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State v. Harris

Decided: January 29, 1993.

THE STATE OF NEW JERSEY
v.
JOSEPH HARRIS, DEFENDANT



Sullivan, J.s.c.

Sullivan

OPINION

Joseph Harris has been indicted in a thirty-nine count indictment including, purposely or knowingly causing the death or serious bodily injury resulting in the death of several individuals. The State has indicated it will seek the death penalty.

The defendant, Joseph Harris, moved before this court for an order compelling certain fellow employees of the defendant to testify to any and all unusual and bizarre conduct exhibited by the defendant during the course of work. The defense claims the State's discovery reveals that the defendant according to his fellow employees behaved in a strange and irrational way

during his employment at the Ridgewood Post Office. When the defense investigator attempted to contact these individuals, the investigator was told by their supervisor that they would not give any statements unless ordered to do so by the court.

The defense claims the said information is vital to the preparation of an insanity defense. In addition, the defense claims the information may also be relevant as to why the death penalty should not be imposed.

The defense did not submit any brief or cite any law that would allow the defense in a criminal case to take depositions of possible witnesses where there is no indication the witness would be unavailable at the time of trial. A review of the current law indicates the defense has no right to demand the court to order these witnesses to give statements to the defense against their will.

The issue before this court is whether the defense in a capital murder case may ask this court to order proposed witnesses to give statements to the defense where the witnesses refuse and the defense has not shown the court the witnesses will be unavailable at trial.

R. 3:13-2 is the controlling court rule with regard to the taking of a deposition in a criminal case. The rule permits the court to order the taking of a deposition only if it appears that a "material witness is likely to be unable to testify at trial because of death or physical or mental incapacity" and that a deposition would be necessary in order to prevent a "manifest inJustice." Id. There is no indication by the defense that the fellow employees of the defendant would not be able to testify at trial.

The defense makes no mention of R. 3:13-2 in its motion papers or certification. In fact the defense relies on two civil discovery rules, R. 4:10-2 and R. 4:14-3 as authority enabling this court to grant its motion. Both rules refer to discovery in a civil case and allow for depositions. The civil rules are specifically much broader than the deposition rule or the discovery

rules in a criminal matter. In fact, the criminal section has its own specific rules with regard to discovery, R. 3:13-3 and R. 3:13-4. R. 3:13-4 specifically addresses additional discovery that the court may allow in a "capital case" and contains no allowance for the taking of a deposition of a witness. The defense's reliance upon civil discovery rules to allow for the taking of a deposition in this ...


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