# Appendix — Farmer v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0325%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1967 - **Citation:** 386 U.S. 991 ## Text . - “ Sa in tga ial oe, nee Pind > thal a Deal Si Sallis at te eae * APPENDIX A (Opinion of etal _— of New Jersey— _ fe . Reported i in 45 N. J. 520) Supreme Courr of-New Jkrsey - M-13 September Term 1965 : 3 S Stare or New Jersey, Plaintiff-Appellant, | vs. ° Cuaries Farmer, Defendant-Respondent. ® Argued ——— 13, 1965—Deeided September 21, 1965. Mr. Edward J. Dolan, Middlesex ‘County Proseeutor, * argued the cause for appellant. Mr. Raymond A. Brown argued the cause for respond- ent (Mr. Irving 1. V ogelman, on the brief). The opinion of the Court was deliver ed Per CuriAm. Re es al The State seeks leave to appeal from ‘ateriogiatony order gr anting defendant pretrial discov ery of grand jury [la] 2a Appendia A .- testimony and statements taken by the prosécutor from persons other than defendant.: The trial court deemed the ~ eircumstances to be exceptional and to warrant a relaxa- tion under R.R. 1:27A of the pertinent rules of Court. R.R. 3:3-7; 3:5-41. See State v. Reynolds, 41 N. J. 163, . 182' (1963) ; State v. Clement, 40 N. J. 139 (1963); State v. DiModica, 40 N. J. 404 (1963) ; State v. Moffa, 36 N. J. 219 (1961); State v. Johnson, 28 N. J. 133, 143-144 (1958). We directed oral argument on the sealleation. For a period after the alleged murder deténdant was confined to mental institution under a judgment that he ‘was unable. to ‘défend against the indictnient. See Farmer _v. State, 42 N. J. 579 (1964). Psychiatrists have testifiga that the defendant claims he blacked out before the kill- ing, and defendant has filed with us an affidavit that:: ‘‘I _eannot to this day recall any of the events of September 18,. 1963 which surround the alleged shooting at my honie invalving’ my wife and me.’’ In the circumstances defense counsel believes he cannot prepare for trial without the in- spection he sought. The State apparently is paieantlg concerned with the possible. precedential influence of the order in other cases. Beyond a belief that some tactical advantage inheres in | withholding disclosure until trial, the prosecutor can see no harm. In other words, the prosecution will not be ham- - pered, and neither the grand jury testimony nor the state- ments in question contain anything which should be sealed -- even at trial in the public interest. At the argument, the possibility was suggested that the papers in question might «| ’ contain statements by third persons which could not aid defendant. but: the disclosure of which might embarrass * such third persons or others. In this regard counsel -for 3a | Appendix a... “ ‘ . Pe ; '* defendant expressed his willingness to cooperate, and in any event the trial court can order, a modification of its order. We note also that the State does not suggest re- lief should have: been conditioned upon a like disclosure by ' defendant of statements of his wit esses, and counsel for defendant says. that in fact: he has nothing to exchange. See State v. Cook, 43 N. J. 560, 568 (1965) ; State v. Whit. low; 45 N. J. 2, 21 (1965). Defendant’s application was addressed to the discretion of ‘the trial court. In view of the unusual circumstances of this case, we are not persuaded that the trial court erred in his decision, Leave to appeal is-accordingly denied. Proctor, J. (Dissenting) I would grant the State leave to appeal from the inter- locutory order of the trial court relaxing R.R. 3:3-7 and. _ 3:d-11. If this defendant may examine before trial grand jury testimony, I can see no. reason why any defendant, who alleges that he was ‘not either. physically or mentally at the scene of the crime, would not be accorded similar dis- covery. Such an abandonment by this Court of R.R. 3 :3-7, which has its origins in the early history of the common law, should be effected through the rule-making power, or at least after an appeal has been fully heard; certainly it should not be done.on a motion for leave to appeal from an interlocutory order. The public policy behind R.R. 3:3- 7 is set forth ini State v. Clement, 40°N. J. 139, 143-144 (1963). See also United States v. Rose, 215 F. 2-617, 628- ° - +629 (3 Cir. 1954). “Tf we are to change the policy, it should be done, not by going beyond the rule in particular ease ° CID i Acie hb 5 ida ec 2 a GS wih rR d= Ritab adie s.aeeF TORR Ron FR PERE Le IS BW Spc tah REM Mg 290 9 at 4a Apoendia A as here, but by amending after full review and re- evaluation of the many considerations involved.’’ ~ Justice Hall dissenting in State v. Moffa, 36 N. J. *219 at 228 (1961). See also my dissent in the sanie case at page 225. I know of no case in this state where grand jury testi- mony of witnesses has been given to the defense before trial solely on the grounds that it would assist in the prep- © aration of defendant’s case. Cf. State v. Clement, supra, and State v. Moffa, supra. Because of the protection af- . forded a defendant by the procedure permitted in State v. * DiModica, 40 N. J. 404, 408-11 (1963), the compelling cir- . cumstances which would call for the relaxation. of R.R. 3:3-7 on the basis of “surprise or injustice’’ -(R.R. 1:27A), are not here present. Indeed, State vy. DiModica goés fur- ther in tempering the strict rule of grand jury secrecy in the interest of a fair trial than the federal courts have found necessary. See Pittsburgh Plate Glass Co. v. United U.S. 395, 3 L. Ed. 2d 1323 (1959).- A a statements of witnesses taken by the prosecutor, . 33-11 expressly excepts such statements from the scope of defendant’s pre-trial discovery. My discussion above of the secrecy of grand jury testimony is likewise applicable here. A rule such as R.R. 3:5-11, firmly grounded . in long established policies, ‘should not be eroded without ‘ffull review and reevaluation of the many considerations involved. - da et eee ‘APPENDIX B ( Opinion of Supreme Court al New Jersey— Reported in 48 N. ‘J. 145) Supreme Courr or New Jersey ¢ a Strate or New Jersey, Plaintiff-Respondent ‘Vs. — Cuarues F'arMer, | . Defendant-Appellant. ¢ Mr. Raymond A. Brown argued’ the cause ‘for appel- lant. Mr. John P. Kozak, Assistant. Prosecutor, argued the _ ease for respondent (Mr. Edward J. Dolan, Middle- sex County Prosecutor, attorney; Mr. Kozak on the. brief ).’ ee ‘The opinion of the court was delivered by “ Franois, J. The issue to be @etermined here is whether the defense of double jeopardy is available as a bar to the proposed’ retrial of the defendant for murder, A previous trial came to an early abortive end when the trial court declared a mistrial sua sponte and oyer the. objection of both State and defendant. Thereafter defendant’s motion to dismiss the ale PIO LITE ET LT A PE TRIES TE 6a Appendix B ' indictment on the ground that he could not be placed in . jeopardy again was denied. We granted leave to ver from the denial. On November 15, 1963 the Grand Jury. of Middlesex County indicted defendant Charles Farmer for first degree murder after he fatally shot his wife Barbara Farmer on September 18, 1963. There is no doubt Farmer killed the deceased, or that immediately thereafter and as part of the incident he shot himsef. The principal defense to the indict- ment appears to be that he was insane at the time of the shooting. After wounding himself Farmer was taken to St. Peter’s General Hospital in New Brunswick, N. J. where he re- mained under treatment for some time. On February 3, 1964, following a hearing which began on January 22, 1964, “the Superior Court, Law Division, found him mentally in- competent to stand trial, and committed him to. the State hospital for the criminally insane. ‘See, Farmer v. State, 42, N. J. 579 (1964). Subsequently, on.May 25, 1965, again after a hearing, the Law Division declared him mentally fit for trial, and the State prepared to proceed. On July 14, 1965, Farmer moved in the trial court sie an order to permit pretrial discovery of the State’s case. Spe- cifically he asked leave ‘‘(a) To inspect, copy and photo- _ graph all statements, papers and confessions cqncerned with : the within indictment. (b) To inspect and copy all those grand jury minutes concerned with the within indictment. . (c) To inspect and copy all medical, psychiatri ic and neuro- logical reports pertaining to the defendant. (qd) To inspect and copy all: ballistic reports and paraffin reports made iy - connection with any firearms allegedly used in connection with the-death of Barbara Farmer. (e) To examine any z ' Ta Appendia B and all firearms and instruments concerned with the within indictment. (f) To inspect, copy and photograph all photo- ‘gfaphs concerned with the within indictment.: (g) To in- spect and examine any clothing worn by Barbara Farmer or Charles Farmer on September 18, 1963.’ Defendant’s affidavit supporting the motion alleges that at least four psychiatrists have stated he was insane at the time of the commission of the alleged crime. It then proceeds: ‘‘For the above reasons, I respectfully represent to the Court that I have need to,examine all Grand Jury testimony given before the Grand Ju ury of Middlesex County concerning my _ case in order that I may prepare for my trial along with my attorney, who represents me upon this motion for ex-: _ amining the Grand Jury testimony. ***> The focus of the affidavit was on the grand jury minufes. It concluded as follows: “T have retained send who has vigorously i inves- tigated this case and the difficult of acquiring facts at this posture convinces me that examination of all the Grand Jury testimony is essential to my de- fense.’’ No specific reference was made to a need for examination of statements of witnesses obtained by the State, or a re- quest for copies of any such statements. At ihe argument of the motion defense counsel not only sought leave to examine the grand jury minutes; he pur- sued also permission ‘to inspect, copy and photograph all statements * * *’’ as indicated in paragraph (a) of the no-* tice described above.. The argument of the parties although _ not included in the appendix has been examined by us. In- substanee defendant asserted by his attorney that he needed the State’s statements of Witnesses because he eould not » a 8a Appendia B recall the ‘circumstances of - the shooting.! See Farmer v. State, supra, 42 N. J., at p. 582. Apparently because of the insanity defense and the allegation of lack of memory of — 198 argument defense counsel said: | . “But we stand before the bar ready to go to trial with a defendant’ whom, I think, it has to be admitted suffered am- nesia and was insane at the time. I am before the bar of Jus- ‘, tice. I don’t know what happened. The State does know : what happened. | “Now, this I submit to your Honor is the showing of par- ticularized need. e ‘ @ -% a ae “This man présent was not present. This man ‘physically functioning was not functioning within the concept of the law considered under the -interdict of a criminal charge. “But here this man, insane, helpless, must ask the State for aid. : ; * oS “He must say, ‘Give me the statements: of those who are going to appear against me. Give me that which will tell me what I did.” ' “This might even inflffence a plea. I doubt it very much in this case because of a plea of insanity, of course precludes such a thing, but it might conceivably do so. * * * : a “Now, in this case Mr. Farmer was not present at the scene of the crime. In body, yes; apparently as far as,any cogniz- able ability, he had none. He was unaware of what was hap- pening, unable to know what was right, wrong, unable to - know and unable to repeat for his counsel or, to recall for him- | self the event.” ( ree on Silleuitian page) SS ite ni Appendia B the shooting, the trial court granted the motion and signed ° _a discovery order in the’ precise language set forth above. as paragraphs,(a) through (g) of the notice. -In doing so Judge Convery commented that the decision “wernt further than any court has.’’ The ruling required a liberal view of Revised Criminal Practice rule R.R. 3:3-7, and relaxation of R.R. 3:5-11, infra. The State sought leave to. appeal from ‘paragraphs (a) and (b) of the order which gave leave eae “*(a) To inspect, copy and photograph all state- - ments, papers and confessions concerned with the within indictment ; fee. . (Continued from ‘preceding. page) - Counsel then referred to his understanding, that a young attorney, D. T. Hague, was present at the shootirig, and he suggested “this man’s testimony is necessary to tell Mr. Farmer, now that he has been declared competent, what happened -at that time and place.” Further he suggested Rule 3:5-11 be relaxed and Farmer given “the right to inspect the testimony of somegne who will, for the first time, _be able to say to him, ‘Mr. Farmer, this is what happened’ because she cannot have known.” Pe | | : _In opposing thé mction, the prosecutor skid he stood ‘squarely on State v. Johnson, in which the Supreme Court had, while requiring inspection of defendant’s confession. denied access to the statements ot witnesses. ‘That the prosecutor was thinking in terms of state- ment of witnesses with respect to the criminal event seems plain. He a ; - “* * * And if you give’ the statements of other witnesses — then the next step would be the work product of the police who investigated it, their reports, * * *" ‘There was no specific discussion as to the exact significance or the exact nature of the discovery. covered by the ordet. 