions only danger place, in' a con- “In real and weakness the first character, danger a a false statement—is of slender fession—the rarest occurrence. No trust- and the cases of that sort are of the worthy they exist; figures instances are con- of authenticated receiving cededly question Now if it were a the confession few. e., equivalent plea guilty, might conclusive, we i. as to as extremely early (as prefer under the traditional well practice to be cautious ordinary already described), take and let the trial its giving giving or not one But as it is a mere matter of course. jury, impossible piece it to determine is more of evidence any confession, weight and as the accused beforehand the real weight affecting ample opportunity offering facts has unnecessary confession, entirely all con- it bar out is merely tests, on account fessions whatever broad and artificial falsity. employ an anomalous of this risk of To slender rare indiscriminate exclusion is reasonable. occurrence as the basis of already simply, language of Justice Paxson It in the Chief guilty.” (3 quoted, sentimentalism toward the an exhibition of Wigmore 359.) (3rd 1940), on Evidence ed. after is more shortly apprehension The confession obtained since it statement apt trustworthy spontaneous had the con- made before the has opportunity accused jail verse with the older habitues of the others who defense, aid him in a falsified and encourage preparing Dean Thus perjurious testimony. him give Wigmore, *12 the of continuous by police, upholding legality questioning states: always person by place, helped an “In first innocent is an the - early story; suspected opportunity to tell his whole hundreds of every day story persons are free because their thus told bears set important, every Moreover, guilty of truth. and more the marks person ready always confess, desirous as is almost and soon truth, psychological and arrested. This well known as he is detected judges, ignored by Supreme to be some to all criminal trial seems guilt enormous; pressure nervous of is the load of Courts. The heavy; fear of the deed done is detection fills the conscious- . relieved; ; comes, pressure is and the
ness and when detection deep confession a satisfaction. At that sense of relief makes truly. all, soliciting moment, and it To forbid he will tell tell fly prevent relief, him, is to in the face of human to seek to lawful, natural, nature. It and should to take his confession be expedient, sanctioned, that moment—the best one. And this if delay convicting expense saves the State a in him and he after sensations, yielded has reacted from his first has to his friends’ struggle by instinct himself the aid to save of all technicalities.” (Ibid. 319) Our in experience N. J. 540 Cooper, (1949) State Case, N. J. 532 known Trenton Six (1952), commonly as bears view, out Dean of there on the for point Wigmore’s of he sentencing reaffirmed his earlier Cooper voluntarily confession most of the defendants. implicating
If we were in a we well vacuum be reasoning per- might suaded to reach the conclusion contended the defend- for ant, we are bound to take into account the continually increasing amount of crimes violence are occurring in this State. Statistics the Federal Bureau compiled Trends, 1951-52, Crime in Urban reveal that Investigation, New as well as in the we Jersey United States a whole are faced crime In this rate. ever-increasing reports 134 cities reveal that in there was a increase in over the 1951. The major crimes year 12.1% increase for for for rape, robbery, 0.1% 0.4% 9.8% assault, aggravated entering, burglary—breaking 23.1% theft, for larceny and for auto thefts. The 9.3% 8.2% overall increase in New than Jersey is higher 4% 12.1% in Thus, the increase as a United States whole. although ’ we are ever alert protect rights individual accused, we should remember that of this State people must protected. also of the indi- weighing rights vidual and those must State we not be carried in away our desire to protect individual accused to such an extent safety public We are jeopardized. bound also take notice fact our general police with the common other states police have received yet crime specialized training detection that changed communication, methods use transportation, of modern have firearms made gang organizations necessary justice, administration of criminal commendable though prog- is manifest in a ress that direction of places. number
218 the desire of defense
