New Jersey has among the most liberal criminal discovery rules in the country. The State is obligated to provide defense counsel with a substantial body of material early in the case. This is unlike many – if not most – other jurisdictions. For example, in the federal system, significant amounts of discovery typically appear shortly before trial, leaving defense counsel with little time to review, analyze and investigate its content. In New York County, the only discovery defense counsel may receive early in the case is a “People’s Voluntary Disclosure Statement”, which is a set of form questions that have been drafted and answered by the District Attorney’s Office. (Basically useless.) Not so in New Jersey – Here, defense counsel receives significant discovery up front, often without making a formal request.
What are defense counsel’s discovery obligations to the State? They are obviously different because defense counsel has to be concerned with their client’s right to remain silent, protection of work product, and the fact that the State – not the defense – has the burden of proof. In State v. Tier, decided May 2, 2017, the New Jersey Supreme Court clarified defense counsel’s post-indictment reciprocal discovery obligations concerning the oral statements of defense witnesses. As the Court noted, this was an issue of first impression in New Jersey.
The facts are not complex. Neighbors contacted the police because they believed that CL was having a physical altercation with her boyfriend, Tier. The officers approached the house and heard a woman scream “Help, he’s trying to kill me.” They kicked in the door and saw Tier on top of CL, strangling her. A grand jury indicted Tier for kidnapping and attempted murder. Continue reading