In this matter, neither party disputes that defense counsel played no role whatsoever in the genesis of Zay’s affidavit. The affidavit’s creation was allegedly the result of a kidnapping and witness intimidation plot for which defendant and two other individuals have been criminally charged. The affidavit, therefore, is physical evidence of a crime and does not fall within the exception to the discovery obligations set forth in Rule 3:13-3(d). Rather, the affidavit is a relevant writing potentially in defense counsel’s possession pursuant to Rule 3:13-3(b)(2)(B). The affidavit would also fall under Rule 3:13-3(b)(2)(D) as a written statement by a witness that the State intends to call at trial. Compelling defense counsel to turn over in discovery an item in his possession that is physical evidence of a crime does not trigger the same Sixth Amendment concerns found in Williams and Mingo. Further, because the discovery request here is directed to counsel, not defendant, and pertains to materials allegedly provided by others, defendant’s Fifth Amendment right — a right personal to defendant that cannot be asserted by or on behalf of third parties — is inapplicable here.
The unique facts of this case lead to the conclusion that the affidavits, as physical evidence of a crime, fall within the discovery rules, and no constitutional privilege stands in the way of their production. The State can appropriately lay a foundation for the admission of the documents at trial by sanitizing the way it came into possession of the documents without stating that the affidavits came from defense counsel.
The Court concludes the opinion by distinguishing Mingo and leaving its holding intact. Still, the plain language of the revised discovery rules indicate that many items are required to be turned over in reciprocal discovery whether or not the defense intends to use them. Eventually, a defense attorney is going to be unaware of Mingo and will turn over materials that he or she should not. At that point, the defendant will have a basis to pursue a claim for ineffective assistance of counsel. This situation could be avoided if the Supreme Court orders a revision to the current court rule language.
