State v. Tune

William J. Brennan, Jr., J.

(dissenting). That old hobgoblin perjury, invariably raised with every suggested change in procedure to make easier the discovery of the truth, is again disinterred from the grave where I had thought it was forever buried under the overwhelming weight of the complete rebuttal supplied by our experience in civil causes where liberal discovery has been allowed. The majority opines:

“In criminal proceedings long experience lias taught the courts that often discovery will lead not to honest fact-finding, but on the contrary to perjury and the suppression of evidence. Thus the criminal who is aware of (he whole ease against him will often procure perjured testimony in order to set up a false defense.”

That is startlingly reminiscent of Sir John Wigram’s comment of over 100 years ago when the struggle to introduce discovery in Chancery was so bitterly waged:

“Experience, however, has shown—or (at least) courts of justice in this country act upon the principle—that the possible mischiefs of surprise at the trial are more than counter-balanced by the danger of perjury, which must inevitably be incurred when either party is permitted, before trial, to know the precise evidence against which he has to contend.” Wigram on Discovery (1842), sec. 347.

And, just as the alleged “experience” was non-existent in Wigram’s day [“English courts never had any experience at all in the matter,” Sunderland, 42 Yale L. J. 863], we have had none in New Jersey, “long” or short, for, until Rule 2:5-8(c) was adopted five years ago and this court decided State v. Cicenia, 6 N. J. 296, two years ago, we followed the common-law rule which denied the accused any discovery *228 whatever of the State’s ease against him. Obviously, then, the fact that crime has increased in New Jersey in greater degree than in the nation as a whole is in nowise attributable to the operation of any discovery procedures. The State frankly told us on the oral argument here that the only time prosecutors willingly exhibit the accused’s confession to his counsel is when there is a chance that counsel will persuade his client to enter a plea and save the State the expense of a trial. Apart from the question whether that limitation is wholly consistent with the prosecutor’s function not primarily to convict but to see that justice is done, cf. State v. Bogen, 13 N. J. 137 (1953), State v. Vaszorich, 13 N. J. 99 (1953), this grudging practice plainly supplies no evidence of the asserted “long experience.”

This anachronistic apprehension that liberal discovery if extended to criminal causes will “inevitably” bring the serious and sinister dangers of perjury in its wake will seem strange to many when coming from this court which has been generally commended for its aggressive sponsorship of liberal discovery and effective pretrial procedures in civil causes and can point to the solid evidence, of its beneficial results to the cause of justice without that defeat of justice through perjury foretold by the prophets of doom. It will be difficult to understand why, without -proof but only from some visceral augury, we now assume that the hazard is so much greater in criminal causes, and, if it is, why in any 'event “The true safeguard against perjury is not to refuse to permit any inquiry at all, for that will eliminate the true as well as the false, but the inquiry should be so conducted as to separate and distinguish the one from the other where both are present.” Sunderland, supra. Certainly without actual evidence and upon conjecture merely, and in the face of the contrary proof of our experience in civil causes, we ought not in criminal causes, where even life itself may be at stake, forswear in the absence of clearly established danger a tool so useful in guarding against the chance that a trial will be a lottery or mere game of wits and the result at the mercy of the mischiefs of surprise. We must remember that *229 society’s interest is equally that the innocent shall not suffer and not alone that the guilty shall not escape. Discovery, basically a tool for truth, is the most effective device yet devised for the reduction of the aspect of the adversary element to a minimum. See Note, 64 Harv. L. R. 1011 (1952).

The majority discounts to the point of virtual rejection the evidence of the complete lack of the conjured danger in the results in England and Canada under a form of discovery advantaging the accused far beyond anything embraced within what is sought in this case. In England and Canada ordinarily the accused, before indictment or trial, is given a preliminary hearing before a magistrate who is obliged to examine every witness that can be brought before him by the Crown, with the result that all the evidence in the possession of the Crown is in the possession of defense counsel and he knows all that the Crown knows before the trial begins, see State v. Dorsey, 22 So. 273 (La. Sup. Ct. 1945). Those nations report no such consequences as the majority apprehends. The majority suggests that there is a difference based on the private prosecution technique between the criminal law of England and that of the United States. The relevancy of the difference escapes me. The State on the oral argument suggested another ground of difference, namely, that we are a less law-abiding people than the British. If we assume that this is so, how explain the like experience of our neighbor Canada between whose mores and our own similarities are so often remarked? See R. v. Bohozuk, 87 Can. C. C. 125; Eng. and Emp. Dig. Supp. 1952, Crim. Law Proc., p. 24; 9 Halsbury’s Laws of England (2d ed.) 164, Crim. Law & Proc. sec. 233.