10a o Arend B “«(b) To inspedt and copy all those grand jury - minutes concerned with te ‘within’ indictment.’’ Because of the unusual nature of the case, we heard oral ar- gument on the application, Thereafter and before our deci- . sion was announced, defendant filed an affidavit stating: ‘‘I - cannot’to this day recall any of the events of September 18, ‘1963 which surround the alleged shooting at my home in- volving my wife and me.’’ ‘Thereupon we affirmed the trial court’s order.; State v. Farmer, 45 N. J. 520 (1965). When the trial judge observed that his decision went be- . yond the holding of any of our cases, he was correct. In recent years, however, discovery in criminal cases has been . undergoing an‘ evolutionary process, undoubtedly stimu- lated in large measure by the opinion of thé United States Supreme Court in Jencks v. United States, 353 U. S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957). [1] At the time of Jencks New Jersey had and still has two practice rules relating to the matters involved here: R.R. 3:3-7 provides :. a —. ‘¢The requirements as to secrecy of proceedings of the aad jury shall remain as heretofore:”’ - This rule sinned the traditional vpit with wile grand “jury proceedings have been surr ounded. But within the past few years we have lifted that veil on being satisfied under the. circumstances of a particular case that the policy of. secrecy should be subordinate to the search for the whole - _ truth. See, for example, State v. Mucci, 25 N. J. 423 (1957) ; State v.. Moffa, 36 N. J. 219 (1961); State v. Clement, - N. J. 139 —— State. Vv. Farmer, supra. lla 4 \ Appendia B / Moreover, following Jencks, supra, the Court -held in - State v. Hunt, 25 N. J. 514 (1958), that when a witness for _ the State in a criminal proceeding testifies that prior to taking the witness stand he had refreshed his recollection . from notes made earlier by him or some other person, de- fendant was entitled to have such notes produced for his examination and use on cross-examination, if desired. The opinion plainly indicated also that if the witness had made notes or a statement prior to trial covering the topics of his testimony, the tiotes or statement were likewise subject to ' defendant’s demand, even though the witness had not used ' them to refresh his recollection before trial. See State v.. _ Johnson, 28 N. J. 133, 143 (1958). | : R.R. 3:5-11 says: . ‘‘Upon motion of a defendant made at any time after the filing of. the indictment or accusation, the court shall order thé prosecutor to permit the ‘de- fendant to inspeé¢t and copy or photograph desig- nated books, tangible objects, papers or documents other than written statements .or confessions made ‘by the defendant obtained from or belonging to the defendant and may, if the interests of justice so re- quire, order the prosecutor to’ permit the defendant to inspect~and: copy’ or photograph written state- ments or confessions made: by the defendant and designated books, tangible objects, papers or docu- _ ments obtained from others: except written state- ments or confessions.”’ (Emphasis added.) We interpreted this rule to require the State to permit a defendant to. inspect‘ and copy a confession allegedly made by him. It was said that sueh disclosure, although not re- 12a Appendiz B quired constitutionally, clearly promoted the quest for truth. State v. Johnson, 28 N..J. 133 (1958). Since that ‘. time’it has become routine practice for county prosecutors “to supply a defendant with a copy of his confession, when- ever such P request is made. The defense motion in Johnson, however, had another as- pect. It. sought leave to inspect” sahanite made by pros- pective witnesses for the prosecution. On its face such ‘re- , quest was squarely within the express proscription of R.R. 335-11, supra. “As noted above, we had already held in State v. Hunt, supra;that during the trial and when a wit- ness is on the stand, thie-prosecution must yield to defend- ant’s demand for production, of any pertinent notes or statements made or used by tl@~witness prior to the giv- v ing of his testimony. See also, State*v.,Reynolds, 41 N.:J. 163, 182 (1963).~ But although we were awWare of the ongo- ing agitation for broader discovery in criminal cases, and -the arguments for and against such discovery, we felt it _ unwise to abangén! or revise our rule ‘without fuller ex- perience with the practical operation of Hunt and more information with respect -to experiencé in other jurisdic- tions in which pretrial disclosure exceeds’’ what had ‘been ‘authorized in New Jersey. State v. Johnson, 28 N. J., at p. 143.. It was pointed out-further that Johnson had bees no showing which would invite relaxation of R.R. 3:5-11 under the provisions of R.R. 1: 27A. - Finally the eiliiien suggested that the problem should: be explored at a judi- . cial conference at such appropriate time in.the future when all considerations relevant to the just and proper -adminis- ‘tgation of the criminal law could be presented. Study of the pr oblem continued until another aspect of it was submitted for judicial determination. In State v. Tate, ~ a ee LO LE LA TG Ey eee iE Cp a nn iain te 13a Appendix Be ; 4 f . . & 47 N. J. 352 (1966), this Court decided that under the ‘cir- : cumstances presented the defendant was not entitled to an order to compel certain State’s witnesses (who were to be produced at the trial) to testify on depositions in advance of trial. In that opinion the bar was advised of the sched- - uling of a Judicial Seminar in September 1966 to be open to all who might contribute to solution of the problem of discovery i in criminal cases. The Seminar was held and the material presented is being assembled for this Court’ S con- sideration. 