# State v. Mucci > Supreme Court of New Jersey · December 9, 1957 · 25 N.J. 423 URL: https://www.frixlaw.com/law-library/cases/9754716 ## Case - **Full name:** The State of New Jersey, Plaintiff-Respondent, v. Dominick Mucci, Defendant-Appellant, and John Doe, Also Known as “artie,” Defendant - **Court:** Supreme Court of New Jersey - **Decided:** December 9, 1957 - **Citations:** 25 N.J. 423; 136 A.2d 761; 1957 N.J. LEXIS 162 - **Precedential status:** Published - **Opinion:** Dissent by Wachenfeld - **Judges:** Heher, Weintraub - **Cited by:** 35 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754716 ## Opinion text *441 Wachenfeld, J. (dissenting in part). Eor the first time, and in my view unnecessarily, we are deciding the important question of whether the witnesses produced by a defendant at a criminal trial in support of his substantive denial of the charge made against him can be limited in number by the trial judge. The facts sub judies do not provoke this question. The testimony given by Mucci’s so-called alibi witnesses was irrelevant. They could not place the defendant in the trailer park at the specific times when the overt acts were allegedly committed in Hackensack. Mucci’s counsel admitted as much. Nevertheless, the majority eschews using the time-honored ground of lack of relevancy as the basis for its decision and expansively holds that: “There can be no doubt as to the power as thus confined; the ‘right, within reasonable limits, to restrict the number of witnesses to be examined as to any one point or fact’ is essential to the due course of justice.” This promotes the simple yet portentous inquiry: can a man’s defense on the merits in a criminal trial be restricted in the discretion of the trial judge? The majority, in substance, says it can as a matter of sheer expediency and convenience. I cannot agree. It is decided that this matter "calls for the exercise of a sound discretion in the context of the circumstances of the particular case.” This is fundamental to any trial court ruling at any time and anywhere, if discretion is involved. The majority statement is not, however, a novel formula which can automatically dissolve the defendant’s right to have his witnesses heard. In a particularly sensitive and significant area, it lends itself to varying interpretations which inevitably will produce discrimination in treatment. Where does sound discretion -end and violation of constitutional guarantees begin? The majority concedes that "the cumulation of testimony in relation to the substantive issues may bear upon the ultimate quality and weight of the evidence * * *.” *442 Any limitation of the number of witnesses upon a central issue infringes upon the defendant’s opportunity to prove his right to freedom. Liberty is too precious a commodity to be hazarded, over objection, to one man’s judgment or caprice; hence the trial by jury, the cornerstone of our bill of rights. Better that a little judicial time be consumed than to trespass upon the principle of untrammeled defense which has been the shining example of our jurisprudence and a lofty inspiration throughout the world. The ringing challenge of Patrick Henry, “Give me liberty, or give me death,” has winged down the corridors of time and held the admiration of all the American people. It accentuates a cardinal principle whose force should not be diminished by a vague judicial phrase susceptible of widely differing interpretations by different judges. There was no compromise then — there should be none now. Under our constitutional concepts, a day in court means a full day, and the right to curtail it has not been granted to anyone. There is a vast amount of authority denying the power of a trial court to limit the number of witnesses to be heard as to a controlling fact, or facts and circumstances bearing thereon. People v. Arnold, 248 Ill. 169 , 93 N. E. 786 (Ill. Sup. Ct. 1911). In Village of South Danville v. Jacobs, 42 Ill. App. 533 (App. Div. 1891), the court said: “We are aware of no rule authorizing the court to limit the number of witnesses a party may introduce unless it be upon some question collateral to the main issue * * While in Henson & Sons Coal Co. v. Strickland, 152 Ark. 203 , 238 S. W. 5 , 21 A. L. R. 328 (Ark. Sup. Ct. 1922), the court expressed itself in unmistakable language: “It is a well-settled principle of constitutional law that no person shall be condemned without a hearing, and that everyone who is by process called into court in any matter affecting his interests has an absolute right to be heard. * * *” *443 Reiterating the same thought with a different linguistic approach, in St. Louis, Memphis & S. E. R. Co. v. Aubuchon, 199 Mo. 352, 97 S. W. 867 , 9 L. R. A., N. S., 426 (Mo. Sup. Ct. 1906), the court, in reversing a judgment, said: “* * * If, then, the trial judge may, without any cause shown project his will arbitrarily into the number of witnesses on the crucial point in the case, he may by that token entirely foreclose the weight of the evidence, and thus indirectly do what he may not directly do, to wit, interfere in a realm where the jury reign supreme.” I regret the recognition in New Jersey of a “‘right, within reasonable limits, to restrict the number of witnesses to be examined as to any one point or fact.’ ” It is an invasion of the right to trial by jury; a curtailment of the right to a full day in court; and a trespass upon any reasonable conception of what constitutes fundamental fairness. Other than as here noted, I concur in the result. Weinteaub, C. J., and Wacheneeld, J., concurring in result. For reversal — Chief Justice Weinteaub, and Justices Heher, Wacheneeld, Burling, Jacobs and Francis — 6. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754716. Public record. Not legal advice.