[234 NJSuper Page 488] The defendant, Robert Tull, was charged with driving while under the influence of alcohol ("DWI"). Through counsel, he served a written request for discovery upon the Prosecutor. A copy of the request is annexed to this opinion. Some of the
requested information was provided to the defendant by the Prosecutor, much was not. At trial, in the Municipal Court, the defendant moved for dismissal of the complaint by reason of the discovery omissions. The Prosecutor, opposing the motion, argued that he was not required to respond to the discovery demand because it was too broad, cast in the form of interrogatories not permitted under our rules governing criminal practice, and because much of the material was not in his "possession, custody, or control." He did not move for a protective order. The dismissal motion was denied. This interlocutory appeal followed.
R. 7:4-2(g) governs discovery in the municipal courts and provides:
Depositions and discovery in any case in which the defendant may be subject to imprisonment or other consequence of magnitude if convicted shall be as provided by R. 3:13-2 and R. 3:13-3 provided that the municipality in which the case is to be tried has a municipal prosecutor. In all other cases the court may order depositions to be taken and discovery made in criminal actions as provided by R. 3:13-2 and R. 3:13-3.
R. 3:13-2 deals with depositions and is not involved here. R. 3:13-3 is applicable and provides, with respect to discovery by the defendant, the following:
(a) Discovery by the Defendant. Upon written request by the defendant, the prosecuting attorney shall permit defendant to inspect and copy or photograph any relevant
(1) books, tangible objects, papers or documents obtained from or belonging to him;
(2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded;
(3) grand jury proceedings recorded pursuant to R. 3:6-6;
(4) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecuting attorney;
(5) reports or records of prior convictions of the defendant;
(6) books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the State;
(7) names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by the prosecuting attorney as to which of those persons he may call as witnesses;
(8) record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecuting attorney and any relevant record of prior conviction of such persons;
(9) police reports which are within the possession, custody, or control of the prosecuting attorney;
(10) warrants, which have been completely executed, and the papers accompanying them including the affidavits, transcript or summary of any oral testimony, return and inventory;
(11) names and addresses of each person whom the prosecuting attorney expects to call to trial as an expert witness, his qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, 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. If this information is requested and not furnished, the expert witness may, upon application by the defendant, be barred from testifying at trial.
The rules do not provide for the use of interrogatories in criminal matters. Tull's discovery demand is, in form, a set of interrogatories and, according to the Prosecutor, therefore does not compel responses. In making this objection the Prosecutor ignores the alternative language of the demand. It requests the State to "furnish each [item] to me or permit inspection or copying." It also solicits the delivery of tangible evidence to defense counsel's office "or a date, time and location which is convenient for me to examine same." These alternative demands satisfy the literal requirements of the rule. Nevertheless, an exploration of the Prosecutor's "interrogatory" argument has value.
Her argument addresses the discovery rules too technically. True, R. 3:13-3 requires only that "the prosecuting attorney shall permit defendant to inspect and copy or photograph" requested relevant information. However, the information to be inspected, copied or photographed includes "a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but
not recorded; . . . names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by the prosecuting attorney as to which of those persons he may call as witnesses; . . . names and addresses of each person whom the prosecuting attorney expects to call to trial as an expert witness . . . [and] if no [expert] 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. . . ." The information so identified will not be available in most cases for inspection and copying unless and until the prosecutor commits it to writing. In doing so, the State is answering the so-called interrogatories. The rule, therefore, should not be read so strictly that a discovery request couched in the form of interrogatories may be ignored by the prosecutor. That would elevate form over substance.
The prosecutor is not without recourse. R. 3:13-3(d) provides for protective orders, none being sought here. In fact, in this case, the prosecutor responded to a number of the "interrogatories" and cannot now be heard to say that the discovery request was incomprehensible. It is also said by defense counsel that the form of his discovery request is one which accommodates local practice. Proof of that assertion, however, is not in the record and, even if it were, the provisions of the rules cannot be changed by local practice. A better and safer practice for defendants, in any event, would be to make an inspection and copying demand upon the prosecutor while offering, in the alternative, to accept copies of documents and written representations. Realistically, prosecutors may prefer the alternative; arrangements for inspection, copying and photographing documents are not only cumbersome, but probably impose unnecessary burdens upon prosecutors' staffs.