89 N. J: L. J. 613 (1966). = 3 ah i The development of discovery: in er iminal cases has been outlined not. only to show its evolution in‘our State, but also to indicate that the major controversy has centered around efforts on the part of the defense to obtain copies of the statements of the State’s witnesses, who saw the crime committed or who furnished information tending to estab- lish defendant’s criminal participation in it. There is no reported case.in our State-in which-the defendant. moved -for or Was allowed inspection of ' investigation reports of police or detectives, or summaries of such reports, or re- ports or written .opinions of such persons or members of the prosecuton’s staff as to the guilt or ‘innocence of = oo accused. Matters of that nature, which are generally. thought. of as ‘‘work produet,’? have been free from in- speetion demands. Tt was in this legal milieu that Farmer moved-for the &bneralized and unspecific. discovery set out in paragraph (a) of his notice. | Lemon aaa attys haneywneensege omprariy wen: PMCS I POSNER RO ILNE PRETENSES s ' . , a trial judge in his memorandum denying the later double jeopardy plea recognized this. He said: ‘s* * * (S]uch voir dire disclosed that the state apparently had no contrary professional psychiatric testimony [to defendant’s claim of insanity] but - would rely entirely upon lay opinion as ‘to the de- fendant’s sanity.’’ (insertion ours) . At defendant’s request during the voir dire, the State gave him a list of the witnesses it intended to call at the trial. This was done so an.inquiry could be made of each prospective juror as he was called as to whether he knew any of those witnesses. The list included the lay witnesses, most of them police officers, who were to be called by the State in rebuttal on the issue of insanity. Defendant’s at- torney then knew that no signed or unsigned statements of these persons had been furnished to him. Yet at no time during the two. weeks of jury selection or after the intro- _ duction of testimony and exhibits began, until the impasse - ~ to be discussed later was reached, does the record reveal that he called this fact to the attention of the judge or | ‘made a motion that their statements; if any, be delivered 17a _ Appendia B . . to him, or that the suggestion was adyaiced that such state- »ments were within the scope of the discovery order. More- over, when the jury had been completed and sworn, the State and defense presented their openings. Again the assistant prosecutor made it plain that in meeting the claim of insanity. the State would produce and would rely upon the testimony of lay witnesses to counteract professional psychiatric evidence to be offered by defendant. The sig- nificance of this emphasis on lay testimony could not have .escaped defense notice; nor can it be deemed likely that the defense did not realize that witnesses would be called. in addition to those whose statements had been turned | over to defendant. At this point, even though this senda is from an inter- locutory order and the factual record is therefore incom- plete, it seems ‘advisable to digress from the trial proceed- ing in order to refer to certain background material which beyond question was known to the defense. - For some time before the shooting marital discord existed between Farmer and his wife Barbara. Civil litigation was . ' pending between them in which each was represented by counsel. In one pending aetion Farmer was seeking to have his wife declared mentally incompetent. On August 16, 1963, Farmer’s attorneys in the eivil pr oceedings engaged Pinkerton’s National Detective Ageney to provide guards on the Farmer premises each night thereafter from 8 p.m. to.7a.m. to deny entrance to Mrs. Farmer and certain. other persons. In addition, the attorneys obtained an.or der from . the county judge, who later tried the homicide case, re- straining Mrs. Farmer from entering the building thereon, which was a combination residence and office. Thereafter, and until September 18, the day of the }omicide, the Pink- erton guards performed the required night duty. a apes Ne) He POE LOM TE EM RE LOE ICO a A 8 . : - iS 18a : Appendia B On September 18 at about 5 p.m., by arrangement between - the attorneys for Mr. and Mrs.-Farmer, Mrs. Farmer in company with Douglas T. Hague, an associate with the law firm representing her, and some other persons, went to the premises to pick up some of her belongings. On arrival there Mrs. Farmer and the attorney walked upstairs to a second floor bedroom. Mr. Farmer followed them into the _ room and some words were exchanged. While she was en- gaged in gathering her clothing and while the attorney was still in the room, Farmer shot her and then turned the gun on himself. The police and. Pinkerton representatives ap- peared on the scene within a very short time thereafter. We return now to the trial and the outline of its progress after the opening. The State called two witnesses, one a member of the local police department, the other an identi- fication officer attached to the prosecutor’s staff. They de- scribed the Farmér premises generally and the bedroom “wherein the shooting occurred.. They identified a number of relevant photographs including some showing the bodies | of the defendant and his wife on the bedroom floor: shortly after the fatal event. Then a Sergeant Ear! F. Kichler of the local satis: de- partment was produced. He and Officer Harry Emmons arrived at the Farmer residence a very few minutes after the fatal shooting, and while Mr. and Mrs. Farmer were lying on the floor of the bedroom. On reaching the second floor Eichler was handed a sweater by Hague. It. was “wrapped around a revolver. Continuing into the bedroom- he found Farmer lying on the floor with his head on a pik low. Sergeant John Revie of the Pinkerton Agency was kneeling to the right of him. Mrs. Farmer was lying on the floor with ‘a portion of the upper part ef her body in Son mitante haa nat Sa neste 19. _. Appendia B the clothes closet and the remainder in the bedroom. Kichler | went to the left side of Farmer; Hague. was alongside _ Kichler. Farmer’s eyes were open and he was conscious. At.this point in the assistant prosecutor’s examination it appeared that Hague had made a statement to Eichler which Farmer had answered or commented upon. Defense counsel objected and, after the jury was excused, he said that the prosecutor had not given. him any statement from Kichler prior to trial, as he was required: to do under: the discovery order which we have diseussed above. ~* The assistant prosecutor replied that he did not have what he considered a statement from Wichler within ‘ the meaning of the order. He did have a. three-page report from Eichler entitled, ‘‘Supplementary Offense Report— Department of Police,” made to His superior on the day of the shooting, and later made available to the prosecu- tor’s office. It set forth the circumstances under which he was sént to. the Farmer premises, the officers who accom- panied him there and what he saw and heard while there, particularly the comment of Farmer in the presence of Hague