We can well understand where every particularly see case counsel to the confession made finds on the confession the defendant after having it. But the it is better for himself to wishes forget reflection not the test. This defense counsel are and convenience of a pretrial discovery of defendant to right question court, is not a novel for this his confession problem own Cicenia, 6 J. raised v. N. been State point having the same held: unanimously 296 where court (1951), unqualified right inspection no absolute “A defendant has inspection contrary, application for an his confession. On the judicial to the sound discretion of the trial court to be addressed justice may require only as interest of and with the exercised thought question admissibility in mind that con always (At at matter determination the trial.” fession a for page 3O1) in any permit refuse to some courts Although 133, rule to be 20 L. R. our circumstances, appears Tulane v. State other many jurisdictions, with that consistent v. Haas, People A. 647 63, 1947); Md. 51 2d (Ct. App. 188 v. 2d State 1944); N. Y. Ct. (Sup. S. Skoyec, 598, 1951), 2d 785 Ct. Leland, (Sup. 227 P. 190 Ore. L. 1302. Ed. Ct. 343 U. S. S. affirmed require power to furnish the Government “An exercise course, copy be would of with a his confession the defendant wholly judicial grace. hardly There need a could be matter manifestly copy it, attempt a to obtain where to exercise thereby roving, privilege simply part so that of a blunderbuss right. an absolute But there to reach the stature of would tend judicial such that be the circumstances are cases where justice properly be interest of will best feels conscience copy allowing trial of his before have served the defendant S., supra, 845.) (Shores at v. U. confession.” claimed where it is in the Union only is the state Louisiana confession, of a an inspection exists a there 1945). Ct. 928, 22 2d 273 (Sup. 207 La. So. Dorsey, its own particular on case Dorsey grounded appears says: the court facts, 285 of page opinion *14 prior jurisprudence “It is not our intention overrule the State, by particularly this and the various for cases cited counsel State, pre-trial in each of which was denied codefendants, of written confessions statements written of wit- nesses, police reports police sheriff, department, in the hands of a attorney, or district we do not cases. and overrule these However, opinion we are of that in case rule filed this * * *." behalf on of defendant have been absolute should made It has also been in that this ex Louisiana case recognized a view presses states; inconsistent with the in most holdings 20 Tulane L. R. 133, (1945). view was in rejected Its v. Leland, 785, 190 Ore. 227 P. 2d supra.
The defendant also relies on the full practice of English discovery criminal matters. The law criminal of England differs from that of the materially United States. “The Criminal English Procedure its traditional developed accusa tory characteristics because it largely upon relied system Ploscowe, private prosecution.” The Development of Criminal Procedures in and Present-Day America, 48 Europe L. Moreover, Harvard R. system 469. its of crime detection and is far more advanced than investigation any known in thing country field, the federal and except instincts of the are in marked law-abiding population contrast to the law disrespect which has character long ized the American frontier which has yet not disappeared criminal statistics indicate in certain segments the American population. next arises whether question the trial abused judge discretion defendant the
his granting his inspect confession. The only proof support of the application was affidavit the defendant’s by that attorneys stating they had been the defendant that the informed confession was violence, threats of obtained that the statement through it, him he read read to nor did that the not defendant could contents, its counsel that tell nothing defendant was disorder it, from mental when he suffering signed and that did have benefit of counsel at time, he nor was he his in the matter. The affidavit rights aware further stated: him interview with the accused we ascertained “In our through signed from him which had been exacted had a statement
he force, him and members of threats of violence to duress and family; him and that he did was not read to that such statement it; signing us that he could tell the statement before not nothing read that he have contents of statement about signed; suffering he from mental disorder at the time that he was statement; signed counsel at have the benefit of such did not rights appreciate in the matter. conscious of his time or or be discrepancies investigation disclosed material thus far has Our them been to ascertain the facts as we have able between theory State, ascertain the *15 indicated to of the homicide injustice being prevent from matter and to real truth of the importance is, opinion, be that we in our of the utmost done it copy alleged permitted confession and make a to examine Motion.” and statements to in the referred four presented In to this the State opposition application stated that affidavits. That Detective Lieutenant Neidorf admitted after the defendant immediately orally apprehension defendant was taken to crime, commission of the that the crime, that he the murder where he reenacted the scene of examination by was returned station and after to police the lieu- by a statement