This liberal interpretation of our discovery rules is based upon more than a logical analysis. The philosophy underlying the rules is that "the interests of truth and justice are best served by broad mutual discovery before trial." State v. Cook,
43 N.J. 560, 563 (1965). Furthermore, it is the duty of the State to disclose to a criminal defendant known favorable evidence material to guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Thus, it is the "settled view," as our Supreme Court has said, "that the prosecution must seek only a just result, and that the duty is the State's to produce or offer to the defendant whatever it has that could help him." State v. Tate, 47 N.J. 352, 356 (1966) (the case which prompted the adoption of our present criminal discovery rules).
The disclosure rule is broad. In Brady, the Court said:
We now hold that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
State v. Carter, 91 N.J. 86 (1982), explored the question of materiality and said:
Non-disclosure of evidence favorable to the accused violates the constitutional right of due process only "where the evidence is material to guilt or punishment." In making the often difficult determination of what is "material" we look to the factual circumstances of the particular case. Where the prosecution has knowingly used perjured testimony, the undisclosed information is material if "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Where the defendant has made a specific request for information and the prosecution has failed to reveal the requested information, the standard of materiality is whether "the suppressed evidence might have affected the outcome of the trial." Finally, when no request is made by the defendant or only a general request is made, information not revealed by the prosecutor will be considered material only if "the omitted evidence creates a reasonable doubt that did not otherwise exist. . . ." [at 112; citations omitted]
New Jersey courts have not decided whether the Brady rule applies to municipal court DWI prosecutions. The Brady rule, however, is nothing more than a realistic application of the long-standing requirement that "[t]he primary duty of the state
in criminal prosecutions is not to seek convictions; it is to see that justice is done and truth is revealed." State v. Vigliano, 50 N.J. 51, 60 (1967). Fairness on the part of the State requires its disclosure of known favorable evidence material to guilt or punishment. It is a requirement that must apply in municipal court DWI cases as it does in Superior Court criminal proceedings. The statutory DWI sanctions are severe; defendants face imprisonment, loss of drivers' licenses for substantial periods of time and significant financial penalties. N.J.S.A. 39:4-50. A refusal to apply Brady to these cases would deny the integrity of our court system.
The discovery rules support this conclusion.
R. 7:4-2(g) (repeated for convenience) provides:
Depositions and Discovery. Depositions and discovery in any case in which the defendant may be subject to imprisonment or other consequence of magnitude if convicted shall be as provided by R. 3:13-2 and R. 3:13-3 provided that the municipality in which the case is to be tried has a municipal prosecutor. In all other cases the court may order depositions to be taken and discovery made in criminal actions as provided by R. 3:13-2 and R. 3:13-3.
This rule, as Tate suggests in discussing the possible need for discovery, rests upon the proposition that the State, when prosecuting a criminal charge, must act fairly. R. 7:4-2(g) and R. 3:13-3 must be read broadly with that premise in mind.
State v. Roth, 154 N.J. Super. 363 (App.Div.1977), held that R. 3:13-3 did not apply to DWI prosecutions, thereby provoking the amendment to R. 7:4-2(g) which reversed that conclusion. In Roth the prosecutor conceded the obligation of the State to comply with the Brady rule in a DWI prosecution. The Court noted:
The State also concedes that it has the obligation to provide the defense with any and all relevant statements of State's witnesses at trial prior to their taking the witness stand, along with any information of an exculpatory nature. [at 367]
The comment is revealing.
B. The Reach of the Rules
DWI cases clearly meet the test of R. 7:4-2(g): that "the defendant may be subject to imprisonment or other consequence
of magnitude if convicted." State v. Utsch, 184 N.J. Super. 575, 579 (App.Div.1982). R. 3:13-3 therefore permits discovery in DWI cases.
The demand for discovery must be served upon the prosecutor who has the responsibility to answer. State v. Polasky, 216 N.J. Super. 549 (Law Div.1986); State v. Malsbury, 186 N.J. Super. 91 (Law Div.1982), disapproved on other grounds, 198 N.J. Super. 474, 483 (App.Div.1985), disapproval modified, 101 N.J. 27, 32 (1985). The demand was so served in the present case. It required a generous response dictated by the rule of fairness.
