Justice Solomon continued in relevant part: Rule 3:13-3(b)(1) codifies the criminal defendant’s right to automatic post-indictment discovery of the evidence the State has gathered in support of its charges, including “exculpatory information or material” and a list of other “relevant materials.” To qualify as “relevant material,” the evidence must have a tendency in reason to prove or disprove a fact of consequence to the determination of the action. Courts have the inherent power to order discovery beyond the automatic discovery provisions of Rule 3:13-3(b) when justice so requires. But the discovery process is not a fishing expedition or an unfocused, haphazard search for evidence.
One significant limit on defendants’ discovery rights is the chilling and inhibiting effect that discovery can have on material witnesses. Recognizing that CIs play an indispensable role in police work, New Jersey has a privilege against disclosing the identity of the informant. Defendants seeking to challenge the basis of a search warrant must make an evidentiary showing before a hearing will be granted: they must first establish by a preponderance of the evidence that the allegedly false statement in the affidavit was made either deliberately or in reckless disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In State v. Howery, the Court adopted and repeated the principles of Franks. 80 N.J. 563, 567 (1979). Under the Franks/Howery standard, a defendant’s “attack must be more than conclusory,” “supported by more than a mere desire to cross-examine,” and “accompanied by an offer of proof.” Franks, 438 U.S. at 171.
In People v. Luttenberger, the California Supreme Court “adopted a preliminary showing requirement . . . that is somewhat less demanding than the” showing Franks requires “for purposes of discovery motions” challenging warrant affidavits “based on statements of an unidentified informant.” 784 P.2d 633, 646 (Cal. 1990). Specifically, the Luttenberger court held that, “to justify in camera review and discovery, preliminary to a sub-facial challenge to a search warrant, a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant.”
The case law concerning a defendant’s right to discovery seems to be more grounded in expeditiously disposing of cases than it is in logic. The law states that a defendant must show that the desired discovery is exculpatory. That puts the cart before the horse since the defense can not analyze the nature of the discovery without first obtaining it.
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