State v. Irving

O’HERN, J.,

dissenting.

Trial by jury is a central value of a free society. Like the related privilege against self-incrimination, it “is an ever-present reminder of our belief in the importance of the individual, a symbol of our highest aspirations. As such, it is a clear *460 and eloquent expression of our basic opposition to collectivism, to the unlimited power of the state.” E. Griswold, The Fifth Amendment Today 81 (1955). There is a subtle but gradual depreciation of the values of the criminal jury trial in allowing unqualified cross-examination of the defendant about discovery responses contained in his Notice of Alibi.

I.

To begin with, the practice of discovery against the defense runs against the grain of our law. No one should need to establish innocence in an American courtroom. We allow discovery from the defense in criminal cases only to prevent defendants from making a joke of the system. Such conduct would demean the system of trial by jury. Our criminal law has “consistently been animated by the view that ‘ours is an accusatorial and not an inquisitorial system.’ ” Miller v. Fenton, 474 U.S. 104, 110 , 106 S.Ct. 445, 450 , 88 L.Ed.2d 405, 410 (1985) (quoting Rogers v. Richmond, 365 U.S. 534, 541 , 81 S.Ct. 735, 739 , 5 L.Ed.2d 760, 766 (1961)). “Under our system society, carries the burden of proving its charge against the accused not out of his own mouth.” Watts v. Indiana, 338 U.S. 49, 54 , 69 S.Ct. 1347, 1350 , 93 L.Ed. 1801, 1806 (1949). Any diminution of that system may be justified only by the most compelling of needs and must never become the ordinary course of business.

Limits on the power of the state are what distinguish our society from all others. Shortly after returning from Nuremberg, Justice Jackson observed that these guarantees are “a real peril to solution of the crime” and thus present “a real dilemma in a free society” because “the defendant is shielded by such safeguards as no system of law except the Anglo-American concedes to him.” Moran v. Burbine, 475 U.S. 412 , 436 n. 5, 106 S.Ct. 1135 , 1149 n. 5, 89 L.Ed.2d 410 , 431 n. 5 (1986) (Stevens, J., dissenting) (quoting Watts v. Indiana, supra, 338 U.S. at 59 , 69 S.Ct. at 1358 , 93 L.Ed. at 1808-1809 (Jackson, J., concurring in result).

*461 In Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970) (sustaining notice-of-alibi requirement), Justice Black warned of courts substituting their notions of “what is best” for the “traditional safeguards afforded persons accused of crimes.”

Occasionally this test emerges in disguise as an intellectually satisfying “distinction” or “analogy” designed to cover up a decision based on the wisdom of a proposed procedure rather than its conformity with the commands of the Constitution. Such a course, in my view, is involved in this case. This decision is one more step away from the written Constitution and a radical departure from the system of criminal justice that has prevailed in this country. Compelling a defendant in a criminal case to be a witness against himself in any way, including the use of the system of pretrial discovery approved today, was unknown in English law, except for the unlamented proceedings in the Star Chamber courts—the type of proceedings the Fifth Amendment was designed to prevent.

[Id. at 115, 90 S.Ct. at 1913 , 26 L.Ed.2d at 485 (Black, J., concurring in part and dissenting in part).]

Of course, there is no Star Chamber here, only lawyers reviewing papers. Still, our history and tradition, Justice Black warned, counsel against any procedure that would “compel a criminal defendant to assist in his own conviction.” Id. at 116 , 90 S.Ct. at 1914 , 26 L.Ed.2d at 485 (Black, J., concurring in part and dissenting in part).

The majority finds that cross-examination of the defendant about his discovery responses is necessary to “determine where the truth lies.” Ante at 438. The analysis evokes William Howard Taft’s view that

[w]hen examined as an original proposition, the prohibition that the defendant in a criminal case shall not be compelled to testify seems, in some aspects, to be of doubtful utility. If the administration of criminal law is for the purpose of convicting those who are guilty of crime, then it seems natural to follow in such a process the methods that obtain in ordinary life.

[Taft, "The Administration of Criminal Law,” 15 Yale L.J. 1 , 8 (1905).]

But this misses the entire point—the methods available in ordinary life simply are not available in an American criminal *462 jury trial. Whatever the merits of discovery on the civil side, 1 discovery from the defense has but a limited role in a criminal jury trial.