and the Pinkerton man which he was about to tes- - tify to when the defense objection came. The report re- : ferred. to a number of other persons who responded to ~ Kichler’s telephone call, such as a doctor, members of the local rescue squad who. removed Farmer to the hospital, additional police officers and representatives of the prose- cutor’s office, who.took pietures and measutements. It listed a number of articles, considered material to the ease, such as a revolver and an automatic: pistol, cartridges, a shoulder holster, ete., as well as objects, such as jewelry and the like, removed from Mrs. Farmer’s body, and her hand- bag and its contents. It reported’ finally that all of the ar- °° OE nen te eee ee ee - Pam en a ° s 20a . Appendia B ticles were delivered to police headquarters and locked in . the safe. .The first page of this jo ropes was signed ua Ser- - geant Hichler. . During the argument as to whether Wichler’s oblast | should’ have been furnished to defendant in advance of trial, in. ‘answer to/ court questions it appeared that fhe prosecutor had in his file a number of signed and unsigned _ reports of police officers and sheriff’s officers.. As it later appeared when produced, they referred to investigational efforts and other activity, such as guarding Farmer ‘during his stay in the hospital; copies of reports and statements - given by Pinkerton operatives to their superiors and per- haps some statements of Pinkerton men given directly:to the police; and affidavits and one signed statement of Ser- geant John Revie, the Pinkerton officer who’ was‘on the premises in the Farmer employ when the shooting occurred. One, a lengthy affidavit dated September 26, 1963 covered, among other things, Revie’s version of the conversation in the bedroom which Sergeant Eichler was about to describe when the objection came; the jurat thereto was taken by an attorney associated With the office of Farmer’ s attor- neys.. Some of the documents were summaries of the in- vestigation and the case, prepared either by local police and delivered to the prosecutor or by a detective on the prosecutor’s staff. Two of the other three Revie ‘affidavits were made before.'the homicide occurred and outlined his _ activities on the Farmer premises, including an account of ar alleged unpleasant visit there by Mrs.-Farmer on Au- gust 28, 1963. The jurats on these affidavits were signed by attorneys representing Farmer, and of course were in their possession, before the shooting. The fourth. state- ment, undated but undoubtedly signed very shortly after Any 0 2 ot aia Sim ta eri napha se Skies 21a Appendia B ‘the shooting, is designated a ‘*report * * * relative to the incident * * * on September 18, 1963”? apparently made to the Pinkerton Agency. . It covers substantially the same ‘material as appears in the lengthy Revie affidavit already described, sworn to before one of Farmer’s attorneys. 2 The State had already delivered to the defense Revie’s lengthy testimony. before the.grand jury. In addition the State had turned over at the same time a 19-page statement of Revie in question and answer form madé within a few hours after the shooting. In that statement. Revie said he had given “depositions” previous to the ‘shooting to Farmer’s law firm, about matters occurring during his guard duty on the Farmer estate. These “depositions” undoubtedly ... are the Revie affidavits of August 29 and September 4, 1963 prepared .by.and sworn to before Farmer’s attorneys. Copies of them. were among the papers submitted to defendant ‘at {the trial. Moreover, on Revie’s grand.jury appearance he said he had talked about the case on two occasions with Farmer’s attorney (not present defense coun- sel) before testifying. Therefore, Revie’s knowledge. of the case was thoroughly in the hands of the defense before trial, and it is unlikely in the extreme that Farmer suffered any prejudice in not receiving the additional and largely repetitive statements about the: criminal event and the circumstances preceding it, The. report of Officer . Engel delivered at the trial referred to a comment made by. Farmer after the shooting and while he was lying _ on the floor, apparently in answer to'a comment by the witness Hague . ‘which Farmer overheard. Farmer’s alleged remark in the report ap- _ pears to be the anly fact of any Consequence not contained in testi- °. : “mony or other statements already in the defense possession before trial. But the defense did have before trial Hague's extensive testi- mony before the grand jury as well as his full 36-page statement in: question’ and answer form made about two hours after the shooting. . One of the police reports furnished at the trial and complained about by defendant was made on August 24, 1965. and described the purchase of the fatal gun by defendant from one Hoey in the .pres- (Continued on following page) we Sa ' bt a tll is alice ERT OPK RT PCa ahaha Rh ib ie ee Sloe Ad eerie bhieonmnan Worble ee “*T ask for everything he has got. I ask for it now. I ‘ask your Honor to permit me to have it prior to continuing, and if your Honor does not see fit and . Tules in aceordance with that, I ness ask for a mis- * trial. 25a Appendia B “*T don’t wish to press it, but that is my position.’’ ~ (Insertion ours. ) . Thereafter the assistant prosecutor said: ‘Well, I’m the last one, your Honor, next to Mr. Brown, who wants a mistrial’ to occur in this ease. We have spent too much time on it already.’? A recess was taken until: the following morning to permit } the State to remove the pertinent papers from the file and deliver them to the defense that afternoon. The State made~™ the delivery, except for the copies of the Pinkerton Agency report and statements of its operators to their superiors (described above) concerning their activities, on behalf of ‘Farmer prior to the fatal event. Appar ently the assistant ~prosecutor was not familiar with them but, since they had _ been ‘‘specifically requested,’’ a search disclosed them in - the office and they were’ given to Mr. Brown, presumably on February 3. - When the tr ial Was resumed, spparentiy: two days later, _ February 3, defense counsel moved to suppress all of the evidence disclosed by the stateménts and reports, -and all . evidence which ‘would flow”? from them. And he said that if the court declined-to suppress, then he moved for an acquittal. A lengthy argument followed in which the prose- eutor was charged with double dealing and violating the discovery order and doing so contumaciously and in bad faith in ‘failing’ to turn over the reports and statements long before trial. At a subsequent’ point-he said he intended * no personal attack on the prosecutor’s ‘‘ethies, his char- . _aeter or his ability and-if this was-se construed I owe Mr. Dolan an apology.’