State v. Johnson

• Decision Date: 20 October 1958
• Docket Number: No. A--1,A--1
• Citation: 145 A.2d 313,28 N.J. 133
• Parties: STATE of New Jersey v. Sylvester JOHNSON, Stanley Cassidy and Wayne Godfrey, Defendants.
• Court: New Jersey Supreme Court

Page 133

28 N.J. 133

145 A.2d 313

STATE of New Jersey v. Sylvester JOHNSON, Stanley Cassidy and Wayne Godfrey, Defendants.

No. A--1.

Supreme Court of New Jersey.

Argued May 19, 1958.

Reargued Sept. 8, 1958.

Decided Oct. 20, 1958.

E. Stevenson Fluharty, Camden, argued the cause for appellant.

I. V. DiMartino, Camden, argued the cause for the State (David D. Furman, Acting Atty. Gen., and Benjamin Asbell, Deputy Atty. Gen., attorneys; I. V. DiMartino, Camden, of counsel and on the brief).

Norman Heine, Camden County Prosecutor, Camden, reargued the cause for the State.

The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendant Wayne Godfrey and two others were indicted for murder. Court-assigned counsel moved for inspection of 'any statement or confession' taken from defendant 'which will be offered at the trial.' Counsel certified that (1) inspection 'is necessary for the preparation for trial and the presentation of the defense'; (2) a denial 'will result in an injustice or undue hardship'; and (3) 'this case requires' a favorable exercise of the court's discretion. There was no supporting affidavit, and the sole addition at argument to the bare allegations just recited was the unparticularized statement that from conversations with the prosecutor counsel detected an inconsistency between the State's version of the case and the story told by defendants to their respective counsel.

Defendant also moved for inspection of all statements, notes and memorandums made by persons whom the State intends to offer as witnesses.

The trial court denied the motions. We granted defendant leave to appeal.

I.

We shall consider first defendant's motion for inspection of any statement or confession of his own 'which will be offered at the trial.' The State concedes it holds a confession which it intends to offer.

In State v. Cicenia, 6 N.J. 296, 78 A.2d 568 (1951), this court declined to hold that a defendant has an absolute right to inspect his own statement but rejected as well the proposition that inspection may never be ordered. The court adopted the intermediate view that inspection may be ordered if in the sound discretion of the trial judge the interests of justice should so require.

The issue arose again in State v. Tune, 13 N.J. 203, 98 A.2d 881 (1953). There the trial court ordered inspection but its order was reversed by a vote of four to three. Both opinions claimed adherence to the principle of Cicenia, but the dissenters viewed the majority application to be an effective renunciation of it. Mr. Justice Brennan said for the minority (13 N.J. at page 230, 98 A.2d at page 895):

'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.'

This appraisal has since been made by others. 53 Col.L.Rev. 1161, 1163 (1953); 29 N.Y.U.L.Rev. 1140, 1141--1142 (1954); 39 Va.L.Rev. 976, 978 (1953).

We subscribe to the rule of Cicenia, now embodied in R.R. 3:5--11, and also to the view of the majority in Tune that 'sound discretion' means 'one that is neither arbitrary, vague, no fanciful' (13 N.J. at page 222, 98 A.2d at page 891). In some areas an exercise of discretion must necessarily remain an intuitive response to a set of facts. Here, however, some guiding criteria can be prescribed and hence should be, to guard against arbitrariness and unequal treatment and to avoid if possible the unsatisfactory alternative of a post-trial inquiry into a claim of prejudicial error.

We start with the premise that truth is best revealed by a decent opportunity to prepare in advance of trial. We have embraced that tenet with respect to civil litigation, and absent overriding considerations, it should be as valid in criminal matters. It is of no moment that pretrial inspection is not constitutionally assured. Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). We are not limited to constitutional minima; rather we strive for practices which will best promote the quest for truth. It may be added that although Cicenia v. Lagay found the Fourteenth Amendment to be unoffended, yet it observed that 'it may be the 'better practice' for the prosecution to comply with a request for inspection.' 357 U.S. at page 511, 78 S.Ct. at page 1301, 2 L.Ed.2d at page 1529.