The rule pronounced by State v. Gicenia stops far short of this English and Canadian practice. That decision rejected the notion that discovery in any aspect, including the inspection of his own confession, was the absolute right of the accused and limited the scope of discovery to such as the trial judge in the exercise of sound discretion would allow. Upon the trial judge is placed the responsibility for the balancing of the respective interests of the State and the *230 accused and the allowance or disallowance of the discovery sought as the best interests of justice may require.

But by our decision in this case we have made virtually sterile the principle of State v. Cicenia. I cannot conceive of any case in which an order allowing the inspection of a confession, for example, will 'be sustained if we can say, as we do, that in the circumstances of this case Judge Speakman committed error in allowing an inspection.

The charge is murder in the first degree, allegedly committed on August 22, 1952. In the early morning hours from 12:20 A. M. to 5 A. m. of August 24, in custody and without counsel and surrounded only by police officers, the accused had “conversations” with Detective Lieutenant Neidorf during which not the accused but the lieutenant wrote down 14 pages of “narrative” which when completed the accused read aloud, had it read back to him by one of the officers, and signed.

It was not until over two months later that defendant, being without means to employ counsel, was assigned counsel in his defense. Assigned counsel have been members of the bar of this State for 37 years and 20 years respectively, and are practitioners of acknowledged standing, ability and integrity. The accused told them that he had signed a statement but that “he could tell us nothing about the contents of any statement that he may have signed.” Counsel sought out the prosecutor, who acknowledged that he had such a “signed confession” but refused to permit counsel to examine either it or the statements of other persons also in his possession. He also refused to disclose the names of such other persons.

Such investigation as counsel were able to make satisfied them, however, that there were “material discrepancies between the facts as we have been able to ascertain them and the theory of the homicide indicated by the State, and to ascertain the real truth of the matter and to prevent an injustice from being done,” they sought from Judge Speak-man and were granted the order directing that they be allowed “to inspect and make a copy of” the alleged con *231 fession, -but their application for inspection of the statements of other persons, or, in the alternative, that they be supplied with the names of such other persons, was denied.

Judge Speakman did not enter the order without careful consideration of the possibility of harm to the public interest in the circumstances of the case. He considered whether “the prosecutor will be hampered in his preparation for the trial,” whether it in anywise appeared that “the defendant is in any way connected with any organized ring or criminal gang” (this so as to satisfy himself whether there was the possibility of “tampering with any witnesses”), noted that in the two months before the accused was assigned counsel “the prosecutor could have made and undoubtedly did make, a full investigation of the case without any interference by, or impediment from any person or source,” and concluded that there was nothing to 'indicate that there might result “a failure of justice, or that the public interest will be adversely affected, if the inspection of defendant’s confession is permitted.” He denied the application for leave to inspect the statements of other persons or to be supplied with their names, apparently because he viewed these as in the category of the “work product” of the prosecutor and invulnerable to disclosure in the absence of. a showing of the “most compelling of reasons.” Gf. Rule 3:16-2, 'applicable in civil causes, which provides that “The deponent shall not be required to produce or submit for inspection any writing obtained or prepared by the adverse party, his attorney * * * in

anticipation of litigation and in preparation for trial unless the court otherwise orders on the ground that a denial of production or inspection will result in an injustice or undue hardship.” See Hickman v. Taylor, 329 U. S. 495 , 91 L. Ed. 451 (1947).

It shocks my sense of justice that in these circumstances counsel for an accused facing a possible- death sentence should be denied inspection of his confession which, were this a civil case, could not be denied. Cf. Note, 64 Harv. L. R. 1011 (1951). If we should not overlook the fact that constitutional and statutory guaranties for the protection of the *232 criminal accused deny the State a corresponding breadth of discovery, so that it is reasonable not ordinarily to allow the accused access to the prosecutor’s “work product” in the form of the statements of others, that reason cannot be applied to the accused’s own confession. This accused’s confession, as indeed is true virtually of all confessions, was the product of ex parte discovery in a form which would never be tolerated in a- civil cause. The accused was without counsel, denied even the comfort of the presence of a friendly face, in “conversations” in the small hours of the morning with a sizeable group of police officers, the document not even of his composition but the “narrative” put down and composed by Lieutenant Neidorf. Under such circumstances the State could and did, at its leisure and without hindrance or interruption, since none was there in the interest of the accused, persist until there was drained from him everything necessary to support the charge against him, and that the State prizes the result for that reason is manifest from the tenacity with which defense counsels’ effort to see it is resisted.

