Rules and Procedures of Discovery in NJ Criminal Law

Need a Lawyer for Discovery in a Criminal Case in NJ Whether you face criminal charges in Superior Court or disorderly persons offenses, DWI charges, or traffic infractions in municipal court, you have the right to discovery. Discovery in criminal cases involves the prosecution’s duty to turn over evidence they plan to use at a criminal trial. Thus, the prosecution must turn over documents, statements, specific forensic results and reports, and other evidence to the defendant as a matter of course. In municipal court, the defendant must request discovery, which is automatic in Superior Court.

Governing Rule for Discovery in Criminal Cases in NJ

New Jersey Rule 3:13-3 governs pre- and post-indictment discovery. Rule 3:13-3(a) requires the state to provide all relevant discoverable material to a defendant offered a plea bargain. However, exceptions to the discovery rule allow the prosecution to withhold pre-indictment discovery when such discovery would interfere with the state’s prosecution or investigation. Nevertheless, the state must provide all relevant discovery that does not impede prosecution or investigation. Additionally, discovery that would be too administratively overwhelming may also be withheld from the defendant, with the proviso that defense counsel may examine burdensome discovery at the prosecutor’s office.

For post-indictment discovery, the prosecution must provide discovery to all defendants as soon as the indictment is unsealed unless good cause exists not to do so. An example of good cause is the burdensome expense and time of copying voluminous discovery. In that case, defense counsel may copy discovery at the prosecutor’s office. When defense counsel or the unrepresented defendant may obtain discovery depends on whether the defendant has private counsel or a public defender. An unrepresented defendant or one represented by private counsel receives discovery three business days before the arraignment and upon request. The public defendant gets it before the arraignment.

Relevant Information and Materials Included in NJ Criminal Case Discovery

Discovery Rule 3:13(b) provides that discovery includes all exculpatory evidence, as a matter of right, plus writings, reports, records, documents, books, confessions, test results, witnesses, informants, police reports, other evidence associated with anyone with knowledge of the facts, among other tangible and intangible evidence.

And Rule 3:13 (2) designates what the defendant must present to the prosecution no later than 14 days after the arraignment. Defense counsel or the defendant must notify the prosecution of unprovided discovery items that they are aware of, including physical or electronic information. This may include scientific tests connecting the defendant to a crime, such as fingerprinting, DNA evidence, or chemical, breath, or blood test results in a DUI case, as well as any information such as photographs, and recordings of the defendant or other witnesses. Also included are defendants’ prior convictions, notes on identification procedures, and co-defendant information, reports, and recordings.

The Primary Burden of Discovery is on the Prosecutor, Not the Defendant

The defendant does not have the reciprocal obligation to provide discovery automatically until a particular time before the trial. The prosecution has the burden to prove each element of the charges in the criminal complaint, so they must provide discovery pertaining to conviction evidence. The defendant does not have the burden to present evidence. However, the defendant must provide the state with discovery concerning any affirmative defenses they plan to assert. Affirmative defenses refute one or more of the elements of the crimes against them. Should the prosecution fail to produce discovery, the judge can sanction the prosecution, disallow evidence at trial, strike a pleading, or continue the proceedings.

Limitations on Discovery in Criminal Cases

Discovery is valuable for keeping the prosecution and defense informed of the evidence so that there are no surprises at trial. It also helps narrow the issues so the parties can reach an out-of-court settlement and avoid an expensive, time-consuming trial. However, only some things are discoverable. The attorneys’ work product during the investigation and in discussions with the defendant and their attorney is not discoverable. Each side may bring motions for protective orders to keep the other side from obtaining privileged, protected, or sensitive information that may harm a witness or party to the proceeding. Finally, discovery is a continuing obligation.

How Criminal Depositions Work in New Jersey

Rule 3:13-2 governs depositions by witness unavailable for trial. The rule allows taking the witness’s statement before a judge or judge’s designee when the deposition is out of state. The prosecuting and defense attorneys also attend. A deposition is videotaped, and both sides may ask the witness questions, subject to the judge’s determination of what is relevant or otherwise permissible by law. The videotaped recording of the deposition then becomes admissible in part or whole at the trial as evidence. When used at trial, the jury receives a jury instruction that they should not make inferences about the deposition testimony instead of the witness’s appearance.

The judge first determines whether a witness is unable to attend the trial because of mental, physical, or other incapacitation and whether the absence of such a witness’s testimony would be manifestly unjust to either side. It may also be used when a witness duly subpoenaed to trial does not appear. Once the judge determines the deposition is necessary, the witness must appear for their deposition at a designated location and must further supply any other evidence relied upon by the witness to the deposition, which shall occur after legal notice is given to all necessary parties of the date, time, and place of the deposition.

Navigate the Discovery Process with Help from a Skilled NJ Criminal Defense Lawyer

Discovery is a significant continuing obligation of the prosecution and critical information to the defense. It provides the basis of plea bargains and trial strategy so both parties can evaluate what the other side has or does not have in obtaining or preventing a conviction. As such, if you are facing criminal charges in New Jersey, it is crucial that you have a sharp criminal defense attorney to ensure that you receive timely discovery and use it to guide the defense investigation and trial strategy. At every stage of the discovery and criminal case process, our criminal defense team at The Tormey Law Firm can evaluate whether you should take an early plea that the state offers, wait until further investigation turns up other evidence, negotiate for a better result involving lesser charges or consequences, apply for a diversionary program, or fully litigate the case during trial to get the results most favorable to you as the defendant.

These evaluations are the crucial job of our criminal defense attorneys, as we passionately investigate and fight for the best outcomes we can achieve for our clients. When you face criminal charges, get in touch with us immediately to discuss your case. We can answer your questions and if you enlist our help, take action right away to obtain the state’s discovery so we can proceed expeditiously in building your defense. Consult a criminal defense lawyer by contacting us at (201)-556-1570 to talk through discovery’s role in your defense.


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