On May 10, 2017, our New Jersey Supreme Court decided State v. Robinson, a landmark case relating what discovery the Prosecutor is obligated to provide to a defendant before a detention hearing under the New Jersey Criminal Justice Act. Chief Justice Rabner wrote for the majority of the Court, which Justices Patterson, Fernandez-Vina, Soloman and Timpone joined. Justice Albin wrote an opinion dissenting in part which was joined by Justice LaVecchia.
In Robinson, the defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1).
The Defendant was charged by complaint with a supporting affidavit of probable cause which described two eyewitnesses (one who identified the defendant in a six-person photo array; the other identified a photo of the defendant). The affidavit did not name either witness and stated that both wished to stay anonymous out of fear. The Preliminary Law Enforcement Incident Report (PLEIR) added that a surveillance camera recorded the incident. The PSA recommended that defendant not be released.
The State moved for pretrial detention. At the hearing, the State relied on the hearsay statements in the affidavit of probable cause (which refer to the two eyewitnesses); the presumption of detention under N.J.S.A. 2A:162-19(b)(1) (based on the murder charge); defendant’s criminal history and record of court appearances; and the release recommendation in the PSA.
The trial court directed the State to disclose the two witness statements, the photos used in the identification process, the surveillance video, and any incident report that the police prepared. The Appellate Division affirmed the trial court’s order.
In reaching the decision of the Court, Chief Justice Rabner set forth the following principles to govern the disclosure of evidence at a detention hearing;
1. Because the Act calls for a determination of probable cause and an assessment of the risk of danger, flight, and obstruction, which may include consideration of the nature and circumstances of the offense and the weight of the evidence, discovery should likewise be keyed to both areas. See N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a), (b).
2. The complaint must be disclosed.
3. The Public Safety Assessment must be disclosed.
4. The affidavit of probable cause must be disclosed. If a similar document with a different name, such as an indictment, is used to establish probable cause, that document should be disclosed.
5. Any available PLEIR should be disclosed.
6. All statements and reports relating to the affidavit of probable cause should be disclosed. In other words, if an affidavit of probable cause describes what a police officer or witness observed, an initial police report or witness statement that relates to those factual assertions must be disclosed.
7. All statements or reports that relate to any additional evidence the State relies on to establish probable cause at the detention hearing should be disclosed. For example, if the State, at the detention hearing, refers to a witness whose observations are not discussed in the affidavit of probable cause, all statements and reports relating to the additional witness should be disclosed.
8. Statements and reports related to items that appear only in the PLEIR need not be disclosed. Thus, statements related to a witness who is referred to in both the affidavit of probable cause and the PLEIR must be disclosed; but, if the PLEIR alone references an expert report, and the State does not otherwise rely on it at the hearing, the report need not be disclosed for the detention hearing.
9. Statements and reports relating to the risk of flight, danger, and obstruction, N.J.S.A. 2A:162-18(a)(1), which the State advances at the hearing, should be disclosed. For example, if the defendant conveyed a threat to a witness or said he would flee if caught, and the State relied on the statements in support of detention, all statements and reports relating to those comments should be disclosed.
10. The phrase “statements and reports” refers to items that exist at the time of the hearing. The terms plainly include relevant police reports. The terms also include witness statements that are maintained only in recorded form and have not yet been reduced to writing. In those cases, a copy of the recording should be disclosed. The phrase “statements and reports,” however, does not encompass video and audio files from body cameras, dash cameras, surveillance cameras, cell phones, 9-1-1 calls, or similar items, except as noted earlier in this point. We do not consider those items the functional equivalent of a statement for purposes of a discovery rule for detention hearings. To the extent an affidavit of probable cause refer to a surveillance video or comparable item, though, an existing statement or report that summarizes the video or item must be disclosed. The video itself shall be disclosed at the time of indictment, or a pre-indictment plea offer, in accordance with Rule 3:13-3.
11. Consistent with longstanding practice, statements and reports encompass reports that are in the possession of the prosecutor, law enforcement officials, and other agents of the State. See State v. W.B., 205 N.J. 588, 608 (2011) (noting that once “a case is referred to the prosecutor following arrest by a police officer . . . , local law enforcement is part of the prosecutor’s office for discovery purposes” (internal citations omitted)); State v. Murphy, 36 N.J. 172, 184 (1961) (“[A]lthough 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.”). A contrary approach could create an incentive to delay furnishing reports to the prosecutor.
12. All exculpatory evidence must be disclosed.
With these principles in mind and based on what the Court had learned from the Rule’s practical application since January 1, 2017, the Court revised Rule 3:4-2(c) as follows;
(c) Procedure in Indictable Offenses. At the defendant’s first appearance before a judge, if the defendant is charged with an indictable offense, the judge shall
(1) give the defendant a copy of the complaint, discovery as provided in subsections (A) and (B) below, and inform the defendant of the charge;
(A) if the prosecutor is not seeking pretrial detention, the prosecutor shall provide the defendant with a copy of any available preliminary law enforcement incident report concerning the offense and the affidavit of probable cause;
(B) if the prosecutor is seeking pretrial detention, the prosecutor shall provide the defendant with (i) the discovery listed in subsection (A) above, (ii) all statements or reports relating to the affidavit of probable cause, (iii) all statements or reports relating to additional evidence the State relies on to establish probable cause at the hearing, (iv) all statements or reports relating to the factors listed in N.J.S.A. 2A:162-18(a)(1) that the State advances at the hearing, and (v) all exculpatory evidence.
As applied to the facts, the Court held that revised Rule 3:4-2(c)(1)(B) required the disclosure of any initial police reports about the witnesses and the statements or reports of the two eyewitnesses including the required documentation pursuant to State v. Henderson and State v. Delgado. Moreover, the Court found that neither the original nor the revised Rule calls for the disclosure of surveillance videos and as the Court held that the phrase “statements and reports,” does not encompass video and audio files from body cameras, dash cameras, surveillance cameras, cell phones, 9-1-1 calls, or similar items.