In the ordinary affairs of life we would be startled at the suggestion that we should not be entitled as a matter of course to a copy of something we signed. Granted that there is a public interest present in the case of the confession of one accused of crime which makes generally inapplicable this rule of everyday affairs, how possibly can we say that counsel for the accused should be denied a copy in face of the affirmative findings by Judge Speakman, certainly supported by what was before him, that neither the public interest nor the prosecution of the State’s case will suffer? Surely we have come a long way since the day when Mr. Justice Cardozo was able to discern only “The beginnings or at least the glimmerings” of a “power in courts of criminal jurisdiction to compel the discovery of documents in furtherance of justice.” People v. Supreme Court, 245 N. Y. 24 , 156 N. E. 84, 86 (Ct. App. 1927).

. It is said that the accused “better than anyone else knows its contents” and that his representation to his counsel that *233 he does not is “unbelievable.” Even if that is our belief, why are we to say that Judge Speakman’s contrary conelusion was not reasonably founded? I should think it was entirely reasonable for Judge Speakman not to disbelieve that assertion in face of the circumstances under which the confession was taken, the “conversations” over five hours of the early morning and the fact that it is not the accused’s composition but the “narrative” written down by the police officer.

The majority goes further, however, and holds that in any event “the fact that he may not recall the contents of the confession does not entitle him to an inspection of the same.” But this was not treated by Judge Speakman as a reason standing alone for allowing the inspection. It was the dilemma in which defense counsel were placed because of their client’s representation to them that this was the case that persuaded the judge that an inspection was necessary and might properly be allowed in the absence of a showing of any threat to the proper prosecution of the indictment or otherwise to the public interest.

Every member of this court agrees that the counsel assigned in this case wordd not for a moment knowingly permit the accused to make any improper use of his confession. In the circumstances the dilemma in which counsel find themselves ought alone be enough to support Judge Speakman’s order. It is most unfair and we have no right to thrust upon assigned counsel the arduous and trying task, fraught with emotional strain as it always is, of the defense of an accused whose life is at stake, and then hogtie them so as to threaten the effectiveness of their service.

And there are no answers in the suggestions that the confession will not go into evidence until after the State has satisfied the trial judge of its voluntary character, and, if admitted, that counsel will have “ample time at the trial to examine any confession offered in evidence, but not of course enough time to enable the defendant to rig up an alibi.” Those suggestions strike me as missing completely the point made by counsel in their application to Judge *234 Speakman. Their priipary concern was not with the voluntary or involuntary character of the confession but with the more vital issue of its credibility if it is admitted in evidence. Their investigation so far as it has gone raises doubt in their minds as to the truth of some of the things which apparently are stated in the confession. Lieutenant Neidorf’s affidavit does say that there are in the confession “names of persons as well as various times, places and events which are peculiarly within his knowledge and unknown to the investigating officers prior to the discovery by defendant himself.” What counsel sought was the opportunity to do what the State did when the trail was fresh, namely, seek corroboration or lack of it from external facts through avenues of inquiry opened by the confession. By 'pitching part of its argument upon the voluntariness of the confession, the majority ignores the true significance of the purpose of counsels’ application, that is, to be in a position at the trial to meet the issues of the confession’s credibility or the completeness of the tale it tells. The implication in the majority’s argument is that the accused is guilty so that not only is he not to be heard to complain of the use of the confession by the police as evidence to prove that fact and as a source of leads to make the ease against him as ironclad as possible, but also that he has no complaint that his counsel are denied its use to aid them better to develop the whole truth. In other words, the State may eat its cake and have it too. To that degree the majority view sets aside the presumption of innocence and is blind to the superlatively important public interest in the acquittal of the innocent. To shackle counsel so that they cannot effectively seek out the truth and afford the accused the representation which is not his privilege but his absolute right seriously imperils our bedrock presumption of innocence. And the assertion that counsel will be allowed “ample time”- at the trial to examine the confession is disingenuous to a fault. “Ample time” is no more than time to read the writing, perhaps a half-hour or an hour or two at best, hardly enough even for counsel to organize a proper cross-examination, let alone initiate and *235 complete an investigation to satisfy themselves upon the vital question which is the essence of the inquiry, namely, the credibility of what appears in the confession.

The holding of this case gives the majority’s protestation that “In this State our courts are always mindful of the rights of the accused” a hollow ring. The assurance seems doubly hollow in light of the emphasis upon formalism in this case while it has been our boast in all other causes that we have subordinated the procedural niceties to decisions on the merits.

To me this decision is a regrettable retreat from the advanced position we won in the Gicenia case. I would affirm Judge Speakman’s order in its entirety.

I-Ieher and Jacobs, JJ., join in this dissent.

For reversal—Chief Justice Vanderbilt, and Justices Oliphant, Wacheneeld and Burling—4.

For affirmance—-Justices Heher, Jacobs and Brennan—3.