was taken in doctor his longhand confession the tenant. After written completion in the of several police defendant read it aloud presence In that the were true. addition and stated contents officers and him one of the officers again it was read aloud to true. The that its contents were affidavit defendant repeated this time the defendant states that all further during time, sober, well-oriented as to places to entirely “appeared events; rational, responsive and he was logical thinking, answers; he was -his and questions, intelligent to faculties; and in his to be appeared coordinated entirely of the crime with which of the seriousness fully cognizant and the The probable consequences.” charged he was being Graef, E. Chief of Police of Deputy affidavit of William forth in Lieutenant facts set corroborates Irvington, He swears that he was present during affidavit. Neidorf’s Neidorf, with Lieutenant both conversations the defendant’s scene where the and at the crime was poliee.station affidavit states he exam- Kedersha’s Doctor reenacted. ined the defendant of the statement prior making sober, and that “I found Tune Henry John well oriented very times, events, coordinated, as to and places and properly full all his and possession of mental faculties not suffering mental any disorders. my opinion prisoner statement to the affidavit capable police.” making William he civilian, T. disinterested shows that Hope, was called to station and shown a written confes- police made sion the defendant. He then took the allegedly defendant aside out of the officers and hearing spoke him in reference to the confession: my response questions, Henry “In said John Tune admitted to me that the confession shown him was his and that its con- true; any promises tents were that none of the officers had made him; any personal him that none of them had threatened taking confession; violence before that he had read the con- aloud; my fession request, it had aloud At been read to him. Henry again said John Tune read the entire confession anything wanted, I him if aloud. asked there was he and he police right, ‘no.’ I him if said asked had treated him all ‘yes.’ permitted said I him if he asked he had been to talk ‘yes,’ had friends relatives he said he been permitted to talk with his wife and uncle. My Henry Tune, interview with the defendant John lasted about my personal ten or From twelve minutes. observation of said *16 defendant, rational, responsive, appeared cooperative, he to be in- telligent, mentally physically every respect.” and well as fit in With these affidavits before it the trial court granted confession, defendant’s for application inspection saying: appear believing prosecutor reasons will be “No that
hampered preparation in his for the trial or that there will be a adversely justice, public failure of or that interest will be affected, inspection permitted. if defendant’s confession is prosecutor’s The case is set for trial two weeks hence and the investigation undoubtedly entirely completed. has is The defendant custody apprehension shortly alleged been crime was since his after elapsed More than two months between the committed. entry case, apprehension present time counsel’s into the undoubtedly during prosecutor made, which and any time could have make, investigation did by, a full of the case without interference impediment many persons or or source. There is no 222
suggestion any way any that the defendant is in connected with organized ring gang tampering or criminal idea therefore the * * * extremely with no witnesses seems remote. While principle applicable all and each can be laid down that cases appears proper facts, case must be decided on its own to be permit copying inspection case to the defendant’s confession.” This to prove the burden on the State language places it will be harmed the defendant’s prejudiced inspection of the this interpretation confession. We cannot agree of the court “may law. Rule 2:5-8 provides (c) In the direct” the and statements. of documents production case, Cicenia we this as supra, interpreted meaning trial “if in the sound judge could order such an inspection so discretion of the trial the interest of justice judge 6 296, N. J. 301. requires.” sound By discretion we mean a in con discretion sonance with well law, established one that principles neither fanciful, Collins, nor 2 N. J. arbitrary, State v. vague 406, 411 Weber, 201, v. 7 N. J. 212 (1949), Hager (1951), Bunk, State v. 4 N. 485 the matter J. Since (1950). rests in the discretion of the trial it is incumbent judge, on the as will moving party produce such facts support rule is in its granting application. This general in all application; criminal, civil or proceedings, moving has the burden party cause for exercise showing good Simon, court’s discretion. 113 N. J. L. See State v. 521, 526 Ct. affirmed 115 N. J. L. 207 & (Sup. 1934), (E. A. 1935); Martin v. Lehigh Valley Railroad Company, N. Inc., J. & A. (E. 1934); L. Eilen v. Tappin’s N. J. Div. 4 Moore’s Federal Super. (App. 1951), 34.08, Practice sec. (2nd ed.), 2450. In page discussing of evidence in pretrial it general is stated in 23 C. “In J. S. 264: order to obtain an inspection, accused must show facts which would warrant the court’s exercise of its Skoyec, discretion.” People supra, where the defend ant had made to the court application for an inspection *17 his confession on that he did ground not remember had said the time what he of his interrogation and on