? He explained that the terms contu- “s av F : ¥ : i ‘5 Sais tak © Val SEG Sor 26a Appendix B macious and bad faith were used in the ‘‘légal sense’’ as expressed in the cases. -The assistant prosecutor denied there had been any attempt or intent to violate the dis-— ‘covery order. He and the prosecutor had discussed the matter. The prosécutor who had’argued the*propriety of © the order in this Court advised him that the turning over of police reports was never mentioned. They concluded on the basis of the previous state of the law, the practice rule, R.R. 3:5-11, supra, and the argument of the motion © in the trial court and Supreme Court, that such reports were not intended to be included. - After the trial court had indicated disagreement with the State’s construction of the order, the assistant prosecutor said: = ‘«* * *'T concede *that within the amuiark of the first paragraph of the Order, where it refers to the . statements, confessions and: papers, that is broad enough in the abstract to cover each and every one of these statements which were turned over to Mr.. Brown [two days previously]. In ary event, this was examined very carefully, this entire aspect was examined very carefully, before certain documents were turned over to Mr. Brown pursuant to the court order retidered by Judge Convery, and it was our thought at-the time—and -again I represent to this court that this was not done with any idea of chi- - eanery, of double dealing, of cutting corners, but on the honest conclusion that we were riot required to submit to counsel for the defendant-police reports rendered during the course of the investigation of | the homicide and during the course of. guard duty performed’ by the Highland Park Police and the Sheriff’s officers. 27a Appendia B ‘‘We felt then and we felt until two days ago that these reports would be readily available to each of these witnesses as the time for cross-examination appreached, and that, of course, would be.in com- plete consonance with the Supreme Court decision in ‘State vs. Hunt, subsequently affirmed in other cases * * *9)9 ‘ He called to the court’s attention further that while he was preparing the case for trial he and Mr. Brown had dis- cussed whether he was required to advise Mr. Brown of - any pertinent information communicated to him orally by ’ prospective witnesses, which he had not already furnished the defense. . This had resulted in a pretrial motion for a ruling on the matter. After argument the trial judge .had sustained the State’s position that any such oral statements need not be given defendant in advance’ of ‘trial. The question of duty to deliver police reports of the nature — which later created the mistrial problem Was not pre- sented at that time. Even though the court found at the trial that the prosecutor had acted in good faith with re- spect to these reports, the mistrial probably would have been avoided had he-sought-a pretrial ruling on the matter. As the argument proceeded at the trial, the State sug- gested.a recess be taken to enable the defense to make any invstigation ‘or further preparation considered neeessary as a result of the reports. The assistant prosecutor of. fered to produce ‘fevery one” of the persons who made - them at a place convenient for defense counsel so that he could interrogate them privately and without’ limitation. ~ Mr. Brown declined the offer and advised the court it was impossible to say how mucli time would be ‘required to do 28a Appendix B what ought to be done or. might develop to be necessary once his investigation had begun. He felt the defense had been prejudiced by the State’s disregard, of the discovery order, and the prejudice could not be removed by an at- tempt td do a hasty job of investigating, preparing for and meeting the information revealed by the withheld reports. Although it is probable that the persons making the re- ports and the other persons mentioned. therein were acces- ‘. sible and many of them known to defense (such as Pinker- ton agents, defendant’s attorneys, Farmer’s company en- gineer and others who visited him at the hospital), and ‘probably available for interview on short notice, and others such as police officers and, prosecutor’s: representatives could have been produced quickly for interrogation, it can- - not be said in fairness or with any degree of certainty that forcing a recess and such a course of hasty prepara- tion upon the defense would have been consistent with the due administration of justice. The trial judge, who was fully acquainted with all the facts and circumstances, felt it would be unfair to defendant to push him into a-trial recess and an immediate investigation, and that his inter- ests required a more protective course of action. He in- dicated a feeling also that to continue the trial, requiring . defendant to meet as best he could the material covered by ‘the police reports, would probably result in a reversal. en_ appeal if defendant were convicted: On the other hand, since the information contained in the reports was of great importance to,the State, particularly on the issue of sanity, to grant defendant’s motion to suppress them and any évi- | dence flowing from them would prevent a meaningful trial and probably result in‘a judgment of acquittal at the close of anal prosecution’ s casé or in a jury y verdict of. acquittal. 29a ' Appendia B Inquiz y by the court for the parties’. views about a mis- ' trial revealed opposition by the State. Likewise, the de- fendant, who had insisted earlier that he-wanted a mis- trial if the reports were not furnished to him before the. trial proceeded any further, now having received and ex- ‘amined them, opposed a mistrial as well as the proposed recess to permit investigation, and continued to press his - ‘motion to’ suppress them. After a recess, the judge de- clared he was satisfied the failure of the State to submit .. the reports to the defendant was the result of a misin- terpretation of the discovery order and not a deliberate at- tempt to deny defendant the information contained therein. ‘’ He went on to announce his ‘conviction (1 ) that it would not ' be practical to recess the trial to permit time for investi- - gation of the reports and preparation by the defendant to meet them, ( 2) that to strike the evidence revealed _by them would prevent a ‘‘meaningful trial,’’ and (3) that.to allow the case to proceed without excluding