Of course, I agree that criminal defendants are to be subject to strict cross-examination regarding what they have freely said in the course of a crime or its investigation. Those statements are clearly part of the real events to be tested at trial. It is, however, another thing to compel a defendant to create a paper trail in order to confront him. This is no measure of criminality. “The law will not suffer a prisoner to be made the deluded instrument of his own conviction.” 2 Hawkins, Pleas of the Crown c. 46, § 34 (8th ed. 1824), quoted in Watts, supra, 338 U.S. at 54 , 69 S.Ct. at 1350 , 93 L.Ed. at 1806 .

A.

Notice-of-alibi provisions have been sustained only to prevent trials from becoming “a poker game in which players enjoy an absolute right always to conceal their cards until played.” Williams v. Florida, supra, 399 U.S. at 82 , 90 S.Ct. at 1896 , 26 L.Ed.2d at 450 (footnote omitted). Justice Black even then foresaw:

On. the surface this case involves only a notice-of-alibi provision, but in effect the decision opens the way for a profound change in one of the most important traditional safeguards of a criminal defendant. The rationale of today’s decision is in no way limited to alibi defenses, or any other type or classification of evidence. The theory advanced goes at least so far as to permit the State to obtain under threat of sanction complete disclosure by the defendant in advance of trial of all evidence, testimony, and tactics he plans to use at that trial.

[Id. at 114, 90 S.Ct. at 1913 , 26 L.Ed.2d at 484 (Black, J., concurring in part and dissenting in part).]

*463 Rule 3:11-1 serves not as a form of examination before trial, but simply “to avoid surprise at trial by the sudden introduction of a factual claim which cannot be investigated unless the trial is recessed to that end.” State v. Garvin, 44 N.J. 268, 272-73 (1965) (Weintraub, C.J.), quoted in State v. Gross, 216 N.J.Super. 92, 95 (App.Div.), certif. den., 108 N.J. 194 (1987). In Gross the Appellate Division disapproved of the introduction of the alibi notice to support the inference that a named witness did not appear to avoid perjuring herself. “Such a use of the alibi notice takes it far beyond its narrow purpose to allow the State to meet an alibi which the defendant presents at trial.” Id. at 96; see State v. Angeleri, 51 N.J. 382 , 384 cert. denied, 393 U.S. 951 , 89 S.Ct. 372 , 21 L.Ed.2d 362 (1968) (“Our rule of Court is not designed to compel a defendant to say anything.”). In emphasizing the use of the alibi notice to test credibility, the majority exceeds this limited justification of avoiding an “eleventh-hour defense.” Williams v. Florida, supra, 399 U.S. at 81 , 90 S.Ct. at 1896 , 26 L.Ed.2d at 450 .

Contrary to the majority’s interpretation, see ante at 434-438, Williams does not stand for the general proposition that a notice-of-alibi rule does not compel the defendant to provide information. First, such a proposition was simply not before that court. As Justice Handler points out in his dissenting opinion, see ante at 448, the court was well aware that the notice in that case was not to be introduced at trial and its language or contents had no effect on the defendant’s decision to present his alibi. All that the defendant complained about was that the State had a chance to investigate his alibi, not that it would cross-examine him about how he had prepared the notice. In fact, both Williams and Angeleri explicitly relied on the fact that the alibi notice was used only for investigative purposes. Williams, supra, 399 U.S. at 82-83 , 90 S.Ct. at 1896-97 , 26 L.Ed.2d at 450 (“No pretrial statement of petitioner was introduced at trial; but armed with [the witness’] name and address and the knowledge that she was to be petitioner’s alibi witness, the State was able to take her deposition in advance of *464 trial and to find rebuttal testimony.”); Angeleri, supra, 51 N.J. at 385 (“There is no suggestion that the State sought the pre-trial disclosure for any other reason [than to avoid surprise at trial] or put it to any other use.”). Moreover, the Supreme Court in Williams pointed out that no evidence was gained that would not have been available through other, albeit more disruptive and inconvenient, means:

Petitioner concedes that absent the notice-of-alibi rule the Constitution would raise no bar to the court’s granting the State a continuance at trial on the ground of surprise as soon as the alibi witness is called. Nor would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial: take the deposition of the witness and find rebuttal evidence. But if so utilizing a continuance is permissible under the Fifth and Fourteenth Amendments, then surely the same result may be accomplished through pretrial discovery, as it was here, avoiding the necessity of a disrupted trial.

[ 399 U.S. at 85-86 , 90 S.Ct. at 1898 , 26 L.Ed.2d at 452 (emphasis added) (footnotes omitted).]