223 that without it it was to form ground impossible his denied the as to the court motion opinion sanity, saying the defendant had sufficient to warrant not shown facts Pete, the exercise In v. 111 F. judicial discretion. U. S. C., D. D. C. the defendant moved S. Supp. (U. 1953) furnish him of state copies to to require government ments him the or confessions to police. denying made the motion court stated: discovery permitted in “Cases the District Columbia have police, Holtzoff, 4 Barron & confessions statements to the necessary 2032, p. 126, 8, note in it § but them the Court deemed justice
in such dis- the interest of the defendant should have covery. States, supra, page Shores v. F. 2d at 845. See United present showing necessity (Em- In the has teen made.” case no phasis supplied.) See N. Y. 2d People Gatti, 167 Misc. S. (Gen. Sess. 1938). fail hand, rule the case at we to this
Applying war see where the defendant such facts as to has produced rant the exercise court’s discretion grant all, affidavit in application. support First of the only counsel, no motion was that of defendant’s who give the affi reason the defendant failed to make why himself of counsel davit. affidavit is mere evidence hearsay their made them client. various statements repeating civil Such an affidavit would inadmissible a proceeding “When a motion under Buie 3:43-3 which provides hear record, the court may is based on facts not appearing the matter affidavits on presented by respective parties, but the affidavits shall be made on personal knowledge shall set forth facts which are only admissible evidence and to which the affiant is We see no competent testify.” why reason same is not a applicable to criminal reasoning where as here the proceeding, especially Where, here, asserting requesting privilege. the defendant relies his motion facts, on certain making which are within his own peculiarly it is incum knowledge, him bent these facts upon before the court bring *18 in a hear- them to the court own affidavit and not to present have defendant wishes to affidavit counsel. If the say confession, he should set the his own privilege inspecting of this the forth the facts particular warranting granting have the should in affidavit and the State his own privilege the trial. him at such affidavit to use any against opportunity used this affidavit against He must assume the risk of having affidavit he his falsely him in the event that has sworn to obtain a desired result. order defend for the
Moreover,.the affidavit of counsel ant, unacceptable if it were not hence hearsay even facts as will circumstances, support fails to disclose such the affidavit sets forth the Counsels’ application. granting was exacted The confession reasons: (a) following violence; the confession threats of (b) force and through defend (c) read him or him to by prior signing; not contents; of its (d) ant could tell counsel nothing counsel; defendant was suffering (e) was without benefit it; there is (f) a mental when he signed disorder by as ascertained counsel and between facts discrepancy be cleared State, which can discrepancy those alleged As to (a) examination of the confession. an up only by facts conclusions. merely the affidavit sets forth no but (b), force, nor are are as to the threats or particulars given No attending signing we told circumstances affidavits we have the four to this confession. opposition without question which establish submitted State full and defendant’s knowl the confession voluntariness of sufficient As it is its to (c) (d), contents. edge the law does not accused protect against note that & acts, (E. 87 N. J. L. State v. Murphy, voluntary own It is Bunk, 4 N. J. (1950). 1915); A. State v. the accused has settled in this State well statements he at his trial and only counsel him, even used may though against makes to police The fact that without benefit of counsel. was at the time he the contents of confession does not recall he The failure the confession. him an entitle of the affidavit to set forth a reason such lack recoEec- tion and evidence overwhelming opposi- tion thereto make this statement unbelievable. As to (e), we are no facts again given conclusion. As far merely is concerned, this is no valid (f) basis for an again Eor inspection. these reasons we are of the opinion that the defendant as the has party failed moving carry *19 burden of in the proof interest of showing justice his application for an his confession should be the court. granted by
