On August 5, 2026, a three-judge appellate panel decided the Passaic County case of State v. Dexter Hubbard, et al. The principal issue concerned whether prosecutors must release substantive details about a police department’s pending internal affairs (IA) investigation of officers to criminal defendants before investigations conclude and before any allegations are substantiated.
Judge Jablonski wrote for the panel in relevant part: Counsel for seven criminal defendants received letters from the Passaic County Prosecutor’s Office pursuant to Giglio v. United States, 405 U.S. 150 (1972), and New Jersey Attorney General Directive 2019-6. These letters informed counsel that certain officers involved in their clients’ cases were the subject of allegations of misconduct relating to those officers’ truthfulness, bias, or integrity. The letters did not provide any substantive detail regarding the alleged offenses or the status of the investigations. The “Giglio letters” were accompanied by a protective order, granted ex parte, which limited counsels’ ability to discuss the contents of the letters solely to their respective clients.
Defendants moved (1) to compel disclosure of the IA files, arguing the State has an affirmative obligation to release the substance of these records to comply with its duties under Giglio and Directive 2019-6; and (2) to vacate the protective order, thereby broadening the scope of information released to allow defendants to investigate and prepare defenses. The trial court consolidated the motions and granted the relief requested. The court granted the State leave to appeal.
The court concluded the trial court erred in ordering release of IA information before investigations were completed and before the allegations were substantiated. However, the court agreed with the trial court’s decision to vacate the protective orders, finding them overly broad. This decision clarifies the balance between defendants’ rights to potential impeachment material and the need to maintain the confidentiality of ongoing IA investigations.
The above-referenced Attorney General Directive requires each County Prosecutor’s Office to use the following non-exhaustive list of Brady material as examples for guidance: a. Evidence linking a state witness to the crime for which defendant is being charged. State v. Landano, 271 N.J. Super. 1 (App. Div.), certif. denied 137 N.J. 164 (1994); b. Evidence related to defendant’s theory of third-party guilt. State v. Smith, 224 N.J. 36, 50 (2016); c. Potentially exculpatory polygraph test of State’s witness. State v. Carter, 85 N.J. 300 (1981); and d. Prior inconsistent and exculpatory statements made by a state’s witness. State v. Cahill, 125 N.J. Super. 492 (Law Div. 1973).
The Directive requires each County Prosecutor’s Office to use the following non-exhaustive list of potential Giglio material as it relates to civilian and investigative State witnesses for guidance on the type of material that must be gathered. This does not necessarily mean the information will be disclosed. a. Civilian Witnesses: Bias. A witness can be impeached with evidence that he or she has a bias against the defendant or in favor of the State (actual or potential exposure to criminal penalties, leniency/plea agreement, payments, immigration benefits, etc.); Specific instances of dishonesty. A witness can be impeached with evidence of a prior act of misconduct involving dishonesty, even if it has not resulted in a criminal charge or conviction. This includes lying and falsifying records; Criminal convictions, N.J.R.E. 609; and Prior inconsistent statements, N.J.R.E. 613. b. Investigative Employees: A sustained finding that an investigative employee has filed a false report or submitted a false certification in any criminal, administrative, employment, financial, or insurance matter in their professional or personal life; A sustained finding that an investigative employee was untruthful or has demonstrated a lack of candor; A pending criminal charge or conviction of any crime, disorderly persons, petty disorderly persons, or driving while intoxicated matter, noting that any such charges or convictions will be reviewed for disclosure under N.J.R.E. 609; A sustained finding that undermines or contradicts an investigative employee’s educational achievements or qualifications as an expert witness; A finding of fact by a judicial authority or administrative tribunal that is known to the employee’s agency, which includes a finding that the investigative employee was intentionally untruthful in a matter, either verbally or in writing; A sustained finding, or judicial finding, that an investigative employee intentionally mishandled or destroyed evidence.
The Directive requires that generally, law enforcement agencies and investigative employees should disclose findings or allegations that relate to substantive violations concerning: (1) the intentional failure to follow legal or departmental requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications; (2) the intentional failure to comply with agency procedures for supervising the activities of a cooperating person; and (3) the intentional failure to follow mandatory protocols with regard to the forensic analysis of evidence; Any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation; Information that may be used to suggest that the investigative employee is biased for or against a defendant. See United States v. Abel, 469 U.S. 45, 52. This category does not include incidents deemed by a supervisory authority to be a mistake or done in error without intention, even in cases where the incident was sustained. For example, if an officer failed to follow a mandatory protocol due to a misunderstanding, and that mistake resulted in a sustained finding, that would not be considered Giglio information for purposes of disclosure.
The Supreme Court has stated, “bias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.”); and A sustained finding, or judicial finding, that an investigative employee is biased against a particular class of people, for example, based on a person’s gender, gender identity, race, or ethnic group.
The appellate ruling appears to be a win for the defense. While the trial court’s decision to order disclosure of the IA files was reversed, those files are created and controlled by the prosecutor’s office that seeks to limit defense access to relevant information. The files would therefore likely be incomplete and of little assistance to the defense. On the other hand, the vacation of the protective order appears to be much more valuable to the defense. It allows the defense to employ private investigators to conduct their own investigation in their search for exculpatory and impeachment evidence.