Similar logic was employed in Angeleri, supra, 51 N.J. at 385 (“In calling upon a defendant to reveal a claim of that kind before trial, bur rule is designed ‘to avoid suprise at trial by the sudden introduction of a factual claim which cannot he investigated unless the trial is recessed to that end.’ ”) (quoting State v. Baldwin, 47 N.J. 379, 388 , cert. denied, 385 U.S. 980 , 87 S.Ct. 527 , 17 L.Ed.2d 442 (1966) (quoting State v. Garvin, supra, 44 N.J. at 272-273 )) (emphasis added). By contrast, the majority holding allows use of the notice of alibi as a pretrial deposition of the defendant, a form of evidence heretofore unavailable by any means.

Second, to suggest that the notice-of-alibi rule does not in any way “compel” the defendant to give evidence strikes me as, at best, less than realistic. Surely a rule that forces the defendant in advance of trial to reveal his alibi at the risk of losing his constitutional right to present witnesses in his defense 2 *465 must be seen as compelling information. See supra at 440-441. While such a procedure might be acceptable under the narrow circumstances of Williams and Angeleri , where no additional prosecutorial advantage was gained (it was merely used to avoid trial delay), it is unacceptable if used against the defendant at trial.

B.

Like all of the other situations in which a defendant may be forced to give evidence to aid in the preparation of the prosecution’s case, 3 the notice-of-alibi requirement can be justified as not violating the State and federal guarantees against self-incrimination only to the extent that the compelled evidence is non-testimonial. 4 The majority inverts this principle: it treats *466 the use of the notice of alibi as testimonial when its only-justification in law is as a non-testimonial event.

When the defendant prepares and provides the notice of alibi, he may be seen as performing two conceptually separate acts. First, he is providing information so that the prosecutor will not be surprised by the presentation. Second, he may be seen as vouching for the truth and completeness of that alibi. Even if we assume (as Williams does) that the alibi information required of the defendant is “non-testimonial,” he cannot be made to vouch for it. The Court, however, justifies the use of the alibi notice to impeach credibility by the fact that the notice-of-alibi was testimonial in nature: “[t]he testimonial nature of the notice of alibi is clear from the defendant’s signature on the document.” Ante at 437 (emphasis added). In fact, in order to use the compelled evidence, the prosecution bears the burden of demonstrating that the evidence it is using is not testimonial. Doe, supra; Braswell, supra.

Furthermore, when we are concerned with information that is judicially compelled, as opposed to information obtained through police misconduct, “the protection against self-incrimination * * * is heightened.” State v. Strong, 110 N.J. 583, 594 (1988). Permitting use of the notice itself to impeach credibility goes far beyond the narrow purpose for which Rule 3:11-1 was promulgated and approved. The use of the act of presenting the notice to “authenticate or vouch for the accuracy,” Braswell, supra, — U.S. at-n. 3, 108 S.Ct. at 2288 n. 3, 101 L.Ed.2d at 105 n. 3, of the information contained therein, violates the principles of Fisher, Braswell, Doe, and Guarino. The majority’s logic, focusing as it does solely on the truth-finding function and subsuming the self-incrimination problems, would also allow the deposing in pretrial of all defendants who plan to present a defense in order to allow the prosecution to prepare against surprises and to improve the truth-finding process. Both are admirable goals, but neither can violate the defendant’s right against self-incrimination.

*467 II.

I am sure that the majority has no agenda to weaken fundamental privileges.

Instead, [as elsewhere] these privileges have been weakened due to the courts’ concern with enhancing the truth-seeking process and fear that these privileges may provide a shield for perjury by the defendant. * * *

The process of erosion has been incremental. Courts have examined each new intrusion into the defendant’s privileges independently, almost in isolation, and have approved each in part because it had but a limited impact upon the total range of protections available to the defendant. The cumulative effect, however, has been profound. Through a series of small steps, each arguably justified, the traditional balance between the prosecution and the defense has been fundamentally altered.

[Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance, 74 Cal.L.Rev. 1567, 1571-72 (1986) (footnote omitted).]

I suspect that the way criminal discovery is furnished is vastly different from the way that a civil anti-trust defense is prepared. Many defendants are jailed before trial with but limited access to the dwindling resources of the Public Defender’s office. We ought not to impose greater burdens on their ability to defend than is required to counter eleventh-hour defenses.

