Reviewing Police Internal Affairs Documents and Officer Discipline Records May Be an Important Defense Strategy in a Criminal Case in NJ

The New Jersey Supreme Court recently changed the discovery rules to enable a criminal defendant easier access to a police officer’s internal affairs records when those records contain information relevant to their defense. However, the court did not allow unfettered access. The court’s decision outlined the conditions to access in State vs. Higgs. Contrary to prior restrictions, when the defendant had to know what was in the officer’s file to obtain it, the new ruling allows a defendant access by first filing a motion that identifies the specific information they seek and the relevance it has to their case.

What happened in the case of State v. Higgs?

The Higgs case centers around the defendant’s murder and weapons charges. The state alleges that the defendant shot his girlfriend, May, during a dispute ending when a police officer shot the defendant. The defendant argued at trial that he and his girlfriend were arguing when she pulled a gun on him. He then took the weapon, and the domestic dispute continued outside the home she rented with her and the defendant’s son. Officer Lee arrived on the scene and shot the defendant, who claims caused the gun in his hand to go off and shoot his girlfriend. The officer testified at trial that the defendant shot the girlfriend, which prompted him to shoot the defendant. The jury found the defendant guilty of murder and illegal weapons possession, and the judge sentenced him to life in prison. The appellate court confirmed the conviction.

Then, the defendant filed an appeal based on multiple issues and allowances that were made during the trial. On appeal, Higgs claims the trial court erred in disallowing the discovery of internal affairs records, disallowing the cross-examination of the officer involved in the shooting, allowing the lay witness testimony of an officer who did not witness the shooting, and allowing evidence of the defendant’s remote criminal record to discredit him. The Supreme Court reversed the trial court’s decisions in this case, granting Higgs a new trial.

Here, we will explore each of the key issues raised by the defendant and how this case paved the way for a new framework regarding police internal affairs files in criminal cases. The four questions raised by the defense, which apply to many other criminal defendants moving forward, are as follows:

• Can defendants review police internal affairs documents on past officer shootings that are relevant to their case?
• Can you cross-examine an officer involved in the on-the-job shooting in your case?
• Can an officer who wasn’t at the scene of an arrest offer their lay opinion at trial?
• Can old criminal convictions be used against you when facing new criminal charges?

If an Officer has Prior On the Job Shootings, Can You Access their Disciplinary Record in New Jersey?

During pre-trial discovery, the defendant attempted to obtain Officer Lee’s records on the grounds that Officer Lee had prior on-the-job shootings. The evidence aimed to support the defendant’s allegation that the officer shot first. The trial court reviewed the officer’s internal affairs records in chambers (without the parties in attendance) and determined nothing relevant in the records permitted their discovery.

The Supreme Court reversed the trial court’s decisions regarding the discovery. After noting that a defendant seeking relevant evidence from police files is in a Catch-22, the court laid a new framework for defendants seeking specific information from internal affairs files. Before, defendants had to identify specific information in an officer’s files to prove its relevance to avoid fishing around for damaging information. However, a defendant cannot know what they seek with the degree of specificity required under the law without seeing the file.

Furthermore, the Supreme Court reasoned that since the public has increased access to police disciplinary records through Attorney General releases and under common law access upon showing compelling public need, a criminal defendant should have no fewer rights than the public to that information. The court spelled out the discovery request framework to balance the officer’s privacy and the defendant’s ability to support a defense.

What is the Process for a Defense Attorney to Request Police Internal Affairs Documents in NJ?

A defendant’s attorney may file a motion for a judge to review in camera certain internal affairs documents, citing specific categories of information in the records, such as on-the-job shootings, and demonstrate the relevancy of the information to their case. The judge may grant the motion after determining relevance and then review the records sought in the motion. When the specified category of documents exists, the judge allows both parties to view whatever is relevant and keeps irrelevant information undisclosed. However, admitting the relevant records as evidence requires the judge to balance the relevance against undue prejudice under N.J.R.E. 403.

Can the Defense Cross-Examine the Officer Involved in the Shooting in their Case?

The trial court disallowed the defendant’s attorney to cross-examine the officer about the prior on-the-job shootings in the Higgs case. Thereafter, the Supreme Court reversed the trial court’s decision regarding the cross-examination of Officer Lee. Regarding the trial court’s denying cross-examination of Lee, the Supreme Court decided that a criminal defendant may cross-examine a witness’s credibility, bias, and motives under the Constitution’s Confrontation Clause within the parameters of N.J.R.E. 611(a). To deny the defendant cross-examination Lee to discredit or reveal biases or underlying motives on the crucial issue of who shot first is unconstitutional.