R. 3:13-3 refers in pertinent part to information which is "within the possession, custody or control of the State." The State contends that it has no obligation to furnish certain requested materials in the present case because they are not in its "possession." The argument, frequently raised in these cases, is largely resolved by State v. Murphy, 36 N.J. 172 (1961).
Murphy dealt with an earlier discovery rule which permitted inspection and copying of certain books, tangible objects, papers and documents. It did not refer to materials in the "possession, custody or control of the prosecuting attorney" as R. 3:13-3 does in certain instances. Murphy nevertheless adopted a broad discovery requirement. The Court said:
We should note that both Federal Rule 16 and Uniform Rule 28 provide for "a showing that the items sought may be material to the preparation of his defense." Our failure to adopt that phrase does not mean that we intended discovery to be limited to a preview of what the State will offer at the trial. We merely adopted another test without thereby modifying the purposes to be furthered by discovery. Specifically, we provided for an absolute right to discovery of everything (other than his statement) taken from a defendant, and, as to all else, we provided for a decision upon the basis of the requirements of justice, a concept which is pervasive and includes the needs of an accused to prepare for the presentation of his defense. [at 182; citation omitted]
As we have already said, the fact that the discovery rule speaks of orders upon the prosecutor does not mean that discovery may be defeated because the prosecutor does not possess the document or the authority to order its production.
It may well be that the statement of one later accused will have been taken by some other of the many officers and agencies of the State concerned with the enforcement or the administration of the laws. So, for example, it may have been taken by a local police officer or a member of the Attorney General's staff; or in a proceeding before a professional board or some other agency in the executive department. The right of an accused to pretrial inspection can hardly depend upon the identity of the agency of the State which obtained the statement relating to the crime charged in the indictment. In short, although the State may, as it necessarily must, diffuse its total power among many offices and agencies, yet when the State brings its authority to bear upon one accused of crime, all of its agents must respond to satisfy the State's obligation to the accused. [at 184]
In State v. Lewis, 137 N.J. Super. 167 (Law Div.1975), the Court dealt with a motion to dismiss an indictment because certain material evidence had been lost by a court which tried a prior related case. The State was held responsible; the indictment dismissed. The Court said:
In a criminal proceeding the State of New Jersey is the prosecutorial party; it cannot atomize itself into hundreds of totally independent agencies. Responsibility in such matters must be interrelated. Hence, regardless of which agency within the State has been negligent -- be it the prosecutor, the surrogate or the court -- the State, not defendant, must suffer the consequences. [at 172]
It is clear from these cases that a prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. On the contrary, the requested information and materials, if relevant and within the "possession, custody or control of the State," wherever situated, must be provided to the defendant.
It is helpful to compare the Federal discovery rules. Federal Rule of Criminal Procedure 16(a)(1)(C) provides:
Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.
Sub-paragraph (D) provides:
Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to
the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.
New Jersey has not adopted any "due diligence" requirement. It is obvious, however, that a prosecutor is expected to act reasonably when responding to a discovery demand. The State cannot refuse production on the ground that the requested information is not known by the prosecutor to be in existence when its existence is common knowledge or when the knowledge could be obtained by reasonable inquiry.
R. 3:13-3 does not, in express language, require the information sought by the defense to be material. Nevertheless, the rule limits discovery to "relevant" information. To be "relevant," as discussed below, the information must be material. Materiality is also a factor when the Brady rule applies. Thus, in Carter, 91 N.J. at 86 (quoted above), the Court, addressing the materiality issue, applied different standards to information which was demanded and to exculpatory information which was not demanded.
Here, a broad request was made and no protective order sought. The State must therefore provide the information unless it is not "relevant" or is out of the reach of the prosecutor. The question of relevance requires discussion first.