III. enunciated on principles both here under questions have received consideration the “Tentative recognition Draft of the Eevision of the Eules the Courts of Governing the State New distributed all Jersey,” May 11, 1953 to the members of the bar bench and of this State. Therein is set forth a new rule recommended on by Committee Criminal Procedure: Discovery Inspection “3:5-ll and Upon any idling motion of a made defendant time after accusation, prose- of the indictment or shall court order permit inspect copy photograph cutor to the defendant to and or designated books, papers tangible objects, or documents than other by written statements or confessions made the defendant obtained belonging may,
from or to the defendant and if the interests justice prosecutor permit require, so order to to inspect copy photograph or written or statements confessions designated books, tangible objects, papers made the defendant except or documents obtained from written statements or others confessions.” This rule as proposed presented to bench bar 18, 1953, at the Judicial held on unopposed Conference June and will in all part as a probability promulgated be Jersey rules the courts of New effective governing Septem- 9, 1953. that “if the interests of ber providing justice so court the defendant to require” may permit inspect, books, or copy photograph objects, “designated tangible written except or documents obtained papers, others confessions,” the defendant statements or it is proposed have no to inspect shall under circumstances any right mean written statements of This others. would I under Part defendant could not in his prevail application are hereof to the written statements of others inspect which in further pro- in the And possession prosecutor. * ** that “the if the interests may, court viding so the defend justice require, order the prosecutor permit ant written statements or inspect and copy photograph defendant,” rule ad confessions made proposed Cicenia, J. set 6 N. heres to forth State v. principle 296, supra.
To unqualified inspect grant defendant.the trial would him an give confession' before be opportunity and to commit at the testimony perjury. false procure that his con- .It be remembered expense society. must would admitted in after all the fession evidence only have taken forth. necessary been as heretofore set safeguards Moreover, he than one knows its better else contents. Nor can we the fact that it has been ignore customary *20 our trial to allow defense counsel time at judges ample not, trial to examine confession offered in evidence but an course, of time to enable enough rig course, is, a sham defense. of no of way alibi or There which rule effect the better statistically determining would if one is justice hecause course one can never know pursued what would have effect of the course had it been other we do been know result pursued, experience when for one reason or another a new trial has to be granted in a criminal case. successive trial improves Each (cid:127)defendant’s evidence. There cases where the interests may be that the of trial in his sound discretion justice require judge an confession permit to trial. Each inspection' prior on own But case stands its facts. the burden necessarily the defendant to that in the rests on show of justice interest in should be allowed. law inspection such Our this regard as set forth in Gicenia case- elaborated here gives to the and in fact is more liberal accused ample protection behalf that many jurisdictions. on his than of the order the defendant to part inspect permitting is reversed and the of the order his confession part denying the county other in papers prosecutor’s posses- sion is affirmed. That old (dissenting). Jr.,
William Brennan, J. J. hobgoblin perjury, invariably raised every suggested in procedure to make easier the change of the discovery truth, is disinterred again from the where I had grave it was forever under buried thought overwhelming weight rebuttal complete experience our civil supplied causes where liberal has been allowed. The discovery majority opines: proceedings long experience taught “In criminal lias the courts discovery fact-finding, that often will lead honest but on the
contrary perjury suppression evidence. Thus (he against criminal who is aware of whole ease him will often procure perjured testimony up in order to set a false defense.” That reminiscent John startlingly Sir com- Wigram’s ment over years when the to introduce ago struggle discovery Chancery so bitterly waged: “Experience, however, least) justice (at has shown—or courts of country upon principle—that possible in this act mischiefs surprise trial at are more than counter-balanced danger perjury, inevitably which must be incurred when either party permitted, trial, precise against before know the evidence Wigram Discovery (1842), which he has to contend.” on sec. 347.
