Our Supreme Court decided State v. Brown on February 4, 2019. The case is very significant because it addresses the ongoing issue of the State’s obligation to produce discovery in a timely manner.
The facts surrounding the discovery violation and its ramifications in this case are somewhat complex. Suffice it to say that a week after the start of trial – after jury selection, opening statements and the examination of four State witnesses – the prosecutor produced 18 reports to defense counsel. These reports concerned facts discussed in the testimony of the officers who had already testified. The following week, the prosecutor produced yet another item of discovery. Ultimately, the defendants were convicted of murder, robbery and a weapons offense. The trial court denied their post-trial motions and imposed sentence, and the Appellate Division affirmed their convictions and sentences.
The Supreme Court reversed and ordered a new trial. The Court found, among other things, that the State’s failure to produce the underlying discovery items until after the commencement of trial was a violation of Brady vs. Maryland, which requires the State to turn over exculpatory material prior to trial. The failure to timely provide the discovery at issue to the defense inhibited counsel’s ability to cross-examine witnesses in a meaningful way, to impeach witnesses, and to present exculpatory evidence and evidence of third-party guilt.
In reaching this ruling, the Court reviewed the basics of a Brady violation. First, the underlying material must be favorable to the defendant, either as exculpatory or as impeachment evidence. Next, the State must have suppressed or withheld the evidence, either inadvertently or intentionally. Finally, the evidence must be material to the defendant’s case.
As to the first element, the withheld material deprived the defendants’ attorneys of the ability to thoroughly cross-examine the officers who had already testified, and to alert the jury to the possibility of third-party guilt in their opening statements. As to the second element, the State admitted that the material was in a file in the prosecutor’s office for a substantial period of time before trial. The third element requires the defense to show that the material is material, meaning that there was a reasonable probability that its timely production would have changed the result at trial. This element was satisfied in the matter at bar since the withheld material provided the defense with the ability to challenge a good deal of the State’s trial proofs.
Once the Brady violation was established, the Court moved on to consider the appropriate remedy. As to this issue, the Court noted that a dismissal of the Indictment with prejudice was not appropriate in this case. This was because the State did not intentionally withhold the subject materials, and there was no evidence of prosecutorial misconduct. Thus the Court viewed the State’s failure to produce in this case as an inadvertent violation, and ordered a new trial.
The New Jersey court rules envision very broad discovery by the State, and the State frequently turns over all of the discovery in any given case without any request by the defense. However, defense counsel should never rely on the State to unilaterally satisfy its discovery obligations. Rather, counsel should serve the State with a formal discovery demand in every case. This demand should be thorough, and should cover every conceivable document that may be in the State’s file. Once initial discovery has been produced, counsel should, if necessary, send a follow-up request to obtain additional items that may exist in light of counsel’s review of the prior production. Finally, if the case is going to be tried, counsel should meet with the prosecutor prior to trial to review all of the discovery that has been produced with en eye toward resolving last-minute problems and issues.
Criminal defense attorney James S. Friedman, Esq., represents defendants with criminal charges in all federal and state courts in New Jersey and New York City. If you have questions about a criminal case, contact Mr. Friedman for an initial consultation.