¶1(dissenting). I would grant the State leave to appeal from the interlocutory order of the trial court relaxing R. R. 3:3-7 and 3:5-11.
¶2If 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 discovery. 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 in State v. Clement, 40 N. J. 139, 143-144 (1963). See also United States v. Rose, 215 F. 2d 617, 628-629 (3 Cir. 1954).
“If we are to change the policy, it should be done, not by going beyond the rule in a particular case as here, but by amending after full review and reevaluation of the many considerations involved.” Justice Hall dissenting in State v. Moffa, 36 N. J. 219, at p. 228 (1961).
¶3See also my dissent in the same case at page 225.
¶4*523I know of no case in this State where grand jury testimony of witnesses has been given to the defense before trial solely on the ground that it would assist in the preparation of defendant’s case. Cf. State v. Clement, supra, and State v. Moffa, supra. Because of the protection afforded a defendant by the procedure permitted in State v. DiModica, 40 N. J. 404, 408-411 (1963), the compelling circumstances 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 v. DiModica goes further 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 States, 360 U. S. 395, 79 S. Ct. 1237, 3 L. Ed. 2d 1323 (1959).
¶5As to statements of witnesses taken by the prosecutor, R. R. 3 :5—11 expressly excepts such statements from the scope of defendant’s pretrial 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 “full review and reevaluation of the many considerations involved.”