that evidence would be ‘‘completely unfair to the defendant. Accordingly, over objection of both defendant and fhe State he.was ‘‘re- luctantly’’ declaring a mistrial. A few weeks later defendant moved for a disiatenad of the indictment on the ground that.a new trial aould place . him: in double jeopardy in violation of the Fifth Amend- ment to the United States Constitution; and of Article I, paragraph 11 of the New Jersey Constitution. The mo- tion was deiied in a written opinion in whieh the trial judge reiterated his: belief that the pr osecutor had acted in good faith in interpreting the discovery order. He declared further that, even though the prosecntor’s interpretation Was erroneous and must be regarded as the producing - cause Of the mistrial, under all the circumstances of the case it would not be fundamentally waists to require retrial | of te defendant. PR RPE A Net VrwOe 189 30a . Appendia B . = [2] One of tine most’ basic ‘iichite possessed by the people of this State and of the United States is freedom from be- ing put in jeopardy a second time for the same criminal — offense: State. v. Roller, 29 N. J. 339 (1959). This princi- © ple, which grew into the common, law and became rooted in tradition and gonscience, was embodied in our Constitu- tions of 1844, Art. I, par. 10, and of 1947, Art. I, par. 11. Both paragraphs prohibit the trial of a person after ac- . | quittal for the same offense. The Fifth Amendment to the United States Constitution expresses the common law - prohibition in more general terms, 7.e., ‘‘* * * nor shall any person be subject for the same offense to be twice: put in jeopardy ‘of life or limb.’’ In the light’of historical evo- lution and.treatment, the difference in.language in the context of the present case is without distinction in mean- ing. The clauses are coextensive in application. State v. | Wolf, 46 N. J. 301 (1966); State v.. Williams, 30 N. J. 105 -(1959). [3, 4] The State contended and the trial court as citing Brock v. State of North Carolina, 344 U. S. 424, 73 * 8. Ct. 349, 97 L. Ed. 456 (1952), that the double jeopardy provision of the Fifth Amendment applies only to the Fed- eral government and operates on criminal prosecutions within that sphere alone. Assuming the contention were correct it’ would be of no particular significance. As we have said, the provisions of the two Constitutions, State and Federal, noted above, are coextensive in principle and scope, and so the views of the United States. Supreme | Court on double Jeopardy, even if not controlling, would be influential and persuasive. State v. Willtams, supra, 30 N. J. at p. 122.. Moreover, much water has passed | over 3la ° Appendix B p the dam since brock y. State of North Carolina and in view * of the more’ recent cases in that Court little doubt remains J: a | ae , that the double jeopardy, clause of the Fifth. Amendment ‘is binding on the’ States, by virtue of the Fourteenth Amendment. See, Mapp v. Ohio, 367 U. S. 643, 81 §. Ct. 1684, 6 L. Ed. 2d 1081, (1961) ;' Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Griffin v. State of California; 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), and concurring opinion of Justice Harlan, ' 880 U. S., at pp. 615-617, 85 S. Ct, at pp. 1233—1234 (1965) ; Miraiida v. State of Arizona; 384 U. S. 436, 86 S. Ct. 2602,.16 L. Ed. 2d 694, 717 (1966). Although these cases do not involve the double jeopardy clause, they clear- ly reveal a disposition on the part of the Court to regard protection of all of the basic rights encompassed by the Fifth Amendment. as the inescapable obligation of both | State and Federal sovereignties. [5] In order for the defense of double or former jeopar- dy to be available to an accused, it is not necessary that - the previous criminal trial terminate in a verdict of not guilty. The term ‘‘acquittal’’? in our Constitution has a much broader significance. Under well- established princi- ples s, Jeopar dy attaches to a defendant.when he is put on trial in a court of competent jurisdiction upon a valid in-. dictment and a jury is-empaneled and sworn to determine the issue of his guilt or innocence of the crime charged. ‘Thereafter, ordinarily, he is. entitled to have the trial proceed to its normal conclusion, i.e., judgement by the court or verdict of the jury.. If the jury is discharged before that time without his consent or without legal justifiea- ‘tion,. the abortive ending: is reap haps to acquittal and bars’ retrial. State v. Romeo, 43 N. J. 188 (1964) ; State v. Williams, supra; State v. Locklear,16 N. J. 232 (1954). Aalhos > ine? We tee ove. tee bens amoune 82a Appendix B [6] The requirement for ¢gompletion of a tridl once be- gun is not an inexorable one, admitting of no qualifications or exgeptions. The rule against double jeopardy does not signify that every time a defendant is put on trial before an appropriate court he is entitled to go free if the trial falls short of final judgment.’ Such a doctrine, the United States Supreme Court said in Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949), would create an insuperable obstacle to the administration of jusfice in many cases where there is no semblance of the oppressive practices at which the double jeopardy provision is aimed. ~ It was recognized there that in some unusual instances a defendant’s right to have his trial completed by a partic- ular tribunal must be subordinated to the public interest. in fair trials designed to end in just judgments. 336 U: S. at pp. 688-689, 69 S. Ct., at pp. 836-837. In Wade the Court quoted as follows from United States v. Perez, 22 U.S. (9 Whéat.) 579, 580, 6 L. Ed. 165, decided. in 1824, which has been regarded ever since as establishing the test for de- _ termining whether an early termination justifies a plea of double jeopardy : “8 *.* We think, that in all cases of this nature, the law has invested Courts of: justice with the au- | thority to discharge a jury. from giving any verdict whenever, in their opinion, taking all the cireum- stances into consideration, there is a manifest necessity for the act, or the ends of public Justice would otherwise be defeated. ‘They are to exercise u interstate commerce. A jury was impaneled and _ government evidence was introduced throughout the morning and was continuing in the afternoon when a situation arose. which ih the trial judge’s opinion required.a.mistrial. The case was retried later over defendant’s double jeopardy objection and he was convicted. The conviction was sustained in the Court of Appeals for. the Second Circuit, 282 F. 2d 43 (1960),.and by°the United States Supreme Court. . i The incident which provoked the mistrial was not very. _ clear froni the record. Apparently, while one of the prosecu- tiott witnesse was being questioned on direct examination, — the trial court got the impression that the government attor- ney was endeavoring to insinuate to the jury that the de- fendant had been ‘convicted of other crimes. 