Criminal Defense

What Is Discovery From The Prosecution?

The State rules, in contrast to federal practice, provide for broad disclosure of the prosecution’s file, as well as that of a defendant as part of pretrial discovery. See State v. Montague, 55 N.J. 387, 394-395 (1970). Thus, the State must either provide, or permit the defendant to inspect and copy or photograph the following material:

  • books, tangible objects, papers or documents obtained from or belonging to the defendant;
  • records of an accused’s statements or confessions signed or unsigned, and, a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded;
  • results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter, within the prosecutor’s possession, custody or control;
  • reports or records of the defendant’s prior convictions;
  • books, papers, documents, or copies thereof, or tangible objects, buildings or places within the prosecution’s possession, custody or control;
  • name and addresses of all persons whom the prosecutor knows to have relevant information or evidence, together with a designation of which these individuals may be called by the prosecutor as a witness;
  • any statements, whether signed or unsigned from any person designated in paragraph six above, along with the record of any prior convictions of the individuals;
  • police reports within the possession, custody or control of the prosecutor; and
  • names and addresses of each expert witness whom the prosecutor expects to call at trial, the expert’s qualifications, the subject matter on which the expert is expected to testify, and a copy of the expert’s report, or, if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. This information must be disclosed, after request, at least 30 days prior to trial (except in the penalty phase of a capital case). If the prosecutor fails to do so, the expert testimony may be barred upon application by the defendant, if the defendant can show prejudice or unfair surprise. State v. Labrutto, 114 J. 187, 205 (1989); State v. Dreher, 251 N.J. Super. 300, 315-316 (App. Div. 1991), certify. denied, 127 N.J. 564 (1992).
  1. 3:13-3(c)(1)-(9).

In addition to these items, the defendant may order the transcription of all grand jury proceedings. R 3:6-6(b). Defendants may also obtain any executed warrants and accompanying papers, pursuant to R. 3:5-6(c).

Under certain circumstances, defendants may obtain other discovery, beyond that which is specifically set forth in the rules. Thus, when justice requires the court may, for instance, grant an order compelling the prosecutor to arrange a line up. See State In the Interest of W.C., 85 N.J. 218, 221, 224, 226-228 (1981). In addition, a defendant may be entitled to have a court order the physical examination of a child sex abuse victim in limited situations. Such an examination will be ordered only if the defendant sufficiently shows that the examination can produce competent evidence that has substantial probative worth, and if admitted and believed by the tier of fact, that evidence could rebut or neutralize incriminating evidence or impugn the credibility of prosecution witnesses. In addition, the court must be satisfied that the defendant’s need clearly outweighs the possible harmful consequences to the alleged victim. State v. D.R.H., 127 N.J. 218, 221, 224, 226-228 (1981). In addition, a defendant may be entitled to have a court order the physical examination of a child sex abuse victim in limited situations. Such an examination will be ordered only if the defendant sufficiently shows that the examination can produce competent evidence that has substantial probative worth, and if admitted and believed by the trier of fact, that evidence would rebut or neutralize incriminating evidence or impugn the credibility of prosecution witnesses. In addition, the court must be satisfied that the defendant’s need clearly outweighs the possible harmful consequences to the alleged victim. State v. D.R.H., 127 N.J. 249, 260-261 (1992).

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