In this case, there was a particular pettiness to the use of the discovery papers. The typically-rushed defense counsel had to file the first alibi notice without investigation because a court had ordered it filed under penalty of forfeiting the alibi defense. The incarcerated defendant had no chance to speak with his alibi witnesses. Whatever relevance to credibility an initial failure to list a potential witness may have under other circumstances, surely there is little probabative value to such an inference under the facts of this case.

Real trials should never become a test of the defendant’s paper processing. There is enough paperwork now that we need not escalate its importance beyond its rudimentary purpose of avoiding surprise alibis. Quite aside from the trivialization of the jury trial, there is at play here a subtle shift in our ideals. We diminish the presumption of innocence when we *468 infer that one who under compulsion poorly details his innocence becomes suspect.

If I believed that there was any evidence in the case that the defendant deliberately manipulated the discovery process to achieve a tactical advantage over the State, I might conclude otherwise. I see no suggestion of that in this case—only the clumsy attempts of a confined individual to cope with the procedural processes of a litigation system that he little understands.

Although it is perhaps the “mildest and least repulsive form” 5 of depreciation of the right to trial by accusation and not inquisition, I would not routinely permit cross-examination of a criminal defendant about deficiencies and inconsistencies in his coerced discovery materials. While I would afford the State opportunity to counter surprise, I see none here. If there were such a “wilful violation” of a discovery rule to gain a tactical advantage, that would be the time “for the prosecutor to inform the jury about the circumstances casting doubt on the testimony.” Taylor v. Illinois, 484 U.S. 400 ,-, 108 S.Ct. 646, 663 , 98 L.Ed.2d 798, 824 (1988) (Brennan, J., dissenting). A court should inquire in a Rule 8 hearing whether such were the case but should not unqualifiedly allow cross-examination about criminal discovery responses without knowing the reasons for any discrepancy and whether the inconsistencies were planned to gain a tactical advantage over the State.

*469 I join in the other aspects of the Court’s opinion but, for the reasons stated, I would reverse the judgment of conviction and remand for a new trial.

Justice HANDLER joins in this opinion.

For affirmance—Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, GARIBALDI, and STEIN—5.

For reversal—Justices HANDLER and O’HERN—2.

Today, the exchange of paper before trial has become somewhat of an end in itself. We are told of litigators who never enter a courtroom. Abuses of the discovery process have been the subject of recent concern. Final Report of the Committee on the Pretrial Phase of Civil Cases, 115 F.R.D. 454 (1987); Warren E. Burger, Abuses of Discovery: Judges are Correcting the Problem, 20 Trial 18 (1984).

While the United States Supreme Court has upheld the preclusion of defense witness testimony as a sanction for defense counsel's discovery violations, Taylor v. Illinois, 484 U.S. 400 , 108 S.Ct. 646 , 98 L.Ed.2d 798 (1988), our Court *465 has not yet had occasion to decide whether such a harsh procedure would violate our State Constitution. See id. at-, 108 S.Ct. at 657 , 98 L.Ed.2d at 817 (Brennan, J., dissenting) (“[A]t least where a criminal defendant is not personally responsible for the discovery violation, alternative sanctions are not only adequate to correct and deter discovery violations but are far superior to the arbitrary and disproportionate penalty imposed by the preclusion sanction.”).

Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967) (handwriting exemplars); United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) (voice exemplars); Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) (blood samples).

Braswell v. United States, - U.S. -, 108 S.Ct. 2284 , 101 L.Ed.2d 98 (1988) (act of production of corporate documents is "testimonial” and thus may not be used against the defendant custodian of corporate records in his individual capacity); United States v. Doe, 465 U.S. 605, 613 , 104 S.Ct. 1237, 1242 , 79 L.Ed.2d 552, 560 (1984) (although business records themselves are not protected, "the act of producing the documents would involve testimonial self-incrimination.”); see also Fisher v. United States, 425 U.S. 391, 410 , 96 S.Ct. 1569, 1581 , 48 L.Ed.2d 39, 56 (1976) ("The act of producing evidence * * * has communicative aspects of its own, wholly aside from the contents of the papers produced.”); In re Guarino, 104 N.J. 218 (1986) (production of business records did not violate self-incrimination privilege where defendant granted use immunity for producing the documents).

The warning of Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886), has proven particularly prescient in the area of discovery against the defense:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. * * * a close and literal construction deprives [constitutional provisions for the security of persons and property] of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.

[Mosteller, supra, 74 Cal.L.Rev. at 1572 n. 10 (quoting Boyd v. United States, supra, 116 U.S. at 635 , 6 S.Ct. at 535 , 29 L.Ed. at 752 ).]