State v. Clement

• Decision Date: 07 May 1963
• Docket Number: Nos. A--126,A--127,s. A--126
• Citation: 190 A.2d 867,40 N.J. 139
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Lawrence CLEMENT, Defendant, and John Almasi, Jr., and John Almasi Trucking Co., Inc., etc., Defendants-Appellants. The STATE of New Jersey, Plaintiff-Respondent, v. Joseph ZIEMBA, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 139

40 N.J. 139

190 A.2d 867

The STATE of New Jersey, Plaintiff-Respondent, v. Lawrence CLEMENT, Defendant, and John Almasi, Jr., and John Almasi Trucking Co., Inc., etc.,

Defendants-Appellants.

The STATE of New Jersey, Plaintiff-Respondent, v. Joseph ZIEMBA, Defendant-Appellant.

Nos. A--126, A--127.

Supreme Court of New Jersey.

Argued April 22, 1963.

Decided May 7, 1963.

John E. Toolan, Perth Amboy, for defendants-appellants John Almasi, Jr., John Almasi Trucking Co., Inc. and Joseph Ziemba (Toolan, Haney & Romond, Perth Amboy, attorneys).

Edward J. Dolan, Middlesex County Pros., Carteret, for respondent.

The opinion of the court was delivered by

WEINTRAUB, C.J.

The question is whether a defendant should be permitted pretrial inspection of his grand jury testimony. Almasi and Ziemba appeared before the grand jury under subpoena. Almasi testified for five to six hours, and Ziemba for about two and three-quarter hours. The testimony of each related to transactions which are the subject matter of the indictments returned against him. On the motions for inspection, each asserted his recollection of his testimony is not complete or precise, and his counsel certified he cannot prepare for trial with confidence unless he knows what his client said. The trial court denied the motions. The Appellate Division granted leave to appeal and we certified the matters prior to argument before that tribunal.

In State v. Johnson, 28 N.J. 133, 145 A.2d 313 (1958), a defendant sought pretrial inspection of a statement he gave the prosecution. Starting with 'the premise that truth is best revealed by a decent opportunity to prepare in advance of trial' (28 N.J. at p. 136, 145 A.2d at p. 315), we concluded a defendant should be granted such inspection upon a proper showing unless countervailing considerations appeared. As to the showing required, we said, for the reasons there elaborated upon (28 N.J. at p. 141, 145 A.2d at p. 318):

'* * * Hence we think it sufficient for a defendant to show that he does not recall his statement with sufficient detail to satisfy his counsel that he can fairly go to trial without it. In such circumstances, the application should be granted unless the State shows that the grant would 'improperly hamper the prosecution."

In State v. Murphy, 36 N.J. 172, 175 A.2d 622 (1961), indictments followed an investigation conducted by the Waterfront Commission of New York Harbor. Defendants had testified before the Commission with respect to transactions which later became the subject matter of the indictments and the transcript had been sent to the prosecutor by the Commission. We held that notwithstanding the prosecutor's stipulation not to use the testimony at the trial, defendants should have inspection of their own testimony to assist them in the preparation of their defense.

The showing here made by defendants readily meets the test of Johnson and Murphy. The State differentiates this case because the testimony was given before a grand jury. The question therefore is whether the secrecy which attends a grand jury's proceedings justifies a denial of an inspection which otherwise would be accorded an accused as a matter of fairness.

R.R. 3:3--7 reads:

'The requirements as to secrecy of proceedings of the grand jury shall remain as heretofore.'

The rule thus continues a concept, without however defining it. Secrecy of course impedes the search for truth and hence must rest firmly upon some greater social need. That the secrecy of the grand jury has hever been absolute is clear enough. So in State v. Moffa, 36 N.J. 219, 176 A.2d 1 (1961), in which we held a defendant charged with suborning a witness before a grand jury should be granted a pretrial view of all that witness's testimony before the grand jury, we noted (36 N.J. at p. 223, 176 A.2d at p. 3):

'It has long been our rule that proceedings before a grand jury may be disclosed if justice so requires. Thus a witness may be queried as to whether his present testimony accords with his testimony before the grand jury. State v. Bovino, 89 N.J.L. 586, 588, 99 A. (313) 319 (E. & A.1916); State v. Silverman, 100 N.J.L. 249, 252, 126 A. 618 (Sup.Ct.1924); State v. Goldman, 14 N.J.Misc. 463, 465, 185 A. 505 (Sup.Ct.1936). In State v. Samurine, 47 N.J.Super. 172, 178, 135 A.2d 574 (App.Div.1957), reversed on other grounds, 27 N.J. 322, 142 A.2d 612 (1958), it was stated the defense is entitled at trial to have the grand jury testimony of witnesses, for the purpose of cross-examination. We so held where it appeared the witnesses had examined their testimony before taking the stand. State v. Mucci, 25 N.J. 423, 136 A.2d 761 (1957). We ordered full exploration of grand jury minutes when a presentment reprobated a public official. In re Presentment by Camden County Grand Jury, 34 N.J. 378, 401, 169 A.2d 465 (1961); R.R. 3:3--9(c). See also State v. Donovan, 129 N.J.L. 478, 30 A.2d 421 (Sup.Ct.1943).'

In Moffa the testimony in question was not that of the defendant himself but rather of another he allegedly suborned. Here the testimony is the defendant's own, and hence the case is free of the objection, which there evoked a dissenting opinion, that the discovery related to the statement of a witness. At any rate, our task is to seek the reasons for the secrecy of the grand jury, to see if the pretrial inspection here sought would offend any of them. We find no conflict.

The reasons for grand jury secrecy are summed up in United States v. Rose, 215 F.2d 617, 628--629 (3 Cir. 1954):

'(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5)...