And, just as the “experience” was non-existent alleged day courts never had Wigram’s [“English any experience all in the matter,” Sunderland, 42 L. J. we 863], Yale have had short, for, none New until Jersey, Rule “long” *21 five 2:5-8(c) adopted and this court years decided ago Cicenia, State 6 N. J. we years v. two ago, followed y common-law rule which denied the accused discovery an then, Obviously, him. against whatever of the State’s ease in New Jersey greater fact increased in that crime has attributable in the as a nowise than nation whole degree The State operation any discovery procedures. to time only here that the told us on the frankly argument oral his exhibit accused’s confession prosecutors willingly will persuade there counsel is when is a chance that counsel expense enter a and save State plea client to that limitation is trial. from the whether question a Apart not primarily consistent function wholly prosecutor’s done, v. Bogen, convict to see that State justice but cf. Vaszorich, 13 J. 99 (1953), N. 13 N. J. 137 (1953), no evidence of practice plainly supplies grudging asserted experience.” “long if that discovery
This liberal apprehension anachronistic will “inevitably” extended causes bring to criminal wake will seem perjury and sinister its serious dangers which when from this court has many coming strange commended for its aggressive sponsorship been generally and in civil pretrial procedures liberal effective discovery evidence, the solid of its beneficial causes can point that justice without defeat of justice results to the cause of doom. It will prophets foretold through perjury only understand without why, -proof be difficult to that hazard we now assume is so some visceral augury, and, is, if causes, why much in criminal it greater “The true is not against perjury 'event refuse safeguard all, for will true at eliminate the any inquiry to permit false, should so conducted inquiry as well but the be the one from the other where as to separate distinguish Sunderland, Certainly are without present.” supra. both in the upon conjecture merely, evidence and face of actual causes, we civil experience our contrary proof ought even life itself causes, stake, in criminal where be in the absence of established a tool clearly danger forswear the chance useful in trial will guarding against so mere wits and the at the result lottery game mercy We must remember the mischiefs of surprise.
229 is society’s interest that the innocent shall not suffer equally and not that the alone shall not escape. Discovery, guilty basically truth, tool is the most effective device yet devised for the reduction of the of ele aspect adversary the ment to a Note, minimum. See 64 Harv. R. 1011 L. (1952).
The discounts the majority point rejection of virtual the the evidence of the in of lack complete conjured danger the results in England Canada under a form discovery of the accused far advantaging beyond embraced anything within what in sought is this case. and Canada England accused, trial, the ordinarily before indictment or is given a preliminary hearing before a is magistrate who obliged to examine witness him every that can be before brought Crown, with the all result the evidence of Crown in the possession is of defense possession counsel and he knows all that Crown knows before the trial see State v. begins, Dorsey, Sup. So. Ct. (La. 1945). Those nations such no as the report consequences majority apprehends. there majority is suggests a difference on the based private prosecution be technique tween the criminal law of and that of United England States. The relevancy of the difference me. The escapes State on the oral argument suggested another ground difference, namely, we are a less law-abiding people than we British. If assume that this so, how explain the like experience our Canada between whose neighbor mores and own our are so similarities remarked? See often R. Bohozuk, 125; v. Can. C. C. Eng. and Emp. Dig. Proc., 24; Law Supp. p. Crim. 9 Halsbury’s Laws Law England ed.) Crim. & Proc. (2d sec. 233. The rule pronounced by State Gicenia far short stops this and Canadian That English practice. decision rejected the notion that discovery any aspect, including inspec- confession, tion of his own absolute of the accused limited the scope discovery to such as the trial exercise of sound discretion judge would allow. the trial Upon judge placed for the responsibility interests respective balancing State the discovery disallowance of accused and the allowance or as the justice may require. best interests of sought made virtually But decision we have by our case I cannot conceive v. Cicenia. sterile principle aof which case in an order allowing *23 as we can confession, say, will sustained if example, for 'be do, Speakman that in of case Judge we the circumstances in an committed error allowing inspection. in the first com- allegedly