R. 3:13-3(a) provides: "Upon written request by the defendant, the prosecuting attorney shall permit defendant to inspect and copy or photograph any relevant. . . books . . . records . . . reports . . ." and various other items of information. [emphasis supplied] The civil rule, R. 4:10-2(a) is broader, permitting discovery of ". . . any matter not privileged, which is relevant to the subject matter involved in the pending action. . . ." The information sought "need not be admissible itself, so long as it is relevant and can reasonably lead to discovery of admissible evidence." Rosegay v. Canter, 187 N.J. Super. 652, 654 (Law Div.1982). These rules, both criminal and civil, permit discovery before trial, discovery which was unavailable at common
law. See State v. Cook, 43 N.J. 560, 562 (1965), in which the Court reviews the history of discovery rules in criminal cases. The adoption and broadening of the rules reflect the efforts of the courts to insure fairness and enhance the search for truth in all litigation. The Supreme Court's discovery philosophy was captured in the language of Chief Justice Weintraub in State v. Johnson, 28 N.J. 133 (1958):
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. We are not limited to constitutional minima; rather we strive for practices which will best promote the quest for truth. [at 136-137; citation omitted]
This is the philosophy which controls court responses to discovery requests and objections.
In permitting discovery in criminal cases, courts are not limited to the strict language of R. 3:13-3; fairness to the defendant, for example, may require the disclosure of other information. State v. Satkin, 127 N.J. Super. 306, 310 (App.Div.1974). "[O]mission of a specific discovery rule did not at all impair the inherent powers of the court to order discovery when justice so required." Cook, 43 N.J. at 563. A liberal approach to discovery is emphasized in numerous opinions of the New Jersey courts. In State in Interest of W.C., 85 N.J. 218 (1981), the Court said: "This Court's policy concerning pretrial discovery has been to encourage the presentation of all relevant material to the jury as an aid in the establishment of truth through the judicial process. The pretrial discovery process promotes the quest for truth." Id. at 221. In State v. Polito, 146 N.J. Super. 552, 556 (App.Div.1977), the Court said that ". . . a defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered." In State v. Montague, 55 N.J. 387, 401 (1970), the Court described our pretrial discovery rules as "significantly geared towards broader mutual discovery within constitutional limits." In State v. Laganella, 144 N.J. Super. 268, 282 (App.Div.1976), app. dism., 74 N.J. 256 (1976), the Court in dicta, said
that the suppression of evidence "which is reasonably calculated to lead to evidence impugning the credibility of the State's witness" is a violation of a defendant's right to due process.
Notwithstanding the liberality of our court's approach to discovery in criminal matters, it is clear that the discovery rules are not to be read as broadly as those applicable in civil cases. The necessity for some limitation was underlined by the Supreme Court in State in Interest of W.C.:
The adversary system, modified in criminal matters as it is by the prosecutor's role to insure "that justice shall be done", is only a means to attain that goal. Uninhibited discovery in criminal, unlike civil, proceedings cannot exist, primarily because defendant's constitutional privilege against self-incrimination limits reciprocal discovery in criminal matters. As a result our discovery rules in criminal proceedings have had a different history and are more limited in scope than in civil matters. [85 N.J. at 221-222; citations omitted]
Our criminal justice system recognizes fully a defendant's right to prepare a defense and have complete discovery. However, allowing a defendant to forage for evidence without a reasonable basis is not an ingredient of either due process or fundamental fairness in the administration of the criminal laws. [at 28]
The problem is to define the limitation which must be applied to discovery demands in criminal cases. To say that a demand does or does not serve the interests of truth or fairness or justice is not very helpful although those words reflect guiding principles. It is certain that fishing expeditions permitted in civil proceedings are not be be permitted in criminal proceedings. Contra, State v. Boutsikaris, 69 N.J. Super. 601 (Law Div.1961).*fn1 Some insight may be gained from an examination of criminal cases dealing with discovery requests. Those listed below illustrate the permissible.
Defendant is entitled to inspect the State's psychiatric reports. ". . . there would now appear to be little question that, absent a showing by the State
that its prosecution would be improperly hampered, a defendant is entitled to pretrial inspection of the State's objective documents such as autopsy reports, hospital reports and other scientific and laboratory reports, including chemical analyses, blood tests, etc. [43 N.J. at 566-567] [Obviously applicable ...