It is difficult to understand why a defendant should be denied pretrial inspection of his own statement in the absence of circumstances affirmatively indicating disservice to the public interest.

If a suspect refused to give a statement unless assured a copy, it would be an injudicious prosecutor who would not agree. And if the suspect were then represented by competent counsel, that stipulation would be required. Why, then, should the State refuse a copy to the suspect who was unrepresented and uninformed?

We must be mindful of the role of a confession. It frequently becomes the core of the State's case. It is not uncommon for the judicial proceeding to become more of a review of what transpired at headquarters than a trial of the basic criminal event itself. No one would deny a defendant's right thoroughly to investigate the facts of the crime to prepare for trial of that event. When a confession is given and issues surrounding it tend to displace the criminal event as the focus of the trial, there should be like opportunity to get at the facts of the substituted issue. Simple justice requires that a defendant be permitted to prepare to meet what thus looms as the critical element of the case against him.

The need for an opportunity to prepare to deal with a defendant's statement must be evident. If voluntariness is in issue, the content of the confession may be revealing. Counsel would need time to explore thoroughly the truth of the factual assertions therein, to inquire whether it contains anything more than the State knew at the time when defendant was apprehended, and to consider whether the content itself supports or negates the defendant's claim of involuntariness. Pretrial inspection may be equally necessary even though defendant concedes he freely gave the statement. This is so because the impact of the statement upon guilt may turn upln how the facts are stated, or upon the absence of exculpatory facts which a defendant may claim were revealed to the interrogator or would have been revealed if the inquiry had been complete. In murder cases in which guilt is not disputed, the manner of expression or the omission of palliative circumstances may have additional significance because of their influence upon the jury's determination as to punishment. Or the confession may contain prejudicial material which should be exscinded and as to which counsel should not be required to make a hurried decision in the courtroom. The possible situations may be multiplied. The virtue of the adversary approach to a trial lies precisely in the opportunity for a full and fair presentation, and hence where the State has had a unilateral examination of a defendant, he should be enabled, as far as feasible, to prepare to explore the completeness and fairness of a policeman's or prosecutor's development of the story in the confession.

In the foregoing, we speak of what May be the significance of pretrial inspection. The fact is that counsel for a defendant does not know or cannot be sure whether he needs the inspection until he has had it. It is no answer to say that a defendant 'must remember' what he said. If the defendant actually does remember, it cannot harm the State to furnish a copy. But as every trial lawyer knows, witnesses do not recall their statements with precision or detail. And when one considers the emotional sway which likely attends a wholly voluntary confession of crime, particularly of murder, it is idle to assert that a defendant 'must remember.'

Against these considerations, some vagrant fears are arrayed.

Foremost is the assertion that perjury will be promoted. That many defendants falsely dispute guilt, no one will deny. But a defendant who will dispute a truthful confession hardly needs a preview to aid him. He can fabricate with or without it, and if he wishes to shade his story in the light of forgotten details of his confession, that opportunity exists in any event since the confession will be introduced on the State's case and thus be revealed before he testifies. The fear of perjury virtually postulates universal guilt; it also impugns the demonstrated capacity of the judicial process to ferret the truth. Indeed, if the possibility of perjury is relevant, it should logically lead to a disavowal of Cicenia and a denial of any discretion to permit pretrial inspection. We say this because there is no way for a trial judge to make a pretrial determination as to whether a given defendant will or will not resort to perjury. We cannot, without incongruity, both authorize a trial judge to act and immobilize him with a dread of perjury. And if the possibility of fabrication is pressed, not as the touchstone for decision of individual applications but rather as a factor to influence the formulation of some other standard for the exercise of discretion, we confess that we cannot conceive a tenable criterion which would rationally be related to that prospect.

Reference is made to 'inequality' in that the State may not have pretrial discovery of a defendant. However relevant that consideration may be to the broader motion for discovery considered in 'II' below, it has no bearing when a defendant seeks inspection of his own statement, and for the obvious reason that the State has had pretrial discovery of the defendant and by unilateral examination.

Nor can we detect the relevancy here of the fear that witnesses will be intimidated or worse. If a...