The is murder charge degree, hours early morning mitted on 1952. In the August and custody 12:20 M. to 5 A. of from August m. A. officers, the only by police without counsel and surrounded with Lieutenant accused had “conversations” Detective the lieutenant Neidorf which not accused during which when completed wrote down 14 of “narrative” pages him by it read one of aloud, the accused read had back officers, and signed. defendant, until later that It was not over two months counsel, coun- means to was employ assigned without being have members of in his defense. counsel been sel Assigned and years years respectively, of this State for 37 the bar and ability are of practitioners acknowledged standing, and he accused told them that had state- signed integrity. the contents “he could tell us about nothing ment but that that he have Counsel signed.” sought statement of he had that such who prosecutor, acknowledged out counsel to examine but refused to permit confession” “signed also of persons it the statements other either or to disclose the names such He also refused possession. persons. other counsel were able to make satisfied as investigation
Such were “material be- them, however, discrepancies that there we them and have been able ascertain facts tween State, indicated homicide theory real truth of matter to prevent ascertain done,” from they being sought Judge Speak- injustice the order that they were be directing granted man the alleged and make a of” con- copy inspect “to allowed the statements fession, -but their for application inspection supplied be alternative, they that or, of other persons, denied. was with the names of such other persons, careful without enter the order did not Speakman Judge harm to public consideration of the possibility interest whether He considered in the circumstances the case. for “the will be in his hampered preparation prosecutor that “the trial,” whether it anywise appeared or criminal ring is in connected any way any organized there was whether so as to himself satisfy gang” (this noted that witnesses”), with any possibility “tampering counsel the accused assigned in the two months before make, did undoubtedly have made and “the could prosecutor by, interference the case without any a full investigation source,” and concluded or from any person or impediment result there might there was to 'indicate nothing interest will “a failure of justice, public defendant’s confession affected, if the adversely leave to inspect denied the He application is permitted.” *24 their or to be supplied statements of other persons the as in the names, category he viewed these because apparently invulnerable the the “work of prosecutor of product” the “most compelling a of showing disclosure the absence of. causes, in civil 3:16-2, Rule 'applicable reasons.” of Gf. shall not be required that “The deponent which provides obtained or any writing for inspection or submit produce * * * in attorney his the adverse party, prepared unless for trial preparation of anticipation litigation that a denial of on the otherwise orders ground the court undue result in an or injustice will or inspection production 495, 91 L. Ed. 329 U. S. Taylor, Hickman See hardship.” 451 (1947). that in these circumstances of justice
It shocks sense my should a death sentence facing possible- for an accused counsel which, were this a his confession denied inspection be R. Note, 64 Harv. L. denied. case, could not be civil Cf. the fact that consti not overlook If we should 1011 (1951). the the protection and statutory guaranties tutional accused a breadth of criminal the State deny corresponding ordinarily so that it reasonable not to allow discovery, accused access in the to the “work prosecutor’s product” others, form of reason cannot be statements of to the own This applied accused’s confession. accused’s confession, confessions, as indeed true virtually all of ex which would product a form parte discovery never tolerated in a- cause. The was without civil accused denied counsel, even the of the presence friendly comfort face, in of the “conversations” in the small hours morning officers, with a sizeable document police group even “narrative” down and composition put Lieutenant Neidorf. circumstances composed by Under such did, State could and at its leisure and without hindrance since was there in the interest of the interruption, none accused, persist until there was drained from him every- him, necessary to and that thing support charge against for that prizes result reason is manifest from the tenacity with which defense counsels’ effort to see it is resisted.