282 F. 2d, at _p. 46. Actually no such question was -put specifically, nor did the cold appellate record reveal clearly that such was ° ‘the intention of the United States attorney. The parties agreed, however, that the mistrial was declared pursuant to the-trial judgé’s intention to prevent evidence of other crimes by the accused. The Court of Appeals abserved that ° the trial court should not have aeted so liastily, but should ° have aw aited a definite question which would have permitted : > v ff pom tenin seh Caan wirin # rN hi Ah ee lity EO att AE nits et 7 vg a C . iu é ~ 45a _, Appendia B ie ” \ . a clear-cut ruling. Judge Clark pointed out that the Fed- 4 eral system takes pride’in the fact that its-judges are not “mere automatons or referees, but bear an affirmative re . sponsibility for the proper conduct of a criminal trial. And ~ he indicated that, even though it may-appear’in a -tare ’ ease that a judge in ordering a mistrial: may have been overzealous in his protection of the rights of an accused, ~ the law is better served by continued acceptance of the con, » stitutional propriety of & conscientious exercise of his dis- ©” - eretioh in declaring a ‘mistrial. ine The Court concluded with a statement pertinent to the. -présent case: = ae ‘Here, the defendant was in no way harmed by jeopardy bar that has been brought to our attention, and raises considerable question as to the extent to which it has drawn in the long recognized perimeter of the trial judge’s discretionary contro! over the conduct of criminal trials. In any event, the case is probably a binding precedent on this Court and we accept our obligation to follow it in the same or indistinguishable fact pattern. It may be noted, however, that Downum did not criticize or, overrule Gori y. United States; moreover, it adhered: to the principle that in deeid- ing whether the jeopardy bar is to be applied, each case . must turn on its own facts. 372 U.S., at p. 737, 83 S. Ct, at p. 1035. The present case is distinguishable from ie and brings facts to us which, in our judgment, are even .more influential against application: of the double jeopardy «loc- sR Ti iS el lt 8 tai Ai 3 ‘ | 49a Appendiz B trine than those in Gori. Or,-put in: terms commonly found in the cases, the unusual facts and cireumstan¢es here clear- ly provided a reasonable basis for the trial judge to con- clude that an urgent need existed to abort the trial in the interest of the defendant and the State. .\s we have already explained, the unusual and novel discovery order must- be considered in the ambiance of its time.. The prosecutor’s in- - terpretation of it was too narrow when measured by its . language. His construction, however, found as it was by: the trial court to have been made. in good faith, though . erroneous, was not without some basis in reason when re- lated to the arguments of ‘the parties to the various courts which considered the discovery motion. The arguments dealt almost exclusively with the desifability of extending the established scope of discovery to the statements of wit- nesses other than the accused in order to enable him to re- construct the criminal event. That the prosecutor believed this was the purport of the order is indicated by the de- livery months before the trial began, of the entire 274-page transcript of the grand jury testimony covering circum- stances preceding, surrounding and immediately after the homicide incident. It is shown also b} the delivery at the same time of the comprehensive statements obtained from the persons who appeared before the grand jury, as well as notes of interviews with six other perséns who shed light on the relations between Farmer and his wife prior to the shooting. When at the early stage of the trial the court decided there had been incomplete compliance with the dis- covery directive, it is plain that the prinicpal deficiency was considered to be the failure to turn over the reports | of the police officers who had guarded Farmer’s hospital room for days after the homicide. ‘This was because the testimony derived from those reports represented in: large - & 1. ee vemniten toate ee 50a Appendix B part the ‘inl upon which the State ree to rebut the . defense of insanity. Although satisfied that the prosecutor had acted in good faith, the trial court felt in all good-con- — science that it would ‘‘be completely unfair’’ to the defend- ant to force him to proceed with the trial without giving him an opportunity to investigate and prepare to meet this lay proof of sanity. Also in view of the good faith deter-— ‘ mination, the court felt it would be transgressive of the public interest to suppress the testimony and thus in all probability produce an acquittal. The dilemma facing him was aggravated. by the awareness that to force defendant | to continue the tria! and meet the lay rebuttal testimony as best he could would result in virtually certain reversal, _ if conviction ensued. The pressure of all the circumstances led him to conclude that mistrial was the only just solution. for the. defendant and the public. That solution,\born of the unusual trial travail, should not be considered so un: reasonable by, a reviewing court as to constitute an abuse of discretion. . In short, here, as in Gort, the defendant has not safféred any substantial prejudice because of the mistrial. He now has foreknowledge of the substance of the State’s case against him, and ample time to prepare to meet it. More- over, as the trial court found, the mistrial was not caused - by any intention of the prosecution to take an undue ad- vantage, or to ita Farmer in his effort to defend him- self. Accordingly, the interlocutory order of the trial court re- jecting the defense of double jeopardy is affirmed, and the cause may be listed for trial. ' For affirmance—Chief Justice WEINTRAUB and Justices. Jacoss, Francis, Proctor, ScHETTING aud Haneman—t. For reversal—None. 5 | dla APPENDIX ¢C (Mandate on Affirmance) * (Filed—November 21, 1966) Supreme Covurr yr New J ERSEY * Appeal Docker No. 5171 * aoan ere Srare or New JERSEY, 2 as ii einen Plaintiff-Respondent, vs. ‘ =: CHARLEs Farmer, , ; Defendant-Appellant. + eee This cause having been duly argued before this Court by Mr. Raymond