Can an Officer who wasn’t at the Scene of an Arrest Officer Testimony in Court?

In the Higgs case, the trial court allowed into evidence an officer’s lay opinion about what was in the police cam video and the defendant’s decades-old criminal convictions. The trial judge allowed an officer to testify as a lay witness on what he believed showed a gun on the defendant’s waistband from Officer Lee’s dashcam video. Officer Lee’s testimony came after the jury had already viewed the video. Officer Green was absent during the shooting, and the defendant objected to the testimony. The judge allowed the jury to hear it.

The Supreme Court reversed the trial court’s decision regarding Officer Green’s testimony. And on the issue of Officer Green’s interpretation of the video, the court ruled that under N.J.R.E. 701, a lay witness may testify to what they perceived or to help clarify the witness’s testimony or determine a factual issue. After reviewing case law, the court ruled that Green’s testimony that, based on his 27 years in law enforcement, the dash cam video showed a gun on the defendant’s waistband was impermissible under N.J.R.E. 701 and invaded the jury’s province. The jury saw the video before Green’s testimony and could have arrived at their own conclusions. The state did not offer Green’s testimony as an expert nor to clarify a complex sequence in a video, and so his lay opinion was inadmissible. The video showed a brief illumination of the defendant standing on the porch, a simple video for the jury to view and interpret without Green’s testimony.

Can the Prosecutor Introduce Old Criminal Convictions into Evidence in Another Case?

The judge also allowed, over the defendant’s objection, evidence of the defendant’s prior criminal assault, weapons, and drug charge convictions from 14 and 24 years before. The judge relied on a disorderly persons offense that occurred less than ten years before the trial to “bridge the gap” between the older inadmissible convictions and the trial date. Trial courts typically do not allow convictions older than ten years to be used as evidence in discrediting a defendant witness unless other convictions occurred ten years before trial.

In State vs. Higgs, the Supreme Court reversed the trial court’s decisions regarding the defendant’s remote criminal convictions. As to the admission of prior convictions ten years or older, the court determined the defendant’s criminal convictions are inadmissible under N.J.R.E. 609(b)(1) because the prejudice to the defendant outweighs the state’s use of impeachment evidence. The state sought to discredit Harris with the serious criminal convictions that occurred 14 and 24 years before the trial. The state used a disorderly persons offense that occurred seven years before trial to bridge the gap and show a pattern of dishonesty. However, the simple assault disorderly persons offense had nothing to do with dishonesty and was insufficient to bring the other convictions into evidence under N.J.R.E. 609(b).

Important Lessons for Criminal Cases Involving Evidence of Police Misconduct in NJ

The New Jersey Supreme Court reversed and remanded for a new trial in State vs. Higgs. On remand, the defendant may review Officer Lee’s internal affairs files under the court’s established framework and use the evidence to cross-examine the officer. Officer Green’s testimony is impermissible as violating N.J.R.E. 701. The defendant’s remote criminal convictions will not be allowed unless the state can prove the probative value of the convictions outweighs the prejudice to the defendant in admitting them.

The ruling in Higgs is essential to criminal defendants who depend on police misconduct evidence to defend themselves when their liberty is at stake. Without access to internal affairs records, a defendant may be missing the critical evidence that establishes their innocence, as is potentially the case for Higgs. Before this ruling, the discovery rules afforded criminal defendants less access than the public to police disciplinary records when criminal defendants need it even more.

As the criminal defense attorney in Higgs proved by their objections and motions to the court, a defendant has Constitutional rights to confront witnesses and not to be unfairly prejudiced and hamstrung when challenging a police officer’s misconduct, even criminal behavior.

Speak with an NJ Attorney about the Defense Approach that’s Right for Your Criminal Case

When you face charges involving a police officer with a disciplinary record, contact the criminal defense lawyers at The Tormey Law Firm to discuss your rights. If the internal affairs documents are relevant to your top defense, we have the knowledge and capability to file the appropriate discovery motion to obtain documents regarding the officer’s record of disciplinary action. This is one of the many effective defenses that our attorneys use to raise doubt in a jury’s mind. Whether you have been charged with a first degree crime, a disorderly persons offense, or a criminal charge of the second, third, or fourth degree in New Jersey, our legal team will fight for your rights to cross-examination and keep inadmissible information from prejudicing a jury against you. We take a proactive, intensive approach to defending our clients in court and ensuring a fair trial. Contact us at (201)-556-1570 to have a cost-free consultation with a lawyer today. Our firm defends clients statewide, including in Bergen County, Hudson County, Middlesex County, Essex County, Union County, Passaic County, and other counties in NJ.