In the of life we ordinary affairs would be startled at that we should not be entitled as a matter of suggestion course we copy that there something Granted signed. is a interest in the public present case of the confession of one accused crime which makes inapplicable generally affairs, this rule of how everyday can we possibly say counsel for accused should be denied a face of copy the affirmative findings by Judge Speakman, certainly sup him, what was ported before neither public interest nor prosecution State’s will suffer? case have we come a Surely long way day since the when Mr. Cardozo was able discern “The only beginnings Justice or at least of a “power in courts of crimi *25 glimmerings” nal jurisdiction to compel of documents in discovery of justice.” Court, furtherance People Supreme 245 N. Y. E. N. (Ct. App. 1927). that It is said “better . accused than else anyone knows its contents” that his representation to counsel that belief, he does not is “unbelievable.” Even if that our are we why con- say Speakman’s contrary Judge elusion was not think it was founded? I should reasonably entirely reasonable for not to disbelieve Judge Speakman that assertion in under which the face of circumstances taken, confession was five the “conversations” over hours of the early and the fact that it is the accused’s not morning but the “narrative” composition written down by police officer. further, however, and holds that in majority any goes
event “the fact that he not recall the contents of confession not entitle him does to an same.” inspection But this was treated not as a reason Speakman Judge alone for It was the standing inspection. allowing dilemma defense which counsel were because of placed their client’s to them that this was the case representation persuaded that an judge necessary be allowed in the absence of a might properly showing threat any to the of the indictment or proper prosecution to the otherwise interest. public member that the
Every of this court counsel agrees assigned in this case wordd not for a moment permit knowingly accused to make use of his confession. any improper the circumstances the dilemma in counsel find them- which selves alone be ought enough support Judge Speakman’s It order. is most unfair we have no to thrust upon task, counsel the arduous and assigned trying fraught is, emotional strain as it the defense an always accused stake, whose life is at and then them as to so threaten hogtie the effectiveness their service. there are no answers
And suggestions will evidence after the confession into until State has go character, trial of its and, satisfied the if judge voluntary admitted, that counsel will have time at the “ample trial evidence, examine confession offered in but not time to enable the defendant course enough up rig Those strike me as alibi.” suggestions missing completely made counsel in their point application Judge *26 the volun- with was not Their concern priipary Speakman. the confession character of tary involuntary or if it is admitted credibility the vital issue of its more raises it has far as gone Their so evidence. investigation of the things truth some in their minds as to the doubt Lieutenant are stated in confession. which apparently in the confession that there are affidavit does say Neidorf’s events times, places various as well as persons “names unknown to within his knowledge which are peculiarly the discovery by officers prior investigating to do counsel opportunity himself.” What sought seek fresh, namely, the trail was what the did when State through external facts lack of it corroboration or By 'pitching the confession. opened by avenues of inquiry of the confes- the voluntariness its upon part argument the pur- true sion, majority ignores significance in a is, position that to be application, of counsels’ pose or credibility the confession’s to meet the issues of the trial in the it tells. The implication of the tale the completeness that so is that the accused guilty majority’s argument the use of the he to be heard complain not not only that fact as evidence to prove confession by police him as ironclad make the ease against a source of leads to that his complaint that he has no but also as possible, them to develop use to aid better are denied its counsel eat its cake and words, truth. other whole aside view sets majority have it too. To degree and is superlatively of innocence blind the presumption of the innocent. interest in the acquittal important public seek out cannot they effectively so To shackle counsel which is accused the representation and afford the the truth our seriously imperils but his absolute right his privilege And the assertion of innocence. presumption bedrock time”- at the trial to examine “ample will be allowed counsel time” is to a fault. “Ample is disingenuous the confession a half-hour perhaps time to read writing, than no more best, even for counsel to hardly two at enough an hour or cross-examination, alone initiate and let a proper organize complete an investigation satisfy themselves upon vital question which is the essence of the inquiry, namely, of what credibility in the appears confession. of this holding case gives majority’s protestation *27 that “In this State our courts are mindful always of the accused” a rights hollow ring. assurance seems hollow in doubly light emphasis upon formalism in this case while it has been our boast in all other causes that we have subordinated the niceties procedural to decisions on the merits. me
To this decision is a retreat regrettable from the advanced we won in the position Gicenia case. I would affirm Judge Speakman’s order its entirety. Jacobs, JJ.,
I-Ieher in this join dissent. For reversal—Chief Justice and Justices Vanderbilt, Burling—4. Oliphant, Wacheneeld For Jacobs and Brennan—3. Heher, affirmance—-Justices JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW MAIER, ALBERT DEFENDANT-APPELLANT.
Argued 1, 1952—Reargued. January 26, December 1953 and March Decided June1953. notes * * * “The in his clearly .that ruling judge access, trial, have had petitioners prior should not material of the Govern portion a substantial constituting Garsson, 646, 649 D. In U. 291 F. (S. ment’s case.” S. N. Learned his for the 1923), opinion Y. Hand Judge court stated: procedure every advantage. has “Under our the accused criminal prosecution rigidly charge, “While the held to the he need not his He is immune from disclose the barest outline of question defense. silence; he cannot be convicted when comment on